Book Review

A Case for the American People: The United States v. Donald J. Trump

by Norman Eisen, Esq.

Reviewed by Roger Bennet Adler

Roger Bennet Adler is a Manhattan based solo practitioner, former Chair of the New York State Bar Association Criminal Justice Section, and a Past President of the Brooklyn Bar Association and Kings County Criminal Bar Association. As the coronavirus pandemic rages, and the American death toll steadily climbs to a jaw-dropping 200,000 (and showing no end in sight), it is jarring to recall that the American governmental system recently went through the tectonic Senate impeachment trial resulting in President Trump’s acquittal, largely along partisan political lines.

Norm Eisen, Esq., is a Washington, D.C. legal insider with an impressive career path and a progressive political pedigree, which includes service as Ambassador to the Czech Republic during the Obama Administration, and now “Senior Fellow” in Governance Studies at the prestigious Brookings Institution.

When House Judicial Chair Congressman Jerrold Nadler hired Eisen, he made a prudent pick, which soon spawned an early impeachment initiative which targeted the President’s political fate in a manner which some will perceive as disconcerting as when then Attorney General Robert Kennedy targeted labor union leaders, or when President Nixon crafted his “enemies list.”

Regardless of one’s initial take, it is unquestionable that President Trump impulsively and reflexively launched a series of actions – some charged, others ignored – which betrayed a little short of shocking ignorance of leadership protocols, and the Rule of Law.

Daily dissembling, and a myriad of tweets and message “walk backs,” soon disturbingly revealed an uncontrollable President for whom truth (like beauty) exists in the eye of the beholder. While

Eisen undoubtedly knew all this, he provided legal guidance to an experienced Committee Chair, who, while a career politician, had no grounding in the world of legal practice, or courtroom protocols. While impeachment is likely more political referendum than criminal trial, the legal road maps are the equivalent of an indictment – the Articles of Impeachment. The question is whether to “go big” (some ten Articles), or “go small,” with a limited menu of charges which a majority of the Congressional Democratic caucus could rally around.

If the lessons learned from the Watergate scandal were that members of the President’s own party finally found the political courage to forsake him for the Rule of Law, the political reality is no such perception would aid Eisen in his journey to hold Trump accountable became the operative Congressional dynamic. It was a political bridge too far.

Eisen also focuses attention on the approach taken by the Republican members of the Judiciary Committee. Ranking member Doug Collins (R – Georgia) claimed that, rather than raising impeachable grounds, the Committee minority voiced the “Orwellian” view that it was not President Trump who was subverting American democracy, but rather he believed it was the Democratic Party!

As opposed to the Watergate scandal, when a number of Republicans followed the facts and voted for President Nixon’s impeachment, the polarizing times in which we live prompted a block vote approach to the Article of Impeachment.

Congressman Collins is now the Republican candidate for a Georgia Senate seat, and well knows that to prompt President Trump’s ire would have ended his political career. This was a lesson corroborated months later, when former Attorney General Jeff Sessions was defeated in the Republican Alabama Senate Primary by a former Auburn University retired football coach backed by President Trump

Eisen gives the reader realistic insight into the emotional clashes which, not surprisingly, arose over disagreements between Chairman Nadler and Chair Smallwood. Eisen verbally clashed with his Intelligence Committee Chair Don Goldman, a former Assistant U.S. Attorney, who, while both younger (and less senior) likely tried more cases than his more senior colleague Eisen.

It may well be less than a “tale of the tape” comparison of Eisen to his Republican counterpart. The Republican unified loyalty to President Trump ultimately held fast, and the merits of the “Articles of Impeachment” became less. Essentially, the Senate Republicans filed a “Legal Demurer.”

Lawyers know (and are accordingly attuned to) the difference between an acquittal, and a claim of innocence. In these sharply divided partisan political times we live in, much like the criminal cases from the South in the 1940s and 50s involving whites who murdered Blacks, the elicited evidence and the inferences drawn therefrom proved irrelevant. We have never had a President who perceived that he was cloaked with the power to shoot someone on Fifth Avenue, and escape legal accountability.

Maybe the true “takeaway” is that impeachment, by a deeply divided Congress during a Presidential election year is simply a “bridge too far.” Americans owe a deep debt to Norm Eisen for his public service. The ultimate Trump jury is currently scheduled to cast its ballot and render its verdict on Election Day. We will soon learn if the American voter is any more discerning than their elected representatives.

Eisen’s disappointment with both the Report of Special Counsel Robert Mueller, and Mueller’s decision to hew to the Department of Justice legal position that a sitting President was immune from indictment for a federal crime while sitting in office, is palpable. Commendably, Manhattan District Attorney Cyrus Vance has picked up that mantle, and remains our “last best hope.”

Eisen strongly suspected that Mueller pruned his Report’s conclusions to conform to it, and avoid any dicta indicating that the conduct may have arisen to being charged as impeachable acts. The Judiciary Committee was obliged to proceed with a Special Counsel Report fully filleted of the explosive obstructive conduct baked into the President’s DNA since he built with concrete provided by the late “Fat Tony” Salerno’s concrete company SIA.

We also now know from more recent books that Deputy Attorney General Rod Rosenstein jawboned Robert Mueller away from pursuing and investigating financial ties between both Trump family members and Russian financing.

Sadly, the more that has emerged about the work of Special Prosecutor Mueller, the more disturbing its shortcomings appear. Like a boxer with a “glass jaw,” when the going got tough, Mueller appears to have been rolled. We are the true losers. A