TF 43 Deja Vu Impeachments Then & Now (Rush Transcript)
Harry Litman [00:00:07] Welcome everybody, to the first of a very special set of episodes of Talking Feds. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. We're here in Washington, D.C. this week to tape a series of podcast episodes in front of a live audience just blocks from the White House. Thanks to our gracious hosts here at The George Washington Law School, George Washington University Law School. Thanks to your graciousness for having us.
Harry Litman [00:00:50] And of course, it's not just any week, but one that's going to be in the history books that will tell our grandchildren about all this week, we will be talking about impeachment as the House gears up to undertake its grave constitutional responsibility tomorrow. The House will begin impeachment hearings of President Donald Trump only the fourth time anything like this has occurred in U.S. history. And the title of this panel is Deja Vu. The Trump Impeachment and Impeachments Past. As it suggests we want in our too short 50 minutes to be drawing contrasts and comparisons between 1974, 1998 and today, and especially from the vantage point of the House Judiciary Committee, because we are incredibly privileged to have representatives from that committee, from each of the three impeachments past.
Harry Litman [00:01:55] And we have a phenomenal set of guests to discuss. I really haven't seen a show like this and I've been wanting to see it for months. So we decided to do it ourselves. So first, we are really honored to have Congresswoman Mary Gay Scanlon, who represents Pennsylvania's 5th Congressional District. She is, as you know, Vice chair of the House Judiciary Committee and a member of the House Committee on Rules. Previously, she was the national pro bono counsel at Ballard Spa, where she oversaw like six hundred lawyers and 15 offices doing all good. Welcome, Congresswoman, thank you for being here.
Mary Gay Scanlon [00:02:44] Thank you.
Harry Litman [00:02:46] We are honored also to welcome Congresswoman Sheila Jackson Lee, who has represented the 18th congressional district of Texas since 1995. In other words, since before the Clinton impeachment and the Congresswoman who is now a senior member of the House Judiciary Committee was also on the -- this is not her first impeachment. Thank you so much for being here. We're joined by Lanny Breuer, who is Vice chairman at Covington and Burling. He served as Assistant Attorney General for the Criminal Division at the U.S. Department of Justice under President Obama. But more to the point here, he was special counsel to President Bill Clinton during his travails in 1998. Thank you very much for being here.
Harry Litman [00:03:41] Finally, we are supremely honored to welcome to Talking Feds Elizabeth Holtzman, who was at the time the youngest woman ever elected to Congress, a record that stood until 2014. During her distinguished tenure representing New York's 16th Congressional District, she served on the House Judiciary Committee and in 1974, she was one of the members who recommended three articles of impeachment against President Richard Nixon. Thank you so much for coming down from New York to join us. She was going to do this by phone and came personally to be here. All right. So let's get right to it. We're we're already down to 46 minutes. So let's start with just a few words about the hearing tomorrow. We know now that Representative Schiff, who is a former assistant U.S. Attorney, looks to be preparing for the hearings like a prosecutor. There's going to be an opening statement. There's going to be between him and another former prosecutor who's a counsel to the committee, Danny Goldman will be doing questions from the transcript of the witnesses that you know about. I want to just compare that structure that that we're having tomorrow and with it and whether you think it's effective, but also how it compared with the approaches of the committee in Watergate and during the Clinton impeachment. Was it like that? How was testimony again at the House level adduced and did you think it was effective way to get the facts out there? And do you think that the Schiff approach is promising? Can we start with you, Liz?
Elizabeth Holtzman [00:05:36] Well, the House Judiciary Committee during Watergate did basically no investigation. Most of the facts had been or many of the facts had been brought out in public hearings. They may have been depositions beforehand by the Select Senate Committee on Watergate, chaired by Sam Ervin of North Carolina. So the Senate brought out important facts and educated the American people primarily about the cover up of the Watergate break in by President Nixon. That's where John Dean testified about the cancer on the presidency. But we also received information from the grand jury, the Watergate grand jury and the judge, through a court order, permitted the grand jury to to turn over to us what was known as a roadmap, basically evidence that would affect our ability to determine whether the role President Nixon played in the cover up and in other things.
Harry Litman [00:06:44] So when it came time to actually vote it out. What was what was the work product you were looking at? And did you do anything further to either develop or recapitulate the evidence?
Elizabeth Holtzman [00:06:55] The evidence. First of all, the committee itself had to be educated. So the way that was done was in closed door hearings where the staff compiled the information from those two sources and possibly from other hearings that had been held and presented to the committee in what was called statements of fact. And they were read to us so that nobody could say, I never knew what was going on. You had to hear it. You had to listen. And they also gave the opportunity for people to challenge the statements of fact. So the Republicans had every opportunity to say, "Well, the statement of fact says that on such and such a day, Richard Nixon did that. Well, what's the support for that? What's the backup for that?"
Harry Litman [00:07:41] So no counter presentation, no damn them, you know, just a neutral statment of fact--.
Elizabeth Holtzman [00:07:45] Well, we didn't have Republican and Democratic counsel.
Harry Litman [00:07:51] Ah, huge.
Elizabeth Holtzman [00:07:51] That was a very big difference. Democrats had Republican counsel and, of course, a Republicans had a Repubublican counsel. So the statements of facts were presented to us. It was the committee members who could challenge it. And then the first time we had public anything in public really about the substance was in our debates on the Articles of Impeachment themselves. And those articles, when we had the debate, there were opening statements, and then we had to back up the articles, the exact, the evidence in the articles. And I think the sincerity of the members, the solid evidence that we had, we didn't have the smoking gun tape at that time. And the fairness of the proceedings really persuaded the American people. May not have understood every single fact, every single argument. But persuaded the American people about the justice of the cause of removing President Nixon from office.
Harry Litman [00:08:46] So first, what a dramatic contrast. The fact development originates in the Senate.
Elizabeth Holtzman [00:08:51] And then the grand jury.
