The lights of the U.S. Capitol remain lit into the night as the House continues to work on the "fiscal cliff" legislation proposed by the Senate, on Tuesday, Jan. 1, 2013. (AP Photo/Jacquelyn Martin)
With the impeachment and trial of Donald Trump about to end in the President’s arranged acquittal by his own party, Bill Moyers called up Steven Harper for a critique of the final showdown in the Senate. Harper graduated Phi Beta Kappa from Northwestern University and magna cum laude from Harvard Law School (where one of his professors was Alan Dershowitz). For 30 years prior to his retirement, he was a litigator at Kirkland & Ellis LLP and recognized as one of The Best Lawyers in America.
He now teaches as an adjunct professor at Northwestern University Law School and is the author of four books, including The Lawyer Bubble — A Profession in Crisis and Crossing Hoffa: A Teamster’s Story, chosen as “Best Book of the Year” by the Chicago Tribune. With his daughter, Emma S. Harper, he created “The Trump-Russia Timeline” which launched at BillMoyers.com, where it became the definitive resource for working journalists, and now appears online at Just Security and Dan Rather’s News & Guts.
His conversation with Bill Moyers has been edited for brevity and clarity.
Moyers: You watched this whole impeachment process from the very beginning. What’s your take on how the Senate has brought it to a close?
Harper: I’m extraordinarily discouraged by it. I had expected at least a pretense of some careful thought, consideration or even something bordering on open-mindedness among the Republicans in the Senate and it turns out I was naïve about all of that.
The notion that we’re now hearing from a number of senators who are trying to sort of explain themselves away in terms of why they didn’t think it was necessary to have witnesses, it makes no sense at all. Some are even saying it rose to the level of an impeachable offense, but nevertheless, I’m going to vote to acquit. This reads the impeachment clause of the Constitution completely out of the Constitution. Even Alan Dershowitz made the remarkable claim that if the President was acting in what he thought was the national interest, what he did would not be an impeachable offense. Not a serious constitutional scholar in the country has accepted that position. In fact, for the most part, Dershowitz has been the subject of something worse than criticism, bordering on derision.
Moyers: You will remember that before Bill Clinton’s impeachment hearings in 1998, Dershowitz was asked if he agreed that some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law. And he answered, “I do, if those offenses subvert the very essence of democracy.”
Then he went on, “It certainly doesn’t have to be a crime if you have someone who completely corrupts the Office of President, who abuses trust, and who poses great danger to our liberty. You don’t need a technical crime.”
Harper: Well, those are the strict three statements we should concentrate on in assessing possible impeachment of our presidents. We look at their acts-of-state, we look at how they conduct the foreign policy, we look at whether they try to subvert the Constitution.
Moyers: It’s clear from the record that Trump’s attempted extortion of Ukraine was, one, an act-of-state. Second, it corrupted our foreign policy; our diplomats testified to that. And three, it subverts the Constitution. Yet, Dershowitz switched both his client and his opinion. Defending Donald Trump, he said that “Abusive or obstructive conduct is not impeachable and an actual crime is required.” And actually said he was defending Trump to protect the Constitution.
Harper: Right.
Moyers: Do you buy that?
Harper: No. Trump hit the trifecta. It was an act-of-state, it involved foreign policy, and it was a subversion of the Constitution. So, to avoid the obvious contradiction, Dershowitz acknowledged it. He said, “Well, you know, that was a long time ago and I’ve done what all scholars do. I went back in and I’ve studied the issue and my thinking has evolved and so now I’m an evolved scholar. And I have these views that are 180 degrees away from my old views.”
Well, they’re also apparently 180 degrees away from the entire community of constitutional scholars. Dershowitz is a scholar in constitutional criminal procedure, he is not a scholar in what I would call general constitutional law.
Moyers: Here, to me, is the most startling thing about the argument Dershowitz, the other Trump lawyers, and now the Republicans are making. You will remember that Nixon resigned just before he was to be impeached for high crimes and misdemeanors and later defended himself by claiming, “If the President does it, it’s not illegal.” Isn’t that essentially what Trump and his lawyers are claiming now – and the entire Republican party?
Harper: And even the witness Republicans brought to the Judiciary Committee to be the expert witness on impeachment said that that’s not right, it would be an impeachable offense. Yet Dershowitz said in video clips for all the world to see that even if everything that John Bolton writes [in] excerpted copies of his book is true, that would still not rise to an impeachable offense. And he repeated it for emphasis. Now he’s backing off and saying, “Well, I didn’t really say what you think you heard me say.”
