Review: A Case for the American People: The United States v. Donald J. Trump by Norman Eisen
This book offers important insights into the unsuccessful effort of House Democrats to impeach and remove Donald Trump. Norman Eisen previously served as the White House special counsel for ethics and government reform during the Obama presidency. When Trump prevailed against other Republican candidates in 2016 and won election, Eisen initially urged that “people keep an open mind regarding the Trump presidency.” He offered his assistance to Trump during the transition period, dined with him, and hoped he “could be an ethical president.”
Eisen would later serve as special counsel to the House Judiciary Committee to provide assistance to impeach Trump. His book offers this advice to the American people: “You are the witnesses, the victims, and – most important – the judges and jury. Only you can stop him – or allow his high-crime spree to continue.” Because the constitutional remedy of impeachment and removal failed, the political alternative now turns on the 2020 elections, not only defeating Trump for reelection but perhaps ending Republican control of the Senate.
As for the impeachment process, Eisen acknowledges that not only did Congress fail to remove Trump but other efforts fell short. Congressional requests to obtain documents and testimony from federal officials regularly came up empty. As Eisen notes, the Trump administration “failed to produce even one single document that was demanded pursuant to subpoena.” Federal and state prosecutors “have not ultimately stopped him. Nor have the courts. And Congress has not halted him.” That is why he appeals “directly to the highest adjudicating body in our democracy. You, the people.”
Although we are familiar with the two articles of impeachment passed by the House, Eisen explains that the Judiciary Committee considered ten articles. One: to what extent did Trump violate the Emoluments Clause, which prohibits U.S. officials from accepting any presents, compensation, or titles from domestic and foreign sources? Litigation on that issue had a mix of “preliminary successes and failures” at the district court level but no “final order yet that Trump had to obey.” The House removed that article of impeachment along with many others.
Democrats thought the report prepared by special counsel Robert Mueller would contain serious evidence of impeachable offenses by Trump. To Eisen, there was “little question” that the report “would be as just and unflinching on the president’s obstruction crimes as the man himself – in other words, a bracing condemnation of a shameless, crooked president.” However, although the report raised serious questions about Trump, including obstruction of justice, the evidence was not powerful enough to assist the House impeachment effort. Eisen hoped that the combination of Mueller’s report and his appearance before House Judiciary “would have yielded the knockout punch for the president.” They did not.
Moreover, there was disagreement among House Democrats on whether to pursue Trump’s impeachment. Eisen points out that during an interview with CNN in March 2019, House Speaker Nancy Pelosi said she did not support Trump’s impeachment: “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.” She added: “He’s just not worth it.” In contrast, the chairman of House Judiciary, Jerrold Nadler, became convinced quite early that available evidence (including the Mueller report) built a strong case for Trump’s impeachment and removal. He advised committee members that Trump “is displaying a monarchal pattern, refusing to allow Congress to do its job, and threatening our republican form of government.”
When Mueller appeared before House Judiciary on July 24, 2019, Eisen said part of the purpose would be “to educate the American people” and build public support for impeachment. Nadler was able to get Mueller to agree that Trump misinterpreted the report when claiming it found no obstruction on his part. On the whole, however, Mueller was reluctant to publicly rebuke Trump. As Eisen points out, at times Mueller in response to questions looked “confused and a bit bored.” He “grew tired, becoming overly reliant on his report, often needing to be directed to the page and even the exact line.” Mueller’s report and testimony did not yield the “knockout punch” Democrats had hoped for.
As the months moved along, Eisen points out that Pelosi would support impeachment if the evidence justified it. Unlike the two articles eventually approved, House Judiciary considered ten articles, including collusion (Trump’s entanglements with Russia), obstruction of justice (efforts to block the Mueller investigation), hush money (payments to Stormy Daniels and Karen McDougal to keep private Trump’s sexual involvements with them), obstruction of Congress (refusing to produce documents and allow witnesses to testify before committees), failure to protect and defend the Constitution (targeting the press, racial and ethnic minorities, and immigrants), and emoluments (accepting cash and other things of value from foreign and domestic governments). Other possible impeachment articles: abuse of power through pardons (to keep individuals from making public statements potentially damaging to Trump), usurpation of the appropriations power (reallocating funds to the southern border wall), and usurpation of the power over tariffs (imposing tariffs without congressional approval). An impeachment article would be added later regarding the administration’s decision to withhold $391 million from Ukraine unless it helped Trump in the 2020 elections by producing damaging information about Joe Biden.
