This Week in Impeachment: Obstruct and Distract

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S1: It’s Friday. We are two weeks into an impeachment inquiry. Here we are. Dahlia Lithwick Jim Newell. How are you guys doing.

S2: It’s my crazy.

S3: Just as great as ever.

S4: Yea that apprehension. That’s kind of how you feel about impeachment too right. Like how many White House letters am I going to have to read.

S5: It’s one of the worst letters I’ve seen from the White House counsel’s office and they write very well and they make good legal argument. This means trash I mean this was trashed.

S6: How many more characters am I going to have to get to know. And that’s what this letter from Pat baloney is. It is executive poppycock. Later today a former ambassador to the Ukraine is supposed to testify on Capitol Hill. We’ll see about that.

S7: We’re all going to be watching whether former U.S. ambassador to Ukraine Marie Yvonne of it shows up for her deposition if not another subpoena could go out in the next.

S4: And by the way Congress isn’t even back from recess yet.

S6: This is a lot. So today on the show Dahlia Lithwick Jim Newell and I are gonna recap this week in impeachment. We won’t go over all the details just the ones that matter. First how a letter from the White House reveals trumps impeachment strategy.

S8: Then just a handful of politicians are going to decide how this investigation actually goes down. Who to watch as the inquiry wraps up. I’m Mary Harris. You’re listening to what next. Stick with us.

S1: Every time some new impeachment related document gets released I print it out so I can read it without getting distracted by everything else in my tabs. This started back in the spring with the Mueller Report. I predict that behemoth out then we got the whistleblower complaint followed by those diplomatic text messages. This week I added another little pile of paper to the stack an eight page letter from the White House to Congress. So Dahlia I want to start off with you because in terms of all the impeachment related paper flying around out there I think the bombshell document this week was the letter from the White House to Congress that essentially looked at this investigation. All these polite requests to have various government officials testify. And it said over a number of pages like no we’re not doing that.

S4: Can you talk to me a little bit about this letter and why it was such a big deal.

S2: It’s a big deal because it’s essentially I think the New York Times had line was declaring war on the Democratic Congress. It was the nut of how impeachment works as a political process. Is that the political branches tried to accommodate one another so you could impeach someone but do it politely. It’s not about politeness but it’s about trying to give as little as possible while giving something fundamentally the process can only work if people aren’t throwing sand into the gears and blowing up the machine. So what we saw with that letter under the White House counsel’s signature is just no. We’re going to stymie the whole thing and that letter is an astonishing document Mary. I mean it in addition to making just laughable claims about how fine that phone call perfect and find the phone call was perfect phone. It makes literally deranged claims about how Donald Trump has some right to cross-examine witnesses as part of an inquiry. I mean it’s it’s just importing criminal law ideas onto an inquiry. It’s insane. So it basically in terms of an impeachment process that requires accommodation. It is as a starting posture. We’re not accommodating anyone about anything. Suck it.

S4: I’m I’m glad that you said it imported a criminal an idea of a criminal proceeding into the impeachment process because I do feel like as a news consumer right and as a American citizen if you read the letter first of all it sounds like more of the same from the Trump administration. So it doesn’t sound that surprising to me but what you’re saying is that I’m thinking about it wrong that if I’m thinking about it in that way I’m thinking about it wrong.

S2: What I think they were trying to do in that letter is take an American electorate that is polling increasingly pro impeachment and then saying hey these people watch Law and Order one time so I’m going to say a bunch of crap about cross examining witnesses and seeing documents and then they’re going to think oh this is a criminal trial. But that’s not what an impeachment inquiry is and you know we’ve got congressional research service going way back saying look this is close to a grand jury. It is nothing like a criminal trial. And investigations have to be allowed to proceed. And that is historically always been the case. And so to start gibbering about Donald Trump having a right to cross-examine people at this stage of the inquiry is quite literally just more of deflection smoke and mirrors Squirrel Squirrel squirrel look away. And that’s what it is. It’s not nobody I don’t think says this is a serious legal assessment.

