A Very Uncivil War: Trump v Congress

By J Brooks Spector 10 October 2019

US President DonaldTrump appears to have taken a leaf out of Jacob Zuma’s ‘Stalingrad Strategy’ playbook. (Photo: EPA-EFE / Kevin Dietch / Pool)

Now it is getting really hot in the impeachment inquiry over Donald Trump’s behaviour in office — and that doesn’t even include his abrupt midnight policy change to abandon the Kurdish allies who had been stalwarts in earlier fighting against ISIS.

It somehow seems like Donald Trump and his White House loyalists have been closely studying Jacob Zuma’s post-presidency political life.

As most South Africans well know (but others may not), the ex-South African president and his crew of lawyers, advisers and miscellaneous and motley hangers-on have adopted what has been dubbed “The Stalingrad Strategy”, an all-out legal defensive effort designed to keep the big guy out of the hoosegow, or from suffering onerous financial penalties for all his excesses and misdeeds.

The plan was simple in theory, but devious and intricately complex in its execution. The fundamental idea was to fight every single jot and tittle of any potential or possible charge; countering them first in the original court of jurisdiction and then through an elaborate maze of appeals over the very processes of the charges — but rarely, if ever, even coming close to confronting the criminal core of any of the charges.

The eventual fog of the resulting multiple challenges and appeals has been designed to make it fiendishly difficult to figure out the actual status of any of the charges or claims where the former president is named as the guilty party, thereby stopping the actual prosecution of anything in its tracks, even as he claims that all he really wants is a fair day in court to clear his name. A cynic might even argue the sub rosa, the ultimate goal is to run out the clock on all proceedings against Jacob Zuma until he is no longer walking among us.

The term, “Stalingrad Strategy”, of course, refers to the tenacious World War II Soviet defence of the city by that name. The advance by Nazi Germany across the Eastern European landscape in 1942 had initially seemed unstoppable, but as the Wehrmacht finally entered the actual city, Soviet resistance increasingly stiffened.

Ultimately, the Germans were forced to spend too much time on the attack before the full fury of winter struck, and to expend vast reserves of manpower and war materiel in the fighting — block by block, and eventually even building by building. The fighting became increasingly costly the closer the Germans got to the actual riverfront of the Volga River. By the time the battle was finally over, the Russians had successfully counterattacked amid subzero temperatures and they eliminated an entire German army from the war, killing, wounding or capturing the entire force — thereby going on the offensive themselves, and only stopping once they had reached Berlin, more than two years later.

By Wednesday, 9 October, it seemed Donald Trump’s White House was now following an Americanised version of the very same playbook in their attempts to forestall Trump’s impeachment by the Democratic Party-controlled House of Representatives. (Is someone on Trump’s team actually following South African legal news? On 15 October we will see yet another turn of the wheel as proceedings of The State versus Jacob Zuma are scheduled to be in session in Pietermaritzburg.)

After stonewalling the House Intelligence Committee by putting the kibosh — at the very last minute — on Ambassador Gordon Sondland testifying before that committee and declining to have others fall into compliance with yet other subpoenas, the Trump team’s legal counsel, Pat Cipollone, issued a blistering, blustery, in-your-face letter, setting out the architecture for the Americanised version of this Stalingrad strategy.

Sondland’s testimony would have been very revealing. As the US ambassador to the EU, as a political appointee, he had rough-shouldered his way into becoming one of the point men for Trump’s approaches to the Ukrainian government (especially for that now-infamous non-quid pro quo of getting dirt on Joe Biden in exchange for military assistance).

Sondland, with Kurt Volker, the special envoy on Ukrainian issues, and, naturally, Rudy Giuliani, the president’s private lawyer and go-to guy, bizarrely called themselves “The Three Amigos” (rather than Larry, Moe, and Curly), despite the fact that none of them were Mexican; but they were the trio the Trump White House went to when a strong arm or a full court press on Ukraine was needed — or it had to be made very clear to the Ukrainian government that it must now investigate Trump political rival Joe Biden and his son, Hunter, the latter of whom had joined the board of a Ukrainian energy firm. Bad judgment, maybe, but worse than the various Trump children’s business deals around the globe?

