The Architect of the Lawfare Against President Trump

The level of involvement by Norman Eisen in the legal attacks on President Trump almost defies belief

Today we’d like to introduce you - or possibly re-introduce you - to a man named Norman Eisen. Eisen, a Brookings senior fellow, Obama’s former White House Ethics Czar and Ambassador to Czechoslovakia during the “Velvet Revolution,” has been behind the ongoing Lawfare that has targeted Trump throughout his presidency, through the Biden Regime and into the present date. 

Eisen, who was also the co-founder of Leftist non-profit CREW or Citizens for Responsibility and Ethics in Washington, has been one of the key architects of the Lawfare attacks on President Trump and he continues to lead the behind-the-scenes efforts to push ongoing legal actions against Trump to this day. 

Eisen played a lead role in the pre- 2020 election war games which just happened to predict a remarkably accurate contested election scenario that ended unfavorably for Trump. Eisen is also the author of the highly influential color revolution manual, the Democracy Playbook and was one of the primary forces behind the first impeachment of Trump.

We’ve written about Eisen a number of times but when we were asked about him recently–in connection with a new viral video clip in which he admits that Trump’s first impeachment was designed to deflect from Hunter Biden’s laptop–we realized that we’d never walked readers sequentially through a timeline of Eisen’s actions. Only when Eisen’s actions are looked at in timeline form does one realize just how pervasively (and effectively) Eisen’s been involved in the attacks on Trump.

2016 Election

For the more complete story, we need to go back to late 2016 - a month before President Trump’s upset win over Hillary Clinton. As you may recall, Ben Wittes (another Brookings Fellow who runs the website Lawfare) wrote an 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. When Robert Mueller was appointed Special Counsel by then-deputy Attorney General Rod Rosenstein (in the aftermath of Trump’s firing of FBI Director James Comey) Eisen was already hard at work at Brookings. 

Less than six months after Mueller’s appointment - on October 10, 2017 - the Brookings Institution published the first of two reports titled “Presidential Obstruction of Justice: The Case of Donald J. Trump.” The reports were written by Eisen in conjunction with Noah Bookbinder, who currently serves as CREW’s executive director and Barry Berke, another member of the Lawfare against Trump.

The first report outlined, among other things, a scenario wherein Mueller could refer his obstruction findings to Congress, which would then take up the matter and continue investigating Trump. The intent behind this plan was to take an official Special Counsel investigation and turn it into a political circus. 

This early focus on obstruction by Eisen is important because it was initially believed by many that the primary focus of Mueller’s investigation centered around allegations of collusion. However, the release of Mueller’s Report made clear that substantial resources were dedicated to investigating potential obstruction charges - including Trump’s firing of James Comey as FBI director - mirroring what Eisen was recommending in his reports. 

Although the Mueller Report was released as a single document, it contained two separate volumes, the first part focusing on collusion and the second section dedicated solely to looking into obstruction - specifically invoking little-used 18 U.S.C. Section 1512, which, as the report states, “covers a range of obstructive acts.” Here too were direct parallels with Eisen’s work.

Mueller Investigation

Mueller’s curious focus on the obscure Section 1512 statute is notable because use of the statute was previously promoted by two men: Wittes and Eisen. The reason why Section 1512 is so abstruse in this context is that it is meant to cover obstruction of an “official proceeding.” In other words, given that “executive Power shall be vested in a President of the United States of America” under Article II of the Constitution, applying Section 1512 to the president would imply that he could be found guilty of obstructing his own actions. This makes no sense, which is why no one seriously considered this path until Wittes and Eisen did.

Among the first mentions suggesting the use of Section 1512 was a June 2, 2017, article by Ben Wittes through his website Lawfare, which is published in cooperation with Brookings. Wittes prophetically noted in his early article that “It’s possible that 1512 is the more appropriate statutory provision [for Mueller’s investigation]. It also happens to be easier to prove because it doesn’t require a 'pending' proceeding.”

Wittes wrote his article approximately two weeks after Mueller was appointed as special counsel. Both Wittes and Lawfare had been supportive of former FBI executives such as James Comey, and former FBI General Counsel James Baker became a contributing editor at Lawfare. Wittes personally described his interactions with Comey in the Lawfare article "What James Comey Told Me About Donald Trump."

It seems that Eisen was paying close attention to Wittes. As we noted, Eisen’s first Brookings report looked at all the statutes that applied to obstruction, but Eisen’s second, more lengthy report focused more tightly on Section 1512. In many respects, the Brookings second edition provides direct parallels to the Mueller report, with its lengthy section on “What are the relevant facts?” and a very detailed timeline contained in a 204-page appendix. It does not appear to be by pure chance that the Mueller Report ended up leaning heavily on the little-known 1512 statute.

Eisen later declared that the criminal case for collusion was devastating and that Trump was “colluding in plain sight” but Mueller ultimately failed to provide a determination on obstruction. This left the final determination up to Bill Barr, Trump's Attorney General who, along with then-Deputy AG Rosenstein, ruled that there was no obstruction by President Trump. But things weren’t over. Not by a long shot.