S9: Yeah. I mean can I. Yeah go ahead and you’re just you know the way I read this letter was almost as if they were amputating a leg sort of you know they made it by saying they’re not going comply whatsoever. They almost added articles of impeachment because now those can be all these obstruction articles. And I think that was a political calculation by that. You know if they just say we’re not going to comply with anything this is a scam. You know this is this is the biggest sham in American history or anything like that. Maybe they’ll get a couple more of obstruction impeachment articles but it’s something they have to do to rally their side to keep together and to try to delegitimize you know the whole operation versus if they had more people testify who might have you know giving up the goods than you would have had more underlying things that really could have harshly swung public opinion even further against them. Here they can just sort of make it into this jumbled process argument that can keep their side together. So I just see this. You know this is not a legal document. It’s the EPA draft. It’s just a political document. You’re saying fine impeach us over obstruction do whatever you want but you’re not. This is not legitimate in any way.

S4: You say it’s like amputating a leg. So basically it may hobble that. But it may save the patient in the end. Yeah pretty much. So Jim I want to talk to you because the main argument of this letter is basically that in other impeachment proceedings in Nixon in Clinton there was a full house vote and it established rules for the proceedings to move forward. And you know they’re making the argument. That’s what we want here. We want a full house vote. Can you give me the argument in favor of doing this right now.

S9: Well sure I think it would take away a Republican talking point. I mean this is both what Donald Trump and what Kevin McCarthy and what you know a lot of the more vocal Republican members fighting off this impeachment push or are trying to say they’re saying it’s it’s not a formal impeachment inquiry until you have the House vote. So why not do it. Why not do it. I mean I think Pelosi wants to have her side a little more organized before they do it. And I know now with impeachment polling the way it is I think that you know it could happen in the near future. Democrats say that they don’t really need to do it now because under a rule change that House Republicans actually made when they were in power all of the Standing Committees have all this is Pete the subpoena power that they need to do this inquiry right now where they did not have that in 1998. So they may be right there. But you know I think it will come eventually. We’ll have to see when Congress returns next week.

S4: Yeah I saw this argument that a floor vote wouldn’t change a lot but it might actually add a lot of noise to the situation because it would give the minority party powers and so that means you’re going to get a whole bunch of subpoenas of people that will just kind of gum up the works. Right. You think about that too.

S9: Well it all depends on how you write the resolution that would be voted on. You know I mean Republicans want the vote because they want to try to get all sorts of powers not usually delegated to the minority for themselves in this resolution. So for example all of the ranking members of the investigating committees right now would like to have subpoena power too. Now they did have that in nineteen ninety eight. But you know even 20 years ago it’s amazing to think even during the Clinton impeachment like the parties worked pretty well together relative to right now if you give Jim Jordan on the Oversight Committee subpoena power he’s just going to set up a whole parallel investigation into the Bidens in Ukraine or you know whatever the missing DNC server conspiracy theory and Ukraine thing is. So I think Democrats are rightly worried that if they give Republicans the power to call their own witnesses and subpoena whatever they want they’re just going to try to muddy the waters by investigating what is not.

S2: The task at hand can I think I want to say one thing if I may about what Jim just said because it’s super important what the White House tried to do in that letter is tell the House of Representatives what its own power is. And I think that a really useful way to think about this is as a constitutional matter there is no dispute that the House has the power to impeach not the White House the House sets its own rules when the White House starts making claims or Jim Jordan starts making claims about how there needs to be a vote or it can’t originate in judiciary or it can’t do that. That is entirely false as a constitutional matter. There are no rules the house makes up the rules. And that has always been the case. And so I think it’s important to see this as part of a frame of the White House trying to posit itself as above the other branches of government it’s making claims now about how the House is going to run its impeachment inquiry. And the only reason I think that’s really singularly urgently important right now is because if you look at the letter in tandem with the posture that the White House is taking in court what the White House says in the letter is you can’t impeach us you just can’t because you’re not legitimate. If you look at the posture the White House is taking in all of its various court proceedings whether it’s making the claim that you can’t even investigate the president right. That’s the new bar Justice Department take that. The president can’t even know none of his associates can be investigated. If you look at the capacious view of immunity that they are putting forward in their judicial proceedings what they then say is the only way you can get us the only check on us is impeachment. So they’re running around quite literally in the courts making claims saying you can’t touch the president as a legal matter. Impeachment is the lever. It is the only check on the president. Then you have this letter come out that says oh you can’t impeach us. So the extent to which the White House has utterly and completely put it put itself above the law I think cannot be overstated here. This is the White House saying no check.

