“I’m very well, Ken,” Kendall said.
For the next hour the two legal giants squared off in a prime-time clash exactly a month before the House voted to impeach then-President Clinton for his effort to cover up an affair with a White House intern. They debated the facts of the case and the merits of impeachment, as both Republicans and Democrats barely said a word.
It was the sort of legal battle royal that President Trump would probably love to see from his legal team, feisty and carried live on national cable TV.
But Trump, unlike Clinton and then-President Nixon in 1974, has opted against having legal advisers present for the House Judiciary Committee’s first impeachment hearing Wednesday.
The White House decision, delivered to Democrats Sunday evening, accused them of a “complete lack of due process” but left open the possibility that his legal team “may consider participating” in future hearings if they are deemed a true process.
That move relinquishes Trump’s side of the fight to Republicans on the committee, an unusual move for a president who loves to see his own top aides in public sparring with Democrats and the media. Many of those GOP lawmakers are his closest allies, and they plan to vigorously fight Democrats over committee procedures.
Some Republicans have quietly wondered whether this is a mistake, that it leaves out another combatant in the room who would be on Trump’s side. Besides, this president’s go-for-the-jugular instincts would normally be to put as many fighters on his side as possible, making for the biggest splash on TV.
But some of his allies believe this is the right strategy, to dismiss these hearings as illegitimate. “I’m sure his gut instinct was to go in there himself, but no, to me the best advice is to not to — don’t give this thing anymore credibility than it deserves,” said Rep. Peter T. King (R-N.Y.).
King, who sat ringside with Trump last month at Madison Square Garden at a mixed-martial arts title fight, does not believe the president’s team should only consider participating in the likely Senate trial overseen by the GOP majority there.
Still, King wonders how Trump will respond as the hearings unfold and whether, like an old reality TV show, he will want to inject new characters. “It’s his combative nature, I don’t know how he will react,” he said.
This week marks the third Judiciary Committee impeachment consideration 0ver the past 45 years, and each is quite different from the other. The Richard Nixon impeachment was a long, slow process starting with the 1972 Watergate break-in and including more than a year of congressional hearings before Nixon’s August 1974 resignation.
The Clinton impeachment began in an Arkansas land deal when he was the governor there, spawning an independent counsel probe and then, after the affair revelation in 1998, led to a fast-break impeachment with a couple weeks of hearings to review Starr’s report.
Today’s investigation was entirely handled by the House Intelligence Committee for two months in closed-door depositions and then public hearings, in which Republicans had equal time to question witnesses.
After Wednesday’s hearing with constitutional law professors, the Judiciary Committee will likely hear from the House Intelligence Committee — Daniel Goldman, the top counsel for the Democrats and Intelligence Chairman Adam B. Schiff (D-Calif.) — to present their roughly 300-page report.
For now it appears there will be no high-profile questioning by the president’s lawyer.
That’s not what Nixon decided in 1974, when he sent his top defense lawyer, James D. St. Clair, to impeachment proceedings. The highest profile clash came July 11, when the president’s legal team finally got the chance to cross-examine its biggest foe, John Dean, the former Nixon counsel who provided damning testimony saying Nixon knew of the coverup early on and did nothing to stop it.
One lawmaker told the New York Times that St. Clair’s cross-examination was a “blood letting” of Dean, while another jokingly asked for a “sponge” to clean up the mess as Nixon’s lawyers punched at inconsistencies in the former aide’s timeline.
Flash forward 24 years and Clinton sent Kendall into the lion’s den of a Republican-controlled Judiciary Committee.
Kendall, a major legal figure at the esteemed firm Williams & Connolly, and Starr, a former federal judge, had already clashed behind closed doors, including at Clinton’s grand-jury testimony in August 1998.
But Kendall’s cooperation with the Judiciary Committee gave him the chance to pepper his longtime adversary in public. First Starr gave a two-hour summary of his staff’s report, followed by questioning from Democrats and Republicans.
Finally, the nighttime exchange went from Kendall asking details about his investigation to questions about how Starr’s probed grew into examining an extramarital affair. At times the attorney cut Starr off when he was filibustering.
“Mr. Starr, I have only 30 minutes,” Kendall said.
When time was up, Republicans agreed to give Kendall an additional 30 minutes, without any objections.
King, who opposed Clinton’s impeachment, said that Trump’s lawyers would not offer much to this month’s hearings if there are no fact witnesses to question, the way Kendall could question Starr.
“Now you just have one politician against another. It’s Adam Schiff against Devin Nunes,” he said, referencing the chair and ranking Republican of the Intelligence Committee.
And, for as feisty as the St. Clair and Kendall cross-examinations were, their work did little to stall the momentum for impeachment.
Two weeks after the fierce session with Dean, the House Judiciary Committee approved three articles of impeachment against Nixon, who resigned two weeks later.
In 1998, as his session with Starr concluded, Kendall pleaded for more time to question his nemesis. “It’s been a long day,” he said. “I would come back tomorrow if that were appropriate.”
Republicans said no. Two weeks later Clinton’s legal team sent a more good-cop set of lawyers to present the final argument to prevent impeachment, arguing his behavior was personally reprehensible but not a high crime or misdemeanor.
On Dec. 19, 1998 the full House approved two articles of impeachment against Clinton.