Moyers: And wasn’t this their strategy — to muddle, confuse, distract the public?
Harper: I think that’s been the Trump play from the very beginning of his presidency. Confusion is always his friend and clarity always his enemy.
Moyers: He also says, “I’ve got Article 2 of the Constitution that enables me to do whatever I want.” That’s the seed of Nixon’s claim – it’s not illegal if the president does it. And as the last lawyer to speak last Friday Dershowitz caps that whole argument with his version of it.
Harper: Yes, and we’re right back where Trump invoked the Constitution when he famously said, “Under Article 2 I can do whatever I want.” And that’s just a continuation of Attorney General William Barr’s unitary executive approach. It was no accident Dershowitz took the stage in prime time and repeated his claim, “If everything in John Bolton’s book is true, that would still not rise to the level of an impeachable offense.” This was choreographed, staged. And we all know who the ringmaster of this circus is, it’s in all probability the reality TV star himself assisting from the sidelines.
Moyers: You were a student of Alan Dershowitz’s at Harvard, weren’t you?
Harper: Yes, 40 years ago. He hasn’t changed all that much. But the thing that puzzles me about what he’s been doing in relation to Trump is that he’s been an ardent civil libertarian his entire life and he was always consistent. You know, he represented very high profile criminal defendants, for which I don’t criticize him at all, everybody’s entitled to a lawyer. Dershowitz was always adamant: It’s up to the state to prove beyond a reasonable doubt that an accused is guilty and it’s up to a defense lawyer in zealous advocacy on behalf of his client to do everything he can within the limits of the law and within the limits of his ethical responsibility to make the state do that and to try to get his client off.
I don’t fault him for that at all. But more fundamentally, what does it mean if you’re a lawyer and your client is actively involved in undermining the foundation that is the pillar of law in the United States, the rule of law in the United States? No lawyer has an obligation to assist a client whose objective is to in effect destroy the rule of law, which is the system we all as attorneys should be sworn to defend and operate within.
Moyers: You elsewhere quoted Dershowitz’s advice to young lawyers: “The lawyer may not become part of the corruption in order to fight for justice.” You’re not accusing him of becoming part of the corruption but you’re saying that the argument undermines the basic pillar of the law.
Harper: Correct. That’s right.
Moyers: Do you think that this argument sets a precedent for the future – the argument that if the President does it, it’s not illegal — that other Presidents will claim the Constitution gives them the right to do anything he or she wants to do and their defense lawyers will say, they can’t be held accountable.
Harper: Well I suspect that if a Democratic President tried to make that argument, you would see Republicans turning on a dime against it. So I’m not sure to what extent it will be an enduring precedent but it doesn’t have to endure for very long to be a disaster for democracy. And it will certainly seem to have enough legs to endure for the rest of Trump’s presidency however long that is, and as you suggest, it’s an extraordinarily dangerous precedent.
Moyers: Senator Lamar Alexander said that if Trump were impeached the culture wars would explode.
Harper: Yes, I wonder if he’s been asleep for the last 20 years as the culture wars have been exploding. And of course, Trump has in not too subtle terms stoked this stuff. He says such things as “There will be another civil war if I’m impeached. There’ll be another civil war if I’m thrown out of office.” This is serious stuff, and there are people who listen to it. There are people who just don’t think beyond whatever his words are in the moment.
Moyers: In a sense it was a threat, however Lamar Alexander meant it. It could be taken to mean, “If you impeach the President, there will be war in this country.”
Harper: Right. So, instead, what we’re going to do is give him a pass even as he engages in a shakedown and a cover up, in order to make sure that, in abusing the office of the presidency, he’s able to do everything he can within his power to retain the presidency.
That’s what we have to keep in focus here. You mentioned Nixon and Watergate, and when you did, a scene came to my mind from the movie All the President’s Men. I’m sure you remember it. It’s Hal Holbrook as Deep Throat and he’s talking to Bob Woodward, who is played by Robert Redford, and they’re meeting clandestinely in that dark parking garage.
