• The Case for Impeachment Is…

    November 5, 2019 // 10 Comments »


    On Thursday Nancy Pelosi held a vote to, well, reaffirm her impeachment inquisitiveness. It was theatre; everyone knows the hyper-politicized Democratic House will impeach. It’s a weak case, but that doesn’t matter. A partisan Senate (who will also see a weak case but that doesn’t matter) won’t convict. America will leave that steaming mound of democracy aside the road and reflect forever which side stepped in it after we’re done arguing who won in November 2020.

    So looking at the actual evidence for impeachment is mostly academic. Call it… quaint.

    Forget the whistleblower; he had one job, to start this all into motion in August in time for the autumn session of Congress and he did it even without any first hand knowledge of a “high crime and misdemeanor,” just an opinion on a phone call he wasn’t party to. Yet even after DOJ ruled the whistleblower revealed no criminal act, Nancy Pelosi announced an impeachment “inquiry.”

    Trump then released the memorandum of conversation between himself and Ukrainian president Zelensky. This is the U.S. government’s record of what was said. That record will form near 100 percent of what Dems will use to impeach Trump. After all, it is the only primary document/first hand “testimony” in the case. Yet despite its short length, some five pages, many people prefer to characterize what it says instead of just reading the thing. So follow along if you like.

    The call was a routine congratulatory message to Zelensky on his election. So the first couple of exchanges are chit chat along those lines. We’re on page three before the first bit of possible significance comes. Here it is in its entirety:

    “The President: I would like you to do us a favor though because our country has been through a lot and Ukraine knows alot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it. There are alot of things that went on, the whole situation. I think you’re surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance. But they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.”

    Zelensky gives a generally positive reply. There is nothing to indicate he feels pressured, bothered, evasive, defensive or concerned.

    Trump again: “Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor of New York City, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney·General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”

    That’s it for substance.

     

    To impeach, one must be willing to conclude from the text above

    a) Trump asking for information, however far-fetched one may believe it is, on possible foreign interference in the 2016 election was wrong (and then explain why the Dems conducted a three year investigation of the same);

    b) Trump asking for an investigation into whether then-Vice President and perhaps soon President Biden used his office for personal gain is of no interest to the people of the United States, even if that same information were also of great interest to Trump (and account for Dems asking in 2018 the Ukraine to cooperate with Mueller to dig up dirt on Trump, and allowing that a Ukrainian investigation would exonerate Biden as Dems claim); and

    c) that Trump made it clear to Zelensky aid was contingent on conducting these investigations given Trump made no mention of that.

     

    If you can prove that from the memorandum of conversation, well then pilgrim, you have a case. And remember, you have to use Trump’s words. You can’t do it with Godfather references to consiglieres, third-party opinions of this all, or by characterizing Trump’s words — pressured, demanding, weaponized, implored, forced, quid pro quo — to your advantage.

    The base problem is  Trump never said anywhere in the July 25 call he was withholding aid for Ukraine and there is no evidence Zelensky knew Trump had been slow walking it at the time of the call. The earliest tick the Ukrainians even knew the aid was being delayed was “early August” and even those claims are based on anonymous sources in the NYT who somehow have not been found to testify by the Dems. Official U.S. and Ukrainian sources instead say knowledge the funds were held up didn’t get to the Ukranians until late August, shortly before they were released. (Dems made a stink then claiming the funds were held up by Trump to favor Putin. It’s always something.)

    It is thus supposition at best that Trump’s requests, assuming they were pressure at all and Zelensky’s easy going responses suggests he was not bothered by them, were connected in any way to the aid. Correlation is not causation. This was the big gap in Russiagate; because A happened before B, Democrats rushed to claim A must have caused B, and thus collusion!

    And that leads to a second base problem. Nothing happened. Trump never even asked the Attorney General to contact Zelensky. It is unclear who if anyone Guiliani spoke with, but either way there is no evidence the Ukrainians ever investigated anything. This impeachment will be the first in American history without any underlying crime asserted. Democrats seek to impeach Trump for talking about something, and never doing something, that itself may not be a real offense anyway. If you hear echoes of Russiagate, of obstructing something that wasn’t actually obstructed, you have sharp ears.

    When you have a smoking gun you usually don’t need to keep searching for evidence, but that is exactly what the Democrats are doing. Knowing the weakness in their case — it is literally based on a partisan reading of Trump’s own words and the supposition that two events, the call and the aid holdup, are causational — Dems are engaged in a process of finding someone to claim Trump’s policy was to (not) withhold aid to force the Ukraine to do something they never did.

    Ambassador Gordon Sondland stated specifically, under oath recently and in a leaked text from around the time of the original call, there was no such quid pro quo. So did Trump and Zelensky.

