The Witness and the Whistleblower: Some Thoughts

This week saw two separate threads of Trump scandals unfurling in tandem with one another.

First, the president’s former campaign manager, Corey Lewandowski, testified before the House Judiciary Committee about Trump’s efforts to recruit him to quash the Russia probe. Barely had Lewandowski finished when details began trickling out of a whistleblower complaint from the intelligence community and concerning the president’s conduct.

These events may seem unconnected. But they are not.

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What links the Lewandowski testimony to the new whistleblower issue? They both involve allegations of outrageous presidential behavior. And they both feature aggressive efforts by the administration to impede congressional inquiry into those allegations by using claims of executive branch confidentiality. If Congress is to engage the current moment remotely effectively, it needs to think about them together.

In one case—that of Lewandowski—the Mueller report spells out with exquisite precision what the allegations consist of. In the other case, that of the whistleblower, we don’t know precisely what the allegation is, though the contours of the complaint are beginning to take shape. We know that the inspector general of the intelligence community regarded the whistleblower as credible and the matter as raising an issue of “urgent concern.” And thanks to the Washington Post, we know some other stuff as well: that the whistleblower is an intelligence community employee who was working in the White House, that the matter concerns the conduct of President Trump, that it involves a promise of some kind to a foreign leader, and that it involves specifically a call between Trump and Ukrainian president Volodymyr Zelensky on July 25.

A couple of weeks ago, in an editorial, the Post made a bald allegation:

In his unhinged meltdown on CNN last night, the president’s personal lawyer Rudy Giuliani fueled concerns both as to the underlying conduct and about whether Trump’s call with Zelensky involved some effort to pressure Ukraine to, well, interfere in the 2020 election. Giuliani acknowledged, after initially denying it and amidst a great deal of shouting, that he had, in fact, asked the Ukrainians to investigate Biden’s son.

Today, shortly after the initial version of this piece was published, the Wall Street Journal reported:

President Trump in a July phone call repeatedly pressured the president of Ukraine to investigate Democratic presidential candidate Joe Biden’s son, urging Volodymyr Zelensky about eight times to work with Rudy Giuliani, his personal lawyer, on a probe, according to people familiar with the matter.

“He told him that he should work with [Mr. Giuliani] on Biden, and that people in Washington wanted to know” whether allegations were true or not, one of the people said. Mr. Trump didn’t mention a provision of foreign aid to Ukraine on the call, said this person, who didn’t believe Mr. Trump offered the Ukrainian president any quid-pro-quo for his cooperation on any investigation.

Mr. Giuliani in June and August met with top Ukrainian officials about the prospect of an investigation, he said in an interview. The Trump lawyer has suggested Mr. Biden as vice president worked to shield from investigation a Ukrainian gas company with ties to his son, Hunter Biden. A Ukrainian official earlier this year said he had no evidence of wrongdoing by Mr. Biden or his son.

If it is true that the president used the threat of withholding congressionally authorized funds to—in the Post’s words—“extort” a foreign leader into investigating a domestic political opponent and his family, that would be a very big deal indeed. That allegation, if true, would unambiguously constitute an impeachable offense, indeed an offense that positively demands impeachment from any Congress that wishes to be taken seriously. It would be impeachable for at least three separate reasons: first, because it would involve the extortion of a foreign leader for personal and political gain; second, because it would involve the solicitation of a foreign government’s involvement in a U.S. election; and third, because it would involve the solicitation of a foreign government’s investigation of a political opponent in a fashion that grossly violates the civil liberties of a U.S. person, namely Biden’s son.

So Congress absolutely must investigate and find out what happened here. But therein lies the problem: Congress is quite impaired in its ability to effectively investigate—at least quickly.

In a Twitter thread yesterday, which I replicate here in its entirety, Jack Goldsmith rightly points out that communication between a president and a foreign leader constitutes material that the executive branch under any president would try to protect:

Without getting into the question of whether Congress would ultimately prevail if it decided to lock horns with the executive branch over the production of the whistleblower’s complaint, I will say that there is little to no chance of Congress prevailing quickly in court. If this goes to litigation, it will mean a months-long stand-off. Congress will once again be deferring to an executive branch investigation (in this case, that of the inspector general) that will be conducted in secret. And the legislature will be waiting for the fruits of that investigation to show up at its door—asking the executive branch to share information for it to evaluate, rather than developing that information itself.

Sound familiar? It should. This is what was on display with Lewandowski this week.

The House Judiciary Committee didn’t do a half-bad job interrogating the recalcitrant Lewandowski. But it also added no new information to the conversation. The committee got Lewandowski to confirm the basic outlines of the same story he told Mueller and that Mueller reported. This was information for which Congress had waited many months—and if it wants to advance the ball now, it will have to wait many more months while it litigates efforts to compel Lewandowski to answer the questions he refused to address on the grounds of possible executive privilege. No matter that in Lewandowski’s case, the assertion of executive privilege would extend not only to people wholly outside the executive branch but to people engaged not in advising the president but in facilitating his interference with law enforcement. The litigation will still take months.