Deep Throat – Holbrook – says to Woodward, “Pay attention.” And adds: “You know, Nixon and his crowd wanted to run against Senator McGovern. Look who they’re running against.” And who were they running against? McGovern. You and I both know that the Watergate break in was simply one in a series of dirty tricks and strategies that Nixon and his people were engaged in, to try essentially to set up who they would be running against in the 1972 election. Remember Senator Ed Muskie of Maine was someone they did not want to run against, so they did dirty tricks on him and the next thing you know, he sheds a tear in Maine defending his wife and all of a sudden, his popularity plummets.
Now put this in perspective about the Ukraine incident. After thinking about these scenes from the movie I looked back at the sequence of events as Trump brought pressure on President Zelensky [Ukraine’s president]. Remember, it wasn’t until September that we actually learned about the call in July. But in July, Biden had only announced six or seven weeks earlier that he was going to be a candidate for the Democratic nomination. And by July — by the time of the Trump phone call to Zelensky, Biden was leading the pack by 50 percent. He had a 50 percent poll rating among Democrats in terms of support. And he had double-digit leads over Trump in an election. So it wouldn’t be strange for Trump to see in Biden his strongest opponent.
That scene from All the President’s Men resonated in my psyche in a very unpleasant way. Who does Trump go after next, and who does he want to run against?
Moyers: In other words, the Ukraine plot might have been the president trying to control who his opponent will be?
Harper: Precisely.
Moyers: So let’s look again at what even the Republicans now admit the president did. He held back military assistance approved by Congress for Ukrainians in their fight against Russian forces trying to rip off part of their country. Ukraine’s future as an independent nation was sorely threatened, and so were the lives of its soldiers up on those front lines. Do you think the American people have grasped the fact that people were in harm’s way while Trump was playing politics with their lives?
Harper: Well, if you believe what Secretary of State Mike Pompeo told the NPR reporter Mary Louise Kelly after their formal interview, “No one cares about Ukraine.” I hope that’s wrong, for a lot of reasons, not the least of which is the one you suggest, which is that we have an ally in a hot war fighting for its very existence.
You see, Trump is playing a short game, to win reelection at all costs. It’s very simple. That’s what he wants more than anything else.
Vladimir Putin, however, is playing a very long game, and his long game involves, I believe, restoration of the Russian empire. Here’s something to think about. [It’s] 1997, the Soviet Union is collapsing. Former national security advisor Zbigniew Brzezinski wrote: “Without Ukraine, Russia ceases to be a Eurasian empire. However, if Moscow regains control over Ukraine with its people and major resources and access to the Black Sea, Russia, Russia automatically regains the wherewithal to become a powerful imperial state spanning Europe and Asia.
Putin, commenting on the collapse of the Soviet Union calls it “the greatest geopolitical catastrophe of the twentieth century,” and he blames the United States and the West, and he makes no secret of the fact that he wants to rebuild what was the Russian empire.
Fast forward to shortly before the 2016 election. And this comes out of page four of the unanimous conclusions of the report of the US Intelligence Committee in January of 2017—January 6th. And here’s what it says: “Pro-Kremlin proxy Vladimir Zhirinovsky, leader of the nationalist Liberal Democratic Party of Russia, proclaimed that if President-elect Trump won, Russia would drink champagne in anticipation of being able to advance its positions on Syria and Ukraine.” So I see this, in a sense, as the culmination of a much longer, deeper, and frankly, a more frightening Trump-Russia story.
Moyers: You’ve been following this Russian-Trump story from the very beginning, since before the election, even producing that substantial timeline which is now available on Dan Rather’s News & Guts site.
Harper: Yes.
Moyers: And now Trump’s defenders are saying that even if people were dying while Trump was playing politics with their fate, that’s not impeachable?
Harper: Well, I guess not according to Alan Dershowitz. And I guess it’s the old story, you know, prove it. Prove who died. Prove who died because there was a delay in aid. And this goes back to some of the things the Trump legal team was saying during the course of the defense that just weren’t even true.
Moyers: Yes, the counsel, the White House counsel Pat Cipollone told the Senate that the military aid to Ukraine was delivered on time.
Harper: Right.
Moyers: When in fact, we know from the record that it wasn’t.
Harper: That’s correct.
Moyers: So the White House counsel was not telling the truth?