Cipollone announced in his letter that the White House simply will not co-operate with the House impeachment inquiry. Period. Presumably, the plan is — besides all that fancy dancing over process — to win the battle in the court of public opinion (As in: Aw gee, you guys just ain’t fair to the President), and then in the Senate where the actual trial phase of any articles of impeachment would take place. (As in: You simply can’t get a two-thirds vote to convict in the Senate, because you don’t have the votes, so, tough. Ha.)

Cipollone’s rocket at the Democratic leaders in the House of Representatives argued that the now-formal impeachment probe was “a partisan and unconstitutional inquiry” and that it was simply an attempt by those coup-minded Democrats to “overturn the democratic process.” Democratic lawmakers and legal experts alike have called its reasoning a political fantasia with no real legal heft among its eight pages. But it was a clear announcement by Cipollone of a Soup-Nazi-esque “No soup for you!” defence in case anyone was looking for any avenues of co-operation by consenting adults.

Quickly responding to the contents of Cipollone’s rant, Jack Quinn, White House counsel for then-President Bill Clinton during his own presidential travails, responded:

I’ve read the constitution a number of times and am having a hard time remembering where in the constitution it says that there has to be any formal vote by committee or by the Congress or the [House] to commence an investigation whether it might lead to or be motivated by the possibility of an impeachment. The problem for the White House is that there really is no appealing the process of impeachment the House uses.” Quinn then added:

I’m really surprised Pat Cipollone put his name on this letter,” following the White House’s refusal to provide any more witnesses or records.

But the head-shaking was not limited to Democrats. Greg Nunziata, Republican senator from Florida and Marco Rubio’s former general counsel, tweeted:

Wow. This letter is bananas. A barely-lawyered temper tantrum. A middle finger to Congress and its oversight responsibilities. No Member of Congress should accept it, no matter his or her view on the behavior of Pelosi, [Adam] Schiff, or Trump. Things are bad. Things will get worse.” Talk about being shy, reticent, and holding back…

Even as all this was happening, CNN’s Jeremy Herb, Manu Raju and Pamela Brown were reporting:

The lengthy letter all but dares [Speaker of the House] Pelosi to hold a formal vote opening an impeachment inquiry into Trump, though it does not explicitly call on her to do so. But Pelosi has said that Democrats don’t need to take a vote and has shown little interest in doing so after she announced last month the House would open an impeachment inquiry, accusing the White House of trying to play politics and arguing that House rules don’t require a vote.”

In fact, there is no requirement the House must carry out a vote in order to open a formal impeachment inquiry in the way Cipollone’s letter has demanded of the House of Representatives. And Speaker Pelosi, at least at this point, appears unlikely to change her position. One reason, at least, may be that she may be reluctant to order such a vote in order to shelter a number of Democratic congressmen and women elected in 2018 from districts that had been carried by Trump in the 2016 general election. Those members might be nervous about putting some serious, even implacable opposition to the president on the public record — when they don’t actually have to do so — in case constituents punish them for that.

Given the Trumpian Stalingrad strategy, this new approach has put a spotlight on “the limitations of Democrats’ ability to exercise their oversight authority of an administration that appears unfazed by flouting subpoenas,” per Washington Post reporters Karoun Demirjian, Josh Dawsey, Shane Harris and John Wagner.

As David Smith of The Guardian noted on Wednesday:

The letter appeared to put the emphasis on political rebuttal rather than structured legal argument – perhaps marking a new strategy to counter the impeachment threat with stalling and counter-attacking. Trump aides have begun honing their approach after two weeks of what some allies have described as a listless and unfocused response to the inquiry.”

Meanwhile, Nancy Pelosi, in her first response to the White House letter, said the White House failure to comply “is only the latest attempt to cover up his betrayal of our democracy, and to insist that the President is above the law”. She went on to say such a lack of co-operation could itself be used as the basis for an article of impeachment. (Pay attention to the way the articles of impeachment had been drawn up against Richard Nixon in this regard. The magic word is “obstruction” of Congress’ constitutional duty of oversight of the executive.)

