Dean, appearing elegant and restrained, especially in the face of unhinged Republican committee members ranting (to which he responded with some witty jibes), made the case effectively that Trump’s dangling of pardons in front of aides and former aides, which special counsel Robert S. Mueller III documented, is analogous to President Richard M. Nixon’s conduct. As someone who held former White House counsel Donald McGahn’s job decades earlier, Dean was well situated to appeal to McGahn to testify, and to interpret McGahn’s conduct in a favorable light (e.g., McGahn wouldn’t fire Mueller because it would look like the infamous Saturday Night Massacre).
“In both situations, the White House Counsel was implicated in the coverup activity. While I was an active participant in the coverup for a period of time, there is absolutely no information whatsoever that Trump’s White House counsel, Don McGahn, participated in any illegal or improper activity — to the contrary, there is evidence he prevented several obstruction attempts,” Dean said during his opening remarks, “But there is no question Mr. McGahn was a critical observer of these activities.”
Dean also stressed that any efforts to prevent McGahn’s testimony by assertion of “absolute immunity” are bogus. From Dean’s opening remarks: “McGahn’s loyalty is to his client, the Office of the Presidency, not the occupant. He had only a limited attorney-client privilege when interacting with the President and advisors and the privilege belongs to the Office in any event.”
The stars of the hearing were the two unflappable law professors who explained in direct and concise opening statements, and in their answers, the essential facts of the Mueller case that Trump has tried to either ignore or flat-out lie about. Vance explained that Mueller had declined to make a prosecutorial recommendation, but had left that job to Congress. “Mueller explained the elements prosecutors must establish to indict an obstruction charge, laid out the evidence his investigation had revealed for each instance of conduct he investigated, and analyzed whether there was sufficient evidence to establish each element,” she said. “But he left the ultimate conclusions about the President’s conduct to the American people and their elected representatives, and possibly for future prosecutors to consider when the President is no longer in office.”
She then proceeded to lay out the elements of an obstruction charge (an act, a nexus to an investigation and corrupt intent), pointing out 10 categories of conduct in which “Mueller was investigating an attack on our democracy by a hostile foreign power, and on multiple occasions, the President tried to thwart it, curtail it, or end it completely, either by removing the Special Counsel outright or interfering with his ability to gather evidence.” This may be news to Republicans and to those who haven’t read the report, but there was, in other words replete evidence to indict Trump had he not been a sitting president. Vance drilled down on one especially egregious category of conduct — Trump telling McGahn to get rid of Mueller, and later telling him to deny he was asked and to falsify the record. And she reminded the committee and public that about 1,000 former prosecutors have opined that had Trump not been president, they’d have indicted him.
For her part, McQuade reiterated the seriousness of obstruction of justice, explaining why the absence of an underlying crime cannot exonerate a defendant. (If that were the case, we would never prosecute someone who successfully blocked an investigation, leaving law enforcement with no evidence of a crime.) Not only is this a serious crime that strikes at the heart of our criminal justice system but, in this case, McQuade pointed out, it was a threat to national security. By blocking or attempting to block Mueller’s investigation, the president was seeking to thwart an investigation into a foreign power’s interference in our election, “which would diminish our ability to detect and defend against future threats.” She reminded the committee that in four instances (“counts” in an indictment), all three elements of obstruction were found. (She focused in depth on the efforts to get then-Attorney General Jeff Sessions to unrecuse himself so he would be in a position to curtail the investigation.)
Questioning by Democrats was stronger than usual, in part because they focused on (and read from) episodes in the Mueller report. Republicans blustered and berated Dean but, of course, chose not to focus on the undisputed facts nor on the clear legal principles the witnesses set out. Once more, they showed how unserious and irresponsible they are, devoid of any respect for their oaths of office. Again and again, McQuade and Vance came back to the facts: Trump’s efforts to stop or derail the investigation were tied to contemporaneous reports that he was being investigated for obstruction.
The hearing demonstrated three things. First, Republicans must obscure the report and lie about its contents since it has no real defense to Trump’s conduct. The amount of evidence is extensive. McQuade argued that this was worse than Watergate; Vance reaffirmed that this was not a close call and that there was substantial evidence of criminality.
Second, all witnesses and a number of congressmen made the strong case that McGahn’s testimony is essential. Third, this is the beginning of a process that will, if committee chairman Jerrold Nadler (D-N.Y.) is successful, include fact witnesses who can bring to life what the panel explained on Monday. Whether it changes public opinion sufficiently to encourage Democrats to move to impeachment is unknown, but if part of the task here is to make an historical record, Democrats have certainly succeeded. And if Trump is paying attention, he’ll want to get a pardon before leaving office; there are about 1,000 prosecutors who’d love to take up the case for which Mueller has documents.