When Stanford University Professor Pamela Karlan testified on December 4, 2019, as the first witness in the House Judiciary Committee’s hearings on the impeachment of President Donald J. Trump, she unknowingly predicted the future. To make the corrupt and impeachable nature of Trump’s shakedown of Ukrainian President Volodymyr Zelensky relatable to Americans, she described a hypothetical parallel. “What would you think if, when the governor of your state asked the federal government for the disaster assistance that Congress has provided, the President responded, ‘I would like you to do us a favor’ . . .?”
This was weeks before any of us knew about the novel coronavirus and months before President Trump would be lambasting governors for asking Washington for help in addressing the most severe public health crisis in over a century—responding to requests for aid in highly personal, partisan, and transactional terms. Yet his reaction to the pandemic has turned out to be another perfect example of a recurring pattern in the life of Donald Trump, in which every situation turns entirely on his understanding of what he personally stands to gain or lose, even in the face of a mortal crisis for the American people or a threat to the national security of the United States. As with his propensity to bend rules and to break laws, the habits of a lifetime are impossible to unlearn.
It was this predictability that enabled the House of Representatives to be ready to act quickly when the infamous July 25, 2019 call between Trump and Zelensky became known, in September, thanks to the whistleblower complaint filed by a person in the intelligence community through the established legal channels.
Indeed, the Judiciary Committee had been quietly preparing for impeachment from the opening day of the 116th Congress, after the Democrats had reclaimed the House majority in the 2018 midterm elections. One of the central protagonists in the drama was Norman Eisen, Barack Obama’s “ethics czar” and later ambassador to Prague, and a founder of an ethics watchdog outfit known as CREW, Citizens for Responsibility and Ethics in Washington. Eisen went to work for Judiciary Chairman Gerald Nadler (D-NY) as special counsel on February 12, 2019 and worked through the end of the Senate impeachment trial on February 5, 2020.
In his new book A Case for the American People: The United States v. Donald J. Trump, Eisen gives us an intimate and riveting account of that year, and the many months of intense behind-the-scenes work by dozens of legal specialists that enabled the House of Representatives, and the Judiciary Committee in particular, to be prepared for the historic challenge of impeaching a president.
He describes the tensions between Speaker Nancy Pelosi, keen to protect her “front line” members (those representatives in seats that Trump had won in 2016 and those new members who had turned red seats blue in 2018, and returned her to the Speaker’s chair), and those determined to remove Trump from office throughout the first nine months of the year, like Nadler. The power that Pelosi wields among House Democrats is vividly presented. Later in the tale, the reader is reminded of that moment after the House votes for two articles of impeachment, when there emerges in the chamber the beginning of applause and cheers—squelched in a nanosecond by a brisk wave of the hand of the Speaker, and a curt shake of her head. Though Eisen frequently is frustrated or disappointed by Pelosi’s early hesitation, it is clear he holds her in high regard.
The first half of the year is defined by the delivery of special counsel Robert Mueller’s report on his two-year investigation into collusion between Trump’s campaign and the Russian government in 2016 which was delivered to the public in three stages, starting with the curiously unnecessary and stunningly mendacious summary prepared by Attorney General William Barr. Eisen explains the mendacity clearly and also gives credit to Chairman Nadler for seeing before anyone else what Barr is up to:
Nadler had not bothered with shock or suspicion; he saw right through Barr’s fabrications and was blunt about it: “He’s lying.”
The redacted report in two massive volumes arrives next. Finally, there is Mueller’s reluctant in-person appearance before the House Judiciary and Intelligence Committees on July 24. In Eisen’s telling, the hearing seals the deal, as Nadler and others get Mueller to confirm effectively that Trump is guilty of impeachable offenses. But when Mueller’s performance is panned by the press, and jeered by the president and his allies, Eisen’s team grows despondent about their prospects for success. Eisen and his colleagues believe the report presents adequate evidence for a successful prosecution of impeachment, complementing their own interviews and depositions to that point. Eisen does have a major beef about Mueller’s work, describing the special counsel’s willingness to accept written replies from Trump—14 implausible “I do not recall” non-answers about whether the president remembered talking to Roger Stone about the Wiki-leaks trove of emails during the summer of 2016.
Mueller’s willingness to accept those answers instead of insisting on an in-person cross-examination was unconscionable. Mueller brought us so close, and yet left us miles away.
For by then, the Judiciary staff had prepared drafts of at least nine articles of impeachment, which Eisen reveals here for the first time:
I. Collusion: Trump’s entanglements with Russia, publicly inviting the Russian hack of his opponent, while negotiating Trump Tower Moscow.