S4: Well the White House was in court this week and I want to talk about that because even the judge in this case and this is slightly different. This is a case where Congress is taking them to court and trying to get access to more of the Mueller report basically. But the judge said you would have a stronger argument if you had voted on impeachment here. So even the judge is saying listen if you took this vote it would make my my decision much easier.

S2: We’ve been saying this for months now without fully knowing what we were talking about. I think I mean I’ve said it and I think I’ve heard a lot of legal commentators say that your power your posture in court is immensely bolstered once you’re in a formal impeachment inquiry. The question then becomes and this was the problem I think a little bit because Nadler and the Judiciary Committee kind of backed into this. You know they were saying for months where we’re kind of sort of in an impeachment inquiry but we’re not really and we’re in an inquiry for purposes of litigation but not for purposes of politics and I think a little bit of the way they cut themselves off at the knees was suddenly. You know Nancy Pelosi popped out of a cake and said This time we’re really in an impeachment inquiry. But I think that part of the tentative entry into that process is a little bit with the White House is seizing on they’re kind of saying look you never fully were in. Why should we believe you’re fully in now. So this I think is a little bit of a self-inflicted wound. So they’ve made their bed now they have to lie in it. Well I think that they’re you know the most interesting question I have in this is more Jim’s wheelhouse than mine is what enforcement mechanisms they have now. I mean having been just told no and like imagine your two year old rolling around on the floor screaming No no no. Now the question is what powers does the House have. And you know we’ve been talking about inherent contempt a lot on this show. Can we just throw people in jail. Can we start finding people. There are things that can be done.

S4: I want to talk about inherent contempt because it sounds like vocab but I prefer to say it is tiny jail which is the idea that if you are blocking this investigation if you are refusing to show up after we subpoena you we have the sergeant at arms. He can go get you. He can put you somewhere. Jim you would know this better than the two of us. Is there a tiny jail in Congress.

S9: There is not. I’ve been scouting out locations in the capital the last few months that could serve as a jail maybe some of the more dungeon like Senate offices and the Senate office building or maybe some of the the utility closet somewhere around the Capitol basement. I haven’t come up with a perfect location yet but there are places I mean they probably just use a committee room if they had to. But I think it should be somewhat dingy here.

S4: But what what’s interesting is we do now have law professors writing in The New York Times saying All right guys it’s time to get that sergeant at arms ready because that’s our next move which seems extreme. First of all. But second of all I don’t even know if the sergeant at arms is ready to do that. Like is does he have the police training at this point to do that kind of action.

S9: Yeah I think it would. They would sort of be winging it in terms of how it would play out. But I think that they’re the two different paths it could go down here. You could try to actually hold people or you could try to do fines. And I think that if you start you know forcibly taking people and locking them up in the capital I don’t know if that would really look great in the court of public opinion. You know I’m not sure we’re quite there yet in terms of the public’s view of the administration’s criminality that we needed that Congress needs to be redrawing as those sort of measures.

S4: Yeah I worry about it feeding the kind of conspiracy theory idea that the deep state is against this administration.

S9: It would it would be pretty dramatic. So what they may start looking down the path of fines and then you get to the question of well this can all just be in court forever if someone you know has these fines imposed then you know maybe the administration could take that to court and they would just be another process that delays the entire machine here. But you know it could help that even if people do try to challenge those fines in court they might know that they’re eventually going to lose because Congress you know does have that power. So you know they may start thinking about well have these huge legal bills eventually even at the end of this process. So maybe I should just try to show up. So I mean this is a question that when Congress returns next week I’m going to be asking a lot of them about is you know are you going to go down this path of using more extraordinary measures to try and compel testimony to try and compel the turnover of documents and everything or are you just going to take the obstruction articles that you would already have you know not waste any more time and just run with those in the impeachment process.

S1: So Jim and Dahlia agree this past week has set up a process where things are about to get a bit more confrontational. But with so many big players coming out of the woodwork during this impeachment worry who are Jim and Diab paying especially close attention to when I asked Jim said Adam Schiff right off the bat the chairman of the House Intelligence Committee.