Harry Litman [00:08:53] And then the grand jury. You were given a precis of it behind closed doors, apparently without riots and anybody storming the chambers.
Elizabeth Holtzman [00:09:03] Press.
Harry Litman [00:09:04] And then you you come forward and do a debate on an already sort of established book of evidence. How about the Clinton impeachment?
Sheila Jackson Lee [00:09:12] Thank you. Well, first of all, I'm with such good company and I'm certainly with my fellow colleague on Judiciary Committee, and we all have mutual respect. And I didn't know I was going to be reunited with Lanny because we were together in 1998. Let me just do this for a moment. I'm so glad you started with this question and forgive me, but I am a mentee of Barbara Jordan, and she was on that committee and she preceded me in Congress, in my district. And so I'm just gonna read these these lines for for us to contemplate. And this was from John Marshall who wrote The Federalist Papers, "A Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs." And I think our colleagues on the other side of the aisle have really lost their focus. But what happened in 1998 was that the independent counsel statute existed. It existed in 74 and existed in 1998. So in actuality, the grand juror was Ken Starr, who presented this whole mismatch, if I might say, of facts. And of course, the most stark and striking and provocative and it was intended to do so was the dress and all of the innuendo.
Harry Litman [00:10:34] People remember that trucks pulling up with the, you know, the huge volumes to be delivered.
Sheila Jackson Lee [00:10:40] It was he had started on Whitewater and other things. And then all of a sudden, late night calls, Almost like your television program, some late night calls got in and said, I have something else. And that's how it pivoted to this particular scenario. So it was presented in 1998, The House Judiciary Committee did have counsel. We had Abbe Lowell we hired to when I say that the Democrats who had a different perspective, had counsel, but the counsel was to deal with the counsel that the Republicans enthusiastically embraced was Mr. Starr. They really had something, as they say, the tiger by the tail. And I am a pro animal activists. So I don't want anybody to take that comment out of context. But in any event, that's how --and so we, along with our Democratic counsel, to be fair, and then the president's counsel had time to cross-examine or make presentations in that Judiciary Committee.
Harry Litman [00:11:49] And who were you cross examining? Starr himself?
Sheila Jackson Lee [00:11:54] Starr himself. And the lawyers cross exam. We had time for that. Members came and I think after the fact and did some questioning. But let me just tie this one point. What we have now so that the public can hopefully ultimately understand, are the investigatory process that was done by Starr and Jaworski in Watergate. So we don't have the independent counsel statute anymore, which the president has obviously is excited about the confusion he causes. Why my lawyer's not here. And of course, the Republicans cause confusion. Why are we not in the room? They were in the room. But why aren't the president's lawyers? Because it was the investigatory process or it is the investigatory process, like a grand jury or otherwise. And so what you're going to see tomorrow is what will be given to us. And they're still investigating. So they will give the witnesses--will now be seen by the public. And then it will be up to them to write a report and give it to the Judiciary Committee, which at that time can still call a witness or two. Obviously, strategy has to be in place. Conversations. Chairmen. But then that is where that report gets housed. That was a report given by Watergate. The report given by Starr. And of course, as we mentioned, they had just Senate proceedings in in Watergate and then it gets taken over to judiciary. Well, we will get is from the three committees that everyone has been hearing about Oversight, State excuse me, Foreign Affairs and, of course, intelligence. They will walk that report over to the Judiciary Committee in place of a special counsel, independent counsel. I think the president wants not to be a fact finder. He wants to disabuse Americans of the facts and wants to label us as the as a as a a disrespecting the Constitution.
Harry Litman [00:14:03] She's holding up the Constitution--
Sheila Jackson Lee [00:14:05] Of disrespecting the constitution. And this is just a small quote. I guess they just took it and put it in this book, which we're supposed to use for the crisis of human affairs. We have that crisis now. We are following that constitutional roadmap of what we're supposed to do.
Harry Litman [00:14:20] I want to follow up just with one quick point and then turn to Lanny to amplify a little bit about the Clinton impeachment. We've been hearing, I've sometimes been having to counter this point on on TV that there have been some failures of due process in the way things have gone. I'm a longtime prosecutor. Every investigation, a prosecutorial investigation, a congressional investigation begins by who's ever investigating, who will be the prosecutor if she or he brings charges, has witnesses in a room, talked to them for a long time. All kinds of boring things from from what they had for breakfast to little nuances to really what we'll see tomorrow is the greatest hits. But the notion that there's something anomalous or improper about initially talking to witnesses, by the way, it would have been incredibly boring. Among other things, for 10 hours of this of this sort of stuff that is just completely routine. And there's for very good reasons, you would never have the the person you're investigating be in the room. Among other things, witnesses then could correspond their stories to one another. So for, for example, the correction that Sondland had to make to his story, that couldn't happen if you're all together. But it's just it's it's so not a due process situation. It's just a completely routine investigation. Lanny, I just want to get your thoughts from the lawyer standpoint and ask in general, and I'll ask this of Congresswoman Scanlon as well. Do you feel that both sides in Clinton were able to present their best case based on the structure, or did the structure impede their ability to to really give their best arguments?
Lanny Breuer [00:16:11] Well, Harry, I think the fundamental difference now with what happened in Clinton was that we were very vigorous and zealous in our defense of the president. We felt fundamentally that what the president did affected his moral rectitude and his personal conduct, but did not reach constitutional proportions. We thought that the process was unfair. We thought that the the Judiciary Committee controlled by the Republicans was unfair. But not for one minute. Not for one minute did we refuse to participate. We understood, as Congresswoman Sheila Jackson Lee pointed out, that impeachment is a part of the Constitution. And whether we thought it was fair or not fair and we did not think it was fair, indeed, one of my colleagues on the day that the report came to Congress said there is nothing fair about this process at all. But not for one moment did we think that we could defy subpoenas, could we defy a coequal branch. We fought hard and we had arguments. So the first point is the notion that a White House completely refuses to participate, I think is extra constitutional. It's completely uncalled for. It's improper. It flies in the face of what's ever happened before. But once we participated, no, we didn't think it was fair. Ken Starr, you know, delivered his report.