Or, as Pelosi said:

Despite the White House’s stonewalling, we see a growing body of evidence that shows that President Trump abused his office and violated his oath to ‘protect, preserve and defend the Constitution’. The White House should be warned that continued efforts to hide the truth of the President’s abuse of power from the American people will be regarded as further evidence of obstruction.”

One of the points in Cipollone’s letter was that the current impeachment inquiry is invalid because it diverges from precedents set during previous impeachment inquiries. While the White House is correct that a floor vote preceded impeachment inquiries into presidents Richard Nixon and Bill Clinton, that step is not constitutionally required. And in the other precedent, of the post-Civil War president, Andrew Johnson, the impeachment took place before the House had even established a special committee for this purpose or had voted on formal, specific articles of impeachment.

In a further bit of spin, a senior Trump administration official told reporters on a conference call that he could not specify what conditions are necessary for the White House to co-operate with congressional investigators. He said:

I don’t want to speculate about what would happen in various hypothetical situations. If the House wants to engage and alter the current circumstances, then we’ll have to evaluate that as it goes along.” So maybe this was a hint that some compromise on subpoenas and testimony was possible.

Meanwhile, Phil Schiliro, an adviser to the Democratic Party on how to move their investigations of the Trump administration forward, told reporters that was dismissive of the legal merits of the letter, saying the letter was “as good for holding water as a colander: It’s a frivolous position that would mean a President acting illegally would be accountable to no one. That’s the opposite of what the founders of our country designed and has no precedent in our history”. Schiliro was the director of legislative affairs under President Obama and a former staff director of the House Oversight Committee.

Just for comparison, Republican Senator Lindsay Graham has opined back in 1998, that:

The day Richard Nixon failed to answer that subpoena is the day he was subject to impeachment because he took the power from Congress over the impeachment process away from Congress, and he became the judge and jury.”

Schiliro also noted: “Twenty years ago [Republican] Rep Dan Burton, as Chair of the House Oversight Committee, issued 1,052 unilateral subpoenas over six years to the Clinton Administration and the Democratic Party. No matter how unreasonable many of those subpoenas were, either the information was provided or a compromise reached. Every previous Administration has recognized the legitimate and constitutional role Congress has in oversight. This Administration is asserting a radical legal position based on nothing.”

Jack Quinn added that the public may see this obdurateness by the White House as evidence of a cover-up.

A lot of people who will wonder: why is the White House refusing to provide evidence — what are they hiding? Enough people will be wondering why the president refuses to rebut what is being said. And if more whistle-blowers come forward then it could go downhill fast. Remember what happened with Nixon: his Republican party stayed with him until it didn’t and it didn’t when public opinion turned.”

In fact, public opinion may have already begun its big turn. The latest Washington Post-Schar school poll out on Tuesday, 9 October, showed 58% of voters now favour the impeachment process, including 57% of independents.

Perhaps there is some impatience for the games to begin. While I would not normally quote filmmaker Michael Moore on these subjects, he may have found a vein with recent comments. As he said:

Have they taken the vote to Impeach yet? I had to run downstairs to throw another load in the dryer and I didn’t want to miss anything!

Wait! What? He’s still President?! So — how many crimes does he have to commit before he’s impeached, tried and convicted? I think the rule is he has to commit 3 felonies, 2 acts of treason & have more than a dozen unpaid parking tix. I think that last one is what’s holding things up.

I just checked the Constitution. It says Congress can Impeach and the Senate can convict him immediately! What’s the hold-up? He just did it again today asking China to interfere in our elections. How many more acts like this does it take? He is either sick or a political terrorist. This must end now. Why is there no urgency! Is America over? Has everyone just given up? Even our own people despise it and the rule of law. If we can’t do something as basic as removing a mob boss like Trump, who are we?”

And so we will be witnessing a struggle between two branches of government — legislative and executive — with a good chunk of it ending up in the hands of the judiciary, unless even more egregious evidence is brought to bear by yet more whistle-blowers and quiet leakers. At that point, Republican senators may finally discover spines and signal that enough is enough, just as a delegation once visited Richard Nixon to tell him the cause was lost and resignation for the good of the country was the only thing left to be done.

As we sometimes say in South Africa, “aluta continua”. DM


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