Norman Eisen - Leading the Lawfare Against Trump

By Jeff Carlson & Hans Mahncke

Norman Eisen, a Brookings senior fellow, co-founder of CREW and Obama’s former White House Ethics Czar, has been a driving force behind the ongoing Lawfare attacks that have targeted Trump throughout his presidency and into the present date. And he continues to lead the behind-the-scenes legal actions against Trump to this day.

Eisen played a lead role in the 2020 election war games which predicted a contested election scenario unfavorable to Trump and was one of the primary forces behind the first impeachment of Trump. Eisen is also the author of the highly influential color revolution manual, the Democracy Playbook. 

We’ve written about Eisen a number of times, but we now have fresh insight into the organization behind his Lawfare against Trump. A new article from Politico, Inside the Off-the-Record Calls Held by Anti-Trump Legal Pundits, disclosed that while “the Jan. 6 committee was working on their investigation, committee staffers… briefed a group of lawyers and legal pundits on a Zoom call.” But as the article notes, “the people on the call weren’t affiliated with the investigation or the government.” Instead they were “some of the country’s most well-known legal and political commentators, and they were there to get insights into the committee’s work.”

This group, which has been in existence since at least 2022, is run by none other than Eisen himself. Weekly meetings are held - and the participants are a who’s who of the “legal pundits” that attack Trump daily. Critical members of this group include Mary McCord, a former head of the National Security Division of the DOJ (more on her later), Andrew Weissmann, who ran Robert Mueller’s Trump-Russia investigation, Barbara McQuade, a former federal prosecutor, Norman Ornstein of AEP, NeoCon Bill Kristol, Laurence Tribe and CREW affiliates Noah Bookbinder & Barry Berke.

Other members of Eisen’s “group” include George Conway, John Dean, Jeffrey Toobin, Jennifer Rubin, Asha Rangappa, Ryan Goodman, Renato Mariotti and Shan Wu - another former federal prosecutor. There are certainly many more who have some level of involvement with Eisen and his group. Their short-term goal appears to have been focused on tying Trump up in the courts during the campaign with their ultimate goal of placing him behind bars.

One prominent legal name not mentioned by Politico is Ben Wittes, another Brookings Fellow who runs the website Lawfare. As you may recall, Wittes was the author of the October 2016 article, A Coalition of all Democratic Forces that discussed the need for an “insurance policy” in the event that Trump won the 2016 election. Wittes called for a “cross-ideological network of lawyers and philanthropists” dedicated to fighting Trump in court, should he win the election. As Wittes wrote, “If Trump wins it, the Coalition of All Democratic Forces needs to be prepared to see him in court.”

It seems that Eisen was paying close attention to Wittes. Less than six months after Mueller’s appointment - on Oct. 10, 2017 - the Brookings Institution published the first of two reports titled “Presidential Obstruction of Justice: The Case of Donald J. Trump,” which outlined, among other things, a scenario wherein Mueller would refer his obstruction findings to Congress, which would then take up the matter and continue investigating. The report was written by Eisen, Barry Berke and Noah Bookbinder.

The trio’s second, more lengthy report focused more tightly on Section 1512. In many respects, the Brookings second edition provides close parallels to the Mueller report, with its extended section on “What are the relevant facts?” and a very detailed timeline contained in a 204-page appendix. With hindsight, it appears that Mueller and his team were not only listening to Eisen but were likely working with him.

The report also discussed ways in which Congress could impeach Trump, mentioning the word “impeachment” a total of 90 times. Both Eisen and Berke were later retained by House Judiciary Committee Chairman Jerry Nadler on a consulting basis as special oversight counsel to the Democrat majority staff in advance of the release of the Mueller report. 

Nadler’s initial hiring of Eisen and Berke appears to have been intended to go beyond the two men serving as advisers to the Dem’s House Judiciary Committee. It seems that Nadler had intended for Eisen and Burke to lead the questioning of AG Bill Barr, who was scheduled to testify before the committee in May 2019. Barr ultimately declined to attend the hearing—leading to a Democrat vote to hold Barr in contempt. 

Nadler continued to retain Eisen as an advisor to House Democrats throughout Trump's first impeachment. Eisen later claimed that he drafted ten separate Articles of Impeachment - all of which were written a full month before Pelosi had even announced an official impeachment inquiry into Trump.

Although Eisen left CREW (which he co-founded with Bookbinder) in early 2019 to pursue the impeachment of Trump, his fingerprints at CREW still remain. On July 18, 2023, CREW published a report titled, “The case for Donald Trump’s disqualification under the 14th Amendment.” The 90-page report breathlessly claimed that “on January 6, 2021, President Trump caused a violent insurrection that nearly overthrew an election and shattered our democracy.” 

To prove their entire case, CREW relied on a paper from Eisen that targeted Trump in 2016 on the emoluments clause which targets corruption - particularly when linked to a foreign State. But of course, there was a big problem with this line of attack - because the emoluments clause fit the crimes committed by Biden in Ukraine, China and Romania - not anything Trump did. So they quickly ditched that argument and simply began claiming that legal scholars agree the 14th Amendment applies to Trump.