Harry Litman [00:17:37] Yeah. Give us the quick, you know, what happened in the four days or so, in the actual hearings of the American people.
Lanny Breuer [00:17:44] Well, what happened first was that the report, you know, with great fanfare. I mean, today, you know, with the young people in the audience, they could imagine, but back then these SUVs going, I mean now was a big deal and we were watching it and there was leaking all the time. And quite honestly, the leaking had two effects. On the one hand, it was profoundly unfair. But candidly, and this is a little immodest. President Clinton had a very well prepared group of lawyers and all we did was we were devoted to defending him. So because of the leaks, by the time Congress got the report, we had literally about a 200 page rebuttal that we relied on, basically based on leaks and contacts with lawyers.
Harry Litman [00:18:31] That's like Mueller. By the time it came--
Lanny Breuer [00:18:31] We were pretty we were pretty prepared for it. But unlike Muller and unlike what happened when Liz was in Congress, Congress took the The Starr Report and within two days just released it. And it was the closest thing to pornography. I mean, it was incredibly raucous, incredibly vibrant. It was meant to embarrass the president. And so our thesis throughout was that the president had, of course, been embarrassed and humiliated. And one profound difference was, by the time the House is considering this, maybe too late, but the president has acknowledged his errors. He has spoken to the American people and he has admitted he has done wrong, not to the point of an impeachment and constitutional proportions. But he admitted as an individual, he had failed. And then we could argue--.
Harry Litman [00:19:34] He didn't say his relationship with Monica Lewinsky was perfecto.
Lanny Breuer [00:19:35] So it's it's it's really very different that way. And then just answer your question. We only had a couple of days. You know, we had we had we had a couple of days--.
Harry Litman [00:19:45] But did you get to fairly deliberate?
Lanny Breuer [00:19:46] We had we had first a half an hour and I think ultimately an hour to cross examine Ken Starr, which was preposterous. We were able to bring witnesses who were expert. Liz was one of our great witnesses talking about what should or should not be constitutional. We really had eminent scholars. But but absolutely not. We didn't think it was fair at all. But nonetheless, we participated completely.
Harry Litman [00:20:16] And I want to make two follow up points. Again, one of the criticisms we've heard is while the whistleblower's account is hearsay, it's not. Well, all you guys had was the prosecutor himself to summarize that there were there was no--
Lanny Breuer [00:20:29] There was no independent review by Congress at all.
Harry Litman [00:20:32] And another I think even bigger point when this goes to Congresswoman Jackkson Lee, when you have a Jaworski or a Cox or even a Ken Starr or Bob Muller on the actual on the trail, the White House can't simply thumb its nose. What's going on here is if there were an active prosecutorial entity, people who were who were just ignoring legal mandates might find themselves under criminal investigation and potentially there'd be cooperation between DOJ and Congress. But under this Attorney General and this Department of Justice, people know there really there's no possible collateral consequences. So you do have this stunning spectacle of people sort of taking it, as you know, precatory whether or not to obey congressional subpoena.
Sheila Jackson Lee [00:21:27] Just for a moment. It's here today and gone tomorrow. I think your point is very well taken. I'll just say this very quickly, and I think Lanny articulated it first. It should be noted, I think when the Republicans the rules he was operating under were Republican rules. The the attitude of the American people for impeachment at the time was about 31 percent, quite different than where we are even today. But the point was, yes, it was status in the independent counsel statute and the individuals who were independent counsel. And obviously, Archibald Cox, they did have status. So there is there is not that singular prosecutor who has that independent authority to look you in the eye and say, yes, I will subpoena you and I will have you in court or I will have you under criminal charges. We in the Congress, I think, are doing an enormous task well. We are using the deck that is dealt .
Harry Litman [00:22:25] Well, you're having to half the deck. No one's given you the deck.
Sheila Jackson Lee [00:22:25] No, and we are the as I say, we are the investigators. And one would say that we are, in quotes, the special prosecutor. So your point about the hammer that that Watergate that that Leon Jaworski had, which we well know his prestige, the the leadership of Archibald Cox and, certainly, Ken Starr was knowledgeable in and of himself, but the point is that the authority of that statute allowed them to have more of a heavy hammer than what we have. And I think we've done a mighty job. And I'll just finish on this note. And, you know, I served as a former judge in what we call the misdemeanor court. And so what I would say is that, even in that court, because sometimes people speak for themselves, the the idea that there was a denial of due process even in that court, some prosecutor comes up who has investigated before they get into the court to give the due process to the person who's being charged. And the last point I would say is that the the Democrats during the 1998 impeachment proceeding, as I believe we are going to be, were very well prepared. And I think handled themselves from John Conyers on very and not because I was on that panel, because I certainly was one of the the newer members, but the point is, is that we took it seriously and we were prepared. And I would hope that the president's counsel thought that we were prepared in proceeding because we knew how serious it was.
Harry Litman [00:24:00] So one thing we can say is both Watergate and Clinton are hugely different in how they're structured, how people learn about the facts, even how the House learns about the facts from today and what's happening in the Trump impeachment. So turning finally and thanks for your patience, Congressman Scanlon. How are you feeling now about the way you approached it, whether it's, you know, relative to these other models, the sanguine way to be getting things things out? And, you know, the structure we're going to see tomorrow, what's it designed to do and what do you think the prospects are?
