Barry Berke Makes House Debut With Lewandowski as Democrats Push Impeachment
Tuesday's hearing marked the first time the Kramer Levin Naftalis & Frankel partner handled questioning for House Democrats under new rules.
September 17, 2019 at 10:28 PM
9 minute read
The White House tested the limits of its claims of executive privilege Tuesday, as former Trump campaign manager Corey Lewandowski followed the direction of the president's lawyers and repeatedly declined to answer questions posed to him by the House Judiciary Committee and its attorney.
During a chaotic hearing that lasted nearly five hours, Lewandowski sparred with Democrats on the committee about what information he was allowed to share about his conversations with the president.
He similarly faced off against Kramer Levin Naftalis & Frankel's Barry Berke later in the hearing, the first time that attorneys have been allowed to question a witness under recently passed committee rules. Berke is currently on a leave of absence from the firm.
For the former Trump campaign manager, the answer was almost always nothing. He repeatedly stated that while it wasn't his privilege, he was respecting the White House's request that he not share details of his private conversations with President Donald Trump and top White House aides.
Frustrated Democrats seized on this latest development to underscore the importance of their current lawsuit to compel public testimony from former White House counsel Donald McGahn. McGahn did not comply with a House Judiciary subpoena for his testimony at the direction of White House lawyers, who invoked "immunity" under the concept of executive privilege in their instructions.
"On behalf of the president, the White House and Department of Justice are advancing the same spurious legal doctrine as they did when this committee called on the most important obstruction witness to testify—former White House counsel, Don McGahn," House Judiciary Committee Chairman Jerrold Nadler said.
"Mr. Lewandowski is here and has vital information about presidential obstruction," he continued. "But the White House wants to limit our and your ability to hear it all."
Nadler made repeated references to White House counsels in the hearing room, claiming they were the ones stopping Lewandowski from talking.
House Democrats were instantly up in arms over the restrictions placed on Lewandowski, who was present at one of the 10 episodes of potential obstruction of justice laid out in the Mueller report.
White House counsel Pat Cipollone wrote in a letter to the House Judiciary Committee late Monday that Lewandowski, who has never worked in the White House, had been told to limit his testimony to only information already revealed in special counsel Robert Mueller's report.
Any new information, Cipollone wrote, was off limits.
"We are adhering to the well-established lines protecting the confidentiality of presidential communications to ensure that future presidents can effectively execute the responsibilities of the office of president," the letter reads.
The committee also subpoenaed former White House staffers Rick Dearborn and Rob Porter to appear at Tuesday's hearing. But Cipollone, in a separate letter to Nadler sent Monday evening, said the White House instructed both men to not comply—directions they followed.
Trump, Mueller's report states, instructed Lewandowski during a June 2017 meeting in the Oval Office to tell then-Attorney General Jeff Sessions to make public remarks stating that Trump had done nothing wrong, that a special counsel should not have been appointed and that Sessions, who had recused himself from the probe, was limiting the investigation on Russian election interference to future races.
Lewandowski did not deliver that message over the coming weeks, and when Trump and his former campaign manager met the next month, the president urged Lewandowski to meet with Sessions. He said Lewandowski should tell Sessions that he was fired if he rejected the meeting.
Lewandowski did not share the message with Sessions in person, and delegated the responsibility to Dearborn. Dearborn did not give the message to the attorney general, but told Lewandowski that he had.
Lewandowski said during the hearing that Trump's request was not a "high priority" for him, and that he had gone on vacation for two of the weeks between his meetings with the president.
Lawmakers during the hearing suggested that Lewandowski could be held in contempt down the line for declining to answer questions at the White House's direction.
Democratic Reps. Ted Deutch and David Cicilline were among those who urged Nadler to consider holding Lewandowski in contempt for his conduct during the hearing.
Nadler ended the period of questioning for lawmakers by sharply criticizing Lewandowski's responses, which elicited little new information.
"Your behavior in this hearing room has been completely unacceptable," Nadler said. "I have been asked several times whether the committee will hold you in contempt. That is certainly under consideration."
The members' period of questioning during the hearing was almost immediately held up, as Nadler's inquiries were repeatedly interrupted by Lewandowski.
Lewandowski at first requested a copy of the Mueller report, and then asked for specific page numbers and paragraphs for Nadler's questions—information the chairman didn't immediately have before him.
The political operative also declined to read passages from the report out loud when lawmakers asked him to do so, noting that Mueller had done the same when he appeared before the committee.
When Nadler went briefly beyond his time, Judiciary Committee ranking member GOP Rep. Doug Collins alleged he was violating House rules, and a roll call vote was held on whether that was the case, further holding up the proceedings.
Tuesday's hearing was also the first time the committee operated under new rules it passed last week along party lines, that authorized staff attorneys to question witnesses at the impeachment hearings.
But Collins disputed whether Berke was allowed to conduct questioning under House rules.
He claimed that because Berke, as well as former Obama ethics official Norm Eisen, were hired as consultants for Democrats on the House Judiciary Committee to help with their investigations, they did not qualify as staff and could not question Lewandowski.
Nadler pointed to past instances where outside attorneys have been allowed to question witnesses at House Judiciary interviews, including during the previous session of Congress, when the committee was under Republican control.
The chairman ruled that Berke could question Lewandowski, and the committee voted along party lines to uphold Nadler's ruling.
Lewandowski's attorney, Peter Chavkin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, sat behind his client for most of the hearing. When it came time for Berke's questioning, Chavkin interrupted, claiming it was "unauthorized."
Chavkin said at the end of the hearing that he would be submitting a letter, challenging Berke's questions.
Berke focused many of his questions about public statements Lewandowski had made that conflicted with statements made by him in the Mueller report. Lewandowski maintained that he has always been truthful while speaking under oath.
"Oh I'm sorry," Lewandowski said sarcastically at one point. "Nobody in front of Congress has ever lied to the public." He added that he felt no obligation to be honest to the media.
Berke also pressed Lewandowski on why he hadn't delivered the message from Trump to Sessions. Berke pointed to a book written by the ex-Trump campaign manager that said he may have been considered for a high-ranking administration job, overseeing the Russia investigation, shortly before the president made the request to Lewandowski.
Lewandowski replied that the job was put on hold at that time, as the president was considering "firing everybody" if things didn't improve.
Berke also asked Lewandowski if he didn't give the message because he thought doing so was illegal.
"I didn't have the privilege of going to Harvard Law School and I'm not an attorney," Lewandowski responded. But he said he didn't believe Trump's request was illegal.
After Berke's 30 minutes of questioning elapsed, Nadler asked Republicans on the committee to have their staff attorney come forward. But Collins tried to argue that he was staff and could do the questioning himself.
When that effort was blocked, Collins declared that Republicans wouldn't go along with the "sham" impeachment push from Democrats and wouldn't have a lawyer question Lewandowski further.
Procedural issues and questions remained a theme throughout the hearing: Both Collins and Nadler pointed out how many seconds over their allotted five minutes various members went over in their questioning.
But it seems that a solution may soon be on the way: During one brief recess, the House Judiciary Committee posted a job listing for a parliamentarian "to advise the chairman during Judiciary Committee proceedings."
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