The Washington PostDemocracy Dies in Darkness

The moment impeachment managers realized how corrupt Trump’s defense was

The White House claimed it hadn’t been given rights it had refused to use.

House managers for President Trump’s impeachment trial walk by the Senate chamber in January.
House managers for President Trump’s impeachment trial walk by the Senate chamber in January. (Sarah L. Voisin/The Washington Post)

As soon as Pat Philbin, the deputy White House counsel, uttered the lie, my head shot up from my note-taking. “In the Judiciary Committee,” he said to every member of the U.S. Senate assembled for his boss’s impeachment trial, “. . . there were no rights for the president.”

It was just past 10 p.m. on Jan. 21 — the first day of President Trump’s Senate impeachment trial. I was sitting near the head of the narrow, curved House managers table across from committee Chairmen Jerry Nadler (D-N.Y.) and Adam Schiff (D-Calif.). They, too, looked astonished.

I had come to know, and like, the man with the slightly nasal drawl now peddling Trump’s falsehoods. Philbin was recognized for his integrity: The erudite former George W. Bush administration official had famously rushed (along with Jim Comey) to the hospital bedside of then-Attorney General John Ashcroft in 2004. They were trying to block the White House from taking advantage of Ashcroft’s illness to extend a domestic surveillance program. Philbin’s insistence on principle had cost him career advancement. Later, as co-impeachment counsels for the House Judiciary Committee, Barry Berke and I had spent much of the past year negotiating subpoenas and legal issues with Philbin.

Among those negotiations was a call on Dec. 5, when we reaffirmed all of the rights for Trump that Philbin was now claiming we had withheld: “The president had no opportunity to present his defense, no opportunity to present witnesses, no opportunity to be represented by counsel and no opportunity to present evidence whatsoever in three rounds of hearings,” he told the Senate. Which certainly wasn’t true of our committee.

That was the moment I realized how dangerously deep the Trump rot went: The president’s lawyers could have defended him capably without stooping to this. Lawyers are not in place to repeat the excesses of their clients. And yet Trump had managed to finagle his team into an alarming display of mimicry. Falsehood was his stock in trade, and they were enthusiastic franchisees. Worse, the GOP-controlled Senate was all too ready to accept it.

No, impeachment didn’t ‘distract’ Trump from coronavirus

Our negotiations with the president’s lawyers had begun months prior. Trump proclaimed on April 24, 2019, that he would be “fighting all the subpoenas.” To wage those battles, he sent Philbin and another deputy White House counsel, Mike Purpura.  

The Trump adminstration had thrown every defense imaginable at subpoenas of evidence of the president’s misconduct. Special counsel Robert Mueller’s main witness, former White House counsel Don McGahn, had refused to show up based on a spurious legal doctrine of “absolute immunity.” The administration withheld portions of the Mueller report and critical underlying documents on purported grand jury secrecy grounds. During the House’s Ukraine inquiry, nine administration witnesses and five agencies refused to comply with legal process, and the administration did not produce a single document in response to any subpoena.

The Judiciary Committee had ended up in court on some of this, winning across the board at the trial court level and splitting decisions on appeals (which are still ongoing). Trump officials had been pugnacious, and in our view deeply wrong, but not liars.

Now they had crossed that line in an attempt to deal with one of the hardest issues for them: arguing that our committee had somehow denied their boss due process. The Judiciary Committee had actually granted Trump the same fundamental protections that Richard Nixon and Bill Clinton had earlier: the ability to call witnesses, to submit or seek documents, to have counsel present in our committee, and on and on. And we had done so despite the fact that earlier presidents cooperated in the process, whereas Trump stonewalled.

Given Trump’s mockery of his legal obligations to respond to our inquiries, many in the Democratic caucus questioned this choice. Even Schiff, the chairman of the House Intelligence Committee, thought it was absurd, as a matter of prin­ciple. Why should we reward Trump’s obstruction, he asked? But Nadler, the Judiciary Committee chairman, insisted on precedent, also as a matter of principle; “the Constitution demands it,” he told me. In the end, he and Schiff reached agreement, and on Oct. 29, we inserted Trump’s full privileges into the legislation approving an impeachment inquiry and establishing its rules. 

And then Trump slapped aside those rights Nadler had fought to grant him (the rights Philbin would later announce we never granted). The president publicly refused to participate in our hearings, call his own witnesses or engage with the committee at all, instead proclaiming on Twitter, “If you are going to impeach me, do it now, fast, so we can have a fair trial in the Senate, and so that our Country can get back to business.”

