As the Impeachment Proceedings go Forward Californians are in the Spotlight

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

History will always make heavier demands on the nation’s leaders at special moments and the question is will they be up to the task? 

This is clearly one of those moments and at least three prominent Californians are shouldering responsibilities which puts them on the hot seat.

More about that shortly.

The march toward impeachment of the president that was moving at snail’s pace until now may be turning into a sprint to the finish line judging by the recent flurry of developments which suddenly puts a much darker cloud on Donald Trump’s future.

The explosive revelations about Trump’s manipulations along with key members of his Cabinet to pressure Ukraine’s President Volodymyr Zelensky to gather dirt on a leading campaign rival, Joe Biden, in exchange for $400 million in financial aid, may encompass three crimes: bribery, extortion and jeopardizing national security.

When the House draws up Articles of Impeachment which could occur as soon as January if Judiciary Committee Chair Jerry Nadler has his wish, it could lay out abuses of power never before attributed to any prior American president.

The shameless usurpation of power by this president in total contravention of all the rules of law, morality, patriotism and basic decency should profoundly disturb all citizens whether Democrats, Republicans, Independents or any other identification.

There are at least two Californians and possibly a third who have been thrust into leading roles as this mounting crisis plays out. They are House Speaker Nancy Pelosi and House Intelligence Committee Chair, Adam Schiff (D-Burbank).

From the other side of the state’s 53-member House delegation—the largest in Congress, Minority Leader, Kevin McCarthy of Bakersfield, must also bear some of the burden.

As of now he is standing firm with every other fellow Republican and uttering the same familiar trope: “They have been trying to reverse the results of the 2016 election since President Trump took office.”

Rep. Devin Nunes of Tulare, the top Republican on the Intelligence Committee complains, “They don’t want answers, they want a public spectacle.”

In fact, Pelosi has been doing all in her power to avoid that urging restraint before taking the step, which has now been taken from which there is no coming back. Many in her caucus agreed with her.

That has all changed in just the past week with dozens more House Democrats now joining calls to begin impeachment proceedings bringing the total to 223 as of this writing. That is more than half the 435 member chamber. 

Rep. Justin Amash of Michigan who resigned from the GOP and is now listed as an Independent brings the number to 224.

Pelosi’s change of heart which was the decision that opened the floodgates is believed to have occurred after Trump’s former campaign manager, Corey Lewandowski, at a House Judiciary Committee hearing just a week ago refused to answer any and all questions concerning  what appear to be indisputable acts by the president to obstruct justice.

The exhaustive investigation by Special Prosecutor, Robert Mueller, might have easily reached that conclusion and his final report did not rule it out. But the language, relying heavy on legalisms, did little to sway public opinion.

There has been a dramatic shift with latest polls now showing a majority  of the public favoring impeachment, 55%-45%–a 10 point reversal. 

The meaningless back-and-forth with Lewandowski before the Judiciary Committee made a mockery of the entire process that many thought had earned him a contempt citation though Chair Nadler chose to decline drawing much criticism.

However Pelosi—first and foremost an institutionalist who has devoted her entire career to protecting the prerogatives of the House and a fearless advocate for due process—–had seen enough. 

The startling announcement by a still anonymous whistle-blower who produced “highly credible” evidence of Trumpian chicanery intended to smear both Biden and one of his sons was made conclusive in a recorded phone call between Trump and Ukraine’s leader. 

The transcript of the call was sent to a highly classified top-secret computer file open to very few and sanctioned by Attorney General, William Barr, the nation’s top law enforcement officer.

To add to the mounting scandal, a transcript of the phone call reported by the Inspector General to the Director of National Intelligence, Joseph McGuire, was withheld for two weeks from Congress which was entitled by law to see it immediately. It was finally delivered.

For Pelosi and the vast majority of her Democratic colleagues, these machinations persuaded her it was time to put the Congressional impeachment gears into full motion.

Enter Rep. Adam Schiff was given the green light along with the Chairs of three other committees to proceed. He is wasting no time in  subpoenaing witnesses. One of the first to be summoned is the mysterious whistle-blower whose testimony will be critical.

Trump predictably decalred it is just more of the same “partisan witch hunt”, and has labelled Schiff’s actions “treasonous.” 

Others who will be summoned to testify are among the most influential and trusted advisors in the much depleted Administration including Attorney General William Barr, Sec. of State, Mike Pompeo, and Trump’s personal attorney/fixer, Rudolph Giuliani. 

One individual who Schiff wants to hear from especially is former White House Counsel Don McGahn who perhaps more than any other White House insider knows the inner workings of Trump’s mind.

If these high ranking officials refuse to appear or continue evading all questioning on grounds of executive privilege, expect to begin hearing the words “ massive cover-up” increasingly the charge which ultimately spelled doom for the Nixon presidency.

John Dean, the former White House Counsel to Nixon who has long resided in California and played a key role in exposing his boss’s crimes leading to the handover of the infamous Oval Office tapes in 1974 that sealed Nixon’s fate stated, 

“There is enough evidence of an abuse of power, a breach of his (referring to Trump) oath of office.” Dean continued, “What they need to do is get evidence that fleshes it out….that shows exactly what was going on.”

It may be recalled that the turnover of the Nixon tapes to Congress required an order by the U.S. Supreme Court—something which a Trump Court might have viewed differently.

Now that impeachment proceedings are underway failure to cooperate and defiance of congressional subpoenas will undoubtedly invite litigation if things are not to Trump’s liking.  

However this could be viewed as only further obstruction of justice and the political wheels will keep turning with findings that could influence the outcome of the general election long before the high Court has received and assuming it agrees to review any case brought before it.

Ironically Trump’s ill-advised phone call to Ukraine’s leader to whom we have pledged assistance in helping ward off aggression by the Russians and Vladimir Putin—the president’s buddy–could ultimately have more to do with Trump’s undoing than all the words in Mueller’s report!

The debate is no longer about whether impeachment proceedings are justified. The framers seemed to have designed the constitution exactly for this set of circumstances as highly respected legal scholars have argued.

In the proceedings against both Nixon and Bill Clinton, several Articles of Impeachment were drafted. Speaker Pelosi is recommending that only one might be preferable to focus attention on the Ukraine scandal which is easily explained.

Pelosi and the Democrats will have to give careful thought to the best strategy.

Some observers believe there is a greater likelihood of securing the two-thirds of Senators necessary for conviction if there were multiple counts. That would require 20 Republicans who could vote for one and still have some political cover.

As Elizabeth Drew, the intrepid journalist for The New Yorker who covered Watergate pointed out, “Article II held Nixon accountable for a collection of abuses of power and also, significantly, for the acts of his subordinates in pursuit of his untoward goals.”

Senate Minority Leader, Mitch McConnell, one of the president’s staunchest allies, must realize the gravity of the situation. As Drew observes, McConnell uncharacteristically approved adoption by unanimous consent the Democrat’s request that the entire whistle-blower complaint be given to Congress. 

The chief goal at the moment on which Pelosi and most Democrats appear to be in full sync is for Congress to complete its work before the primaries when public attention will undoubtedly shift.

But as one Democratic strategist put it, “we don’t want numerous Democratic candidates to be the main issue before the voters until the nominee is selected.  That needs to be the face of Trump.”

Given his conduct past and present he may be very obliging. The question now is how will the Democratic leadership accept the challenge and are they up to the task?

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