A Midnight Journal
On the eve of the January 6 Committee Public Hearings, a veteran Watergate watcher contemplates what’s in store for America.
Entries in a journal I compiled, as like many who recall the Watergate Hearings of June, 1973, I anxiously await the January 6 Committee Hearings to air Thursday, June 9. (1)
June 5. ‘DC Deja Vu’
Twelve months ago during testimony from the Capitol police survivors of the January 6 Attack on the Capitol, a friend asked me if I was going to watch the public hearings the chair of the Committee, Rep. Bennie Thompson and vice-chair Rep. Liz Cheney, had promised the American public. At that time, my cynical voice took over and I replied that I felt it would be a waste of time watching a bunch of white political operatives plead the Fifth.
I already knew Jared Kushner’s icky tie collection… so…(yawn).
As I write this, now, I am not so sure. I would be witnessing America grapple with sustaining the institutions protecting our collective aspirations for accountability and justice. Forget about ‘democracy.’ It’s not on trial. The public trust is. Forget about watching political ops plead the fifth and curtsy around ‘executive privilege,’ whatever that is.
Choosing a ‘visible government,’ over a government of shadows is the task at hand.
Last July, the Capitol Police survivors warned that America’s future law abiding defenders have a recruitment issue: who is going to want to serve the public if efforts to protect and defend America’s institutions become collateral damage?
Great question. The cost of life insurance for the family of a career police officer just went up considerably.
It’s not ‘about democracy:’
It’s about protecting democracy.
June 5. ‘No Shows’
Why is it that just when the public has occasion to connect the dots, when the curtains are pulled aside to reveal garden variety conspiracy, sedition and terrorism, an event is triggered which throws sand in the gears of justice?
The ‘event’ of which I speak is called enforcing a subpoena — the gauntlet of the information age, the smoking gun masking as ‘looking for the smoking gun.’
Remember Don McGahn, former legal counsel to the President?
McGahn was the first of an infamous caravan of Trump appointee “no shows.” (2)
McGahn was a private citizen in April of 2019 when he was served with a subpoena from the House Judiciary Committee to testify in an investigation into White House obstruction of justice in the alleged order by President Trump to fire Robert Mueller.
McGahn resisted the subpoena, arguing that the issuance of the subpoena “had no standing.” The House Committee Chair, Rep. Jerry Nadler then filed a lawsuit against McGahn to force him to comply with the subpoena. The issue percolated in the federal court system until the Biden White House agreed to dismiss the suit in May 2021, citing curbs on future enforcement of Congressional subpoenas.
Head scratch here.
The White House opinion for agreeing with McGahn’s lawyers to dismiss the suit boiled down to using the issuing of subpoenas to get former White House political operatives to testify. The Biden Justice Department reasoned that enforcing subpoenas of former appointees would hurt future investigations wherein testimony would be requested to determine if laws were broken. (3)
Head scratch here.
‘Fast forward’ to this past week’s decision by DOJ not to file contempt of Congress charges against former Trump staff officials. Mark Meadows and Dan Scavino, jr., for refusing to respond to a subpoena from Congress.
The following August, 2019 comment by Rep. Doug Collins, the ranking Republican on the House Judiciary Committee, explains:
“Their (Democrats on the Judiciary Committee) insistence on having — (insert ‘Meadows and Scavino) — testify publicly before the cameras further proves they are only interested in the fight and public spectacle of an investigation, but not actually in obtaining any real information.’(4)
Pass the mortar, we are building a stone wall.
DC Deja Vu.
June 3 and 7. ‘Adults in the Room’
That Fox News viewers will be deprived of viewing the January 6 Committee proceedings in real-time (5), permits one to anticipate the ‘unofficial’ Republican “counteroffensive.”
Think “State of the Anarchy” address response.
What’s ‘on trial,’ is the artless defense of “there were adults in the room.” Short of reciting a version of events reminiscent of “who pulled Sally’s pigtails,” the alleged perps of the January 6 Insurrection will argue that though they acknowledge the events that transpired, their influence as adults… was simply that they were ‘absently present’ in the Oval Office and on the phone calls to the President.
