“McCarthyism is the practice of making accusations of subversion or treason without proper regard for evidence” according to Wikipedia. Listen to part of this interview with Erin Burnett of CNN.

Nadler: “If we’re going to do anything, you have to have proof.”

Erin Burnett: “So, that’s what this is about, you don’t yet have proof?”

Ms. Burnett is expressing the frustration that after two years of Democrats talking about impeaching President Trump the Democratic party still does not have the evidence needed to make the case for impeachment. The American people are expecting impeachment hearings and the Democrats are not ready! Instead, they are getting promised more investigations. The Mueller investigation is almost over. The last thing the American people wants is more investigations!

The Democratic party could lose badly in 2020 if the impeachment hearings are botched. So it looks like we will be getting impeachment-like investigations. Unfortunately, these investigations could be a gift to the Republican party, too. If Congressman Nadler’s investigations become a political circus like they did under Senator McCarthy, the Democrats will have no one to blame except themselves if independent voters abandon them in 2020. It is a lose-lose situation. You lose if you conduct impeachment hearings you are not prepared for and you lose if you conduct investigations that look more like partisan attacks than congressional oversight. It is easy to see these investigations becoming a prime-time circus and President Trump getting the sympathy vote.

I hate to criticize other people’s plans without offering a better alternative. Democrats in Congress should be talking about reforming the Affordable Care Act to have affordable health care before they have burned all bridges to a compromise. That issue is more likely to get them re-elected in 2020 than impeachment investigations. Unfortunately, history has shown that the Democrats cannot multi-task when they are talking about impeaching President Trump.

@BrittHume called the transcript an interesting read. I hate to give legal advice to Mueller’s elite team of attorneys but pissing off the judge in charge of your case is a dumb plan. Evidently, Judge Ellis holds the provisions of the Special Counsel to a much higher standard than the standards used to get indictments in the “drug area”. Like Trey Gowdy, he probably hoped that the Mueller team would go out of their way to make this case about following the law and not giving “a whit about politics“. That is the essence of the Special Counsel regulations and why the Special Counsel is an improvement over the Independent Counsel. For a high profile, highly politicized case like this, it was incredibly important that the Mueller team follow the law precisely so that there would be no doubt in the public eye that justice was blind to the politics. Both Judge Ellis and the Mueller team acknowledge that this case was an attempt to coerce justice out of nothing. Where they differ is that the Mueller team is repeating the worst aspects of the Independent Counsel rules and hoping they can get away with it.

Some Interesting Points Judge Ellis Made

1. Why did the prosecutors present a redacted version of the August 2 memo to the Judge?

Judge Ellis made it plain that he handled cases containing classified information(CIPA) before. He found it disrespectful that the prosecutors determined that the redacted information was not relevant to this case and did not seek out his opinion. This would have been a minor point except that the Department of Justice has been accused of stonewalling Congressional inquiries. I do not know if this influenced his questions but I think he made it perfectly clear that stonewalling the judge in charge of your case is just plain stupid.

2. Does the Special Counsel have unfettered power?

This question came from the expanded scope of the investigation. Judge Ellis was concerned that although the original scope was written by lawyers it was “not intended to be judicially enforceable”.  Judge Ellis questioned whether the Special Counsel has authority to make the scope of the investigation whatever he or she wants. He said:

What we don’t want in this country is we don’t want anyone with unfettered power. We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.

3. Why is the Manafort case being prosecuted by the Special Counsel?

Manafort’s attorneys made the point that this case did not arise from the Mueller investigation. This case predates the Mueller investigation. Manafort’s attorneys argue that Mueller’s investigation of the alleged crime by Mr. Manafort in 2007 was illegal because it violated the “narrow jurisdiction on the special counsel”.   This is an example of the unfettered power that the Special Counsel regulations were designed to prevent. If Mueller’s investigation was illegal then prosecuting this case becomes difficult if not impossible.  Judge Ellis asks,

Let’s assume for a moment your argument that this delegation is in some way illegal. Why isn’t the right result simply to give to the Eastern District of Virginia’s U.S. Attorney’s Office — give it back to them and let them prosecute this indictment? Why isn’t that the right result?

MR. DOWNING: Well, the right result may be for the Department of Justice to finish the investigation they had started and make a determination as to whether or not to charge Mr. Manafort. But if, in fact, this order is defective, then Mr. Mueller did not have the authority of the U.S. Attorney to conduct a grand jury investigation, to get search warrants, or to return and sign an indictment.