Editor’s Note: In this weekly column “Cross-Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer reader questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
Among the ever-shifting grab-bag of impeachment defenses thrown against the wall by President Donald Trump and his supporters, one stands above (or perhaps below) the rest for its brazen falsity and recklessness: his vicious attacks on the whistleblower whose complaint first brought to broad public attention Trump’s efforts to pressure Ukraine to investigate his political rivals.
Trump surely is entitled to defend himself against his fast-approaching impeachment by the House, but his relentless assault on the whistleblower – eagerly parroted by his most dedicated acolytes – is wrong, irrelevant and dangerous.
First things first: The whistleblower nailed it. His or her account of the July 25th call between Trump and Ukrainian President Volodymyr Zelensky matches up remarkably well with the summary transcript of the call released by the White House. The whistleblower alleges in the complaint that, during the call, Trump pressured Zelensky to investigate the Bidens (check) and the Crowdstrike conspiracy theory of the 2016 election (correct) and that Trump asked Zelensky to meet or speak with Rudy Giuliani and Attorney General William Barr (yes and yes).
Notwithstanding this reality, Trump stubbornly continues to insist that “the whistleblower gave false information.” Yet neither Trump nor his supporters have pointed to a single relevant fact that the whistleblower got wrong. Trump simply asserts fiction as fact and ignores reality.
The President’s rhetoric against the whistleblower has reached a fever pitch. He has baselessly attacked the whistleblower’s motivation, calling it “highly partisan,” apparently without even knowing who the whistleblower is (though it seems in Trump’s self-serving, circular worldview, anybody who says anything negative against him is, by definition, “highly partisan”).
Trump also continues to call for the public outing of the whistleblower, despite laws designed to encourage conscientious public officials from coming forward with evidence of wrongdoing without fear of retaliation or retribution. Worse, at a Trump rally, Sen. Rand Paul, too spineless to do his own dirty work, instead urged the media to publicly identify the whistleblower.
Worst of all, Trump has alluded publicly to the possibility of retribution, up to and including violence, against the whistleblower.
He described people who provide information to whistleblowers as “close to a spy,” yearning for the good old days: “You know what we used to do in the old days when we were smart with spies and treason, right? We used to handle it a little differently than we do now.”
Spies, for the record, historically have been punished by execution. And, keep in mind: the whistleblower is in no way a spy, but rather a public official who properly raised a complaint about misconduct through appropriate legal channels.
Through all the Trump-stoked fury, his attacks on the whistleblower are ultimately no more than a distraction. The whistleblower himself or herself is not the primary evidence of Trump’s alleged wrongdoings; by his or her own account in the complaint, the whistleblower “was not a direct witness to most of the events described.”
The whistleblower is simply the person who first publicly pointed out the evidence – and, as that evidence has come out, appears to have been spot-on in describing it.
The actual evidence is Trump’s damning July 25 call with Zelensky; the series of texts among officials (and Rudy Giuliani) laying out the campaign to pressure Ukraine in real-time; and the testimony of key fact witnesses Bill Taylor, the top US diplomat in Ukraine, Lt. Col. Alexander Vindman, and others detailing the efforts of the Trump administration to empower a shadow group of unqualified individuals to execute Trump’s effort to pressure Ukraine into conducting politically driven investigations in exchange for foreign aid and a White House visit.
No attack on the whistleblower can change any of that evidence, or make it any less devastating to Trump.
As the impeachment inquiry progresses, Trump will undoubtedly continue to flail away at the whistleblower. But none of his myth-peddling, none of his vitriol, and none of his unsubtle threats can change the truth; they can only divert attention from it.
Now, your questions:
Paul (Kentucky): Former White House counsel Don McGahn and former national security official Charles Kupperman both had court hearings about whether they have to testify in the House. Legally, can Congress force executive branch officials to testify?
We’ll soon get an answer to this question from two federal judges presiding over lawsuits to decide whether McGahn and Kupperman must testify in the House. In both cases – heard on the same day in the same federal courthouse in Washington, DC – the House seeks to compel testimony while the Justice Department contends that the President can invoke “absolute immunity” to prevent executive branch employees (or former employees) from testifying.
