Call this the Witnesses? We Don’t Need No Stinkin’ Witnesses gambit from Donald Trump’s legal team. Jay Sekulow argued yesterday in the opening presentment of the articles of impeachment that the entire process has been tainted by the House’s unconstitutional approach to impeachment. Nominally, Sekulow was arguing for the adoption of Mitch McConnell’s rules for the trial, but as PJM’s Tyler O’Neil writes, the argument employed by Sekulow goes to the heart of the legitimacy of the impeachment itself and the necessity of conducting a trial at all.
The fatal flaw, Sekulow argues, was the House’s decision to charge obstruction when they hadn’t even bothered to engage the judiciary on Trump’s claims of executive privilege. “The president’s opponents in their rush to impeach have refused to wait for judicial review,” Sekulow declares, and then notes that the two House managers had a much different view of the same issue when it involved Barack Obama and Eric Holder:
“On June 28, 2012, Eric Holder became the first attorney general to be held in both civil and criminal contempt. Why? Because President Obama asserted executive privilege,” Sekulow noted.
Citing a 2012 op-ed Schiff wrote in Politico, Trump’s lawyer said, “With respect to the Holder contempt proceedings, Mr. [impeachment] Manager Schiff wrote, ‘the White House assertion [of privilege] is backed by decades of precedent that has recognized the need for the president and his senior advisors to receive candid advice and information from their top aides.”
“Indeed that’s correct, not because manager Schiff said it, but because the Constitution requires it,” Sekulow added. “Mr. Manager Nadler said that the effort to hold Attorney General Eric Holder in contempt for refusing to comply with various subpoenas was ‘politically motivated,’ and Speaker Pelosi called the Holder matter ‘little more than a witch hunt.’”
Sound familiar? Of course it does; the term “witch hunt” has been used by Trump so often that it sounds odd coming from anyone else, but Democrats used it rather liberally themselves.
Let’s also recall the context of that earlier conflict over executive privilege, too. The ATF and Department of Justice ran a disastrous gun-running operation ostensibly in order to sniff out “straw man” purchases, but many suspect to gather arguments for tougher gun-control legislation. They lost track of the guns, didn’t alert Mexico, and as a result hundreds of people got killed by those weapons — including two Border Patrol agents. When Congress tried to investigate Operation Fast and Furious, Holder and the Obama administration stonewalled, even though the body count certainly suggested a sense of urgency in finding out who knew what and when. The executive privilege claim was even more questionable than anything in this case too, since there was no claim at the time that Obama himself was personally involved in Operation Fast and Furious. Holder got executive privilege without actually being the president.
In that case, the House did take the issue to the courts, where they eventually prevailed. They took the time to do that rather than gin up an impeachment because that’s the correct process to follow — even though it eventually let Holder off the hook.
What’s the body count in Ukraine-Gate? Why the rush here, when the very same Democrats who claim that time is of the essence now didn’t seem to think that it was worth arguing over privilege when it involved stonewalling over a program that literally put guns in the hands of drug cartels and murderers?
Sekulow concludes his argument by emphasizing that the Senate has no obligation to provide a trial for an impeachment that shouldn’t have been presented in the first place:
“But to say that the courts have no role, the rush to impeachment, to not wait for a decision of the court on an issue as important as executive privilege, as if executive privilege hasn’t been utilized by presidents since our founding. This is not some new concept,” Trump’s lawyer said. “The president’s opponents in their rush to impeach and refuse to wait for complete judicial review, that was their choice.”
Will that convince the four Senate Republicans that will end up being the swing votes on witnesses? We’ll see, but it might be too little, too late at this point. Having hinted at their desire to hear from John Bolton, two of the four would have to walk that back. The two who could do so with the least amount of political damage back home would be Lisa Murkowski and Mitt Romney. Best of luck with that, Mr. Sekulow.