CAFE Newsletter #14: Assumptions, Investigations, & Impeachment

CAFE Newsletter #14: Assumptions, Investigations, & Impeachment

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Dear Reader,

There has been a lot of commentary, analysis, and dissection of Michael Cohen’s testimony last week before the House Oversight Committee. I myself spent 30 solid minutes discussing it on last week’s episode of Stay Tuned. To be sure, there was much to break down – the implications for Trump’s presidency, the consequences for both the Mueller and SDNY investigations, and also the impact on public perceptions of Donald Trump, both with respect to his character and also his legal jeopardy.

One acute observation made by Michael Cohen in particular is worth reflecting on because it captures the myopia in 2016 that afflicted people across the spectrum – the idea that Donald Trump could not be elected President. All sorts of people with different roles, duties, and aspirations – including Barack Obama, Hillary Clinton, James Comey, pundits and pollsters, even Trump himself – allowed this singular political prediction to cloud their judgment and stray from best practices.  

In Barack Obama’s case, his faith that Trump couldn’t win reportedly led him to delay any concrete response to Russia’s hacking, coming under criticism from Republicans and Democrats alike. Obama figured that Clinton was all but assured victory, so it wasn’t worth the risk of escalating tensions with Russia and creating the appearance of a White House interfering with the election.

In Hillary Clinton’s case, overconfidence and underestimation of Trump’s chances led her campaign to neglect blue-collar Rust Belt states, potentially costing her the election. Clinton diverted campaign resources away from states like Pennsylvania, Wisconsin, and Michigan, relying on polls and the prevailing view that also incorrectly assumed Democrats had working class voters in their corner.

And in the case of Jim Comey, his belief in the conventional wisdom that Trump couldn’t win affected his decision to notify Congress, 11 days before the election, that the FBI was reopening an investigation into Clinton’s emails. Explaining the context of his decision, Comey told ABC news: “it must have been because I was operating in a world where Hillary Clinton was going to beat Donald Trump.”  

I could go on and on about how other officials, media outlets, and pollsters distorted their conduct, coverage, and prognostications based on this erroneous article of faith.

All these mistakes in judgment and strategy have been discussed and chewed over in the last two years, but what has most struck me was how one of Trump’s own confidantes, his personal lawyer no less, told the world how little chance the boastful and preening Trump himself thought he had to win.

In his opening remarks before the House Oversight Committee last week, Michael Cohen testified:

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.” He never expected to win the primary. He never expected to win the general election. The campaign – for him – was always a marketing opportunity.

As Maureen Dowd quipped in a March 2016 column, well before Trump’s election, “No one is more shocked at how far, how fast, Trump has come than Trump.”  And now, a fuller picture has emerged — Trump’s victory was so unbelievable, even to him, that on November 9th, he expected to return to his business after a months-long public relations tour.

In the end, as Einstein said, “Assumptions are made and most assumptions are wrong.” Let’s ask ourselves what flawed assumptions are currently in our midst – about Mueller’s report, about congressional investigations, about the 2020 election.  

We’ll be looking out for our blind spots in the weeks and months to come on the CAFE Insider, so stay tuned.

My best,

Preet

PRE-ORDER PREET’S BOOK DOING JUSTICE

“Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” ships March 19. It is also available as an audiobook. Pre-order here.

THE INVESTIGATIONS

The House Judiciary Committee, which has the power to impeach the president, launched a sprawling investigation into obstruction of justice and other matters posing “threats against the rule of law,” on Monday. Committee Chairman Jerry Nadler sent 81 letters to a wide array of individuals and entities linked to Trump – among them, Don Jr. and Eric Trump, Jared Kushner, Steve Bannon, Hope Hicks, David Pecker, Allen Weisselberg, the White House, the Department of Justice, and Trump’s campaign, transition team, inaugural committee, foundation, and company.

The White House reportedly plans to challenge the requests by asserting executive privilege and Democrats have said they’d compel compliance with subpoenas. Given the breadth and volume of information requested, Democrats and Republicans alike have raised concerns about the Committee’s strategy. As the Washington Post reported,

“The vast range of the request raised the specter of unfocused inquiries that could last years and involve multiple committees competing for witnesses and documents.”

David Axelrod, Barack Obama’s chief campaign strategist, observed in a tweet:

Meanwhile, the House Intelligence, Foreign Affairs, and Oversight committees have requested documents related to any and all of Trump’s communications with President Vladmir Putin. The committee chairmen also demanded that the White House make available for interviews anyone with knowledge of these communications, including translators who attended Trump’s meetings with Putin during the 2017 G-20 meeting in Hamburg, Germany, and the 2018 meeting in Helsinki, Finland (recall, Trump reportedly tried to conceal the substance of his conversations with Putin by directing his interpreter in Hamburg not to discuss what was said, even with officials serving in his own administration).