Mary Gay Scanlon [00:24:38] Well, so so tomorrow's my one year anniversary of getting sworn in to Congress. So it's been quite a year. But as I was listening to let's talk about how things were delivered, I was really jealous because, you know, there are certainly parallels between what happened in Watergate and what's happening now, particularly around issues like cover up. They were handed a grand jury report that was like a roadmap. Well, it took some time, but we were handed a report from the special counsel Mueller, which read like a roadmap. But the problem was we could never get past that because there was this just unfathomable, this really hard denial of the right to see any of the underlying materials. I mean, today, for the first time, we're seeing some of those underlying materials that were redacted and not provided to us because they were part of grand jury proceedings or ongoing criminal investigations. So today we had Gates, Paul Manafort's second testifying in the Roger Stone trial that, in fact, he overheard the president having phone calls with Stone about when WikiLeaks dumps were going to occur. That information had been denied.
Harry Litman [00:25:53] Before the dumps did did occur. Because we know Stone knew them.
Mary Gay Scanlon [00:25:54] Before the dumps did occur and the president answered questions under oath to the special counsel, saying he did not have that knowledge. It would have been really nice to have that information back in March or April when the report first came out instead of the dribs and drabs that we've seen now. So I think we have learned from what happened with the stonewalling with respect to that report and that denial of information that Congress should have had. So when yet another violation came up with respect to the the shakedown at the Ukraine that we moved Congress moved much more quickly and is just going directly to the source and getting the information that we can as quickly as possible, because we can't afford to wait for the administration to agree to do its constitutional duty.
Harry Litman [00:26:42] Yeah, I mean, in general this time lag -- I'm sorry. Liz, go ahead.
Elizabeth Holtzman [00:26:47] I just wanted to make a small historical point here, which is, first of all, the Nixon impeachment process is the only one that actually worked to remove a president of the United States. OK. And secondly, the fact of the matter is that the analogy is we had the benefit of the Senate Watergate public hearings after they took depositions, those hearings educated the American people about the basic facts of the cover up. We had nothing like that here. Why? Because the Republicans were in control of Congress for the last two 4, 2 years and they didn't have public hearings. Very interesting. They had hearings. But did anyone ever see Donald Trump Junior testify in public or Jared Kushner testify in public? They wanted to hide this from the American people. And so what's happened now is that Congress has to kind of make up for the public education element that we had the benefit of. So that's how I see these hearings that are taking place starting tomorrow. This will educate the American people about in public about who the witnesses are, what the basic elements are. Let the American people kind of, kick the tires, if you will, take the temperature of these witnesses, see if they think they're credible. I think that that's really important. But we and the House Judiciary Committee during Watergate, during the Nixon impeachment process, this we had the Senate to do that work.
Harry Litman [00:28:24] It's a huge point.
Elizabeth Holtzman [00:28:26] So that a very big difference. But I so I think that the Democrats have really had to make up for two more than two years of lost time here. And not only that, two years of lost time, but as Lanny Breuer pointed out, we have a president now who's defied the constitution in a really fundamental ways. He's -- I don't like the impeachment process. Well, who likes to be impeached? I want to know a president that's gonna say, yeah, man, I go out making the tough. But the point is that if you're going to deny the impeachment process, you're denying the fundamental last resort that the framers of the Constitution fashioned to protect our democracy. So to threaten that, to denigrate that, to defy that, to undo that, to to destroy that power means that the Congress will not be able to protect the democracy either against Donald Trump or anybody in the future. And that's really what's at stake here. And that's are really terrifying.
Harry Litman [00:29:27] Yeah. I mean, I just want to say what's on one of the things that are unfathomable. I mean, even in the what I would seem to me at the time, the hyper partisan days of Clinton and but definitely in Watergate, it was understood -- I guess this really picks up on and on comes from Jackson Lee's-- point -- you'd get a subpoena, you comply with--
Elizabeth Holtzman [00:29:48] Nixon didn't.
Harry Litman [00:29:51] But nevertheless, he was he -- that's true. But there were his his advisers. I mean, this was a very grave moment with advisers around him. The casualness of the complete disregard of congressional duty here, I think is a is a structural difference in there and a bigger obstacle in what you're--.
Elizabeth Holtzman [00:30:11] He didn't block everyone working for him from coming in completely, I mean Dean came in--
Lanny Breuer [00:30:17] My question for everybody else in the panel, since I'm the only one here, has not served in Congress or run for office is it's really sort of extraordinary as someone who has worked with Congress, who has represented a president, who's represented institutions and individuals throughout, who've had to testify before Congress, that really so many members of Congress are willing to let the constitutional power of the legislative branch just go up in smoke. And whether it's because there is fear and I really mean it fear that is the emanating motive or not, it's sort of extraordinary whether you're a Democrat or a Republican or whatever, that you're part of an institution. You understand the power that the founders have given your institution and yet you're willing to let it all go. And I think that is one of the tragedies that we're seeing right now. And in a piece I wrote, I said it really makes every private litigant forever wonder why should I have to comply with a subpoena? It seems pretty easy. You don't have to. And so that's a remarkable phenomenon.
Sheila Jackson Lee [00:31:23] Well, if if I might, as I was listening to you, I think I was quivering, because I think that is the crux of where we are today. This is this is what we'll keep you up at night or keep you up up to 3:00 a.m. or either you wake up at 3:00 a.m. and that is the outright conspicuous and blatant abuse of power. This is frightening. And what I want to say is the Mueller report was a well documented, articulate, filled with major work by competent counsel, unbiased, from my perspective, who dug into the weeds of this administration early on. Operative contacts in Volume 1 were without comparison to any other administration in forty five presidencies. The Volume 2 and the 10 items of obstruction of justice -- now it looks like we just put them on the shelf of "Tarjay" or not even in the library, were overwhelming for any lawyer or anyone that would that that could read. And I understand the American people, if you wanted to take time, if you wanted to stand on a street corner and read from it and people pass by and said, "What?" It's unbelievable. But what we had in the middle. That we did not have I believe with Clinton, at least, I know that there was a tumbling of A.G.s under Nixon, is an A.G. Attorney General, the people's lawyer that came out and said: There was no collusion. Anybody that's just getting on a bus, going to work or has no time deal with it, they just heard that. Check that box. And then the president was exonerated. He did that before we even got this in our hands. That's a big voice that says, don't worry about it. And from there, we had an uphill landing. We had an uphill journey because somebody says the Attorney General, I think the American people I mean, this has wracked us from the moment -- the American people can under understand that. And so that big book, which in and of itself would generate impeachable offenses by way of abuse of power, which is really, it's not written anywhere, but it really isn't. -- it's the crux of what we are trying to prevent. To protect you, which is that someone can abuse power, can abuse power in the absence of the light shining on them to the detriment of the American people. And no one's mentioning Attorney General Barr. I mean, we're still trying to locate him, but it's very difficult for, you know, for all of us who have this honor and respect for this institution. I guess my last sentence is that Nixon had a respect for the institution and in President Clinton had a respect for the institution.