While the Constitution does not explicitly give Congress the power to conduct oversight, the Supreme Court has long recognized that Congress can investigate and has subpoena power to compel testimony and evidence from witnesses. Lawyers for the House argued that it is entitled to testimony from McGahn and Kupperman pursuant to that oversight power, and to investigate potential impeachment.
I was inside both courtrooms for CNN and the judge in the McGahn case seemed particularly skeptical of the White House’s broad “absolute immunity” argument. At one point, the judge asked, incredulously, whether the White House’s position was that Congress cannot go to court to enforce its subpoenas, to which the Justice Department attorney responded, “As a general matter, I think that is correct… the Constitution does not allow this. It does not allow the House and the executive branch to sue each other in court.”
Indeed, that is the logical conclusion of the White House’s “absolute immunity” argument: we can defy Congress and there is nothing Congress can do about it. Given the absurdity of this result, I expect the courts ultimately to reject the White House’s position and compel McGahn, Kupperman and perhaps others (in time) to testify.
Robert (Florida): Under the impeachment resolution approved by the House, do Republicans gain meaningful procedural rights, including subpoena power?
The House resolution that passed by a 232-196 vote – almost entirely along party lines, with only two Democrats voting against and zero Republicans voting for – details how the impeachment inquiry will move forward, and does grant some procedural rights to the Republican House minority.
The resolution calls for a series of public hearings at which both the Intelligence Committee chair (Democrat Adam Schiff) and ranking member (Republican Devin Nunes) can question witnesses for up to 45 minutes each, with smaller allotments of time to other Committee members of both parties.
The resolution also authorizes Schiff to make public the transcripts of prior closed-door depositions; requires a written public report setting forth the committee’s findings and recommendations; and authorizes the House Judiciary Committee to make formal recommendations to the full House on potential Articles of Impeachment.
While the resolution grants subpoena power to the minority-party Republicans, it requires that any such subpoena have “the concurrence of the chair” – meaning, in effect, the Republicans can issue a subpoena, but only if the Democrats approve. So the grant of subpoena power to Republicans is more symbolic than practical. As Rep. Jim Jordan put it, the resolution “[p]retends to give [Nunes] subpoena authority, subject to Schiff’s approval.” So while the resolution gives Republicans some important procedural rights, Republicans are not fully satisfied.
Allen (North Carolina): Can Lt. Col. Alexander Vindman be court-martialed for disobeying the commander-in-chief’s direction not to testify in the House?
A court-martial is a prosecution within the military court system for violations of the Uniform Code of Military Justice. For context, the movie “A Few Good Men” is based on a real-life court-martial proceeding.
Retired Lt. Gen. Mark Hertling explains that every member of the military takes an oath to defend the Constitution and to obey lawful orders – with an emphasis on the word “lawful.” Military personnel also have a duty to report perceived misconduct up the chain of command, within established legal mechanisms. That obligation applies to potential war crimes, human rights violations, crimes and abuse of rank or power. It is not the job of the military official to judge for himself whether the conduct violates the military code, but to report it up the chain of command for investigation and adjudication.
Given that duty, according to Gen. Hertling, “as a soldier Vindman acted exactly as he should. He went directly to the legal counsel to report what heard, in an attempt to determine if he was missing or misreading something… I would expect any soldier who thought he saw or heard an illegal act to report it immediately.”
Thus, it seems that a court-martial of Vindman would be not only inappropriate but also a grave injustice.
Three questions to watch this week:
1. Will House Democrats fight back in court against the latest wave of witnesses to obey White House instructions and defy subpoenas?
2. During the Roger Stone trial, what will we learn about the Trump campaign’s alleged efforts to communicate with WikiLeaks about hacked emails?
3. Will the Supreme Court hear the case in which the Second Circuit Court of Appeals upheld the Manhattan District Attorney’s subpoena for Trump’s tax returns?