Just in Case of an Impeachment

And if not that, then the president might at least try to discredit the investigation, as Harvard law professor Jack Goldsmith suggested in a recent Lawfare article, “The President Can’t Kill the Mueller Investigation.” It’s a strategy we’ve seen before: “The goal,” Goldsmith writes, “is to delegitimize Mueller for the same reasons that Bill Clinton’s proxies tried to discredit Ken Starr: To shape the politics of impeachment.”

Perhaps. But if the strategy is to throw up a firewall against impeachment and removal, there may be a better parallel than the anti-Ken Starr offensive of the Clintons: namely, the successful defense of O. J. Simpson in his trial for the 1994 murders of Nicole Brown Simpson and Ron Goldman.

There is no shortage of odd similarities: Jeffrey Toobin, author of The Run of His Life: The People v. O.J. Simpson, has already signed a book contract to chronicle the Mueller proceedings; there have been constitutional law cameos by Alan Dershowitz. More significantly there is this parallel: Simpson’s legal team went hammer and tongs, not at L.A. County district attorney Gil Garcetti or lead prosecutor Marcia Clark, but at the journeyman investigators whose mistakes (and worse) allowed the foundation of the prosecution to be denounced and ridiculed. Could Capitol Hill Republicans be preparing to take the same tack?

The main target for Team Clinton in 1998 was Ken Starr himself. (When Clinton loyalist James Carville wrote his critique of the inquiry, he titled it .  .  . And the Horse He Rode In On: The People v. Kenneth Starr.) It was an effective attack in no small part because Starr was the face of the probe and the driving force of the case against Clinton. Michael Gerhardt, professor of constitutional law at the University of North Carolina and author of The Federal Impeachment Process, has argued that “the failure of the House to undertake its own fact-finding, and its reliance instead on Starr’s findings, made it easier for Clinton and his defenders to attack the impeachment.” Starr had become so central to the affair that impeaching his motives was the likeliest and most efficient way to rally support for President Clinton.

But there are challenges in trying to repeat the Clinton crew’s takedown of Starr. Bill Clinton had plenty of media allies willing to help vilify Starr in a way that Trump cannot expect with Mueller. And Clinton’s success turned in part on his extraordinary wiles in confounding his questioners when interviewed—subtle skills that Donald Trump doesn’t possess.

Which may explain why committees in both the House and Senate are focusing their defensive Russia probes not on Mueller himself, but on the rank and file investigators. Did Justice Department lawyers use dubious information from a partisan oppo document—the Steele “dossier”—to request warrants from the Federal Intelligence Surveillance Court to snoop on team Trump? Was the FBI shot through with anti-Trump animus, as evidenced by sneering text messages between counterintelligence agent Peter Strzok and FBI lawyer Lisa Page?

If it seems a bit premature for GOP lawmakers to be laying down markers for how to turn some future impeachment trial of Trump into an inquisition judging federal investigators, remember that the Simpson team’s conspiracy theory that L.A. police planted evidence was hatched long before the O. J. trial began. Toobin reported in the middle of July 1994 that the Simpson defense was already angling to paint detective Mark Fuhrman “as a rogue cop who, rather than solving the crime, framed an innocent man.” Toobin would later note, “It is important to remember just how early in the case this was: Nicole and Goldman had been dead for just about a month.”

Mistakes made by investigators in the first hours of the case would prove pivotal—mistakes such as those of the newbie criminalist who showed up on the scene and failed to follow proper procedures. Trainee Andrea Mazzola was on video handling different pieces of evidence without taking the time to put on new, sterile gloves for each specimen. Criminalist Dennis Fung had tried to cover for his errant and inexperienced assistant by telling the grand jury that he, not Mazzola, had handled and bagged blood evidence such as the killer’s glove. That fib was duly found out and would be played by Simpson’s lawyers for all it was worth.

“That testimony wasn’t accurate, was it?” demanded Barry Scheck, cross-examining Fung.

“That I personally did that stuff? No,” was Fung’s sheepish reply.

“And that testimony you gave the grand jury was under oath?”

“Yes.”

You don’t have to buy into an elaborate conspiracy theory to recognize the Fung testimony as hugely damaging to the case against Simpson. The conspiracy theory suggested that LAPD cops planted blood evidence to frame Simpson; but far more plausible, Occam’s razor-wise, is the simpler scenario of investigators’ habitual sloppiness. The criminalist who’s used to being cross-examined by overworked and underprepared third-string public defenders isn’t used to having his custody of evidence aggressively challenged. Go long enough without having to prove you followed correct procedures and you get lazy about the Ps and Qs.

In the same way, you don’t have to buy into an elaborate conspiracy theory to see FBI agents and Justice Department officials getting similarly sloppy. Casually overblown political opining is the most common of Washington pastimes. It requires real discipline for supposedly apolitical actors to avoid partisan chat when no one is checking that those fundamental norms are being enforced. Or take the possibility that unverified allegations from a shady opposition-research dossier were used to request a warrant from the FISA court to surveil the Trump team. We may find that such shortcuts have been commonplace. Given that FISA requests are denied next to never, the Justice Department may not exactly be in the habit of having to make punctilious justifications to get what it wants from the secret court. That may facilitate the speedy tracking of terrorists, but it may also produce habits with a Fung-al lack of fastidiousness.

O. J. defense lawyer Johnnie Cochran would later say of the trial, “The primary advantage that I had with this jury was that they were familiar with the history of the Los Angeles Police Department. They’d lived it. Several of these jurors knew from personal experience that police officers do not hesitate to lie—even under oath.” Will there be a similar pool of Senate jurors in any future impeachment case who will feel they are familiar with the bias of bureaucrats, even law-enforcement bureaucrats?

What Cochran might have added was that he had this other significant advantage: The jury, for the most part and from the get-go, was disinclined to do what the prosecutors asked. The defense team recognized that their job wasn’t to persuade jurors of their case: They just needed to give the jury a respectable reason to bring in—with a straight face—a verdict of not guilty.

So too with a hypothetical Trump impeachment trial. If there is a post-2018 Democratic House majority and if such an anti-Trump body were presented with a Mueller report that could be used to justify articles of impeachment, the president’s defense would be in much the same position with regard to the jury it will face as the Cochran crew was with theirs. Chances are, unless Mueller’s brief proved to be devastating, there would be at least 34 Senate Republicans who would be, like the majority of O. J. jurors, disinclined to convict. They would just need something to hang their hats on.

In People of the State of California v. Orenthal James Simpson the jury hung its hat on the sloppy work and casual prejudices of some of the policemen who happened to respond to the murder in Brentwood. Will sloppy work before the FISA court and casual political prejudices of the sort texted between FBI agent Peter Strzok and FBI lawyer Lisa Page provide the same sort of justification for senators who choose not to convict an impeached president of their party?

Eric Felten is a senior writer at THE WEEKLY STANDARD.