The Problem with Letting the Client-in-Chief Rewrite Impeachment Strategy Mid-Week

Daily Beast confirms something I asserted in this post. Trump wrote the intemperate letter that White House Counsel Pat Cipollone signed his name to (with help from Rudy Giuliani, before Rudy started looking down the gun of indictment for conspiracy).

It was crafted, in large part, by President Donald Trump himself.

According to two people familiar with the process, White House Counsel Pat Cipollone had multiple meetings with President Trump in the days leading up to the issuance of the letter. During those meetings with Cipollone, the president would get especially animated when names such as Rep. Adam Schiff (D-CA), chair of the House Intelligence Committee leading the probe into the whistleblower complaint, came up. The sources said that Trump enthusiastically suggested adding various jabs at Democratic lawmakers and would request that their “unfair” treatment of him be incorporated into the letter.

The result was what Bob Bauer, who served as President Obama’s White House counsel, called a “remarkable” and “extraordinarily political document.”

Trump had also privately consulted on the letter with Rudy Giuliani, his notably pugnacious personal lawyer who is at the center of the Ukraine and Biden-related scandal engulfing the administration. Trump talked to Giuliani about how he and the White House should proceed in fighting back and challenging the legitimacy of the impeachment probe, one of the sources noted.

The problem with this (well, one problem) is precisely the one I noted in my post.

The tell — for those teams of well-compensated journalists treating this as a factual document — might have been the addressees. While the letter got sent to Adam Schiff, Eliot Engel, and Elijah Cummings, it did not get sent to Jerry Nadler, who has been pursuing an impeachment inquiry of sorts since the Mueller Report came out. The White House knows Nadler is also part of the impeachment inquiry, because even as the White House was finalizing the letter, Trump’s DOJ was in DC Chief Judge Beryl Howell’s courtroom fighting a House Judiciary request for materials for the impeachment inquiry.

While Trump had Cipollone address the letter to all the Democratic Chairs he was furious at, at that moment, he did not address it to Jerry Nadler, who also has been pursuing impeachment. There’s perhaps good reason why Cipollone didn’t send it to Nadler: because none of the claims made about the Adam Schiff-led Ukraine-related impeachment inquiry are true of the Nadler-led Russia and other corruption led impeachment inquiry, which has tried accommodation, has allowed lawyers to cite White House equities in interviews, and included public hearings.

Indeed, even as Trump was writing this letter and making Cipollone sign it, Trump’s DOJ was arguing an entirely different strategy before DC’s Chief Judge Beryl Howell, effectively arguing that because Nadler was being so accommodating, DOJ could not be forced to turn over grand jury testimony.

The result is a rather significant whiplash to DOJ’s legal strategy with HJC. On Tuesday, in an apparent effort to convince Judge Howell that DOJ was not obstructing HJC’s requests for FBI 302s, which don’t have the protections of the grand jury, they (apparently for the first time) suggested that HJC was going to get most of the 302s they were asking for, including the 302s for two of the guys defending against turning them over, DAAG James Burnham and AAG Jody Hunt, both of whose names are on these filings.

The Department currently anticipates making the remaining FBI-302’s available under the agreed upon terms as processing is completed, so long as they do not adversely impact ongoing investigations and cases and subject to redaction and potential withholding in order to protect Executive Branch confidentiality interests. These include, in alphabetical order (1) Stephen Bannon; (2) Dana Boente; (3) James Burnham; (4) James Comey; (5) Annie Donaldson; (6) John Eisenberg; (7) Michael Flynn; (8) Rick Gates; (9) Hope Hicks; (10) Jody Hunt; (11) Andrew McCabe; (12) Don McGahn; (13) Reince Priebus; (14) James Rybicki; (15) Jeff Sessions. In addition, the Committee requested the FBI-302 for the counsel to Michael Flynn, which also has not yet been processed.

Last night, however, they submitted filings that suggested that because Congress is pursuing impeachment their prior offer for accommodation may no longer be valid.

Finally, as explained in the Department’s filing of October 8, 2019, and its September 13, 2019 response to the Committee’s Application, in early June, the Department agreed to provide to the Committee access to certain FBI-302s in order to accommodate its oversight responsibilities following the Committee’s issuance of a subpoena in April and subsequent letter in May. As further noted in paragraph two of the Department’s Tuesday filing, that agreement includes confidentiality provisions that significantly limit the use and dissemination of information that the Committee accesses. The Department has consistently viewed this agreement as part of the accommodation process in connection with the Committee’s oversight activities. As the Court is aware, subsequent to the filing of this application regarding Rule 6(e) materials, the Speaker of the House stated publicly that, in her view, the House of Representatives has now commenced an impeachment inquiry (in addition to its regular oversight responsibilities). To the extent the Committee now believes future productions in this process are part of that impeachment inquiry, that implicates very different issues for the Executive Branch as a whole–as set forth by the White House in its letter of Tuesday, October 8, 2019, to the Speaker and Chairmen of three committees. The Department and the Committee have not yet discussed whether they may need to amend the current agreement to ensure appropriate handing by the Committee in order for the accommodation process to continue as anticipated. The Department will work diligently with the Committee to resolve this issue and to continue a productive accommodation process.