Nadler’s ambitious investigation was immediately seen as an attempt to form the basis for articles of impeachment, despite his statement to the contrary that impeachment is “a long way away.”  As talk of impeachment ramps up, it is the perfect time to revisit a speech by one of Preet’s heroes. Barbara B. Jordan was a three-term congresswoman from Texas, known for her impassioned oratory that was a lesson in persuasion, inspiration, and change.

Jordan was trailblazer – the first woman, and the first African American to be elected to Congress from Texas. Her speech arguing for Nixon’s impeachment before the House Judiciary Committee on July 25, 1974, stirred the nation with its measured and eloquent rhetoric. Jordan grounded her argument in constitutional principles and her own personal story as an African American brought up in the Jim Crow South. She said:

“Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: “We, the people.” It’s a very eloquent beginning. But when that document was completed on the seventeenth of September in 1787, I was not included in that “We, the people.” I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in “We, the people.”

Today I am an inquisitor. An hyperbole would not be fictional and would not overstate the solemnness that I feel right now. My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.”

Read and listen to Barbara Jordan’s full speech or watch it on YouTube, then let us know your reaction by responding to this email or writing to us at letters@cafe.com.  

OBSTRUCTION & OBSTACLES

Obstruction is a term we’ve been hearing a lot during the last two years, and it’s not going to stop any time soon. As congressional and Justice Department investigations unfold (or in Mueller’s case, comes to a close), we encourage Insiders to get smart on the type of behavior the law contemplates for the various criminal offenses that fall under the obstruction rubric. A 2014 Congressional Research Service report reviews the six most common obstruction statutes, including those most relevant to the investigations we’re all reading about:

  • Witness tampering, 18 USC 1512, which includes use of intimidation to prevent the production of evidence, destruction or concealment of evidence, and witness harassment.
  • Obstruction of congressional or administrative proceedings, 18 USC 1505, which includes submission of inaccurate information pursuant to a subpoena, and

 

  • Conspiracy to defraud the United States (18 USC 371), defined as an agreement between two or more people to frustrate lawful government function by dishonest means where at least one overt acts is taken to further the agreement.

 

READ the report, including footnotes citing the case law. Another great resource for understanding federal statutes is the Justice Manual (formerly known as the U.S. Attorney’s Manual).  Check out the Justice Manual entries on witness tampering, obstruction of government processes, and conspiracy to defraud the U.S.

Double take:

Trump’s norm defying behavior that constantly pushes ethical limits is what’s prompting lawmakers to cast a wide net in their investigations looking into obstruction of justice.

Trump’s approach to dealing with obstacles is one data point in the obstruction inquiry. In an interview with ABC News, Trump’s former White House lawyer Ty Cobb offered the following observation when asked to reflect on the slate of convictions and chaos ensuing the White House:  

Well, my first response to that is, you know, I was there in a professional capacity. I had a specific role. I tried to adhere to that and left the psychology to others. But, you know, he is a very direct– forceful– presence. He wants to get stuff done. He hates obstacles. And he reacts strongly in the face of obstacles to try to move them out of the way or find somebody who will move them out of the way for him so he can do things. It’s a challenging environment. And it’s not for everybody.

TRUTH, LIES, AND NEPOTISM

Takeaways from episode 15 of CAFE Insider:

Missed opportunities in Michael Cohen’s hearing: Cohen testified that Trump did not direct him lie to Congress about the Trump Moscow Tower negotiations, or other matters, because “that’s not how he operates.” As Cohen said in response to a question from Rep. Justin Amash, Trump “doesn’t give you questions, he doesn’t give you orders. He speaks in a code and I understand the code, because I’ve been around him for a decade.” In fact, “most people” who work for Trump understand that code, Cohen said. But Cohen has also suggested that he acted at Trump’s explicit direction on other occasions. When he pled guilty to making illegal hush money payments in the SDNY case, Cohen said, in open court, that he acted “in coordination with and at the direction of” Trump. Lawmakers missed an opportunity to question Cohen on this seeming discrepancy. Cross-examination would have elicited more information about the instances where Trump is alleged to have ordered illegal or otherwise inappropriate acts. Repeatedly telling Cohen he’s a liar, as the Republicans did, was not an effective strategy for undermining Cohen’s credibility.

