• Ukraine-O-Rama!

    October 3, 2019 // 14 Comments »

     
    Was it only a week ago we were going to investigate and impeach over the hotel in Scotland, corruption and emoluments? What was the one before that, Greenland or loans from Deutsche Bank? What about Stormy? Avenatti? Michael Cohen, the Consigliere, his accusations of tax fraud? Who was gonna flip, Flynn, Manafort, which one was Fredo in all this? Robert Mueller? I can’t remember, was there a Trump blackface scandal along the way? Or was he the one who made racist Asian jokes. Whatevers, now, on to the Ukraine.
     
    There are few hard facts. There are leaks, and the MSM to amplify them into the fetid stew as we have it today: a whistleblower (more on that later) in the intelligence community claims Trump made unspecified “promises” to the president of the Ukraine for help in investigating corrupt acts by the Biden family. This took place during a late July “populated” call between Trump and the Ukrainian president (“populated” calls are between world leaders with the understanding staffers will be listening in, as opposed to private 1:1 calls between leaders.) No one knows if the whistleblower was listening to the call, read a transcript or summary later, or heard about the call from another party. CNN says he did not have direct knowledge of what was said.

    Nonetheless the story blossomed like chlamydia at band camp. At last report, Trump withheld military aid from the Ukraine in a quid pro quo for the Ukrainians finding dirt on Biden usable in the 2020 election. That was then refined into a more tweetable “Trump is again inviting foreign influence into our democratic process.” From there it took the New York Times only 48 hours to question whether the “president can get away with weaponizing the federal government to punish political opponents.” Carl Bernstein ritually invoked Watergate. Special prosecutors were called for, impeachment demanded, and Twitter voted for the death penalty.

    Democrats also decided all sorts of procedural and legal stuff the public cannot understand and will not pay attention to has been violated because the whistleblower complaint has not been handed over to the clowns to parade around the midway, and this is again the end of the rule of law, a Constitutional crisis, the end of oversight, and so on. It’s all a kind of a set piece now. Like a dog hearing he’s going for a car ride, with that first leak the Dems and the MSM couldn’t wait to hang their heads out the window for another ride around the block.
     
    In the sideshow, Rudy “The Joker” Giuliani left a snail trail of slime across the teevee shows, throwing up smoke in the same role Trump used him for throughout Russiagate. It’s evidence of nothing, for far from the Colonel Jessup “Few Good Men” moment the media is portraying Giuliani’s screaming as, none of it was under oath and all of it has the legal lasting power of a soap bubble.

    To sum up: No one in Congress or the media has seen the whistleblower’s allegation or the transcript from Trump’s call that underlies it. Everything written and said has been based on a leak. We don’t know if the whistleblower directly heard Trump or learned about the call second or third hand. The little that seems to be known is Trump wanted Ukraine’s new president to continue a corruption investigation into Joe Biden. We have no specifics Trump promised anything after that request, or that if he did, that it was anything illegal. The Constitution gives near total unanimity to the president in foreign policy. So, a Hatch Act violation maybe?

    Meh. Facts are no longer needed; “Many elements are murky, but something clearly stinks” said the NYT, suggesting that’s good enough as a standard. The Dems and media are demanding impeachment based on that. Whether we like it or not, the Constitution does not include careless, abusive, cheaply corrupt, or even otherwise dishonorable conduct as grounds for impeachment.
     
    So what’s really going on?

    It takes a lot of guts at this point to claim impeachment is coming. Post-Russiagate, the American people are tired of constant accusations which turn out to be largely empty. The false sense of hope Dems are celebrating today is matched by a strong sense of “We’ve Got Him Now!” Episode 123. The big difference this time is here’s no holy grail pee tape to quest after for three years. A call between Trump and the Ukrainian president did take place and a transcript exists. That changes everything, right?

    That transcript could leak this afternoon, or a bureaucratic fight could keep it buried for a long time. So what did Trump say? The Ukrainian government version, which is as close as we have to an actual fact at present, has been online for two months and says “Donald Trump is convinced that the new Ukrainian government will be able to quickly improve image of Ukraine, complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA. [sic]”

    OK, so maybe there is more than that in the real text. But for whatever was said to be a smoking gun, for it to fulfill the headlines stating Trump pressured the leader, or extorted him, or bribed him, or manipulated U.S. foreign policy to bring a foreign government into the 2020 election, the actual words matter. If this whole thing turns out to be an attempt to shoehorn another broad or flippant statement by the president about investigating corruption which may involve the Biden family into a quid pro quo accusation, it will fail more than spectacularly. The Dems and MSM better have something dead solid perfect this time or the game is really over well ahead of 2020, because no one will be listening to them any further.
     