Now that the House had acted and the Senate trial was underway, Philbin was complaining that the rights Trump had spurned did not exist. As counselors to the Judiciary Committee, Berke and I had been aggressive all year. We expected sim­ilarly forceful tactics from the president’s lawyers in the impeachment trial. What I had not expected was for them to appear before the chief justice and the full Senate only to mirror the president’s habit of delivering baldfaced lies. Like so many others, most notably the once-reputable Attorney General William P. Barr, they had been drawn into Trump’s vortex of deceit.

The impeachment managers, arrayed down the curve of the table, were appalled. Rep. Zoe Lofgren (D-Calif.) — having been involved in all three presidential impeachment inquiries of recent decades, as a committee staffer during Nixon’s case and then as a House member later on — shook her head in disbelief. Reps. Val Demings (D-Fla.), Sylvia Garcia (D-Tex.) and Hakeem Jeffries (D-N.Y.), fully cognizant of what the committee had offered Trump, glared or smiled sarcastically. The most junior manager, Jason Crow (D-Colo.), a decorated Army veteran, was slack-jawed.

Nadler was becoming increasingly irate. Though his default mode is scholarly amusement, he is brutally honest and expects the same of others. All day, Trump’s lawyers had been pushing the boundaries of veracity. Nadler had finally reached a boiling point.

I testified against Trump’s impeachment. But let’s not pretend it didn’t happen.

Schiff sat jotting notes. The lead manager had been the primary target of outrageous GOP falsehoods for months, and he’d grown used to them, learning to maintain a neutral expression. He was one of the great orators in Congress when moved to speak, but his resting mode was stillness — a rhetorical predator ready to fly from his perch and make a calculated strike, whereas Nadler acted in the heat of the moment.

Schiff inclined his head as Nadler whispered heatedly into his ear: “Adam, we can’t let them get away with this. These are blatant lies about my committee.” Schiff pursed his lips and considered — as calm as Nadler was pugnacious. Schiff recommended that we not respond too aggressively to their bait. Instead, he wanted to stick with our plan for that first day: March through the witnesses and the documents, demand that the Senate subpoena witnesses, and display our elaborate multimedia presentations.

Nadler’s turn to speak was fast approaching. He would be arguing for the Senate to issue a subpoena for our most important potential witness, John Bolton, but I knew he’d want to respond to Philbin, too. “What are you going to say?” I asked Nadler.

We had been side by side long enough that I trusted he understood I was not asking how he would be approaching his argument for Bolton. I wanted to know how he’d respond to Trump’s attempt (by proxy) at derailing the integrity of the court. How do you handle a situation where it’s not just the president who has lied but his counsel, in the course of a trial over the president’s own prevarications? How can you have a trial if the combatants won’t abide by a shared understanding of what is and is not in bounds?

Nadler replied immediately, proposing an antidote — the only one that works in this kind of situation. It was the North Star that had guided him through his decades in politics and all of us through the entire impeachment year.

“The truth,” he answered.

Nadler rose and blasted Trump’s lawyers: “They lie, and lie and lie and lie.” He explained that they didn’t want the Senate to hear from Bolton “because they know he knows too much.” And then he lit into the senators themselves, warning that the Senate was “on trial in the eyes of the American people.” Voting against testimony from Bolton and other witnesses was “voting for a coverup” and “obviously a treacherous vote.”

As Nadler returned to our table, all hell broke loose, with Trump’s counsel furiously arguing back and Sen. Susan Collins (R-Maine) complaining to Chief Justice John Roberts, who ultimately reprimanded both sides. Nadler kept his face studiously neutral through it all. As he pointed out to me and Berke in a low voice, “It is treacherous and they are lying.”

Nadler wouldn’t win any awards for diplomacy. But he saw what lay ahead: the betrayal of our Constitution by the Republican senators who would embrace the lies — and the need to rely on the judgment of the American people instead. In fewer than 100 days, they will cast the ultimate verdict on the president and his enablers.

This article is adapted from “A Case for the American People: The United States v. Donald J. Trump.”

CORRECTION: An earlier version of this story misidentified the state Rep. Jason Crow represents in Congress. He is from Colorado, not Wisconsin.

Twitter: @NormEisen

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