Why does it matter that Cohen testified he had no interest in a job at the White House? Because it gets to his credibility as a witness. Cohen testified that while he was “offered jobs,” he “did not want to go to the White House” because he was “extremely proud to be personal attorney to the president of the United States,” the only job he ever wanted. But in Cohen’s sentencing memo filed in December 2018, SDNY prosecutors wrote, “During and after the campaign, Cohen privately told friends and colleagues, including in seized text messages, that he expected to be given a prominent role and title in the new administration.” Rep. Jim Jordan referred Cohen to the Justice Department for perjury, citing this inconsistency among other possible lies. Meanwhile, the president’s critics jumped to Cohen’s defense, parsing his language to show that Cohen’s testimony and SDNY’s allegation can be harmonized. Though that could be true, it’s not the point. This isn’t an esoteric exercise for linguists. Were it a criminal trial, jurors would justifiably take this discrepancy into account when assessing whether Cohen is telling the truth about Trump. If Cohen were disgruntled, it would be an incentive to lie. It also matters if Cohen lied willfully or has convinced himself that the White House wasn’t ultimately for him. Either way, it is unlikely that this falsehood rises to the level of a material lie, required for any prosecution for perjury, since it doesn’t go to the heart of the matter.

What are we to make of the reports that Trump overruled career officials, and even his Chief of Staff and White House Counsel, to grant a security clearance to Jared Kushner, his son-in-law? The president has the constitutional authority to grant a security clearance to anyone he wishes, but he can still misuse his or her authority. The norm is for the Office of Presidential Personnel to vet new appointees, and only in rare instances do the President and senior administration officials get involved. It is notable that Abbe Lowell, Kushner’s lawyer, said he was unaware his client received the security clearance by anything other than the traditional process. It is a rare thing for lawyers to say, in sum and substance, “my client didn’t tell me.”

*Update – CNN reported that Trump also pressured Kelly and McGahn to grant Ivanka Trump a security clearance, against their recommendation. And, the House Oversight Committee issued a statement on the White House refusal to comply with the Committee’s request for documents and witnesses relevant to its investigation into the security clearance issue.

If you haven’t already, listen to “Truth, Lies, and Nepotism.”

**Please note, you may now manually add your unique feed to your favorite podcast app. Please sign in and visit the My Account section of the site.  There, you will find the Podcast Link just under the words ‘My Account.’ Confused, here are instructions for adding the feed.

 

THIS WEEK ON STAY TUNED

Pete Buttigieg is this week’s guest on Stay Tuned. Buttigieg, 37, is the Mayor of South Bend Indiana and an all-but announced candidate for president in 2020. He’s also the author of “Shortest Way Home.”  In this sneak peek of the interview, Buttigieg distinguishes pragmatism from ideological centrism:

You know when you’re a Mayor, you are in a very pragmatic world. You’ve got to get stuff done. You don’t get to indulge in philosophizing, but you also have to have a philosophy because, at the end of the day, executive roles in government are basically an experience in practical, on the ground philosophy. But the thing is, to me, pragmatism is not the same thing as ideological centrism. Sometimes pragmatism pushes you in a direction that is considered bold or even radical, but you’ve got to follow the facts where they lead and then we’ll let the political class sort out what is defined as being left, right or center – instead of starting by trying to assign a label to an idea and then taking all of our positions based on that. I think the mentality of any executive in government, certainly a Mayor, when contemplating any idea is not, ‘Is this left, right or center?’ It’s, ‘Is this a good idea and is it going to work? What’s the evidence and how far can we take it?

Don’t forget to listen to this week’s episode of Stay Tuned. It drops this Thursday, 3/7/19.  

SOMEONE TO FOLLOW

MoonPie, a graham cracker sandwich with a marshmallow filling and chocolate coating, is a brand that…Ok, we can’t justify this recommendation other than to say that sometimes we all need to step back and laugh. Punctuate your anxiety-producing twitter feed with something that gives you a little relief from the hustle and bustle of the news. Follow @MoonPie for its mystifying tweets that could get you giggling, even if you’re not really sure why. (P.S. It’s one of Preet’s favorite twitter feeds!)

 

 

SHOP CAFE

Get your Stay Tuned merch!  Insiders get a a special 20% discount on their first purchase. Use code: INSIDER20.

That’s it for this week.  We hope you’re enjoying CAFE Insider.  Please send us your suggestions and questions at Insider@cafe.com.

– Preet and the Cafe Team  

 

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