In addition to House Judiciary, Eisen explains that five other committees were involved in discovering impeachable offenses by Trump: Financial Services, Foreign Affairs, Intelligence, Oversight, and Ways and Means. On September 19, 2019, the Washington Post confirmed that a whistleblower spoke about a phone conversation between Trump and the President of Ukraine, Volodymyr Zelensky. Extensive hearings by House Intelligence received testimony from a number of administration witnesses. It was learned that Trump requested that Zelensky conduct an investigation to unearth negative evidence about the Democrat’s likely candidate for President in 2020, Joe Biden. The administration withheld (impounded) $391 million that Congress had appropriated to help Ukraine defend itself against Russian military interventions. The clear implication: If you want the money, help Trump win reelection. The funds were eventually released as well as a rough transcript of the phone conversation between Trump and Zelensky.
After the House voted on two articles of impeachment, Speaker Pelosi decided not to immediately send them to the Senate. In what Eisen calls the “Pelosi Pause,” part of the delay was to seek the possibility of Republican votes in the Senate. There was hope that the Senate would call witnesses that might help support the articles. Eisen explains that getting subpoenas adopted for those witnesses would require only 51 votes in the Senate. There were four Republican Senators “most likely to swing votes our way: Mitt Romney, Lisa Murkowski, Susan Collins, and Lamar Alexander.” If the vote was 50-50, rules and historical precedents would allow the Democrats “to argue that the chief justice should break the tie.” Eisen points out that during the impeachment of President Andrew Johnson in 1868, Chief Justice Salmon P. Chase agreed to break a tie.
That precedent became important when John Bolton, former national security adviser for Trump, posted a statement on his website declaring that he would be willing to appear as a witness at the trial if the Senate subpoenaed him. Eisen points out that the New York Times offered this headline: “Trump Tied Ukraine Aid to Inquiries He Sought, Bolton Book Says.” According to the Times, a book that Bolton planned to publish “tore a hole in the center of Trump’s defense.”
Eisen hoped for a 50-50 tie that Chief Justice Roberts “would break.” If Bolton appeared, his testimony might involve other names who could also be subpoenaed. The Senate was first polled on the general question whether consideration of any witness or subpoena for a document was in order. That issued “failed as expected, 51-49.” Before voting on subpoenas for Bolton and other individuals, Democrats learned that even if a Republican (like Murkowski) voted with the Democrats on that issue “it wouldn’t have mattered.” In response to a parliamentary inquiry by Senator Chuck Schumer, Chief Justice Roberts stated he would not break a tie vote. He felt it would be antidemocratic for him to intervene if the Senate could not decide a question. There was now no opportunity to hear from any witnesses.
On the two articles of impeachment, the Senate began with Article I: Abuse of Power. It charged that Trump solicited Ukraine to interfere in the 2020 presidential election by investigating Biden in search of possible negative information. Of four possible Republican votes, only Mitt Romney agreed to join the Democrats. The final vote was 48 guilty and 52 not guilty, far short of the two-thirds majority needed. The second article concerned Trump’s obstruction of Congress by defying subpoenas issued for documents and witnesses. That article failed along party lines, 47 guilty and 53 not guilty.
Aside from impeachment and removal, another option for the Senate was to adopt a resolution censuring Trump for his actions. Democrats prepared two censure resolutions. However, they “could not find a single GOP adherent for the concept of censuring the president,” even though some Republican Senators believed that Trump’s conduct was “inappropriate.” The concluding chapter notes that Trump’s “abuses of power are always followed close behind with obstruction.” Although the impeachment process failed, Eisen states that in a democracy the people “represent the ultimate safeguard.” Voters have the power “to stop the next scandal, and the one after that” by “ousting not just Trump but his enablers in the Senate and the House.”
Louis Fisher is Visiting Scholar at the William and Mary Law School. He served four decades with the Library of Congress as Senior Specialist in Separation of Powers with Congressional Research Service (1970-2006) and Specialist in Constitutional Law with the Law Library of Congress (2006-2010). Many of his articles and congressional testimony are placed on his personal webpage, http://www.loufisher.org.