Effectively, on Tuesday morning DOJ argued that HJC was wrong, their request was not part of an impeachment inquiry, in part because it was so accommodating, so it couldn’t have any grand jury material. Two days later, however, DOJ is saying the very same cooperative process has become an impeachment inquiry that — in spite of Jerry Nadler being excluded from the recipients of Cipollone’s letter — DOJ now considers an impeachment inquiry, and so DOJ won’t comply because other parts of Congress are playing hardball.

Heads I win and you can’t have grand jury materials, tails you lose and you can’t have grand jury materials, is effectively the argument here.

That, and (as noted) DOJ is now claiming that US v Nixon is not binding precedent.

This is what happens when you let the Client-in-Chief do all the lawyering.

56 replies
  1. Bay State Librul says:

    Barr is a psychic, hearing opinions from the dead….

    “Shortly after President Nixon resigned in the Watergate scandal, President Ford assigned then-Assistant Attorney General Scalia the task of determining who owned the infamous Nixon tapes and papers. Scalia decided in favor of Nixon, a reflection of his belief in a strong executive. But the Supreme Court ruled otherwise, and by a unanimous vote declared that the tapes and papers belonged to the government and the public.”

  2. OldTulsaDude says:

    Is he hearing voices? God? Or maybe Barr.
    Thou art Donald, and upon this rock will I build a theocracy.

    1. Thou can do no wrong.
    2. If thou do wrong, see commandment 1.

  3. Yogarhythms says:

    Looking through client- in- chief eyes “Trump talked to Giuliani about how he and the WH…” Monocular vision allows the rose tint never fade.
    If you are grounded the frightening reality of testimony and documentation binocular vision shows less roses.

  4. BobCon says:

    In the 1990s the miserable Stanley Fish did a lot of outreach to the fundy right with his glib version of deconstruction for dummies.

    It is obviously too much credit to lay the responsibility for the nihilism of today’s right at his feet, but I think it’s fair to see his third rate rationalizations for relativism as a symptom of the comfortable elite’s mindset.

    What Fish, the Atlantic set, and the Trump orbit all ultimately believe is that consistency, integrity and honesty are all for suckers. All that matters when it comes to arguments of law, politics, science and economics is the pure expression of power.

  5. P J Evans says:

    I am so effing glad that my favorite aunts and uncles died before this maladministration came in. They’d be having a very hard time with it.

    • Bunnyvelour says:

      We’re all being traumatized to some extent, but those who were lucky enough to land in this country and make a life for themselves, and who are still alive for this sh-t show…I can only imagine how they feel.

  6. OldTulsaDude says:

    I have been trying to understand this administration as a criminal enterprise looking for profit but it was too difficult to make a case for enough money to involve everyone; what it now appears is that other than Trump and few others the rest are bound by a religious ideology and a vision of a theocratic oligarchy.

    • P J Evans says:

      Pence/Devos/Carson are definitely in the theocratic oligarchy group – at least some of them are dominionists, which is the scary group. That the two groups have some overlap is interesting.

      • Lilly H says:

        PJ, if dominionism is the tendency of conservative Christians to want to run the government (from 1980-ish Reagan era), how is that different from theocratic oligarchy? Just the money? Or they want us to live by their Christian rules while they just get rich and make the rules for us?

        • Rayne says:

          You’re referring to different layers of the same Movement conservatism onion, though it’s now in its end stage. The layers are beginning to pull apart as they no longer share clearly articulated mission and goals, in part because there are too few rational conservative intellectuals.

          A movement exhorting small-to-no government for reasons of religion by part of its in-group, xenophobia by another, and personal freedom by yet another is ultimately a move toward entropy and corruption.

      • Kool Moe says:

        I definitely believe the primary motivations for most all this unethical behavior falls very neatly into the “criminal enterprise looking for profit” box.
        But that doesn’t preclude the “theocratic oligarchy” at all, there’s just very large Venn overlap of those two groups. Where one has some interest in a theocratic overlord and the other a more mortal concept, for now their mutual greed aligns very nicely.