Harper: That’s correct. And that’s just one of many examples where he and other members of the Trump defense team were not telling the truth. Here’s another one: Pat Cipollone told the Senate that Republicans were not allowed in the secured compartmented facility (SCIF) where the investigative hearings took place. That wasn’t true. Forty-eight Republican members of three committees did attend those private hearings in SCIF. And not only were they there, they questioned witnesses! Then Jay Sekulow – another Trump lawyer — stood up and told the Senate and the Chief Justice of the United States Supreme Court that Trump was also deprived of his right to participate in the judiciary committee hearing. That wasn’t true, either. Trump had turned down an invitation by the Democratic chairman to come in person if he wished, Bill, suppose you’re a lawyer watching this stuff, it just — you go between despair and rage. Because there’s nobody to stand up there in the Senate chamber and say, “Your Honor, I object. That’s inconsistent with the facts — the undisputed facts on the record.” Why could nobody object? Because the procedure adopted for this process didn’t allow for that sort of objection. Normally you should be able to catch a person on the spot. That was ruled out in this process.
Moyers: You did your share of legal advocacy over the years. Isn’t the cardinal rule of legal advocacy, “Never lie to a judge or jury”?
Harper: Well, it’s a commonsense one, too, but there are actually ethical rules of professional conduct that are binding on lawyers, and they’re all state-specific. In the District of Columbia, for example, there’s a rule titled “Candor to Tribunal.” A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement. You can’t offer evidence that you know to be false.
Moyers: There have been some reports since Friday of calls for Cipollone to be disbarred for lying to the senators who were the jury in this case, and right under the nose of the chief justice of the United States.
Harper:; Right.
Moyers: Bizarre, too.
Harper: Yes. It’s amazing. He told the lie about the SCIF and whether there were people allowed into SCIF, I happened to be watching one of the news programs. And people on the show were all saying, “Hey, that’s a lie.” At the break, they speak up, “I can’t believe it, he told a lie.” And there were some lawyers on the program who said, “Maybe when it resumes, he’ll apologize” — you know, to the Court and to the Senate. Which would’ve been the easiest thing in the world to do at that point.
Moyers: Pat Cipollone, the White House counsel we’re talking about, is paid by all of us, all American taxpayers, to represent the office of the President, not Trump personally. Did he and Trump cross the line separating those two jobs?
Harper: Oh, I think so. Probably long ago. And the point you make is a really important one because people at large don’t intuitively think about the fact that the White House counsel represents the office of the presidency, not the person who holds the office personally. And as a result, he has an obligation that is different from the obligation Trump’s personal attorney might have.
He’s also got greater risks, because to the extent he’s a participant in various activities, the line becomes blurred, and if you forget that your duty is to the office of the presidency, rather than to the man, it becomes a lot more difficult sometimes to see that line. If you cross it, you can wind up in the kind of spot that I think Pat Cipollone is going to find himself in. Whether it leads to anything in terms of a remedy is an entirely different question.
Moyers: How do we have a legal system when lawyers lie?
Harper: It’s certainly compromised when lawyers lie. And unfortunately, I think the public response generally to this sort of problem is, “Yeah, everybody knows lawyers lie.” You have heard the old joke, how can you tell when a lawyer is lying? Well, his lips are moving. And so at least in the public mind that’s come to be thought of as an essential character attribute of a lawyer.
But those of us who are actually lawyers know that the entire system is dependent to a very large degree on the honesty and good faith of lawyers who swear an oath to uphold the Constitution and the rule of law. And they take that oath in every state. Being honest, and being honest to a court and being honest to a jury and a judge, that’s all part of it. And when you lose that fundamental integrity of the players who are central to the process, you have serious problems in retaining the integrity of the process, and ultimately, you’ll lose public confidence in the system. And that is a recipe for chaos.
Moyers: So democracy can die of too many lies.
Harper: Absolutely.
Moyers: Here’s something else that’s quite disturbing, and helps us, perhaps, to understand why the Republicans refused to allow witnesses and more documents. Late last Friday, Trump’s allies in the Senate, before our very eyes, defeated a last-minute attempt to subpoena more documents and witnesses that could have gotten us closer to the truth of the Ukraine story, which is the heart of the first impeachment charge.
Then just hours after that vote, near midnight on Friday, to be exact, just hours after the Republicans said no to more testimony and evidence, the Department of Justice revealed in a court filing that it has two dozen emails related to the president’s own involvement. And according to CNN, some of those emails incriminate the president, revealing that he was directly involved in the discussions as early as June. In other words, the Trump team, right up to the last minute, and even now, is still blocking those emails from the public and has successfully kept them from Congress.