Harry Litman [00:34:33] I mean, you want to talk about a contrast, contrast, Bill Barr to Elliot Richardson, the role that the Republican Attorney General played in Nixon's actually having, you know, being being eventually ushered out the way it was. It's night and day.
Elizabeth Holtzman [00:34:54] But the true comparison, though, is not with Elliot Richardson. It was John Mitchell who was the Attorney General. And John Mitchell went to prison. And one of the reasons that John Mitchell went to prison -- and by the way, Nixon was named as a coconspirator with John Mitchell and Haldeman and the rest, because they were all in various conspiracies. So we actually have an Attorney General who went to prison. And Kleindienst was also charged with a-- he was the next Attorney General. So let's we had a couple of real baddies there. But the point I wanted to make just in response to what Congresswoman Jackson Lee said is that I wrote the special prosecutor law, the first one, and we took away basically all the power we could from the Attorney General. becausew we knew, the Attorney General was political. In response to what Kenneth Starr did, they put back the power to the Attorney General. And what this attorney general did was to use that power to squash the report, to distort the report and to deceive the American people about what was in the report and then to decide that there was no basis for prosecution. So one of the things that has to happen at some point is that that special prosecutor law has to be revived and take the Attorney General out to the to the fullest extent that's constitutionally possible, because the president will never investigate himself, someday herself, but never investigate himself. And that's part of the problem here. And we still have ongoing issues. I mean, we just had what the Attorney General just did recently was to take the whistleblowers report and in the words of Watergate, deep six it, which is what they tried to do in Watergate, cover up factual information, that was one of the grounds of the cover up and two Articles of Impeachment. But the whistleblowers report went to went to the Attorney General's office. And what happened? They said, first of all, there was no financial campaign violation there. Of course, getting another government to mobilize all of its prosecutorial resources is valueless. Right? Like a zero. You couldn't even buy it. That has no value. And then they decide there was no other crime involved. Well, on the face of it, you might have bribery, in that conversation with President Trump and Zelinsky. You might have bribery and you might have extortion. And no investigation was done of those things. So here we have an Attorney General that's covered up a cover up.
Harry Litman [00:37:24] And I'm certainly offended the not the not going fo it. I just want to say briefly, I really admire the House's recent discipline and what you guys have done, because I felt just as you did when people stopped showing up was like, what are you talking about? I was infuriated and wigged out about the whole notion. But I think you have very coolly and calmly taken the ground your in taking the short pass, as it were. And when they do that. "OK. We're putting you in that count of abuse. And we're not going to keep fighting and fighting to do it." I think that's been really wise.
Mary Gay Scanlon [00:37:58] I think when I've been home, that's been the question that I get the most is --.
Harry Litman [00:38:03] From your constituent--.
Mary Gay Scanlon [00:38:04] From constituents, how can Congress not be able to enforce its own subpoenas? And at a certain point, it does come down to, OK, then we have to go to the ultimate result, which is impeachment. Push us there.
Harry Litman [00:38:17] We have so much to talk about and not that much time to do it. I want to actually touch on by the end, how it all sort of played out, how you feel personally and psychologically with the kind of constitutional responsibility you have. Let me just ask briefly. It's kind of an obvious point, but it seems so huge to me. Watergate plays out in the Huntley and Brinkley, black and white three network world. You come home to watch a little snippet. And then the Clinton impeachment is actually what kind of--it's the birth of CNN. People watch it. And now we have the whole smorgasbord with which has and the and the silos, say, of the different points of view as concrete ties and individual stations. How is that affecting things? What's your sense of the the interplay between the kind of crazy cable social media world and the effort to actually have a responsible national investigation into the president's conduct? Anybody?
Lanny Breuer [00:39:24] Well, look, I'm the only one who doesn't get elected. And so I defer to my colleagues here. I think it's a profoundly Harry. I think it's profound. I think today, you know, when you have something like the Mueller report and hearing what everyone said, the the Attorney General can define what was or was not in the report. And before anybody has read it or not, everybody is in their rival camps. And so Fox News describes it one way. And MSNBC is going to describe it another way. And nobody's ever going to change their mind. And so it's a bit skeptical. I worry about it. I worry, you know, now, no matter what is done, what is revealed in the hearing. Are there enough people who are willing to be open enough to really listen to it and to open their hearts and open their minds? When we spoke, when when the defense lawyers for President Clinton spoke, we we challenged the committee and we said to the members of Congress, we we hope you come here today with I forgot the exact language was basically with with respect for the law, a respect for the constitution and an open mind and open ears and eyes. And today I think that's hard. And I think most people. Immediately go to their camps and so it's very different than when I was a kid and everybody watched the nightly news and we had sort of we had a construct that brought us together no matter where we were. So I do think it's very different.
Harry Litman [00:40:53] I mean, you know, a couple Republicans who voted for the Articles of Impeachment, did you feel that people were genuinely persuaded that it was a process, that people changed their minds, listened hard and the like?