    And yet while the actual words matter, it should not be lost that none of what Trump was supposed to have really done, withholding military aid, or getting dirt on Biden, happened. We’re talking about talking about maybe burning the Reichstag but not in so many words. The outcome that nothing in the end happened sharply echoes Russiagate’s lack of collusion and the sad fallback to failing to obstruct an investigation which cleared Trump.

    The military aid to the Ukraine was delayed but then paid out (and amusingly, some claimed at the time it was withheld as a favor to Putin whereas now that accusation has been deep-sixed to say it was withheld to extort the Ukrainians. And the idea military aid to the Ukranie, as delivered, is actually something bad Trump did against Putin is forgotten.) Dems and the media love the idea the aid might be wiggle-waggled into being a “bribe,” in that bribery is one of the specific crimes mentioned in the Constitution as impeachable. Trump though is apparently bad at bribing; even though he made the decision to temporarily withhold the aid, the Ukrainians were never even told about it until weeks after the “extortion” phone call, meaning nobody’s arm got twisted when it should have for impeachment fodder purposes.

    So no bribe was given, or to the Ukrainian’s knowledge, withheld. At the same time no one has claimed the Ukrainians investigated Biden or will be doing so at Trump’s demand. No new dirt has surfaced on Biden or his family dealings. As with all the things Trump was supposed to do to get his Moscow hotel and then there was no Moscow hotel, the Dems claim they see a smoking gun but there is no body on the ground under the muzzle. So will this devolve into another complicated thought crime, another “conspiracy” to commit without the committal? “No explicit quid pro quo is necessary to betray your country,” helpfully tweeted Adam Schiff. But there’s gotta be more, right? Because the collapse of Russiagate shifted any benefit of the doubt towards Trump; the gray areas fall to him. Three years ago “almost” might have worked but not anymore, we are far too burned out and cynical for that.
     
    Meanwhile, we are not discussing what really did go on between Biden and the Ukrainians. The Dems have been too quick to announce Biden did nothing wrong, creating a loop of hypocrisy saying no investigation is needed because no investigation has uncovered evidence of wrongdoing worth investigating. So don’t even imagine a President Biden held hostage to Ukrainian kompromat. We’ve heard something like that concerning a pee tape, haven’t we? “Oh, you oppose investigations into corruption by the guy potentially the next president? You want him in office knowing he could be blackmailed by Slavs?”

    What about Biden anyway? During the last year of the Obama administration Joe Biden traveled to Ukraine to convince the government in Kiev to fire its prosecutor general, Viktor Shokin, claiming he was corrupt. Biden threatened to withhold $1 billion in loans, and his threat worked: Shokin was removed. The funny part is just as he was fired prosecutor Shokin was in the middle of investigating a natural gas company, one of which’s board members was Hunter Biden. Hunter was collected $50,000 a month for that non-job. Golly, would Joe Biden have used the power of the United States to help his son keep that sweetheart job? Hunter had no previous experience in the Ukraine, and snagged the job there just after being thrown out of the Navy for using cocaine, so really, nothing to see. Biden still had the gaul to accuse Trump of using the power of the United States to extract “a political favor” from Ukraine.
     
    Now don’t be distracted by the way the words “credible” and “urgent” are being slung around by the media.

    “Urgent concern” is merely another bit of legal nomenclature turned into a breathless headline defined as: “A serious or flagrant problem, abuse, violation of the law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.”

    But as for “urgency” itself, the phone call likely at the heart of all this was made July 25 (here’s a public Ukrainian government summary which refers to a “complete investigation of corruption cases”) The whistleblower complaint wasn’t filed until August 12. It was two weeks after that it reached the acting Director of National Intelligence Joseph Maguire, who did nothing with it we know of. Congress requested a copy September 10, which was refused (that new obstruction thingie) and the whole thing leaked September 18, of course in the Washington Post.