Theirs was not the role of colluders but ‘deluders:’ that they thought that they could talk the President down, that the events transpiring at the Capitol would be contained by their presence and influence. Short of getting expert witness testimony on ‘group think,’ this defense amounts to silliness. Pitching the audience that you were powerless to check the President’s authority because you were trying but failing, didn’t have the authority, we’re caught up in the ‘ops rather than the props’… whatever… is the ruse of conspiracy:
Who knew events would get out of hand?
June 5. “Where in the Constitution does it say…”
Or consider that what’s ‘on trial’ here is the Constitution, not as you or I understand the Constitution, but as a confederacy of power seekers interpret its loopholes. “Sedition” is one of those loopholes: where in the Constitution does it say that decertifying an election when 11,780 votes in Georgia are plausibly suspect of being fraudulent is ‘sedition?’
Who really knows or can prove what sedition is, anyway? Sounds pretty close to ‘opposition research’ to me.
Let’s try a metaphor here:
A few years ago a friend told me the following story about a Chicago landlord-tenant stand-off. In the process of rehabbing one of his buildings to build a rental office. the landlord removes the wall supporting the building’s mail boxes. Consequently, the local post office suspends delivery of the mail to the building. This goes on for ten days or so accompanied by unanswered phone messages to the landlord, unopened letters, cancelled appointments. Finally, several tenants stake out the office and confront the landlord about the mail delivery.
The landlord is ‘chagrined’… no, that’s too harsh a description. The landlord is outraged. How dare you accuse me of blocking mail delivery! Show me where in Chicago or Illinois laws there is a law that states landlords are responsible for getting the mail delivered!
The metaphor here is that just because a law ‘doesn’t exist,’ doesn’t mean that lawless behavior is thereby condoned. Interpretation of malfeasance is not in the eyes of the offender. Of course there are no laws because the mail boxes, US Government property, are not the property of the landlord. In tearing down the wall and removing mail boxes, the landlord had destroyed US Government property, which the local City of Chicago alderman reminded him.
Of course executive branch hatched insurrection plots are not protected by the freedom of speech clause in the Constitution, because ‘this’ was an abuse of power.
Arguing that the Committee’s efforts lead one to conclude it’s a “kangaroo court” is like the landlord. One can’t retread evidence gathering. This is called ‘evidence tampering.’
Where are laws being tested, being broken? Criminality is proven when laws are broken. This requires evidence.
Repeat
June 3. “This is not Watergate”
With the January 6 Committee public hearings set to resume Thursday, June 9 at 8:000 ET, America is being prepped by the media that ‘this is not Watergate.’ “There is no Special Prosecutor.”
Consider that because Republican Party leadership is supporting or complicit in supporting a conspiracy in real-time, Committee Chair Bennie Thompson has cautioned the DOJ to tread carefully, or risk having Committee’s conspiracy claim(s) upended. Unlike fifty-odd years ago during “Watergate,” the stakes are higher than impeaching a former President or seeking to prevent further mob violence: a partisan Republican Party is using extra-legal means to control the outcome of state and national elections.
‘This is not Watergate.’
Repeat.
June 3. Executive Privilege and Checks on Abuse of Power
Viewers of the hearings can prepare to wade in the waters of “extra constitutionality.” As one recalls in the landlord metaphor, that there are not laws doesn’t permit lawless behavior.
Reviewing the Judiciary Committee’s agreement with the White House to not proceed wth the McGahn lawsuit, Jeffrey Schaub writes in lawfare.com:
The committee agreed to do so despite serious questions about whether executive privilege protects that information. There is a legitimate argument that executive privilege is not available to protect the other information McGahn may possess because it relates to government misconduct. Talking about the deliberative process privilege — one of the “components” of executive privilege in the executive branch’s view — the D.C. Circuit has noted: “[W]here there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public interest in honest, effective government.’” And a number of past OLC opinions similarly recognize that executive privilege does not protect information related to misconduct or wrongdoing.
Moreover, Congress has consistently staked out its unyielding view that the constitutional executive privilege protects only presidential communications. Although the executive branch asserts that executive privilege protects other “component” privileges as well — including the often controversial deliberative process privilege — Congress views it as much more limited. The McGahn agreement indiscriminately shields from questioning communications between McGahn and all other executive branch officials, whether or not those communications fall within the presidential communications privilege. In other words, the scope of the interview agreed upon in the deal seems again to track the lines of confidentiality that the executive branch would normally assert, not the ones typically pressed by Congress.
