Editor’s Note: James D. Schultz is a CNN legal commentator and chair of the Government and Regulatory practice at Philadelphia-based law firm Cozen O’Connor. He served as senior associate counsel and special assistant to the president in the Office of White House Counsel during the Trump administration. Follow him on twitter @jim_schultz. The opinions expressed in this commentary are his own. View more opinion at CNN.
This impeachment process has never been about truth.
House Intelligence Chairman Adam Schiff (D-Calif.), has turned what was once a respected committee into one which fosters further public distrust in an already unpopular body of government. His impeachment investigation has little to do with fact-finding and most everything to do with undoing an election.
Pundits have frequently complained that the president has not been afforded due process by Schiff and House Speaker Nancy Pelosi (D-Calif.). While this criticism might be legally misplaced – due process is not constitutionally guaranteed in the House’s consideration of impeachment – the credibility of the impeachment process has been rightfully questioned.
Schiff has acknowledged some of the problems in the report released last week by Justice Department Inspector General Michael Horowitz, on the origins of the Russia investigation and the issuance of Foreign Intelligence Surveillance Act (FISA) warrants for a Trump campaign official. But, as the Washington Post points out, Schiff “does not acknowledge his prior role in casting doubt on such claims.”
The IG said he found no intentional misconduct or political bias, even though the report reveals that a nearly two-year-old memo from Democrats on the House Intelligence Committee, written by Schiff, downplayed potential issues with the investigation.
In a memo released in January 2018, Schiff wrote, “FBI and DOJ officials did not ‘abuse’ the Foreign Intelligence Surveillance Act (FISA) process, omit material information or subvert this vital tool to spy on the Trump campaign.” He also went on to write that the DOJ “made only narrow use of information from [Christopher] Steele’s sources about [Carter] Page’s specific activities in 2016…”
This “narrow use” of the Steele dossier, however, was crucial to making the decision to secure the FISA order, the IG report released early last week found. Horowtiz writes that “receipt of Steele’s election reporting on September 19, 2016, played a central and essential role in the FBI’s and Department’s decision to seek the FISA order.”
And, alarmingly, the IG report also found there were “17 significant errors or omissions” in the Carter Page FISA applications.
But even if Schiff’s “nothing-to-see-here” approach to the Horowitz report is successful, the ongoing Department of Justice criminal investigation, led by federal prosecutor John Durham, into how the Trump-Russia probe got started, is another matter.
Durham made it clear last week that while Horowitz is a respected agency watchdog, he is not a prosecutor and doesn’t have a prosecutor’s tools at his disposal. Durham said Monday, “Our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.”
Durham also said he doesn’t agree with “some of the report’s conclusions as to predication and how the FBI case was opened.”
This could be trouble for Schiff.
Keep in mind that when Horowitz said he found no documentary or testimonial evidence of misconduct or bias, he was limited in his ability to issue subpoenas. Durham is not.
By saying the claim that political bias influenced the investigation is debunked by Horowitz’s report, Schiff and his colleagues either don’t recognize the obvious difference between the two investigations or they are choosing to ignore Durham’s while they serve their own selfish, political interests.
Wall Street Journal columnist Kimberley Strassel appeared on Fox News on Tuesday and said that Schiff “owes the country an enormous apology.”
Indeed, he does, but don’t hold your breath.
Schiff is leading a crusade, against both President Trump and the Constitution.
The House Intelligence Committee recently obtained phone records that show communications between Rep. Devin Nunes (D-Calif.), Rudy Giuliani, the President’s attorney, Giuliani associate Lev Parnas, and John Solomon, a former journalist for The Hill.
Remember, Schiff began the impeachment inquiry by holding closed-door hearings with no participation from the White House and no opportunity for the White House to cross-examine during the depositions. While not required, this is an investigation being conducted by an inherently political body and a more comprehensive approach should have been taken.
Information, like former Ambassador Marie Yovanovitch’s opening statement during a closed-door deposition was leaked at the outset without the benefit of other countervailing testimony from Trump administration officials until much later, which was helpful to the Democrats and damaging to the President.
A narrative that suggested there was something nefarious about the President’s ties to Ukraine emerged. This helped shape public opinion before Democrats hid behind faux transparency with the release of testimony and an invitation for the White House to participate in House Judiciary Committee hearings. But by this time the cake was already baked. Transparency is a fine idea unless it interferes with your agenda.
And now, with the American public exposed to the misleading narrative for months, the Democrats issue articles of impeachment, alleging abuse of power and obstruction of Congress by Trump.
Schiff and his Democratic colleagues would like you to believe they are defending the Constitution and protecting America.
What they are really doing, in their erratic rush to judgement, is making a mockery of the laws and processes that were put in place some 200 years ago to handle matters of grave importance, such as the impeachment of a president.
Still, you have to admire Schiff’s nerve.
In October, he, along with Rep. Jerrold Nadler, said in a statement that “If the Department of Justice may be used as a tool of political retribution or to help the President with a political narrative for the next election, the rule of law will suffer new and irreparable damage.” Meanwhile, Schiff continues to wield the biggest, heaviest tools of retribution at his disposal – Articles 1 and 2 of the Constitution.
The Mueller report did not establish that members of President Trump’s campaign conspired or coordinated with Russia to influence the 2016 election, and it was inconclusive regarding obstruction of justice on the part of President Trump. The Department of Justice determined that the facts established by Mueller “identified no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent…”
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Investigations into Trump’s foreign business dealings are ongoing and it might be months before courts provide any closure regarding his tax returns. The phone call with the president of Ukraine is all Democrats have left. It seems that this is Schiff’s last effort to stand between Trump and his run for a second term.
A report in the New Yorker last year mentioned that one of Schiff’s hobbies is writing screenplays. Perhaps that explains his penchant for irony.