    Like credibility, urgency in this specific usage refers to whether or not the complaint falls within the boundaries of the IC whisleblwoer laws, something in contention as the subject matter appears to have very little to do with the work of the IC or its employees and much more to do with the conduct of the president. As such, the matter may not be “urgent” as defined by law and the president correct to withhold information according.

    We are also not going to discuss foreign spying around the edges of the 2016 Trump campaign, the role “retired” MI6 British spy Christopher Steele played in Russiagate, or the as yet undiscovered contributions by the British version of NSA made surveilling Americans outside the legal reach of the United States. An Inspector General report from the Justice Department is due out very soon which may disclose the role those foreigners played.

    We are also not going to talk about whatever the State Department was doing to assist presidential lawyer Rudy Giuliani’s contacts with Ukraine’s government. Giuliani’s contact with a close Ukrainian presidential advisor this summer was encouraged and facilitated by the U.S. State Department. Giuliani even didn’t initiate it. A senior U.S. diplomat did.

    Among other things we won’t be talking about his how the Trump administration’s withholding of the whistleblower complaint — that death to the rule of law thing — is consistent with the stance taken by both the Clinton and Obama administrations, and is far from new. In 1998, President Bill Clinton wrote, in a signing statement accompanying the original whistleblower protection act, that it “does not constrain my constitutional authority to review and, if appropriate, control certain classified information to Congress.” Obama restated this caveat in 2010. Trump is in fact the third president to assert that simply filing a whistleblower complaint does not grant the filer the right to force classified, privileged information into the public sphere. As in all other instances, that right rests with the president himself — Clinton, Obama, Trump, as well as the next one.
     
     

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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Will Congress Impeach Over the Ukraine?

    October 2, 2019 // 12 Comments »


     

    Like a dog hearing he’s going for a car ride, with that first leak the Dems couldn’t wait to hang their heads out the window for another ride around the block.
     

    There are few hard facts: a leak claims a whistleblower in the intelligence community believes during a July 25 phone call Trump made unspecified “promises” to the Ukrainian president in return for his investigating Biden family corruption. The whistleblower did not have direct knowledge of what was said, and may have read a transcript or summary. Trump knew the call was monitored by multiple people and said whatever he said anyway.

    Despite the lack of real information, the story blossomed like chlamydia at band camp to soon say Trump illegally withheld $391 million in military aid from the Ukraine in a direct quid pro quo for the Ukrainians finding dirt on Biden. Correlation was turned into causation and a narrative was created in mid-air. That was then crowd-refined into a tweetable “Trump is again inviting foreigners into our democratic process.” From there it took the New York Times only 48 hours to question whether the “president can get away with weaponizing the federal government to punish political opponents.” Impeachment was called for, and one nominal Trump challenger literally demanded on MSNBC execution be considered.

    Democrats also decided all sorts of procedural and legal stuff the public will not pay attention to has been trod upon because the whistleblower complaint has not been handed over to them. In sum, “many elements are murky, but something clearly stinks” said the NYT, suggesting that’s good enough as a standard for demanding regime change in the middle of an election.

    The big difference this time around is there’s no holy grail pee tape to quest after for three years. A transcript of the call between Trump and the Ukrainian president exists. What did Trump say? The Ukrainian government version, which is as close as we have to an actual fact at present, has been quietly online for two months now and reads “Donald Trump is convinced that the new Ukrainian government will be able to quickly improve image of Ukraine, complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA. [sic]”

    For whatever Trump said to fulfill the headlines stating he pressured/extorted/bribed the Ukrainian leader, or manipulated U.S. foreign policy to (again?!?) bring a foreign government into the 2020 election, the actual words matter a lot. If this whole thing turns out to be shoehorning some broad or flippant statement by the president about investigating corruption which may involve the Biden family into a quid pro quo accusation, it will fail spectacularly with voters. If we all have to become whistleblower law experts the same way we all were obstruction experts just a few weeks ago for this to matter, it fails. The Dems might as well bring Congressman Wile E. Coyote onto the floor with his Acme Impeachment Kit.
     

    And yet while the actual words matter, it should not be lost that none of what Trump was supposed to have really done — using military aid to get dirt on Biden — happened. We’re talking about talking about maybe burning the Reichstag, just not in so many words.