Eisen is currently a legal analyst at CNN and is also the author of several recent books attacking Trump, including "A Case for the American People: The United States v. Donald J. Trump'' and "Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy." But Eisen has also been heavily involved in advancing events on January 6th as the means to both indict and prevent Trump from becoming president again. 

In a written interview with Salon titled, Norman Eisen: Why Trump must face trial before the 2024 election, Eisen foreshadowed the yet to be filed indictments in Georgia, claiming that “Trump's third indictment will likely not be the last. Prosecutors in Georgia are reportedly preparing more criminal charges against Trump for his attempt to rig or overturn the results of the 2020 presidential election in that state.”

As it turns out, Eisen had good reason to be aware of everything that Fulton County District Attorney Fani Willis was doing. Just like he did with his first report focusing on Obstruction, Eisen had been planning well ahead of everyone else. On October 4, 2021, Brookings published a report by - yes, you guessed it - Norman Eisen, titled Fulton County, Georgia’s Trump Investigation - An Analysis of the Reported Facts and Applicable Law. 

Eisen claimed that Trump “threatened Raffensperger to reverse the election outcome - culminating in a demand that Raffensperger find 11,780 votes.” But just like with his earlier Mueller-related reports, Eisen wasn’t satisfied with just one effort. In November 2022, Brookings published an updated second edition of the earlier report from Eisen. At 304 pages, this report was three times the length of the original report - and it contained a detailed listing, evaluation and discussion of all the crimes that Eisen “believed” Trump had committed. 

The highly detailed report outlined legal rebuttals to any defenses Trump might raise. It even addressed Trump’s potential claim that he honestly believed he had won the election. Brookings and CREW - along with George Soros’s Open Society Foundation - provided outside funding and staff support to the report (p. 217-218).

Eisen’s report lists seven pages of “key people” - including all those that were indicted by disgraced Fulton County DA Fani Willis. In fact, the information provided by Eisen was so detailed, so expansive that it appears all Willis had to do was cut and paste Eisen’s work into her indictments. At a bare minimum, it’s clear that Willis had her hand held by much smarter lawyers than her throughout the entire process. Also notable are the overlapping dates of Eisen’s reports and Willis’s investigation.

As Eisen himself notes, Willis launched her investigation into Trump on February 10, 2021. Eisen completed his first report on October 4, 2021. Almost as if he wrote his detailed report in parallel with Willis's Initial phase of her investigation. Eisen’s second, more detailed report came out a year later, in November 2022. The new report detailed Willis’s progress but also noted the second “report updates and expands on the first edition and takes account of the considerable additional information that is now available.” Eisen is always careful to cite outside references but it’s all but certain he was working with her office - either directly or indirectly.

But Willis is not the only DA that Eisen appears to be helping. On Feb 22, 2022 former US Attorney Barbara McQuade (a member of Eisen’s current group) wrote a memorandum: United States v. Donald Trump - A "Model Prosecution Memo" on the Conspiracy to Pressure Vice President Pence. While it was lengthy, it had nowhere near the level of detail that Eisen’s other work had. But apparently that was just the starting point. 

On July 23, 2023, Eisen published a far longer 264 page report, titled "Trump on Trial: A Model Prosecution Memo for Federal Election Interference Crimes." We know Eisen was building off McQuade’s earlier memo because he states this upfront. We also know that Eisen was effectively acting as outside legal counsel for Jack Smith and his multiple indictments of Trump. As Eisen noted, “This model prosecution memorandum assesses federal charges Special Counsel Jack Smith may bring against former President Donald Trump for alleged criminal interference in the 2020 election.” 

Eisen’s level of involvement in the legal attacks on Trump almost defies belief. We know that Eisen has also been hard at work on a massive "Jan 6th Clearing House" of data. Although the date of the post is July 31, 2023, the effort began publicly on June 29, 2021. Like everything Eisen has worked on, the private effort had likely begun much earlier. 

We mentioned Mary McCord earlier - and noted that she appears to be a critical member of Eisen’s group. McCord was the Acting Assistant Attorney General at the DOJ’s National Security Division, or NSD, from 2016 to 2017 and the NSD’s Principal Deputy Assistant Attorney General from 2014 to 2016. She was deeply involved in the FBI’s early FISA surveillance of Trump advisor Carter Page, admitting to the DOJ’s Inspector General that “she spoke to [Deputy FBI Director Andrew] McCabe almost every day on various matters and had more than one conversation with him about the Carter Page FISA application.” 

McCord was later appointed as amicus curiae to the FISA Court in 2021 - a laughable appointment as she helped to deceive the FISA Court during her efforts to get the Carter Page FISA’s approved. McCord was also appointed by Nancy Pelosi as legal counsel to the Jan 6th Capitol Security Review Task Force and has written articles that push the Jan 6th narrative.

McCord, who is currently executive director of the Institution for Constitutional Advocacy and Protection at Georgetown Law, recently told NBC News that “We’re already starting to put together a team to think through the most damaging types of things that Trump might do so that we’re ready to bring lawsuits if we have to.”

It appears that Democrats are currently operating vigorously on two distinct fronts: The use of lawfare to prevent a Trump presidency and the preparation for future lawfare in the likely event that their efforts to prevent Trump’s return to office fails.