“I see a prosecutorial approach being used here quite effectively,” said Elie Honig, a former New Jersey and federal prosecutor.
One of the most fundamental questions House Democrats have been grappling with in the impeachment inquiry, Honig said, is one prosecutors have to confront “all the time.”
”That is, do you take the kitchen sink approach, and present jurors with every damaging thing you have, which might overwhelm them?” Honig said. “Or do you go ‘thin to win’ and get the best, strongest argument out there, front and center, and waste no time?”
Democrats appear to be ditching the kitchen sink for simplicity.
They had no shortage of potential targets — from potential emoluments clause violations stemming from foreign and federal business at Trump properties, to obstruction of justice in the Mueller probe, to an immigration policy that led to children being separated from their parents at the border.
But experienced litigators say it’s much easier to explain why it was an abuse of power for Trump to ask a foreign leader to dig up dirt on Joe Biden, which is why a narrow approach might work best.
“The biggest insight I’ve had in trying complex cases is that you want to be the one telling the simple story, and you want the other side to be telling the complicated story,” said Renato Mariotti, a former federal prosecutor in the Northern District of Illinois. “Whichever side telling the simple story wins, and it’s simply because of the way the human brain works.”
Patrick Cotter, a former federal prosecutor who was part of the team that convicted Gambino family boss, John Gotti, called it “standard practice” to advocate for a narrow set of charges that are easily proved.
“I can draw on my own experience,” Cotter said. “In the Gotti case, the Justice Department said, ‘Make sure you get him good.’ So we literally sat around the table for days and discussed all the things we could in theory charge him with.”
Ultimately, Cotter said, prosecutors settled on 11 specific charges — and left several out.
“The other crimes we could’ve charged we left alone because we thought, ‘We can’t put a complicated, hard-to-prove case before a jury with varying levels of proof,” he said. “The goal is to identify your strongest charges that are the clearest and easiest to present, and the easiest to get the desired result.”
The strategy is likely being pushed by the House Intelligence Committee’s senior adviser and director of investigations, Daniel Goldman, according to people who know him.
Goldman, a former federal prosecutor in the Southern District of New York who oversaw prosecutions of Russian organized crime and successfully prosecuted members of the Genovese crime family, was hired by Schiff—himself a former prosecutor—in March when the panel was still closely scrutinizing Trump’s ties to Russia.
“I do see his fingerprints on this,” said a former colleague of Goldman’s who requested anonymity to comment on his work.
Goldman took the lead on questioning former U.S. Ambassador to Ukraine Marie Yovanovitch and Ambassador Michael McKinley, the former senior adviser to Secretary of State Mike Pompeo. Transcripts of their depositions show Democratic members repeatedly deferring to Goldman as he sought to establish the factual record.
Honig pointed to Goldman’s “precision in questioning, the full-court awareness of what other evidence shows, and the use of that other evidence to draw out key points of witness testimony.”
Legal experts often note that an impeachment inquiry is a political rather than a criminal process, and caution against framing the inquiry in terms of crimes the president may have committed, or specific statutes he might have violated.
But that doesn’t mean the process itself can’t be conducted the way a prosecutor might pursue an indictment, they said.
In the case of impeachment, noted Joyce Vance, a former U.S. attorney for the Northern District of Alabama, investigators don’t have to prove specific elements of a crime beyond a reasonable doubt—only that the facts are “compelling, and compelling to those who may be supporters of the president.”
“That counsels in favor of charges that are easy to understand and taken separately or together make a compelling case that the president is unfit to continue serving,” she added.
The current private, investigative phase of the impeachment inquiry has been compared to the grand jury process in a criminal proceeding, where witnesses are called in secret and evidence is compiled by prosecutors. Republicans have criticized this approach, accusing Democrats of conducting a secret inquiry that deprives Trump of due process.
Unlike the actual grand jury process, however, the closed-door depositions have actually given Republicans significantly more access than a defendant’s team would have during a criminal probe, Honig said.
“The No. 1 advantage being the ability to question witnesses,” he said, referring to the nearly 50 Republicans who are able to participate in the hearings by virtue of their committee membership.
In the hearings, House Democrats have tried to focus less on what Pelosi recently described as the “smoking gun”—Trump’s July 25 call with Ukrainian President Volodymyr Zelensky in which he specifically asked for a probe of the Bidens—and more on the shadow foreign policy campaign that preceded it.
Goldman’s first question to Yovanovitch was when she initially became aware that Giuliani “had an interest in or was communicating with anyone in Ukraine.” He later asked whether Ukrainian government officials were aware of Giuliani’s connection to Trump, and whether with the benefit of hindsight, she could describe how the shadow campaign affected the State Department’s official Ukraine policy that Yovanovitch was charged with carrying out.
“Ukrainians were wondering whether I was going to be leaving, whether we really represented the president, U.S. policy, etc,” she replied. “And so I think it was — you know, it really kind of cut the ground out from underneath us.”