    The Dems in turn produced a series of angry State Department people to testify they had been sidelined out of the decision making process and thus knew very little first hand. The noisiest witness, Ambassador William Taylor, made it clear he was cut out of the White House’s backchannel for Ukrainian policy, and only knew what insiders Ambassadors Volker and Sondland told him second hand. His other knowledge of the supposed quid pro quo came when he heard “a [unnamed] staff person from the Office of Management and Budget say that there was a hold on security assistance to Ukraine but could not say why. Toward the end of an otherwise normal meeting, a voice on the call — the [unnamed] person was off-screen — said that she was from OMB and that her boss had instructed her not to approve any additional spending of security assistance for Ukraine until further notice.”

    Taylor even went on to impeach himself a little, admitting he had no evidence aid was connected to investigation. He testified National Security Council Senior Director for European and Russian Affairs Fiona Hill and the NSC’s Director of European Affairs Alex Vindman “reassured me that they were not aware of any official change in U.S. policy toward Ukraine, OMB’s announcement notwithstanding.”

    Taylor never spoke to the president. He did not speak to the Secretary of State, or any other senior White House official. He was cut out of the loop. His testimony was just his opinion. Deep Throat that is not.

    What else? The media found a way to wordtrick Ambassador Sondland’s attorney into saying what his client described in testimony “amounted to” a quid pro quo, possibly thinking they would use a client’s own lawyer’s recharacterization of testimony to impeach.

    There are no documents, policy papers, notes, memcons, texts, or anything at all to support the claim the White House policy was aid for investigation.

     

    Imagine in a real trial how a defense lawyer would cross examine Taylor, or any of the other witnesses who have no actual knowledge:

    Did you ever speak directly with Trump about this quid pro quo? How do you know it was his policy? Pompeo? Mulvaney? Exactly who in the WH did you ever speak to to learn this is the policy?

    If the answer is “no one in the WH” how do you know this was the policy? Who told you in explicit terms?

    So where is the investigation into Biden you say we paid for? Why would Trump demand that quid pro quo but never follow through?

    Why wasn’t Ukraine told the aid was being withheld? Wouldn’t it be necessary for Ukraine to clearly and explicitly KNOW the aid was being withheld for this to be a quid pro quo?

    Isn’t it true there is no quid, and no pr quo at all, except in your supposition? What the heck grounds of impeachment is that?

    Actually, why was the aid paid out without an investigation?

    Why are you claiming something happened when it did not happen?

    Isn’t your testimony about what you personally thought Trump was thinking about something that didn’t happen, even though it never happened?

    Other than your own supposition, how exactly do you know Trump’s intent? Any documents? Any evidence besides saying we should believe you over others?

    Do you have any documents, notes, Memcons, texts, anything at all to support your supposition that the White House policy was literal aid for investigation? If not, why not? Because they do not exist? Because this is all your interpretation?

    Why does Ambassador Sonderland say the intent was different? Is he lying? Are you?

     

    Much is also being made of Lt. Col. Alexander S. Vindman allegedly telling impeachment investigators the July 25 memcon omitted references to tapes of Biden discussing Ukrainian corruption, and Zelensky mentioning the company Biden’s son worked for in Ukraine.

    Such omissions (if they are real and there is no evidence besides Vindman’s own statement) add or detract nothing from the core questions at the heart of this impeachment: did Trump withhold aid in return for a Ukrainian investigation, and was seeking such an investigation solely a personal political goal or something of interest to the United States.
    Vindman’s remarks are also helpful in setting the stage for Democrats to downplay the memcon, the official USG record of the July 25 phone call. As the sole primary document in the entire case, the memcon should be all the evidence needed to vote on impeachment. The fact that it is not a smoking gun is a fundamental weakness in the Dems’ case. So anything which can be manipulated to lessen the memcon’s value is welcomed by the MSM and Democrats. Expect to see more of this — Are there recordings? What do the ellipses in the memcon really mean? What else is missing!?!?!?
    It’s an old trick; find a way to discredit the other side’s best witness. The breaking news coverage Vindman’s grumping about his edits not making the final cut offers an important lesson: as with Russiagate, critical thinkers will be constantly challenged by some new shiny but irrelevant object. Always returning to the core questions is the way forward.

     

    Reminiscent of the high hopes once held that Flynn, Manafort, Cohen, et al, would flip, Democratic plans for a slam dunk currently rest on John Bolton, a deep conservative nearing the end of his public life. They hope he will testify such that the last lines of his biography will call him “the man who more than any other individual helped elect Elizabeth Warren.” Sorry, Bolton is not gonna be your Fredo.

    Unlike with Nixon and Clinton, the House is not building its case on the foundation of an existing law enforcement investigation. That was supposed to be what happened with the Mueller saga. Instead, this time the case is built on a single phone call, with the “investigation”jerry-rigged in real-time consisting of a semi-secret, stage-managed parade of credentialed hostile witnesses interpreting what Trump said in the call. Imagine a room full of critics impeaching Bob Dylan by telling us what his lyrics really mean to him. Opinions are not evidence. Case closed.