Mueller’s Report was released to the public on April 18, 2019 - and Eisen was already prepared for the next steps. A few months earlier, on Feb. 12, 2019, House Judiciary Committee Chairman Jerry Nadler announced that two of the Brookings report authors, Eisen and Barry Berke, had been retained on a consulting basis as special oversight counsels to the Democrat majority staff - well in advance of the April 18th release of the Mueller report. 

Nadler noted that Eisen and Berke would “consult on oversight matters related to the Department of Justice, including the Department’s review of Special Counsel Mueller’s investigation, and other oversight and policy issues within the Committee’s jurisdiction.” During this period, Eisen claimed that he drafted ten Articles of Impeachment - written a month before Pelosi announced an official impeachment inquiry into Trump.

Nadler’s hiring of Eisen and Berke appears to have been intended to go beyond the two men serving as advisers to the House Judiciary Committee. The committee had been arguing for the use of staff lawyers during testimony from AG Barr that was scheduled for May 2, 2019. It appears that Nadler had intended for Eisen and Burke to lead the questioning of Barr personally. Barr ultimately declined to attend the hearing - leading to a Democrat vote to hold Barr in contempt. 

Ukraine Impeachment

On December 18, 2019, Trump was impeached by the Democrat-controlled House. The Senate later found Trump to be innocent of the charges and acquitted him on February 5, 2020. The entire impeachment saga is a story unto itself that will only distract from the focus on Eisen - and will have to wait for another day.

It’s worth highlighting some of the other actions taken by Eisen during this general timeframe. Eisen penned a number of op-eds against Trump, including a Dec. 7, 2018, New York Times article, "Is This the Beginning of the End for Trump?" co-written with his fellow Brookings report authors Berke and Noah Bookbinder. 

Eisen also played a lead role in the June 2020 election war games which predicted in almost prophetic fashion a contested election scenario unfavorable to Trump. Eisen’s June 2020 wargames resulted in a Scenario White Paper, Preventing a Disrupted Presidential Election and Transition. That paper predicted that election results would not be known on election night due to mail-in-ballots. It predicted a contested election scenario unfavorable to Trump. It predicted there would be widespread claims of voter fraud. 

Eisen’s paper also predicted that if Trump narrowly lost, there would be a full-blown constitutional crisis characterized by political chaos. It even predicted that Fox would call the election for Biden in a narrow Biden win scenario. Eisen’s wargame planning and the resulting (very real) conspiracy that came from his efforts is much of what was later chronicled by Time in their surprisingly revealing article The Secret History of the Shadow Campaign That Saved the 2020 Election.

Although Eisen was heavily involved in this pre-election effort, Mike Podhorzer is the man actually credited in Time’s article as being “The Architect” of the 2020 election. Podhorzer is an important but little known figure. He’s also close friends with Eisen. We'll revisit him another day.

Eisen had left CREW (which he co-founded with Bookbinder) in early 2019 to pursue the impeachment of Trump, but his fingerprints at CREW still remained. 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 back in 2016 on the emoluments clause which targets corruption - particularly when linked to a foreign State. But 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.

In addition to being a senior fellow at the Brookings Institution, Eisen is a legal analyst at CNN and 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." 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 July 23, 2023 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.”

Georgia Case

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’s 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.” But just like with his earlier report, 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 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. Three of Eisen’s co-authors were directly employed by CREW. Two others were employed by Brookings. Both Brookings and CREW provided outside funding and staff support to the report. One other notable funder was also involved - the Open Society Foundation - George Soros’s funding vehicle. 

The Eisen report listed seven pages of “key people” - including all those indicted by 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 herself throughout the entire process. Also notable are the overlapping dates of Eisen’s reports and Willis’s investigation.

As Eisen himself noted, 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 stated that “We undertake our analysis with the recognition that, as of November 2022, DA Willis’ investigation is mature but, nevertheless, ongoing.” Eisen appeared to have a good grasp of the inner workings of Willis’s proceedings, writing that “Her investigation took a leap forward in January 2022, when it was announced she would seek a special purpose grand jury. That grand jury has been busy.” Eisen is always careful to cite outside references but it’s all but certain he was working with Willis’s office - either directly or indirectly.

But Willis is not the only DA that Eisen appeared to be helping. On February 22, 2022 long-time Trump-hater and former US Attorney Barbara McQuade 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. 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 stated 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.” 

If all of this wasn’t enough, we now have fresh insight into the organization behind his Lawfare attacks on Trump. An 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.”

The Larger Lawfare Group

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, the dangerous former head of the National Security Division of the DOJ, 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 the previously mentioned Eisen co-authors Noah Bookbinder and 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.

Although the Lawfare tactics against President Trump appear to have largely failed, Eisen’s level of involvement almost defies belief. We also discovered one other item of note. Eisen had 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. The private effort had likely begun much earlier. 

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.”

One area they, along with Democrat lawmakers, appear to be targeting is the Insurrection Act, which authorizes the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The Insurrection Act was last invoked in 1992, during the L.A. riots that followed the Rodney King beating by police.

As NBC News noted in their article on McCord, “Some lawmakers on Capitol Hill worry that Trump might invoke the act to involve the armed forces in the face of domestic protests or if the midterm elections don’t go his way.”

It appears that Democrats have been 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.