The Trump regime never lacks for dumb excuses.
Donald Trump Jr. says he has met Lev Parnas, thought he was Israeli
‘I didn’t realize he was Ukrainian,’ US president’s son says of American-Jewish businessman charged in Ukraine scandal
Fact check: Trump lawyers make at least three false claims during impeachment arguments
By Daniel Dale
President Donald Trump’s legal team made at least three false claims during Senate impeachment proceedings on Tuesday, plus two more claims we’ll call misleading.
We’re still going through the transcript of the proceedings and will add to this list as necessary.
Kushner’s FBI interviews to be held for review, Justice Department says
The Justice Department did not hand over the FBI’s summary of Jared Kushner’s interviews with special counsel Robert Mueller last week – despite a judge’s order to do so – because “a member of the intelligence community” needs to ensure the material has been properly redacted, a department attorney said Wednesday.
DOJ lawyer Courtney Enlow informed CNN as part of an ongoing lawsuit that Kushner’s memo, also known as a “302, will be released with the appropriate redactions” after the intelligence agency has finished its review.
Enlow did not say which intelligence agency is working on the document’s release or how long that review would take.
Judge Reggie Walton had ordered the FBI to give CNN and BuzzFeed access to Mueller witness memos that the US House previously reviewed in secret, including Kushner’s, by January 17.
Sen. Paul: 45 Republicans ready to dismiss impeachment charges against Trump
Sen. Rand Paul (R-Ky.), a leading ally of President Trump, said Wednesday that 45 Republicans are ready to dismiss the charges against the president and he would keep pushing to rally a majority of GOP senators to end the impeachment trial.
“There are 45, with about five to eight wanting to hear a little more,” Paul said in an interview with The Washington Post. “I still would like to dismiss it, but there aren’t the votes to do it just yet.”
Adam Schiff’s Moment
Susan Glasser of the New Yorker is an excellent fly on the wall, capturing the oddities, mood and overall feeling of these proceedings. Republicans are bored without their phones, some drink milk and Trump set records for most presidential tweets in today’s piece.
Even if Schiff was not convincing any senators, the Democrats’ uninterrupted day of speaking on the Senate floor, unrebutted by any Republican, seemed to make the President predictably furious. Although he was travelling back from a short trip to Davos, Switzerland, to bask in the applause of the global financial élite, Trump easily surpassed his previous single-day record of frenetic social-media activity during his Presidency, sending out a stream of more than a hundred and thirty tweets and retweets—the vast majority of them complaints about his impeachment and the Senate trial. At one point, Trump passed along a tweet from Rand Paul, the Republican senator from Kentucky, who claimed that “the more we hear from Adam Schiff, the more the GOP is getting unified against this partisan charade!” “True!” Trump tweeted. For a President who often has a problem with the facts, he might even have been right. But all it takes is four Republican senators to prove him wrong, four Republicans to vote for witnesses and breach the information blockade that has made Trump perhaps the most successful stonewaller in Presidential history. If he was so confident, why was he tweeting so much?
Trump says he doesn’t consider brain injuries sustained by US troops during Iran missile barrage ‘serious’
What happened in Wednesday’s Senate trial, in 5 minutes
Lev Parnas Attorney Shares Video of Mike Pence With Indicted Giuliani Associate After VP Denies Knowing Him
What happened in Wednesday’s Senate trial, in 5 minutes
Lead impeachment manager Rep. Adam B. Schiff (D-Calif.) spent two of those hours laying out the broad outlines of their argument. Here’s what he said:
Democrats are not overstepping their bounds by impeaching Trump and telling the Senate to kick him out of office. In fact, they’d be ignoring their duty not to impeach him, Schiff said: “The framers of the Constitution empowered Congress to thoroughly investigate presidential malfeasance and to respond, if necessary, by removing the president from office.”
Then he outlined the evidence Democrats gathered to show that Trump withheld an Oval Office meeting for political gain. (Fact check: That’s pretty thoroughly backed up by the evidence we’ve seen.) Democrats are also pretty sure Trump withheld money Congress approved for Ukraine for the same political purposes. (But, fact check: They have yet to prove that Trump explicitly ordered this.)
Still, Schiff argued that a quid pro quo almost certainly happened if you take a common-sense approach to reading Trump’s rough transcript with Ukraine’s president and other evidence: “President Trump conditioned hundreds of millions of dollars in congressionally appropriated, taxpayer-funded military assistance for the same purpose: to apply more pressure on Ukraine’s leader to announce the investigations.”
- Finally, Schiff took a step back and argued that if the Senate didn’t throw Trump out of office, it would undermine the United States’ standing in the world. “Vladimir Putin would like nothing better” than for Republicans to acquit Trump, Schiff said.
Impeachment managers spent the rest of the day chronicling Trump’s actions on Ukraine in a detailed timeline. Want a refresher? We have our own exhaustive one here.
Good article. There are only three holding patterns for the media to cover this, arguments, closed door negotiations and Trump reaction. WaPo does a good job here, summarizing the arguments made yesterday.
Watch: Senate Impeachment Trial, Day 4
The Senate impeachment trial of President Trump continues with opening arguments from House managers. Other legislative work is also possible
Democrats say White House improperly classifying piece of impeachment evidence
Senate Democrats said a letter from a national security aide to Vice President Mike Pence that was admitted as evidence in the impeachment trial late Wednesday should be made public before the proceedings against President Donald Trump end.