Elizabeth Holtzman [00:41:07] Well, I think the the chair of the committee, Peter Rodino, bent over backwards. I was talking to Lanny about this earlier to try to present to the American people that the process was fair. And he thought that it was important for that to be message to be sent because he didn't think that impatient would happen and the removal of the president would take place, because that's what the concern was, not just to have an impeachment, to have him removed from office because he presented such a threat to our democracy that that would not happen unless people felt that the process was fair and that the process was serious and that the process was based on solid evidence. So Rodino did some things to help make that happen. First of all, he had, we had a Republican counsel for the Democrats and the Republicans had a Republican counsel. That sent a message. We're not being partisan. The second thing was--.
Harry Litman [00:42:04] By Republican you mean his party happened to be--.
Elizabeth Holtzman [00:42:05] Right. And it was explicit. And that was the intention. To send a signal, important signal. Second thing was who drafted the Articles of Impeachment. The Southern Democrats, the most conservative Democrats and the moderate Republicans. So that as many people as possible could be brought on board. Those were two important things that happened and to bend on a lot of the procedural concerns that the Republicans had. So that that wouldn't be as many procedural fights and people would have to fight about the facts, not the process. And that's that helped a lot. I think the American people never 100 percent understood all of the complexities because we had huge number of specific abuses that go to your point, Congresswoman Jackson Lee, so many abuses of power. I mean, there must have been 15, 20, 30 of them in the Articles of Impeachment, not just the cover up. You know, the enemies list, the legal wiretaps, the break and Ellsberg psychiatrist, all that stuff. So I think that while they never, I think, understood every complexity, the American people they got that this was a serious and fair process based on solid evidence and that the president represented a threat to the democracy. And that's the message that has to come out of it. The process has to be fair and seen to be fair, there has to be solid evidence. And the president has to be perceived and understood to be a threat to the democracy. And then the impeachment will not only work, but the president will be out of office.
Harry Litman [00:43:50] Very, very different state of affairs to try to make that happen now. You know, as Lanny says, I feel unbelievably privileged. We have three members here, and I'd like to close for, you know, five or 10 minutes just talking about what what it feels like for you. Representative Holtzman famously talked about being overwhelmed by the Watergate scandal, saying, I really felt as though I were in quicksand. What do you so representatives Scanlon and Jackson Lee, what's it feel like for you now? Does it feel like, you know, a battle? Does it feel like the sort of sad discharge of an unavoidable constitutional duty? You know, when you think back on this time in your career, how will how will you kind of remember that the charge that you that you had in these days?
Mary Gay Scanlon [00:44:48] Well, it definitely gives you this historical perspective. I think I was in 10th grade during the Watergate hearings. I'm sorry, but I do remember.
Elizabeth Holtzman [00:44:58] Well, I was 3 then [LAUGHTER].
Mary Gay Scanlon [00:44:59] Yes, exactly. I do remember taking time out from my summer and my high school pursuits to watch these hearings and feeling how grave it was. I'm thrilled to hear that Representative Jackson Lee is also up at 3:00 in the morning fretting about this. I now know who to call because I mean, it's it has been it's I mean, it is overwhelming. We are trying to do all the things that, you know, our constituents want us to do with respect to their daily lives, whether it's health care or stopping robocalls. And then you have this layered on top of it. And there's so much of it. You talk about Nixon being a kind of an existential threat to our democracy. I mean, it feels that way with every fresh allegation about this president. And I find that I kind of crash at the end of the evening. You know, pretty late and then wake up at 3:00 AM going, OK. Well, how can we do this? How can we make it appear fair when the the fallback position, I guess, right now for the Republicans is trying to make it appear unfair because they don't have the facts and they don't have the law to say otherwise. So it's tough. It is very grave.
Sheila Jackson Lee [00:46:12] Well, let me for fear of my leadership saying you have not been diverse in your conversation. Let me just make sure that everyone knows that we are we are working on a myriad of legislative initiatives in spite of where we are from lowering prescription drugs to gun regulation to the environment to funding education. I just have to say that our fear is that people are hearing us only through one bullhorn. But as I say that, the Democratic caucus in particular and leadership in the House is working to carry on the nation's business, there can be no doubt that this is one of the most serious moments, most crucial moments. And a couple of months ago, I started using the terminology somber and sober. And I've seen my colleagues use the terminology. And I think those words don't even equate to the moments that we're going to face. I can to this day remember going into the committee room on the day or the two days that we were making our speeches and then ultimately there was going to be a vote. You really thought that you had the nation or the world in your hands and that your decision--.
Harry Litman [00:47:36] You're remembering '98 now?
Sheila Jackson Lee [00:47:38] This '98. Your decision was such that the the weight of the world. I obviously opposed that impeachment that, you know, I use the Federalist Papers. I think Lanny was absolutely right. The team was absolutely right. Personal indiscretions that no one would confirm or affirm or disregard, but I think it was not attuned the acts of government, so I felt comfortable where we were. But the point is, the world was watching. You know, you had the feeling that you remove a president or a president could be removed. And it does mean that there is disruption. I think what we have now is a double sense of fear. It really is. And I hope these words are not taken lightly or that I'm making light. But the double fear is that this will not work.
Harry Litman [00:48:47] Pointing to Constitution.
