Chaotic Lewandowsky Hearing Ends With Artful Cross-Examination

Ken AshfordCourts/Law, L'Affaire Russe, Trump & AdministrationLeave a Comment

Jennifer Rubin explains

Corey Lewandowski sneered and dodged and raised phony privileges when questioned by members of the House Judiciary Committee on Tuesday. He did, however, make a fatal error (fatal to President Trump, that is) when he repeatedly said the White House had instructed him not to answer questions.

After the hearing, Chairman Rep. Jerrold Nadler (D-N.Y.) told CNN: “Article 3 of Nixon’s impeachment was obstruction of Congress, refusing to obey defined congressional subpoenas, pleading imaginary privileges. And obviously that’s what the president has been doing.” In short, Lewandowski’s own conduct provided evidence of obstruction.

The real excitement came, however, after the media decided it was all chaos and Democrats had accomplished nothing. Democrats’ counsel Barry Berke got 30 minutes to question Lewandowski and made the most of it

Here’s what he accomplished:

1. Berke forced Lewandowski to acknowledge that when he said on national television multiple times he would “voluntarily” appear before special counsel Robert S. Mueller III, that was false. Berke demonstrated Lewandowski also lied when he said on TV he had not been asked to testify. Lewandowski asserted he had no obligation to tell the media (and the public) the truth.

2. Berke made plain that Lewandowski took the Fifth and refused to testify for the special counsel unless granted immunity. He also showed Lewandowski clips of him publicly stating that when you take the Fifth, you’ve done something wrong.

3. Berke established that before asking Lewandowski to take a message to then-Attorney General Jeff Sessions, the White House just so happened to dangle a White House job before him.

4. Berke established that Lewandowski was absolutely loyal to Trump yet never delivered the message.

5. Berke also established that Lewandowski wanted to have a private meeting with Sessions so there would be no record.

In short, Berke made perfectly clear that Lewandowski’s actions (refusing to deliver Trump’s instructions, demanding immunity, lying on TV, creating no record) demonstrated he knew he was being asked to do something wrong or illegal.

But take half an hour and see it for yourself:


Berke’s performance us that if competent counsel does the questioning, we can vividly see the impeachable acts that Trump already committed and continues to this day to commit. We learned, although it’s been in the report and played out every day, that the impeachable acts are rather easy to understand. Former federal prosecutor Joyce White Vance was more succinct. “The law won,” she said.

It did indeed, which is why lawyers ought to be doing this rather than preening politicians. Elie Mystal at Above the Law writes:

Most people, including me, didn’t see it in real time. The news channels weren’t carrying it live by that time. Berke only got to go after all the Congresspeople had their moments to (largely) mug for the cameras.

Folks, this is a huge problem with the Democrats’ prosecution of the case against Trump. The Democrats want to say that Donald Trump is engaged in an unprecedented level of corruption and obstruction, but they themselves keep behaving like “normal” Congresspeople, which means mugging and jostling for television time, and holding hearings in a way to make it look like they’re doing something, instead of holding hearings in a way that actually accomplishes something.

It is political MALPRACTICE for each and every one of these Congresspeople — with varying levels of preparedness — to waste time in these important hearings while people are paying attention, only letting the real lawyers talk when most people have tuned out.

If Democrats really want to put “country over party,” then they must start with themselves. Congressional oversight of the Trump hearings is not a time for Democrats to run for re-election. Trying to hold a criminal president accountable, and build public support for that accountability, is not a time to get off your packaged one-liner so you have something to put on your official Twitter page. This can’t be Little League Baseball anymore: NOT everybody gets to play. There are more important issues here than making sure each Congressperson has their five minutes to be “seen.”

That hearing should have been designed to make Barry Berke famous, not designed to make sure Congressman Who-the-hell-ever got some screen time on CNN. Berke broke Lewandowski. He made Lewandowski look like the small, weak Trump fluffer that he is. That should have been the overwhelming visual coming out of the hearings, not Jerry Nadler’s exasperated face.

The only reason for the Democrats to structure the hearings the way they were, and the way they were for Robert Mueller, is ego. Their own freaking ego. Congresspeople, many who themselves have legal training, don’t think of themselves as particularly BAD at asking questions of a hostile witness. Their hubris extends to thinking that they ask better questions than “the lawyers,” because they think themselves some kind of political geniuses for winning their districts (districts that in many cases are gerrymandered so hard a braying ass with the D or R after their name could win, just ask Steve King). They’re desperate for the attention a high-profile hearing brings (the reality of fundraising is real), and they’re used to being treated with “respect” by people who need something from them.

For the most part, they’re totally unprepared for what the Trump administration is bringing. Trump witnesses have no respect for Congress, do not fear being held accountable, have PROBABLY been told that they’ll get pardons anyway, and have spent far more time preparing their testimony than Congresspeople have spent trying to figure out how to break them. House Judiciary keeps coming to these things expecting to put on a show for the American people, and the witnesses keep coming preparing to fight to the death.

It takes a lawyer, a real one, one with experience dealing with criminals and hostile witnesses, to get anywhere with these people. Cross-examination is a skill, one they don’t teach you in law school or while working on corporate mergers and acquisitions. You need experience to do it right. AND you need more than five minutes.

Nadler could organize these hearings so that the lawyer went first, and then all his members piled on. He could structure them so that each side had the same amount of time, but in a block, to do with what they wished. He could do a lot, he’s got a lot of power here.

But to wield it correctly, Democrats first need to get over themselves. Nobody is there to hear Congresspeople make speeches and jokes about the goddamned New England Patriots. Everybody is there to see if Trump will be held accountable for crimes. Professionals should question these witnesses, and Nadler should only be there to dangle literal handcuffs if witnesses don’t comply. Everything else, literally everything that doesn’t involve professional cross-examination of Trumpsters, is a useless show.
Democrats must be better.