CLEVELAND — Very few people have read the Mueller report. In truth, one has to be a lawyer schooled in the murky crimes of obstruction of justice to understand its import. For those few brave souls who have soldiered through the report, words like “nexus” and “overarching factual issues” pepper the narrative. If you methodically read, however, it is clear that Special Counsel Robert Mueller found substantial evidence that the president obstructed justice, but that he also felt constrained by Department of Justice precedent holding that a sitting president cannot be criminally indicted.
As a consequence, Mueller laid out the evidence so that it could be handed off to the Congress to decide the political question of whether President Donald Trump’s obstructive conduct rises to the level of “high crimes and misdemeanors” that require an impeachment inquiry. The House Judiciary Committee, led by Jerry Nadler, has the primary jurisdiction to hold impeachment hearings. But they need witnesses.
President Trump has ordered many of those witnesses not to appear. Chief among them is former White House Counsel Don McGahn. McGahn is the most prominent witness to the president’s obstructive behavior, including Trump’s order that McGahn fire the Special Counsel over trivial conflict of interests. McGahn refused and almost a year later, when it leaked he had been ordered to fire Mueller, President Trump tried to get McGahn to fabricate evidence to cover-up what he did. McGahn again refused.
As a result of being stonewalled by the White House, Chairman Nadler and the majority Democrats began calling witnesses this week to expound on the findings of the Mueller report and to place it in historical context. The point was to place human faces before cameras to explain a report that people were not otherwise reading.
John Dean was one of those witnesses asked to testify, along with MSNBC legal analysts and former federal prosecutors Joyce Vance and Barbara McQuade.
Because John Dean and I started a continuing legal education program about Watergate and the law of obstruction of justice in 2011, I was asked to come to Washington to assist Dean in his prepared statement and testimony. Our program, called the Watergate CLE, was conceived of years before Donald Trump was even a serious candidate for president. We have given 150 programs and taught obstruction of justice law to tens of thousands of lawyers across the nation.
On the day Dean was to testify, we went over to the Rayburn Building to meet in advance with the Democratic staff lawyers so Dean and the other witnesses could be advised of the rules of the road. The House parliamentarian carefully laid out procedures of decorum that prohibited witnesses from disparaging the president personally. It is to me an odd rule, given the Constitution’s unbridled protection of free speech. But there it is, and the Democrats took the rule seriously, making sure that when referring to the Mueller report, the witnesses only addressed questions as hypotheticals or in such a way so as not to directly accuse the president of crimes or wrongdoing.
Dean was not going to have difficulty following the rule as his purpose was to highlight obstructive acts during Watergate and compare them to activity that Mueller set out in his report (acts like dangling pardons to keep witnesses from cooperating fully with an ongoing investigation). The historical similarities are striking but did not require Dean to reach ultimate conclusions as to whether Trump’s actions resulted in obstruction of justice.
Notwithstanding what I saw as the Democrats’ care in trying to adhere to House rules of decorum, the Republicans on the committee showed no such compunction. Jim Jordan, sadly a representative of an Ohio district that includes my hometown, Lima, baited Dean to disparage the president. He kept it up for almost his full five minutes and Dean finally told him that rules of decorum prevented him from answering his questions. But Jordan and others on the Republican side didn’t relent — viciously attacking Dean with long-disproven Watergate conspiracy theories, such as whether Dean himself ordered the break-in. Remember, folks, Nixon kept tapes and those tapes are definitive proof of who ordered the break-in and what the president knew and when he knew it.
The rules of decorum obviously didn’t keep the president from tweeting that Dean was a “sleazebag” and “a loser.” It is as if the two parties play by two different set of rules.
This is not to say Democrats are saints, but what I witnessed from the Republicans disgusted me. Instead of all the ridiculous personal attacks, maybe the Republicans should listen to what Dean has to say. Read his full statement and you will see that there are remarkable parallels between what Nixon did in 1972 and 1973 and what Trump did in 2016 and 2017. Neither man knew of the underlying crimes in advance (although in Trump’s case, that question is still up in the air, given all the people who lied to Mueller or refused to cooperate). Yet both tried to obstruct an ongoing investigation — and that is a federal crime.
In Watergate we learned that the cover-up is often worse than the crime, especially where that cover-up is being directed by the highest officer of the government, one who is bound by the Constitution to “take care that the laws be faithfully executed.” In 2019, has that lesson been “unlearned”?
James Robenalt is a partner at Thompson Hine LLP and the author of four nonfiction books, including his latest, “Ballots and Bullets, Black Power Politics and Urban Guerrilla Warfare in 1968 Cleveland.” He lectures nationally with John Dean on Watergate and legal ethics.