Sheila Jackson Lee [00:48:48] Yeah. Sorry. Because in order for it to work, we all have to respect. We all have to respect that that that 3, Article 1, 2 and 3, which we have to date been taught to do. The Article 3 courts, federal courts. The Article 1, the legislative branch and then and then this. And so I think we will do our job in the Judiciary Committee. And I do think working with my colleagues in the Judiciary Committee. Please note that we were the stalking horse horse to tell the truth. We were given the duty to keep having witnesses because we knew there was something there, there. And we did it, I think in the most professional way we can. We happen to get some witnesses that were unique. But but before the issue came up on Ukraine, if my calendar is right, we put forward rules of engagement, of fairness. Let it be known. We put forward for Republicans to have their forty five minutes of presentation, hiring lawyers back and forth. Subpoena power with the affirmation of the chairman in this instance, Chairman Nadler, that went out even before we even had this smoking gun that has come up with Ukraine. We realize that we had to show the utmost detail and attention to fairness and due process. So here is my plea and here's my fear. It is the same kind of plea the Chairman Rodino made, or maybe it didn't have to make, which is that people would put party under the country and be patriot over party. And if there is a glimmer of light, that may shine in our committee or shine on the floor if ultimately articles are approved that it may ultimately go to the floor. And my hope also is, if nothing else. If our friends who we have worked with and we have stood on the steps. I'm gonna show a little age in 9/11 together as Americans, as opposed to Republicans, Democrats, at least go to the White House and say whatever your defense is, do not destroy this document. Do what Lanny has saidt happened with his counsel. That you respected this document and you participate to the fullest. You can fight to the death for your defense. That's what people do in the courts of law. That's what people do. Nobody asked you to come in there with your hands tied. Bring your defense. But you have to adhere to what the world is watching and saying. Is this going to last? Is this democracy that we so admire? Is it going to last? And I think, if I might, that is what will be our dilemma and ill be -- we will work very hard to get that done. We will. We would like to have extend our hand to our friends on the other side, to Republicans, to join us in getting that done, because this is greater than any one of us who are here today. In 2019, this will reflect how this country can proceed with its business. And so if there is anything that you know, I'm going to go back to reading again. Forgive me. George Washington: "The Constitution is a guide which I will never abandon." And that's what I hope will happen in this proceeding.
Harry Litman [00:52:39] All right, tell us a quote, George Washington. "You must strive to keep alive that little spark of inimitable fire called conscience." Your comments that about the world's watching and your Republican colleagues put me in mind of a final question that I'd like to put to everybody on the on the panel. You know, you might one answer quickly or not, but again, in this historical arc or prism, my sense is that the Goldwaters and the Republicans who took that walk up the Hill were very highly regarded in history as heroic for for that reason. And they actually had redounded to their benefit. My sense is that the however, the Republicans who made sort of a joke or mockery of the Clinton impeachment did not pay a huge price in history. I could be wrong. And I speak that as a Democrat. So maybe I'm I'm partisan. But you know, I was at the court today and saw the junior justice who was, you know, one of Ken Starr's, you know, being his counsel, etc.. So, Mike, my question to close with is, you know, do you believe that there will be a historical reckoning? Do you believe that if the Republicans look the other way, that history will judge them harshly or that it will just be forgotten as as more, you know, normal politics. Can we go around the horn on that, starting with you, Lanny?
Lanny Breuer [00:54:24] Sure. You know, Harry, I don't want to pretend I know how history is going to look at Republicans or Democrats or others. And like Congresswoman Scanlon, I think I, too, was in 10th grade during Watergate --
Harry Litman [00:54:37] Me too. Seriously.
Lanny Breuer [00:54:37] Well, we got we got a good age group. What made me when you were asking the question, what I did think of was something a little different, which was when we did the Clinton impeachment trial at the Senate and we knew the president was popular, the Democrats gained seats in the House in the midterm. We felt that this was a personal, a terrible, but a personal issue of the president. Nonetheless, we did not take for granted, we really did and it's easy to think we did, we did not take for granted that the Democratic senators were all going to jump in line. And I and others thought that there were giants in the Senate, giants on the Democratic side who might decide if this got too unseemly or if it just got too too difficult that they, too, might decide one day to walk to the White House. And in our defense, we defended the president with great probity, very zealous, but with probity, always accepting this system for trying to make it as dignified a defense as we could and always aware that we needed to keep our Democratic senators supporting us, but not for a minute and we I others woke up at 3:00 a.m. worrying about senators like Senator Moynihan and other senators, Senator Byrd, Senator Feinstein and many men, Lieberman, for sure. So today, my question is, does anybody worry? And I don't know. And I defer to my colleagues on this. Who are those giants in the Senate and the House? I'm a little younger, but I always think at the end of the day and I think some congressmen said it recently at the end of the day what really matters is when you look at your children and your grandchildren in the face. It's how we all live our lives. And I assume that's how members of Congress think about it. Certainly what I think about and so I think that's the question. I don't know what price you do pay or don't pay, but at some level you have to yourself wonder about it. And the question I have and I have to be a little careful here is I believe it could be wrong that the emanating emotion remains in Congress. One of fear and we never had that before. President Clinton was many things, but he was not feared. He just wasn't. You might think you liked him or didn't. And today, I just wonder and maybe that's a very thin defense. And when it breaks by one or two, it'll break by many. I'll defer to my colleagues. But that to me is the real question. Are there giants and would they ever decide I'm no longer going to just ignore what the Constitution demands?
Harry Litman [00:57:25] Congresswoman?
Sheila Jackson Lee [00:57:27] I'm glad Lanny said I'm going to join him in his comments about not being a predictor of history, but certainly a student of history and reminded of some speeches that I had in the last couple of days telling history professors how important their job is right now, no matter what grades or level that they're teaching all the way up to where we are today in this esteemed university. And so history is behind us and it will be in front of us as we look on this set of circumstances. What I would hope and I'd like to turn my final comments into being an optimist and forever holding onto hope that overall we would come collectively to the idea that this cannot be the new norm. This could not be the behavior of the commander in chief, president of the United States. It could not be the new norm for this nation. Now, you don't rise to the level of impeachable offenses for bad language and racial epithets and conversations about various people and in a any number of things. And my prayer every day is that I have to remove myself from those kinds of outside exterior elements to be as faithful and true to the facts when they may come before this committee. And I'm and that's what my hope is. But then what I'd like to say is that I'm hoping that in the course of settling down and hearing the facts, that there will be either some in the House or some in the Senate, which will join me and say that this is not America as we know it and have come to love it. It is not the new norm. And the facts speak for themselves. One sentence there's been a violation of law. Secondarily, this is a strange comment. You have a former Marine and lifelong student and member of the DOJ Department Justice who said if I could have exonerated him, I would have. That has long been lost. But if in the quiet moments when someone says, let me go back and look at all the facts, because that's what we're going to have to do when we compare our remarks to say how we'll vote, if you have all of that and then you decide not to make a decision, then I would say that history will look at each individual member. And history will have those facts. And yes, you will be assessed as to what you did on that day. And maybe if there are some facts that come out that is come up a complete rebuttal and repudiation and others make that decision, say, I'm going to get anyhow. History will look back. History will never ignore. Your time in history, your place in history and your actions and so it'll catch up with you. I'm hoping in the course that history will reflect that there will be those individuals in both houses that would look to their patriotism. And I'm optimistic enough to think that that might happen.