To me, the agreement appears designed to allow the House Judiciary Committee to claim victory — as Nadler did — without offering it anything of substance. And the narrow scope of the testimony appears carefully crafted to placate the executive branch and ensure no executive privilege controversies arise. (boldface, ed., 6)
Consider also that evidence gathering takes time even from recalcitrant purveyors. Time, one does not have control over. The ‘grander strategy’ for the January 6 Committee has a strict timeline — conclusions and recommendations by September:
Altogether, the panel is expected to hold about a half dozen public hearings in June and release a report on its findings in September. Committee members say the hearings will provide a narrative for what led up to the attack, who helped organize and fund some of the outside groups promoting false claims that Joe Biden did not rightfully win the election, and what then President Trump was doing behind the scenes around the time of the violent insurrection. (7)
Dig a bit deeper, as Jeffrey Schaub does (8), and the scripted outcome of the January 6 Committee Hearing is fraught with an unrelenting timeline:
Josh Chafetz, perhaps the preeminent authority on Congress’s constitutional authority, has argued that rulings such as Griffith’s two opinions in the McGahn case may be a good thing for congressional oversight. As he wrote after the initial panel decision, “The Judiciary Committee was never going to get what it really wanted through the courts, and having that avenue foreclosed might force Congress to reinvigorate tools that might work.” Chafetz is right, I think, in his skepticism about the ability of courts to resolve these information disputes. As I have written, the judicial process simply takes too long and has too many mechanisms for delay to be an effective way for Congress to enforce its oversight demands. In any individual dispute, judicial recourse is neither advisable nor likely to produce a resolution.
June 4. Drawing Conclusions
America is not getting off by avoiding deliberating its future as a law abiding Republic. There is no single smoking gun. What’s being investigated is a conspiracy: there are many smoking guns. This is not to say one can’t find a single ‘smoking gun.’ What the 45 impeachment hearings lacked was the authority of Congress to draw and enforce conclusions.
Even Congress’s use of subpoena powers faces court scrutiny. What’s not available to Congress doesn’t bode well for America, its institutions and Constitution.
June 5. Meeting Criminality
Which brings us to the “elephant in the room” — Trump’s criminality.
What to do with his threats to take down election results? An imponderable ask for a sitting President who continues to project his powerlessness and the primary reason he was elected — ‘I am not Trump.’
What’s at stake is the resilience of institutions enforcing and protecting democracy and ensuring the rule of law.
The far bigger and more urgent question than constitutionality in my opinion is the “Peaceful Transfer of Power.”
Note all caps.
June 7. Crime and Punishment
For 1/3 of Republicans who support the notion that Biden’s victory was “rigged,” the public hearings of the January 6 Committee are a waste of taxpayer dollars: there is a pretender in the White House, and any election results are held in contempt until the next “fair election.”
Did we mention that a mob capable of violence, a militia of “patriots,” is still at large?
Can Trump punish?
The current prediction is that there is ample reason to believe that the current DOJ will not indict Trump, nor support the work in concluding the January 6 Committee’s investigation, but will indict lessor figures in the events leading up to January 6. (9)
Unfortunately, these actions, even if successful, will not convince America, that political violence will cease.
America’s choice is one which prescribes voting and pervades votes: a ‘visible government’ or a government of shadows… of ghosts… of violence.
June 3–9
Notes
1- During the Watergate Hearings, the writer was a political contributor to a weekly ‘alternative’ newspaper in Champaign, Illinois.
2- Steve Bannon, former advisor to President Trump, was served a subpoena by Congress on January 6, 2021, making McGahn, who was served in April of 2019, the first Trump advisor to be subpoenaed.
3- This is not to say that AG Merrick Garland has demonstrated leadership. He hasn’t. For Garland, the question of his leadership of the DOJ begs bigger questions than not “looking political.”
4-Andrew Desiderio, “House Judiciary Committee slaps Don McGahn with lawsuit to enforce subpoena,” Politico, 8/07/2019
5-”The Reid Out,” Joy Reid, MSNBC, June 7, 2022
6-https://www.lawfareblog.com/why-mcgahn-agreement-devastating-loss-congress
7-https://www.npr.org/2022/06/02/1102642702/jan-6-panel-promises-previously-unseen-material-in-prime-time-hearing-on-june-9
8-https://www.lawfareblog.com/dc-circuit-got-history-wrong-its-mcgahn-decision
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