Trump
and House Republicans’ coordinated hit job
|
|
|
|
||||
|
|
||||
|
|
||||
|
|
||||
I think Liz Cheney will probably emerge just fine from
the ordeal that the Republicans in the House Oversight Subcommittee have
prepared for her. But the scheme to make her suffer for the sin of having
served responsibly on the January 6 Committee tells us a lot about the contours
of the coming Trump 2.0 wave of reprisals.
In a report released on Tuesday, the House Oversight Subcommittee,
chaired by Trump loyalist Barry Loudermilk, wrote that Cheney should be
investigated by the FBI for crimes growing out of the work she did as Vice
Chair of the Committee. Trump was quick to second the proposal, with a feigned
stance as a mere observer:
"Liz Cheney could be in a lot of trouble based on the evidence obtained
by the subcommittee, which states that 'numerous federal laws were likely
broken by Liz Cheney, and these violations should be investigated by the
FBI.'"
The report alleges, outrageously, that Cheney committed crimes in her communications with critical January 6 witness Cassidy Hutchinson. Hutchinson was initially represented by an attorney supplied and compensated by Team Trump. According to Hutchinson’s account in her 2023 book, “Enough,” that attorney coached her not to be forthcoming and to refrain from saying bad things about “the boss.”
Hutchinson reports that she initially played ball but
then had a crisis of conscience. She grew particularly concerned when her
attorney made noises about no longer cooperating with the Committee, exposing
her to the possibility of contempt. At that point, she reached out to Cheney
through an intermediary and had a series of indirect and a few direct
communications with the Wyoming congresswoman.
Then, on June 28, 2022, as a riveted audience watched
on TV, Hutchinson, with new counsel, provided perhaps the most dramatic
testimony of the January 6 hearings. She detailed Trump’s indifference, and
even enthusiasm, about the melee that he had set in motion and the knowledge
and culpability of her boss, Chief of Staff Mark Meadows. Her manner was
direct, forthright, and, I thought, slightly pained. Nobody I know didn’t
believe her every word.
In a previous interim report, Loudermilk and company
had tried to tag Cheney with unethical behavior for communicating with
Hutchinson in the absence of her Trump-supplied lawyer. That accusation doesn’t
cut it for what they’re looking to do now, namely having her investigated for
multiple felonies.
And what justification does the report supply to
justify its stunning suggestion that Cheney violated multiple federal criminal
laws in her committee work? The report says next to nothing. It asserts in
colorful and vaguely sinister-sounding language that Cheney “colluded” with
Hutchinson. And it supplies citations of a few federal statutes but doesn’t
attempt to match them up directly with Cheney’s conduct.
The necessary insinuation, however, is that Cheney
pushed Hutchinson to provide a false account. Each of the three crimes that
Loudermilk calls out requires that Hutchinson testified falsely in her return
to the Committee (and, to go after Cheney, additional requirements that Cheney
somehow shaped the false testimony). So, in Loudermilk’s account, Hutchinson’s
first mealy and hedged testimony that she gave while being advised by the
Trump-supplied lawyer was true, while the dramatic and detailed account we all
saw on television was a bunch of lies.
And how do we know that the later testimony was
perjurious? Here’s where the Loudermilk report comes up empty. The report jumps
to that conclusion based on the mere fact that Hutchinson’s later testimony
changed. Of course, the more likely conclusion is that the later testimony was
truthful and Hutchinson didn’t hoodwink the entire country with an account that
played as totally honest.
Notice, by the way, the attack on Cheney implies that
the Trump reprisal operation will also extend to Cassidy Hutchinson. The
overreach, raw politics, and sheer injustice of that move should inspire
revulsion on the part of anyone who saw her brave testimony.
Cheney, for her part, was quick to strike back at
Loudermilk’s threadbare report, calling the report’s accusations “lies and
defamatory allegations.” She vigorously defended the work of the committee. And
then she went to the heart of what the Loudermilk report is really about: an
effort to whitewash Trump’s role in the attack on the Capitol.
Cheney wrote, “January 6
showed Donald Trump for who he really is—a cruel and vindictive man who allowed
violent attacks to continue against our Capitol and law enforcement officers
while he watched television and refused for hours to instruct the supporters to
stand down and leave.”
Cheney’s forceful response may be a preview of coming
attractions. I think Cheney will have the better of the battle. Her independent
dignity will contrast favorably with the imperious Inquisition-style attacks of
the vengeance squad.
That’s particularly true because she has the truth on
her side. We needn’t dig deep to determine if Loudermilk’s report provides any
credible basis for investigation into Cheney for federal crimes. The report
does not even begin to state a case for criminal conduct. Communications
between witnesses and committee staff—or even the committee Chair—are routine
features of partisan hearings. The fact that Hutchinson had a lawyer
(Trump-supplied, and possibly himself improperly serving two masters), whatever
ethical problems it may present, is in no way a crime.