The basic problem here is that Congress is not developing the information itself. When a new revelation breaks about the president’s conduct, it breaks in the press, or in the Mueller report—or in a complaint to an inspector general. And the White House then stalls on any effort to respond to it by Congress. That stalling, it turns out, works. By the time Congress eventually holds a hearing, the public has priced the new revelation into its understanding of the president and his conduct; the revelation is not news anymore. These protracted fights give time for the impact of the revelations to be diffused. They give time for counterattacks to take hold.

Congress needs to think hard about how to raise the costs, both to the executive and to individual witnesses, of the sort of defiance it has seen—and to shorten the time frame for addressing defiance. One oft-discussed possibility is to revive the long-dormant inherent contempt power of Congress and to begin using it to coerce compliance by recalcitrant witnesses. Imposition of large and mounting daily fines could effectively force witnesses to bear the risk of delay and defiance, and it has the advantage of not depending on executive branch enforcement for a contempt citation. But it’s also a big risk. The power hasn’t been deployed in a long time, and it’s not 100 percent clear that courts would tolerate it.

Here I want to suggest two other approaches Congress could reasonably adopt. Neither is a cure-all or a complete approach in and of itself. But both may have utility, particularly in combination with each other and an aggressive litigation strategy.

The first is that Congress should be clear that it will draw adverse inferences from the assertion of executive privilege on matters pertaining to allegations of presidential misconduct. In the criminal setting, this would be verboten. If Corey Lewandowski were to assert his Fifth Amendment rights before a jury and refuse to answer questions about his conversations with the president, it would be quite improper for that jury to interpret this as an indicator of some impropriety or as evidence of guilt. In fact, it would be unlawful; a criminal defendant is actually entitled to a jury instruction forbidding the jury from giving weight to his or her decision not to testify. But critically, the logic behind this is not that it’s unreasonable intellectually to assume that someone who refuses to answer questions is hiding something. The reason, rather, is that the Fifth Amendment gives the defendant the right to hide such things.

The Fifth Amendment right against self-incrimination, it bears emphasis, has no application to noncriminal, political judgments. So Congress gets to deploy a different standard here—and in my judgment, it should. With respect to Lewandowski, the president has the power, at least in the short term, to direct him to refuse to answer certain questions. And Lewandowski has the power to resist answering other questions, as he did. In addition to moving to compel him to answer those questions—in other words, contesting the president’s assertions of privilege—the House Judiciary Committee should regard itself as free to read such refusals as effective confirmations of the worst reasonable inferences from the relevant passages of the Mueller report. If Lewandowski refuses to provide information that mitigates the inferences one could reasonably draw about what Lewandowski’s interactions with Trump suggest about the president’s intent, the committee should draw those inferences.

In the case of the whistleblower matter, there is a particular reason for Congress to take this posture: The president’s actions may be doing ongoing damage to crucial foreign policy interests—not to mention the integrity of a coming presidential election and the civil liberties of Americans. Congress, in other words, may have an exigent need to take action and simply be unable to assume that the executive confidentiality being asserted is not enabling illegality. So it needs to adopt the posture that if it cannot get the information it requires to evaluate the situation, it has to assume the worst and act on that assumption.

This seems to me an important corollary of what David Kris was getting to in his brief Twitter response to Goldsmith:

If you take seriously the idea that Trump has the power to keep such material from Congress, it necessarily follows that Congress must have the power to respond—with measures up to and including impeachment—without necessarily fully understanding the facts. That is, it must have the power to make adverse inferences from the assertion of privilege.

A second important point is that Congress needs to develop its own witnesses. The current whistleblower fight is instructive. So far, the House Intelligence Committee has gone after the whistleblower’s complaint, and it has sought to hear from the inspector general and the acting DNI. It has not demanded to hear from the witness personally—at least not yet. Before it gets into a lengthy standoff with the executive branch over the fruits of the inspector general’s investigation, replicating its posture with respect to Mueller, Congress should seek the witness testimony directly. Remember that Alexander Butterfield didn’t reveal the Nixon taping system in conversations with the executive branch investigators, but with Congress.

To be sure, the executive branch can try to block this person from testifying or meeting with congressional investigators, and this person may honor the executive’s bar. But executive privilege is ultimately deployable only if the witness, like Lewandowski, is willing to honor it. If the witness agrees to tell the story, the executive branch cannot really stop him or her from doing so—though it can retaliate. As Jim Comey showed, the executive branch can’t ultimately prevent a willing witness from testifying as to matters the president deems confidential—even matters involving the president’s personal communications. Rather than fighting as an initial matter over the inspector general’s investigation, the first step should be to see whether a witness who was brave enough to file this complaint in the first place is willing to tell the truth to Congress.

Litigation pressure has a place in the confrontation between Congress and the White House, but Congress also needs to develop more nimble instruments of pressure. Most important, it needs to stop trying to ride in the slipstream of executive investigations it can’t control. Instead of, or in addition to, trying to force reluctant witnesses to testify, it needs to focus on developing its own relationships with witnesses who actually want to help.