House Chairman Nadler, in his final statement on the final day, said it perfectly, “It’s all a distraction. All of it.”
Throughout the House manager’s presentation, I kept waiting for them to nail down the “contempt of Congress” charges, which seemed to be the easiest to prove. There was already a mountain of clear and unequivocal documentation in evidence, from the House hearings last fall. Moreover, time and again, the prosecution of the case by the President’s lawyers gave more and more proof in sworn testimony from fact witnesses. I was waiting for the House managers to turn the corner at the last moment and use Team Trump’s words against them. Never happened.
The counsel for the defense’s biggest distraction was John Bolton’s book. A steady stream of “leaks” from the White House kept Bolton front and center, an irresistible bauble that encapsulated the promise of closing the case against Trump once and for all. The House managers fell for it, hard. They kept railing for witnesses. Consequently, almost the entirety of their presentation was on abuse of power, which hinged on Bolton et al.
The administration’s strategy became abundantly clear when, the day after the acquittal, Chairman Schiff asked John Bolton if he’d respond to a subpoena to testify in the House. Bolton refused. He’d served his purpose, keeping everybody focused on witnesses while the easy slam-dunk of contempt of Congress went unnoticed. He’s a hard-core, alt-right conservative after all. Bolton brought “moral cowardice” to a whole new level.
The case for contempt was actually very simple: refusal to respond to duly authorized subpoenas. Executive privilege was never cited as the grounds for doing so. Defense allegations that the House wasn’t authorized to subpoena said individuals were hollow and irrelevant from word one. Total immunity was a delusion that has never worked in any court at any level. Hence, there were absolutely no grounds to refuse a subpoena.
That’s obstruction: refusing to respond to a duly-authorized subpoena. The House managers never asked the viewing public: would you ever flat-out refuse a court order? Or to the Senators in the gallery: how about you?
We all know from every crime drama we’ve ever seen that if you refuse a court order, you immediately get slapped with a contempt charge by the judge, who tosses you in the cooler until you change your mind and testify. The unanswered question here is, why weren’t those who refused the subpoenas thrown in jail on the spot? They had no defense whatsoever; they didn’t claim executive privilege, because obviously there weren’t so entitled. They had no defense whatsoever.
So, we have a dozen or so criminal refusals to honor a subpoena. If you refuse to answer a question in court while under oath, it’s contempt. If you do that in Congress, it’s contempt of Congress. Even Homer Simpson could see that. Doh!
Then the White House got involved. They issued a long statement (signed off on by the Judiciary Department, as if that’s some kind of badge of authenticity) that ordered all members of the entire executive branch to defy all subpoenas issued by anybody in the U.S. House of Representatives. Four million people work in the executive branch (1.3 million of which are in the military). The President silenced them all with his gag order.
How might this be perceived by the military, especially officers, who took an oath “to defend the Constitution against all enemies foreign and domestic?” Do you obey the Commander in Chief or Congress if a conflict arises? Legally, their first allegiance is the Constitution. No member of the military takes an oath to defend the President. Only the Nazis did that, taking a blood oath of fealty to the Fuhrer.
(Two days after the acquittal, LTC Vindman, who testified in the House hearings, was removed from his national security duties in the White House, and his twin brother as well, who held a similar position of trust. Clearly, the President demands a de facto oath to him by all members of the military.)
What about the other 700,000 people in the executive branch? Most people, watching the hearings, have long since forgotten all their high school civics. When you hear “executive branch,” you think of the people who work in the White House. No big deal, right? Like, they aren’t already loyal as an attack dog.
The House managers failed to explain exactly what the executive branch consists of the Departments of agriculture, commerce, defense, education, energy, health and human services, homeland security, housing and urban development, justice, labor, state, interior, treasury, transportation, and veterans affairs.
That’s more than contempt of Congress, more even than contempt of the Constitution. That’s contempt of the American people!
Does the president even have the authority to muzzle four million people, to void their entire Bill of Rights privileges – with the stroke of a pen? Not even President George W. Bush asserted that amount of power after the 9/11 terrorist attacks. Not even FDR after that attack on Pearl Harbor. And we look the other way when Donald Trump does it – in response to what? A national emergency? A declaration of war by the Axis?
A couple of lousy House subpoenas?
That was the case against Trump before the particulars were bundled up and sent over to the Senate as part of the formal impeachment trial. As such, the counsels for the defense, with almost their every utterance, provided more and more support for the contempt charge:
“We want witnesses,” said the House managers. “We’ll sue you in the courts and appeal it year after year until it reaches the Supreme Court.”
Where they’re confident, they’ll win the decision. Hello? Who can claim automatic consideration by the U.S. Supreme Court on any and all appeals? Nobody!
The President’s lawyers stood firm on this blanket refusal to acknowledge any and all House subpoenas at any level, for all time. They reiterated that position time and time again. With each such statement, they reinforced the contempt charge.
When the final witnesses vote failed, the Republican majority voted unanimously for the rules (covering the debate over the charges spread out over the next week), not to hear any witnesses “because it would take too long fighting all the legal challenges to executive privilege and immunity.”
In so doing, the entire Republican caucus in the Senate admitted the contempt of Congress charge against Trump but tacitly decided it wasn’t serious enough to warrant impeachment (well, that part they did when they unanimously acquitted Trump of article two, contempt).
And so, in the end, the President’s gag order not only applied to the entire executive branch but also to half of the members of Congress. The only people in the government not covered were the Democrat members of Congress.
Not even Adolf Hitler had that kind of power. Or Joseph Stalin. Nero. Genghis Khan. The Holy Inquisition. God Almighty.