II. Obstruction of Justice: Trump’s efforts to quash the Russia investigation, from the firing of James Comey onward; the Mueller report described ten specific acts of obstruction.
III. Hush Money: payments to Stormy Daniels and Karen McDougal for their silence during 2016, funded by arguably illegal campaign contributions.
IV. Obstruction of Congress: Trump’s consistent refusal to produce documents and to provide witnesses in response to lawful subpoenas and requests
V. Failure to Protect and Defend the Constitution: abusing his government powers to target his perceived adversaries and benefit his purely personal interests.
VI. Emoluments: accepting cash and other things of value from foreign and domestic governments by retaining his business interests and obliging government officials, including the vice president and military officers, to stay at his properties.
VII. Abuse of Power Through Pardon Dangling: suggesting or having his lawyers threaten that he would pardon Manafort, Cohen, and others as a way of protecting himself and effectively ensuring silence about his behavior.
VIII. Usurpation of the Appropriations Power for Building the Wall: reallocating appropriated funds for his controversial southern border wall, contrary to congressional directives.
IX. Usurpation of the Appropriations Power for Tariffs: imposing tariffs as part of his supposed “America First” economic policy, again without congressional authorization.
Yet Nancy Pelosi was still not persuaded that it was politically viable to go through the wrenching process of an impeachment, for the political damage it would do to her vulnerable front line members in the House.
Eisen credits his colleague Barry Berke for coming up with what would change the Speaker’s mind. On his yellow legal pad, Berke prompted Eisen to scribble Number 10—“X. The Next High Crime.” And this is the one that finally moved Speaker Pelosi, and many other Democrats who had hesitated, to agree to action: the next high crime.
The very next day after Mueller’s testimony to the House Judiciary and Intelligence Committees, a relieved and emboldened Donald Trump called Ukrainian president Zelensky and proffered his corrupt bargain: vital military assistance and a politically valuable tête-à-tête at the White House, being withheld to create leverage, in return for an announcement that Ukraine was opening an investigation into Joe Biden and the company on whose board Hunter Biden had sat for a time.
The typically measured and diplomatic Eisen takes off the gloves in this account of good versus evil, characterizing many of the actors in the story as if in a PlayBill for the theatrical production of the story:
Cory Lewandowski is a “villain” and “as odious a character as you will find in Trump world;” Bill Barr is variously Trump’s “consigliere” and “handmaiden;” Florida Congressman Matt Gaetz is “wholly unprincipled;” Rudi Giuliani “a bent soul;” Kurt Volker “tragic.”
Mitt Romney, on the other hand, the lone Republican to vote to remove Donald Trump from office, and the first senator in any impeachment ever to vote to convict a president of his own party, has “a nimble legal mind and a moral conscience to go with it.”
Was it all worth it? Was Nancy Pelosi right when she said early in the year to reporters that Donald Trump “is not worth the trouble” of impeaching?
Given the supine nature of the Republican Party in Congress—where even the sharpest of Trump critics during the 2016 primary contest, including Senators Ted Cruz and Lindsay Graham, had turned into his staunchest defenders—there was little prospect of removing Trump from office. 67 votes would be required, and the Democrats held only 47 seats; it would turn out to be impossible to persuade 20 Republicans to vote to convict. In the end, the impeachment managers could not even garner the 51 votes to compel witnesses, such as John Bolton, who was (sort of) begging to tell his story. So why bother at all?
Eisen’s answer to this question comes in the form of this book, which is written to the American people, and especially to the voters, saying that it is up to them—to us—now to defend the Constitution from the criminality and the danger that Donald Trump represents, something that Congressional Republicans declined to do. Once or twice in each chapter, Eisen ‘breaks the fourth wall’ in the midst of the narrative to speak to the American people, as in his concluding statement:
[L]adies and gentlemen of the jury. After all the judgments of the past three years plus, your turn awaits, come November. Some say that we have to turn to you as a last gasp because the system has failed. That prosecutors, the courts, Congress, the press, and all the safeguards of our democracy have proven powerless to address his behavior. That the impeachment trial was a failure—because Trump was not convicted and removed.
I don’t see it that way. It was never going to be easy to remove a democratically elected president of the United States, and it never should be. But valiant efforts have been made. They form a foundation for ultimate justice. The final verdict is now yours to deliver. It would not be fair to ask you to do everything in your power unless we had done everything in ours. In our democracy, you represent the ultimate safeguard.
Norm Eisen has written a love letter to the American people, reminding them of their power to defend the U.S. Constitution from Donald J. Trump. He is telling us to vote like it matters.