Harry Litman [01:01:16] Congresswoman?
Mary Gay Scanlon [01:01:18] I do have to share that optimism. After all, I was pro bono counsel. So I believed that, you know, we could get corporate lawyers to do things for the good of the country. But I do share that optimism and combine it a little bit with the the comment about fear. I do think many of our colleagues are held up by fear right now. Primary fear or whatever her kind of fear they have. But that if we can do our job and get the American people to pay attention, which is not easy, given our fractured media, given the fact that even when we're trying cases now, people are less likely to convict unless there's a video of something actually happening. So, you know, how do we harness our modern technology? How do we harness sound bites and really present a case that's easily understood enough to move the American people just a little bit more? We're close -- so that those people who are afraid to step out of line with the party as it is currently constructed feel like they have the cover to do that. And that's what I'm very hopeful will happen, because if that doesn't happen, I don't know that history will judge them badly, because I think we will have entered into some kind of post apocalyptic version of our country. So we're just going to keep doing the job and trusting the American people.
Harry Litman [01:02:47] I think, fittingly, we have final thoughts from Representative Holtzman.
Elizabeth Holtzman [01:02:51] Thank you. I just, to me, Barry Goldwater was not putting country above party. I think we have to get pretty straight what he was doing. The mid-term elections were upon us. And if the trial had taken place, we voted for impeachment towards the end of July. Supreme Court came out with the smoking gun tape early August. The trial would have taken place, the House hadn't voted, maybe the House would have voted toward the end of August. The Senate, if it got the trial, would have taken place in September, October. There wouldn't have been a Republican elected. So Barry Goldwater's going to Nixon saying you've got to resign, was to give the Republicans some prayer of having some people elected in November. As it was the Watergate, Republicans paid a huge price for standing up for Nixon and supporting him. And the Watergate class that was elected in 1974 was one of the biggest Democratic victories ever. So I don't know that we can easily fall back on putting party over principle or over country. That didn't happen with a lot of people, but it did happen. And I think that's the important thing I want to say. There were members of the House Judiciary Committee who took a courageous vote and a principled vote and a vote that really could have cost them their seat in voting for the impeachment of Richard Nixon. But they did it. There were three Southern Democrats and seven moderate Republicans who did then. By the way, none of them lost their seats. That's really important. None. Nobody lost that election that November because of their vote. And I think the important thing is, Lanny you raise a point about fear. Well, if people can't figure out a way of resolving this, if members of Congress can't don't have enough of a conscience to figure out and enough and understanding of the constitution, then the question is who are they going to fear? Are they going to fear Trump or are they going to fear their constituents? Are they going to fear the bullying, the bribery, or are they going to fear not being elected, not being supported by their constituents? So this in the end is an issue for the American people, are they going to stand up for the democracy? Ben Franklin said, "What'd we do here. We created republic if you can keep it." Well, that injunction is not wasn't just for the people listening to Ben Franklin way back in the 18th century. It was for us every and it's for every generation. And so will the American people really say what's at stake here is our constitution and the rule of law. And that's ultimately what happened in Watergate. The American people decided more important than a president -- wasn't Barry Goldwater -- but the American people decided, even though they had voted for Nixon overwhelmingly, they changed their mind. They said more important than president is the constitution and the rule of law. And if we can regenerate that sense of commitment, I think both of the sitting congresswoman, made that point time and again. If we can regenerate that kind of commitment to the rule of law and the importance of that, then I think the history books will will say the right thing about this Congress. If not, I kind of agree with Congresswoman Scanlon. What kind of democracy will we have and what kind of history books will be written? Will they be written by people who want to come out with a political objective? I mean, will truth matter after this? Who knows? But I'm I'm going to be optimistic because I saw it. You know, when Nixon was elected with this huge landslide, who thought whoever dreamed he could be impeached? So I certainly did not want to be on the House Judiciary Committee -- and frankly, if I had wanted to be on it and there was an inkling that he'd be impeached, they never would put me on it. So I think that's really the lesson here. Can we get the American people behind a commitment to rule of law?
Harry Litman [01:07:22] We students of history in the room and listening have had really a remarkable seminar. I feel really fortunate to have in this table and I hope everyone feels feels the same. Please join me. Thank you so much. Congressman Scanlon, Congresswoman Jackson Lee, Lanny Breur, and special thanks to Elizabeth Holtzman. And special thanks to you, very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcast. And please take a moment to rate and review this podcast. You can follow us on Twitter at Talking Feds Pod to find out about future episodes and other fence related content. And you can also check us out on the web at Talking Feds dot com where we have full episode transcripts. Thank you very much for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Thank you.
Harry Litman [01:08:27] Talking Feds is produced by Jennie Josephson, Dave Moldovan. Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer with additional research by Sam Trachtenberg, Production Assistance by Richard Gunther and Sarah Philipoom. Thank you very much to GW Law for hosting us. And thanks to Hayden Pendergrass of the GW Law Student Bar Association, as well as the GW Criminal Law Society and the GW Immigration Law Society, our co-sponsors for this event. Thanks very much to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.