    No one claims the Ukrainians investigated Biden at Trump’s demand (and Dems insist there was no wrongdoing anyway so an investigation would be for naught anyway.) It is thus a big problem in this narrative that the long-promised military aid to the Ukraine was only delayed and then paid out, as if the bribe was given for nothing in return, which hardly makes it a bribe. Trump is apparently bad at bribing; even though he made the decision to temporarily withhold the aid for some reason, the Ukrainians were never even told about it until weeks after the “extortion” phone call, meaning nobody’s arm got knowingly twisted. So no bribe was given, or to the Ukrainians’ knowledge, no money withheld.

    As with all the souls Trump supposedly sold to get his Moscow hotel but then there was no Moscow hotel, the Dems claim they see a smoking gun but there is no body on the ground under the muzzle. So will this devolve into another complicated thought crime, another “conspiracy” to commit without the committal? “No explicit quid pro quo is necessary to betray your country,” helpfully tweeted Adam Schiff, chair of the House Intelligence Committee. Three years ago “almost” might have worked but we are far too cynical now following the collapse of Russiagate. The gray areas will fall to Trump in the court of public opinion.
     

    Sigh. This will drag on for a while anyway. So the next step is for someone to see the actual whistleblower complaint, or, better, the transcript of the call itself. Because absolutely everything swirling around Washington otherwise today is just based on a leak.

    Prying things loose if Trump wants to keep them from Congress will not be easy. The law sets conditions for disclosure of the whistleblower compliant itself, based on the specific legal definitions of credible and urgent; the media is mangling this part of the story by using vernacular definitions. How to apply those criteria can be argued over to Kiev and back. For example, the complaint itself seems to have nothing to do with intelligence operations except that it was allegedly filed by an intelligence staffer. That could make it not an “urgent” matter in the definition of the law and thus not available to Congress.

    Trump’s withholding of the whistleblower complaint is also consistent with the stance taken by both the Clinton and Obama administrations. Bill Clinton, in a signing statement accompanying the original 1998 Intelligence Community Whistleblower Protection Act, wrote this “does not constrain my constitutional authority to review and, if appropriate, control certain classified information to Congress.”

    Obama also reserved the right to withhold information from Congress “in [undefined] exceptional circumstances” when the original Act was updated as Congress created the Office of the Intelligence Community Inspector General in 2010. Trump is thus the third president to assert a whistleblower complaint does not grant the filer the right to force classified, privileged information into the public sphere. That right rests with the president — Clinton, Obama, Trump, as well as the next one. Citing long precedent, the courts would likely agree if asked.

    While there is room to argue over the release of the complaint to Congress, there are nothing to compel the release of the presidential call transcript itself. What presidents say to other world leaders with the expectation of privacy is at the core of conducting foreign policy. No world leader is willing to interact frankly with the American president today wondering if the conversation will be on CNN tomorrow. That was one of the arguments used to assess the damage whistleblower Chelsea Manning did revealing State Department documents containing such conversations. So, never mind the Ukraine, no president would readily turn over a transcript without a fight, a fight he’ll likely win given the long standing unitary role of the executive in foreign policy.

    Law and precedent are thus on Trump’s side if he chooses to withhold the complaint and transcript from Congress. If no one can see those documents, there is no means to move any investigation decisively forward, though theatrical hearings are always possible. A full leak of those specific, highly classified materials would be unprecedented. It would then be a true Constitutional crisis if illegally obtained, leaked docs were used at the heart of an impeachment process.
     

    There’s more. As a whistleblower myself I know well the personal cost of telling the truth. It requires enormous courage to place yourself at odds with the full power of the government. You risk your job, your life as you knew it, and your freedom. Our democracy requires such people to come forward despite all that. So it is with some mixed feeling I record my skepticism here. At the core whistleblowers are different solely in motive; whistleblowers act because conscience tells them they must. They understand their allegiance is to The People, not a party (leakers) or self-interest (traitors.)

    If the whistleblower here is someone who wrapped themselves in hard-fought legal protections to score points snitching over a difference in partisan politics, it will contribute to ending what little faith the public has in the vital process of revealing the truth at whatever cost, and will cause someone with legitimate concerns now trying to decide what to do to sit down. I hope with all of my soul, and with respect for those like Ellsberg, Manning, and Snowden, that this whistleblower proves worthy to stand next to them. And God help his soul and our country if not. 

     

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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Posted in 2020, Democracy