Harper: Right.
Moyers: The cover up worked.
Harper: Yes, so far. And the questions now are will anyone have the perseverance to continue on, and will their findings receive an audience? Will there be an audience to listen to whatever more comes out? Although the irony, of course, as you said when we began, is that Trump’s defenders have essentially adopted the position that, yes, he did it —
Moyers:: Yeah.
Harper: — he did it. So, basically, there’s just more details of how he did it. You know, as Mick Mulvaney famously said, “Get over it.”
Moyers: So what – it doesn’t matter!
Harper: Yep, so what? “Get over it.”
Moyers: It comes down to this: The Republicans kept complaining that the charges against Trump are only based on hearsay, second-hand information. Yet you have Mitch McConnell, the ringleader of the Republican majority in the Senate, calling on Republicans to keep witnesses from appearing at the trial who could testify first-hand to what they saw. And one of those witnesses, if John Bolton is accurate, is the White House counsel, sitting right there in front of both Mitch McConnell and the Chief Justice of the Supreme Court.
Harper: Right.
Moyers: What would you call that?
Harper: I would call that treading extremely dangerous grounds, if I were Pat Cipollone. And if I were, I’d have a pretty good lawyer lined up to deal with some of this stuff. He should talk to John Dean, who was Nixon’s counsel, about the tenuous position that a White House counsel can be in when he’s surrounded by a President who is crossing all sorts of lines, lines no one should cross.
Moyers: What we’ve just seen is the dictator of the Senate manipulating the impeachment process to save the demagogue in the White House whose political party has become the gravedigger of democracy.
Harper: I think so. And I think when the history of this is written — it’ll be written in phases, I suspect, and it may take a long time before everything eventually comes out – but when the complete story of the Trump presidency is told, it will be a very dark mark on Senator Mitch McConnell’s legacy.
Moyers: There’s another issue we have to talk about. Back in December, Republican Senator Ted Cruz told a national television audience that impeachment “is not going anywhere because the facts are not there.” And later in that same program, the Democratic representative, Adam Schiff, who was the lead manager for the House when impeachment moved to the Senate, told the same audience that “They don’t want the American people to see the facts.” Who was right?
Harper: Who was right? The person who was right is the person who says, “Look, don’t take my word for it,” and I used to tell juries this all the time, “Don’t take my word for it, just bring an informed skepticism to whatever evidence each side brings to the question. And if one side is not willing to bring you any evidence at all, that should tell you something. If one side is obstructing, blocking your effort to see evidence, that should tell you something. If the other side is working diligently to try to not only uncover but to provide to you facts and evidence, then you’re at least in a position where you can assess which one to believe.
So, that’s what should happen. And on that criteria, of course, Cruz loses every time. And Trump loses every time. Because the facts are not their friends, obviously; otherwise, they’d be talking about the facts, they’d be arguing the facts, they would be presenting the facts, they would be pushing the facts. They’d be saying, “John Bolton, come out here and tell the Senate and the Chief Justice and the world and the public what you saw and heard, lay this nonsense to bed, once and for all. Tell them what you have to say and tell them Donald Trump did nothing, there was no quid pro quo, that Trump did nothing wrong.”
And they’re not doing that, they’re doing the opposite of that. So, that’s the problem. And here’s the real difficulty, how do you penetrate the bias that all of us have, how do you penetrate our ability to remain in our echo chambers and just hear what we want to hear — selective perception, it’s called, the psychology that works in the human mind — how do you penetrate that? And I don’t have a good answer for that.
Moyers: Isn’t this ultimately a moral issue, beyond politics and even the law? Aren’t we talking about choosing right over wrong, no matter how the politics is being played out and no matter which law is at stake? Doesn’t it come down to right and wrong? And can a society that is unable to discern fact from fiction, truth from lies — can that society even choose between right and wrong?
Harper: The German-American philosopher and political theorist, Hannah Arendt, made exactly that point. She was a student of the period that experienced the rise of totalitarianism during the 1930s and 1940s, and here’s what she said about it: “If, everybody lies to you, if everybody always lies to you, the consequence is not that you believe the lies, but rather that nobody believes anything any longer…And a people that can no longer believe anything, cannot make up its mind. It is deprived, not only of its capacity to act, but also of its capacity to think and to judge. And with such a people, you can then do what you please.”
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