S9: Well I was I was actually at the airport in D.C. last week after he had finished the Volcker deposition and there he had a good amount of security with him which I’m not sure is always the case. And I think that’s very closely related to how he’s become the Republican central villain in this entire episode. You know it’s not Pelosi anymore orchestrating this. It’s all Adam Schiff. And I think that you know they’re trying to turn him into the person coordinating the Salem Witch Trials in their effort politically. You know they’re not going to cooperate anymore to just say this is not a legitimate investigation. There is one self-inflicted error here and am Schiff’s part which is when he said on Morning Joe that he or his committee had not had any contact with the whistleblower. Now it turns out the whistleblower had actually gone to his committee first.

S5: We have not spoken directly with the whistleblower. We would like to but I’m sure the whistleblower has.

S9: They didn’t do anything wrong. In fact they they instructed the whistle blower to go through the proper whistleblowing process. But you know that one little lie that Adam Schiff told there has given Republicans you know they’re going to be working off of that for the next. You know however long this lasts. So I think that it’s interesting just to see this very mild mannered guy not a particular radical ideologue become you know the central enemy in Republican media and in President Trump’s Twitter feed certainly.

S4: I’ll say the person I’m watching the most there is this reporting that the president is calling Mitch McConnell three times a day and it just made me think how powerful that guy is right now if he makes the call. Listen we’re going to cut and switch bait like the president’s done. You know what I mean. It seems like he has a ton of power right here.

S1: And I wonder what you’re seeing in Washington around Mitch McConnell and in terms of whether he’s feeling his power whether he’s ever not felt his power.

S9: Jim I mean yeah I don’t think Mitch McConnell has ever not felt his power. I mean in my opinion he’s the most consequential politician of our generation. So you know I. Yeah. He knows his power and understands you know every point of leverage that he has whatsoever. I’m not sure he has total leverage here because Trump has apparently been saying I’m going to call out everyone who comes after me and try to really make the pain felt and he does have the ability to do that. You know he even though maybe Republicans are narrowly ticking up in terms of support for an impeachment inquiry I mean a Republican to call for Trump’s impeachment right now is still at this point a career killer. So you know I don’t think McConnell is just going to flip on a dime if he personally starts to find all of this stuff offensive. As of right now it looks like the trial that he would hold in the Senate would be won entirely about the Bidens are entirely just flipping the narrative about anything that the House impeach Trump on.

S4: Mm hmm.

S2: Can I ask you about that Dalia because if this does go to the Senate and to a trial doesn’t John Roberts have to get involved and John Roberts presides in one of the things that I think people miss apprehend is they think that that means he then has some judicial or decision making power. He doesn’t he just presides.

S4: It seems like he would not want to be involved in that kind of shenanigans.

S2: I think it’s fair to say and maybe I’m wrong but he cares about life beyond Donald Trump Unlike Mitch McConnell. I think he cares deeply both politically and institutionally that in 10 years the court is still legitimate. So the idea that he’s going to put his thumb on the scale for these crackpot arguments that are being advanced about the scope of privilege or the scope of immunity or you know that Donald Trump is magic and you know made up made of like whipped cream and rainbows like I don’t know if John Roberts is in the tank for all that. So in my view he’s the guy to watch too because he has been such a scrupulous scrupulous steward of the court’s public estimation that he’s going to blow it up for Donald Trump over this. I don’t know. OK one more question for you Dalia for you Jim what is the one non impeachment thing that is giving you life right now.

S4: What what gif Are you refreshing. What column are you reading.

S10: Sorry for the pop quiz. Kim. I think the silence speaks. Again. Nothing. That’s what vodkas for. What do you have Jim.

S8: Wedding planning. Oh good. I’m sorry. My answer was so cheesy. That’s what I say it makes me like it makes it makes me love you more. Dahlia Lithwick Jim Newell thank you so much for joining me. Thank you. Yeah. Thank you. Sorry I whiffed on the last one. There is no winning and that is the show we really wanna hear you think of it because this is a new thing for us. So let us know. Just tweet at me I’m at Mary’s desk. What next is produced by Mary Wilson Jason De Leon Morris Silvers and Danielle Hewett. I’m Mary Harris. Talk to you next week.