Goldman also got Yovanovitch to say she believed Trump wanted her gone because of his relationship with Giuliani, who at that point was relaying negative information about her to the president that he was gleaning from a former Ukrainian prosecutor, Yuriy Lutsenko. And she testified that she was recalled so suddenly from Ukraine because the State Department was trying to get ahead of a potential Trump tweet about her.
The strategy is likely intended to strengthen Democrats’ case that Trump acted with corrupt intent, former prosecutors noted. “Putting everything under the umbrella of ‘abuse of power’ is smart because it’s simple,” Mariotti said. “There can be no debate about whether that’s an impeachable offense — it has been in the past.”
The Judiciary Committee approved three articles of impeachment against Richard Nixon in 1974, for obstruction of justice, abuse of power and contempt of Congress.
The president, meanwhile, has remained fixated on the call and the whistleblower who first raised alarms about it, and has treated his conversation with Zelensky as if it is the only evidence investigators have gathered as part of the impeachment inquiry.
“What I said on the phone call with the Ukrainian President is ‘perfectly’ stated,” Trump tweeted on Monday. “There is no reason to call witnesses to analyze my words and meaning. This is just another Democrat Hoax that I have had to live with from the day I got elected (and before!). Disgraceful!”
Several senior officials, including former national security adviser John Bolton and former White House lawyer John Eisenberg, have not committed to testifying in the impeachment inquiry.
But Democrats have taken depositions from nearly a dozen White House, State Department, and Pentagon officials in recent weeks, and their testimonies have gone far beyond the “words and meaning” of Trump’s call with Zelensky.
The transcripts of some of those depositions are now public, with more on the way. Both Yovanovitch and McKinley testified that they believed Yovanovitch was removed as part of the shadow campaign Trump’s allies were running to extract political favors from Kyiv.
“When the transcript of the call was released — I’m just going to state it clearly as a foreign service officer — to see the impugning of somebody I know to be a serious, committed colleague in the manner that it was done raised alarm bells for me,” McKinley testified. “It absolutely did.”
And from what has leaked of the other witnesses’ testimonies, it’s clear Democrats are focused on establishing a pattern of conduct—including Yovanovitch’s removal, the withholding of a White House summit for Zelensky, and the freeze on funds to Kyiv—and the motivations behind it.
Each witness has described efforts led by Trump’s personal lawyer Giuliani and U.S. Ambassador to the European Union Gordon Sondland to pressure Zelensky into publicly announcing investigations into the Bidens in exchange for a White House summit.
Lt. Col. Alexander Vindman, an Army officer who serves as the Ukraine director on the National Security Council, testified that he understood the summit and military assistance aid to be contingent on Zelensky committing to those probes. U.S. Ambassador to Ukraine Bill Taylor was told the same by Sondland, he testified.
The depositions have also revealed that Eisenberg took steps to conceal the content of the call, by moving it to a top-secret codeword system and instructing Vindman, who listened to the call, not to discuss it with anyone.
That could help Democrats establish that some in the White House had a guilty state of mind, which at least one Republican senator has already cast doubt on. “To me, this entire issue is gonna come down to, why did the president ask for an investigation?” Louisiana Sen. John Kennedy told The Washington Post last week.
“To me, it all turns on intent, motive…Did the president have a culpable state of mind? Based on the evidence that I see, that I’ve been allowed to see, the president does not have a culpable state of mind,” Kennedy said.
Leaked testimony also shows that House investigators have been homing in on whether Trump directed his advisers to pressure Ukraine into a quid pro quo—a finding that could be key to the impeachment inquiry’s popularity with the public, said Mimi Rocah, a former federal prosecutor in the Southern District of New York.
“You could have an abuse of power without having bribery and a quid pro quo,” Rocah said. “Just asking a foreign power to intervene in our election is an abuse of power.”
But, she added, “I’m not sure whether the public would buy that given recent GOP arguments that the president is in charge of conducting foreign policy, no matter what that looks like. At the end of the day, to maintain the momentum, Democrats will need to demonstrate with all this witness testimony that a quid pro quo occurred.”
The Judiciary Committee will ultimately be responsible for drafting the articles of impeachment based on the findings of the inquiry. The committee has been studying the history and legal precedents on impeachment for several months with the help of legal experts Norm Eisen and Barry Berke, who were hired earlier this year and will likely be deeply involved in the drafting of articles.
Still, there could be surprises on the way.
Despite the narrow scope Democrats are maintaining for now, Rocah noted, “they’ve left themselves some wiggle room with a potential ‘abuse of power’ article, which is broadly defined, and they’ve done a good job of showing that this wasn’t just about one phone call. Instead, with the depositions, they’re showing that this was a broader pattern of conduct over time.”
Prosecutors take a similar approach at trial. “You don’t reveal everything at once, or in your opening,” Rocah said. “You reveal it piece by piece during trial and then make your strongest argument in your closing.”