Despite failing to make a case for any criminal
activity, Loudermilk goes to the trouble of stating that Cheney would not have
the protection of the speech and debate clause on the grounds that talking with
a committee witness does not fall under the legislative sphere. That’s dubious.
Participation in committee hearings or investigations is down-the-middle
legislative activity and subject to the clause’s protections.
The bigger point is Cheney doesn’t need those
protections, not having done anything wrong other than serve on a committee
investigating Trump. Absent proof of something that almost certainly isn’t the
case—that Hutchinson’s testimony that kept the country rapt was all just a
bunch of lies crafted with the help of Cheney—any referral to the DOJ would
today be a non-starter. With no real evidence supporting the basic charge that
Cheney manipulated Hutchinson to lie, no self-respecting prosecutor would give
it a second look.
But that’s not where the story ends in our
post-November 5 world, where Kash Patel (whose GOP support seems to be
consolidating) is all-in on Trump’s lies and payback plans.
Loudermilk’s referral is only the potential first step
in a full-feature Orwellian nightmare that Trump and company likely have in
store for those they consider disloyal. Under normal circumstances, referrals
from Congress to DOJ go through professional nonpartisan review by career
staff. That’s, of course, what happened for the various January 6-related
contempt motions when the department wound up green-lighting Bannon but
declining to charge Meadows.
But Loudermilk’s unsupported suggestion figures to
arrive at a Patel-led FBI and a Department of Justice overseen by Trump
partisans, beginning with Pam Bondi and including many of his personal lawyers
from the last few years of legal proceedings. Plus, the Supreme Court, in its
immunity opinion, specified that a president’s ability to discuss or demand
investigations from the FBI is a core executive power beyond the reach of
criminal law. This means Trump will be able to insert himself into the process
with impunity.
At this point, we can connect the dots of an ugly
authoritarian picture. Loudermilk and the House send over a baseless
recommendation, and Bondi, Patel, and the FBI go corruptly running with it.
Cheney would be without legal recourse to challenge any of it; she would have
to take her lumps and pay her lawyers while the investigative process plays
out.
The point is that even if they are peddling fabricated
charges, a Trump-controlled FBI and DOJ can still make life miserable for a
subject of an investigation that they eventually decide not to charge. The
stress, reputational harm, and, not least, the expense of a detailed
investigation is a form of potent damage, even ruin, for which there is almost
never any subsequent redress. This is a particular danger for Cassidy
Hutchinson if the new gang decides to go after her.
Now, the Trump government can only take this scheme so
far. Any actual federal charge of Cheney would be DOA, and likely invite a
stern reprimand from a federal judge. (This is a general risk for DOJ lawyers
in the coming regime, where Trump may try to order up all manner of legal
nonsense.) A baseless charge could even subject DOJ lawyers and FBI
investigators to discipline.
There are a few larger lessons to be gleaned from this
episode. The first is that we can expect the Trump 2.0 authoritarian agenda to
be legalistic; that is, it will provide a veneer of legitimacy by exploiting
and corrupting the existing legal mechanisms of democracy. Authoritarian
reversions needn’t depend on brownshirts or boots on the ground. A notable
example of this is the way Hungarian Prime Minister Viktor Orbán (whom Trump
has often extolled for his policies and leadership style) has co-opted the country’s
legal mechanisms for his personal interest. (Oh and by the way, Orbán has
visited Trump on at least two occasions this year, including one earlier this
month where the two men were joined by—you guessed it—Elon Musk.)
Second, Trump’s wide-ranging control of different
government actors gives him the option of relying on others to do the dirty
work. He has a large crew of loyal servants whose job it is to take the
political heat. That permits him, as we saw him do often in the first term, to
hedge or even feign neutrality towards actions that may backfire with the
American people. So here, for example, he certainly knew what the Loudermilk
committee was planning for Cheney, but he adopted the stance of an outsider who
was just taking note of the trouble Cheney might be in, even though there’s
little doubt that he is the architect of that trouble. But when it blows up, he
can claim he never was vehement about investigating the congresswoman. Likewise
for the referral when it happens. He can adopt a public stance that he is
leaving it in Patel’s hands but still control (and with Supreme Court-conferred
immunity) the decisions of his DOJ and FBI.
Finally, at the bottom of a Trump scheme to draw blood
against someone disloyal, there will always be a lie. Trump wants to avenge his
enemies, but he wants to distort the truth even more. His ultimate aim is to
erase his criminal conduct from the pages of history and emerge as the man he’s
claimed to be from the start: a victim of the deep state whose conduct has
always been “perfect.”