  7. Rapier says:

    Reading the NY Times very typical snapshot bio of Cipollone reminds that the bench of powerful establishment supporters of Trump is deep. While we see mostly the grifters hacks and clowns behind the scenes there are tens of thousands of people with power living far above your station for who nothing will deter them from fighting Trumps enemies.

    Well we don’t know if there is nothing which will make them abandon Trump, including blood,but we are likely to find out. At any rate what we see as Toontown is just a just a show on a stage, sitting on solid granite.

  8. Bay State Librul says:

    Don’t forgot another Amigo…

    “Pompeo is a deeply conservative evangelical Christian who has said, “America had worshipped other Gods and called it multiculturalism. We’d endorsed perversion and called it an alternative lifestyle.” He believes politics is “a never-ending struggle . . . until the rapture.” Salon

  9. Savage Librarian says:

    This tactic reminds me of something from my childhood. Allegedly, there is an old Irish game called, “Adam and Eve and Pinch Me” that goes like this:

    1st Child Says:
    “Adam and Eve and Pinch Me
    Went down to the river to bathe;
    Adam and Eve were drowned,
    Who do you think was saved?”

    2nd Child Replies:
    “Pinch Me”

    Then the 1st Child Pinches the 2nd one

    In my family, it went like this:

    “Pinch me and hit me went down to the lake. Hit me fell in. Who was left?”

    Interestingly, I was surrounded by Republicans from the day I was born. Fortunately, by the time I was 13, I was very steadfast in my dedication to being a Democrat.

  10. OldTulsaDude says:

    Reminds me of The Turtles

    Imagine God and you, I do
    I’m sure that you will do what’s right
    and keep us white
    Politically correct is next
    to feel His might
    Supremacists together

    If you should call Ukraine, explain
    you need a little favor now,
    so take a vow
    and tell me that you’ll help me out,
    and give a shout
    ’bout Biden’s corruption

    I can’t see me lovin’ nobody
    but you for president
    with you in office all of my venom and hate
    I get to vent

    Me or him or him or me
    No matter who’s subpoenaed next
    won’t cop a plea
    won’t offer an apology
    or try to flee
    We’re not Kilimniks!

    I can’t see me lovin’ nobody
    but you for president
    with you in office all of my venom and hate
    I get to vent

  11. Stacey says:

    Once again we have the WH lawyers/Trump arguing that they will NOT cooperate with the committees because they are being mean and impeaching him (which I guess is rude) while simultaneously arguing in court that they won’t cooperate with the investigation because it is NOT an actual impeachment. That one of three judges that was a Trump appointee that went against the other 2 argued that he did not have to turn over the tax information BECAUSE this was not an impeachment inquiry officially, but she seemed to be saying if it were, he would.

    Then out of the other side of their mouth they are saying we don’t have to comply because you are trying to impeach us which is a political process and not a legal one. WOW!

    • OldTulsaDude says:

      Whatever else he is, Trump is not stupid. He is ignorant on many subjects, crude, and brutal, but it is dangerous to underestimate his guile.

  12. Vicks says:

    Which leads to my long held suspicion that many in GOP leadership are far too clever to not have a candidate waiting in the wings should Trump blow himself up.

  13. Manqueman says:

    “…DOJ is now claiming that US v Nixon is not binding precedent.”
    Uhh, anyone here really thinks the GOP apparatchik majority on SCOTUS would hold, if it reaches them, that Nixon is binding precedent?Seriously?
    If so, you’re thinking that SCOTUS, as a court, puts the rule of law above party and hahaha, no.

  14. Jenny says:

    William Barr and Opus Dei, the Secretive Ultra-Conservative Catholic Organization That Poses an Existential Threat to Democracy and Pluralism

    Trump-appointed Judge Claims Congress Can’t Investigate A President Before Impeachment

    • bmaz says:

      Opus Dei is a larger and more international effort. It works here through the Federalist Society. That is where you should look. If you are focused on Opus Dei and not FedSoc, you are missing the point in the United States.

        • bmaz says:

          Len is a good place to plumb if you have not before. He did not start FedSoc (you can thank Steve Calabresi for that) but has led it to a different, and far higher, and more dangerous, plateau.

          • P J Evans says:

            It reminds me a bit of the novel “In the Country of the Blind”, where there’s a secret society that manipulates events, and after a few generations, they’re manipulating them to benefit themselves. (How it got corrupted is part of the story.)

            • bmaz says:

              I have, I think, previously briefly alluded to the story of how a couple of very early emissaries from FedSoc showed up in my office waiting room once back in the late 80’s to try to influence how I would argue a motion scheduled for the next day on the court calendar. None of that went well for them.

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