Impeachment Trial Analysis, Day 4: Obstruction and Intimidation

As President Donald Trump’s impeachment trial unfolds, Courthouse News will be reaching out at the close of each day to prominent attorneys, scholars and other experts in the legal community for analysis on the historic proceedings. Joining us as the Democrats wrap up their opening arguments is Harry Sandick, a former federal prosecutor turned criminal defense attorney for Patterson Belknap.

 

WASHINGTON (CN) – As the Democrats wind down their opening arguments for President Trump’s removal from office, themes of obstruction and intimidation pervaded impeachment news both inside and outside the Senate chamber.

Former federal prosecutor Harry Sandick, now a criminal defense attorney with Patterson Belknap.

In this daily feature of expert analysis on Trump’s impeachment trial, former prosecutor and defense attorney Harry Sandick explains why he believes “today, in a way, is the day that is most important for the institution of Congress going forward.” He also explains why obstruction of Congress, the focus of today’s proceedings, matters. Finally, the former federal prosecutor reacts to alarming reports that Trump was taped saying of Ambassador Marie Yovanovitch: “Take her out.”

“The president often seems to speak like an organized crime figure, and he’s doing that here,” Sandick said.

What are some of the most significant things that you observed in today’s impeachment proceedings?

Today, on the obstruction of Congress piece, which is really what they’ve been focusing on—trying to show how extreme the president’s position has been in terms of his blanket refusal to provide documents and other evidence to Congress. It’s always the case that there are disputes in every lawsuit, there’s always some dispute of what should be produced, what shouldn’t be produced, but here this almost categorical refusal to produce anything. It’s extreme and I think that’s what’s really driven the obstruction of Congress case.

As is the case with all obstruction charges, part of the problem in terms of explaining why it’s important, you don’t necessarily know what the significance of the obstruction is because of the obstruction itself. So, why does it matter that he hasn’t produced those documents? Well, we can’t tell you unless we know what the documents are, precisely why it matters.

But I think today, in a way, is the day that is most important for the institution of Congress going forward. Can Congress conduct oversight of the president and the executive? And for more than 200 years, the answer is yes. There’s even discussion in the First Congress of the United States about conducting oversight of things that the executive branch did. And that oversight depends on the executive being willing, at least to some extent, to produce documents.

More recently, when Congress was investigating Benghazi, Hillary Clinton—Secretary of State at the time of the attacks in Libya—showed up, spoke for 12 hours. They’re refusing to allow the president’s advisers and cabinet members appear, saying they can block it entirely—when in fact what the law really says is that there might be specific areas that you may not be able to go into, but it’s a question by question approach. And you can’t just, as a blanket matter, order people not to show up. So, this is new. This is different. And if Congress is okay with this, if the Senate says, ‘This is fine,’ then, what will allow them to enforce a subpoena next time when the president might be of a different party. They are setting a precedent, not one that will be recorded in the federal reports, but one that people in Congress and others in politics will understand.

So this piece is not just about the specifics of the Ukraine issue, but I think that it’s really raising a larger question about how separation of powers will function.

ABC News is reporting the existence of a tape apparently of President Trump in the same area as Lev Parnas and Igor Fruman saying of Ambassador Yovanovitch: “Take her out.” What do you think the significance of that is?

The statements themselves are shocking, although perhaps not surprising. The president often seems to speak like an organized crime figure, and he’s doing that here. He’s not saying get rid of her to Mike Pompeo, who is in the chain of command and could be ordered to replace an ambassador. He’s saying it to his personal lawyer and these two other figures, Lev Parnas and [Igor Fruman]. If he were saying this to someone in the State Department, you might understand it and say, obviously he’s not calling for any physical harm, but it’s the sort of thing that organized crime figures say. “Take her out.” That, when you add in the recent disclosure that Ambassador Yovanovitch may have been surveilled by certain individuals, certainly sounds very threatening. And can recall that the State Department wanted to get her out of the country in a hurry. So, it does seem as if there is a need for the Diplomatic Security Service, which operates as the police department within the State Department to investigate this and find out whether in fact threats have been made, suspicious surveillance has been undertaken of a U.S. ambassador.

You’re a former federal prosecutor in the Southern District [of New York]. Have you ever heard wiretap recordings of people talking like this, and what was the context?

You definitely hear people talking about people making threats of violence in wiretaps or in body recordings that a cooperating witness or an undercover might record. It’s a frightening thing to hear because what it means is that your investigation may have to be taken down. You definitely have to, if you haven’t already, take steps to move the person who’s being threatened, find them some other place to live, make sure that they’re safe. If you didn’t do that already, you’d certainly have to do that after hearing this. So it’s a pretty alarming thing to hear threats of violence. We can’t read the minds of the people who were at this meeting. Maybe it was just meant to be colorful, but when you’re in law enforcement you don’t just assume that it’s meant to be color. You take it seriously.

It struck me as you were talking about that, the protective measures that you outlined were the same things that happened eventually to Ambassador Yovanovitch?

Someone there, perhaps at the Diplomatic Security Service, figured out that there was a risk, and they got her to safety. And you know, she’s an ambassador. She’s our country’s representative overseas, and when they are under attack, or under threatened attack, there’s almost nothing that is more serious.

This interview was edited for brevity.

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