Editor’s Note: In this weekly column “Cross-Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer reader questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
Now that House Democrats have announced they will introduce two articles of impeachment against President Donald Trump – one for abuse of power and one for obstruction of Congress – the focus will turn to the evidence supporting those charges at a seemingly inevitable Senate trial.
The witnesses who have testified before the House Intelligence Committee over the past month – Ambassador Bill Taylor, Fiona Hill, Lt. Col. Alexander Vindman and the rest – have provided important context to Trump’s effort to withhold foreign aid and a White House visit from Ukraine in exchange for a public announcement of investigations of former Vice President Joe Biden, Hunter Biden and the 2016 election. But the star witness of the case against President Trump is and always has been Trump himself.
In Monday’s House Judiciary Committee hearing, House Democrats sought to put the spotlight right back on Trump, whose own words and actions make the case for impeachment more directly and powerfully than any other witness could. Throughout his opening statement, House Intelligence Committee lead attorney Daniel Goldman prominently featured Trump’s own words. Rep. Pramila Jayapal astutely noted that “the President himself is the smoking gun” and that Trump is “the first and best witness” against himself.
The President himself discussed foreign aid with Ukrainian President Volodymyr Zelensky and then infamously stated, “I would like you to do us a favor though.” Trump himself then asked Zelensky to conduct two (and only two) specific investigations – one of the Bidens and the other of the 2016 election.
Just to drive home the point, Trump publicly stated from the White House grounds that “President Zelensky, if it were me, I would recommend that they start an investigation into the Bidens.” For good measure, he added, “And, by the way, likewise, China should start an investigation into the Bidens.” Donald Trump said those words, in public and on the record. There’s no way around it.
Beyond his own damning requests for Ukraine to launch investigations into his political rivals, Trump also obstructed Congress, in broad daylight and in his own words. He issued a blanket order to stonewall Congress’ investigative efforts: “We’re fighting all the subpoenas.” And he directly attacked various congressional witnesses including Ambassador Marie Yovanovitch – as she testified before the House Intelligence Committee – plus Jennifer Williams, Taylor and Vindman.
Even if no other witnesses had come forward to testify, Trump’s own words are enough to merit impeachment based on the Ukraine shakedown and obstruction of Congress. And the trick about Trump’s own words is that Republicans can’t run from them. They can try to twist and dodge, but ultimately to no persuasive effect. Trump supporters can don all the “Read the Transcript” T-shirts they can get printed up at the screening shop, but it still doesn’t make the actual transcript any less incriminating.
House Republicans have attempted from the start to deflect attention from Trump’s own incriminating statements by contending that the case against Trump relies on “secondhand” or “hearsay” information. That is only partly correct; for example, Ambassador Gordon Sondland had direct conversations with Trump about Ukraine, David Holmes directly heard one such conversation between Sondland and Trump, and Vindman, Williams and others listened to Trump’s July 25 call with Zelensky.
And there is simply no contesting the fact that Trump’s own words are the most firsthand of all firsthand information. Any prosecutor knows that there is no more damaging evidence than a defendant’s own incriminating statements – particularly if they have been recorded.
Trump and his defenders can deflect, or they can take the position that his conduct is not impeachable, or they can simply refuse to engage on the merits. But they can never escape the stark reality laid out by the President himself, in his own words.
Now, your questions:
Thomas (North Carolina): Can and should the House include obstruction of justice relating to Robert Mueller’s investigation in articles of impeachment?
The House certainly could have included (and, if necessary, still can add) an article of impeachment based on Trump’s efforts to obstruct Robert Mueller’s investigation. The House holds the “sole power of impeachment” under the Constitution, and can impeach for essentially any matter it sees fit and can obtain a majority vote.
The trickier question is whether the House should have included a Mueller-based article of impeachment. On one hand, Mueller concluded that Trump committed at least 10 potentially obstructive acts, and it is difficult to imagine that any person – especially the President – could get away with such flagrant conduct without any tangible consequence. History needs to know what this President did while in office, even if an article of impeachment is unlikely to result in conviction in the Senate.
On the other hand, Democrats might fear diluting or distracting from their likely lead charge on the Ukraine scandal. If Democrats have a strong and clear case to make on Ukraine, then why risk revisiting the Mueller findings, which are tougher to understand and less politically viable at this point? As a prosecutor, I was trained to keep the message to the jury as clear and concise as possible; adding an article of impeachment for Mueller accomplishes neither.
Even though the House has not included Mueller’s findings on obstruction of justice as a freestanding article of impeachment, it’s clear they will come up because House Democrats mentioned in their draft of articles of impeachment that the President’s actions were “consistent with previous invitations of interference in the United States election.”
The very day after Mueller testified that Russia had interfered in our 2016 election to benefit Trump, and would try to do so again in 2020, Trump had his infamous July 25 phone call with Zelensky, during which Trump asked Zelensky to investigate the Bidens. As House Democrats describe Trump’s conduct in their Intelligence Committee Report, “the solicitation of new foreign intervention was the act of a president unbound, not one chastened by experience.”
Simon (California): Is it an impeachable offense for President Trump to order witnesses who have been subpoenaed by the House not to testify?
House Democrats have brought an article of impeachment against Trump for obstruction of Congress based on Trump’s blanket refusal to comply with Congressional subpoenas. As House Intelligence Committee Democrats wrote in their report on the Ukraine investigation, “President Trump engaged in an unprecedented campaign of obstruction of this impeachment inquiry.”
Republicans counter that the President has a right to challenge subpoenas in court, and that it is an overreach to impeach merely because the administration has resisted subpoenas based on legal disagreement.
Democrats argue that Trump’s obstruction efforts go well beyond good-faith legal arguments; Trump himself announced a blanket stonewalling policy: “We’re fighting all the subpoenas.” In fact, Trump’s obstructive conduct here goes beyond that of former President Richard Nixon, who defied some Congressional subpoenas but complied with others – resulting in a draft article of impeachment against Nixon for obstruction of Congress. If partial obstruction by Nixon merited an article of impeachment, then full obstruction would seem to merit the same outcome for Trump.
James (Missouri): What is the significance of the Supreme Court’s decision to put a hold on the release of Trump’s financials? Is it likely to be resolved before the election next year?
The Supreme Court issued a temporary hold on a Court of Appeals decision requiring two banks to turn over Trump’s financial information to the Democratic-controlled House Intelligence and Financial Services Committees. This is purely a procedural move, designed to give the Supreme Court time to consider whether it will review the decision – and, in this instance, perhaps two other similar Court of Appeals decisions requiring financial service companies to turn over information about Trump to Congress and the Manhattan district attorney.
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This is a common move and does not suggest hostility by the Supreme Court to the lower court opinions. It does tell us that the Supreme Court is seriously considering whether it should take up any or all of the cases.
If the court does take the cases, it will rule by the end of its term in October 2020 (before the November election). And if the court does not take any of the cases, then the lower Court of Appeals decisions become final, and the financial services companies must turn over the information pursuant to the contested subpoenas.
Three questions to watch:
- Will Attorney General William Barr continue to compromise his credibility by pushing back against the primary conclusions of the Justice Department inspector general – who is expected to testify Wednesday – that the Russia investigation was not politically motivated or improperly predicated?
- Will Republicans settle on a specific theory of defense to the articles of impeachment?
- Will any Democrats or Republicans cross party lines in the upcoming full House vote on impeachment?