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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 Democracy, Impeachment, Trump

    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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    Posted in Democracy, Impeachment, Trump

    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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    Posted in Democracy, Impeachment, Trump

    Thinking Ukraine: Is the dam about to break?

    September 24, 2019 // 40 Comments »


     
    Is the dam about to break? Nope.
     
    Look at what is actually fact: a whistleblower based on a transcript or summary says Trump made some unspecified “promise” in return for an investigation into Biden corruption. No details, no corroboration. Meanwhile, no one has claimed any investigation actually took place. The aid money was paid out weeks ago. Nothing actually happened in real terms. There was no Trump hotel built in Moscow.

    Everything else at this point is supposition, including the idea that the aid money is in any way connected to this. The media simply jumped on the claim “promises” were made and attached that to what may be a separate event, the temporary delay of the aid. Correlation is not causation.

    And if you like leaks, The Wall Street Journal reported Trump repeatedly asked Zelensky in a July phone call to open an investigation into Hunter Biden but cited the same source claiming Trump did not offer a quid pro quo in the conversation.

    I’ve got a whole column in editing now with details but trust me for now that it will be very hard for Congress to force Trump to release the whistleblower complaint or the call transcript. No documents, no impeachment.

    Alternately, if the transcript/complaint actually exonerates Trump, he can dangle the Dems for a little longer and then release it, pretty much ending this.

    Nothing Giuliani or Conway or even Trump says in TV really means anything. Under oath or GTFO. They’re clowns. Trump used them very effectively during Russiagate to throw up smokey chem trails for the media to chase, and that worked well for him.

    To do anything other than impeachment theatre (remember poor Robert Mueller?) Dems would have to convince the American people (the real jury as the Senate is unlikely to vote to convict anything) whatever Trump said is so far outside the boundaries of foreign policy he needs to be impeached in the literal middle of an ongoing election. Regime change three years into his term.

    Repubs will counter with everything naughty about Biden in 2015 Ukraine, quid pro quo with Clinton Foundation, and all the flops of Russiagate, etc. They have a lot to work with and the Dems have a three year track record of… a lot of noise.

    Which side does your money go down on, never mind what you “want” to happen. Hope is not a strategy.

     
     

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    Listening in on Putin: Biden and the Ukraine

    April 24, 2014 // 5 Comments »

    NSA Intercept X19/Alpha Bravo, 26APR2014, 23:12ZULU
    COMSEC NOFORN
    DO NOT/NOT RELEASE TO EDWARD SNOWDEN
    NOTE: IF A GUY CALLS AND SAYS HE’S “BILL” SNOWDEN, IT’S EDWARD AND DO NOT/NOT RELEASE
    Access Code: pa$$word


    (NSA sends excerpt intercept below, between Russian Vladimir Putin and unnamed aide)



    PUTIN: I’m devastated. What should we do?

    AIDE: Sire?

    PUTIN: Joe Biden is in the Ukraine and he said “Russia must stop talking and start acting to defuse the Ukraine crisis.” To be truthful, I’m frightened.

    AIDE: I may have the solution. We aren’t actually trying to defuse the situation, so by just talking we’re technically in compliance with Biden’s statement.

    PUTIN: It’s still scary when he talks tough like that. Who knows what will happen next? Biden also said “further provocative behavior would lead to greater isolation.”

    AIDE: Woa. I hadn’t heard that. You’re right, that is scary.

    PUTIN: Look at this transcript. Biden also stressed the need for the Ukrainian authorities to tackle corruption, simultaneously adding the U.S. would be giving those same authorities $50 million for political and economic reforms in Ukraine.

    AIDE: Talking about anti-corruption while handing over bribe money?

    PUTIN: Yes, exactly. They have figured out one of our own strategies and are now using it against us. I may have underestimated these Americans.

    AIDE: Sire, you saw that they are sending troops eastward. Media reports show that Poland, Estonia, Latvia and Lithuania will get 150 American troops each.

    PUTIN: Good Non-God! Are we prepared to handle 150 soldiers per country? Do we need to respond with a chess analogy? Have you checked that the nuclear launch codes are still valid?

    AIDE: Well, we did have that problem with the codes after we had to include a vowel, a number and a punctuation mark in each to befuddle the NSA, but I think we’ve got it worked out.

    PUTIN: Tell me some good news. My head aches.

    AIDE: The good news is that we have no immediate plans to invade Poland. The last time we tried that it did not work out well in the long run. Our new plan is to only invade places that most Americans can’t find on a map.

    PUTIN: That should be easy enough. Let’s start with one of their own states. I make joke. You understand.

    AIDE: More vodka?

    PUTIN: Yes, please, another pitcher. I want to get really drunk and then let’s prank call Obama again and pretend to make concessions. It’s after midnight there, yes?



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    Posted in Democracy, Impeachment, Trump