“It highly corroborates the case that Chairman Schiff has been making and exhibits no apparent reason that it should be classified,” Sen. Sheldon Whitehouse (D-R.I.) said Thursday. “I’d like to have somebody under oath from the administration [on] how it was made classified and what they say is classified, because I don’t think it’s defensible.”
Schiff asked the vice president to declassify it, claiming there was no “legitimate basis” to keep it secret. He said the decision to classify the information “cannot be justified on national security or any other legitimate grounds we can discern.”
Senate Democrats echoed that claim on Thursday. “I have no idea why they wanted to classify it,” said Sen. Debbie Stabenow (D-Mich.), emerging from the Senate’s secure facility where the letter has been made available to lawmakers.
“There is nothing I can see in that document that justifies its being classified,” said Sen. Chris Van Hollen (D-Md.).
Three Republican senators were spotted walking into the secure facility before the impeachment trial resumed on Thursday: Ron Johnson of Wisconsin, Mike Lee of Utah and Kelly Loeffler of Georgia.
When Johnson was asked if the letter was significant, he shook his head. But on whether the information should be declassified, he said: “I will make a blanket statement that we classify way too much information.”
It’s seems like, maybe the classification system is being abused? Boring corrections that simply corroborates other testimony is being withheld from the public.
Where the Trump defense goes too far
This defense is anything but nuanced. It appears premised on two highly contested points.
First, there is the position that there was nothing even remotely inappropriate in the president asking a foreign country to investigate a political rival. This position can be accepted or not accepted by senators.
However, the second point presents a far more difficult problem for senators concerned about the interpretation of the Constitution. The White House is arguing that you cannot impeach a president without a crime.
It is a view that is at odds with history and the purpose of the Constitution. While Framers did not want terms such as “maladministration” in the standard as dangerously too broad, they often spoke of impeachable conduct in noncriminal terms, such as Justice Joseph Story referring to “public wrongs,” “great offenses against the Constitution” or acts of “malfeasance or abuse of office.” Alexander Hamilton spoke of impeachment trials as addressing “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
In the impeachment trials of Andrew Johnson and Bill Clinton, both sides accepted that the presidents had committed criminal acts.
In this impeachment, the House has decided to go forward on the narrowest articles with the thinnest record of a presidential impeachment in history. However, many senators may be legitimately leery of buying what the White House is selling with its categorical approach. There is a vast array of harmful and corrupt acts that a president can commit outside of the criminal code.
While I believe that articles of impeachment are ideally based on well-defined criminal conduct, I do not believe that the criminal code is the effective limit or scope of possible impeachable offenses. If some of the president’s critics are adopting a far too broad understanding of impeachable offenses, the White House is adopting a far too narrow one.
The GOP own impeachment expert takes issue with the White House’s defense. Writes Op-Ed and Nadler just quoted from this piece on the floor. Hah.
The Trump legal team and GOP Senate strategy is “no witnesses”.
Trump from Davos asked for witnesses, then backpedaled, and now this.
He is literally undermining his own defense team. So… good? I guess?
More evidence of obstrution by Trump Administration:
Latest FOIA document release contains emails relevant to impeachment that were held back from Congress and are heavily redacted.
A massive tranche of Ukraine-related emails was released just before midnight Tuesday. Several of those documents reveal White House officials allegedly plotting to withhold military aid in violation of federal law—even before President Donald Trump’s infamous July 25, 2019 phone call.
Released by the Office of Management and Budget (OMB) per the terms of a court order, the 192-pages-worth of heavily-redacted emails came to light through an exceptionally well-timed Freedom of Information Act (FOIA) request. That FOIA request was initiated and then pressed in the courts by American Oversight, a nonprofit focused on government transparency issues.
Observers immediately noticed that many of those FOIA-produced documents had not been provided to the House of Representatives—though all would have been considered relevant and responsive to the Democratic Party’s impeachment investigations in the House.
Vermont’s first and only Democratic senator [Patrick Leahy] continued:
Despite RAMPANT abuse of FOIA exemptions [and] redactions (literal cover ups), the docs show [White House] staff laying the groundwork for the unlawful aid hold, the DAY BEFORE and EVEN DURING Trump’s infamous call with [Ukrainian] Pres. [ Volodymyr ] Zelensky . Don’t Americans deserve the full story?
Leahy’s concerns are largely borne out by the documents themselves. Most are blacked out with the official censor’s digital pen—almost entirely. But the emails do show White House and Republican operatives discussing the aid withholding scheme days before Trump spoke with Zelensky and allegedly attempted to leverage that aid into an investigation aimed at potential 2020 foe Joe Biden .
The first email in the document release is dated June 19, 2019 and was sent by Michael Duffey, a GOP apparatchik who Trump appointed head of national security programs at OMB. The recipient of that first email was Russell Vought, a movement conservative who Trump chose to help Mick Mulvaney spearhead OMB functions as the latter served out his dual role playing the 45th president’s acting chief of staff. All three have declined to testify in the impeachment inquiry.
The email itself contains a forwarded news article regarding a certain congressionally-authorized $250 million aid package for the Ukrainian military.
“Looking into options and will follow-up,” Duffey told Vought in the first email.
A separate email chain a few days before the “perfect phone call” explicitly references the decided-upon plan. Sent by Duffey to former acting OMB director Mark Sandy , the subject line reads “Reprogramming Approval.”
The contents are all-but fully redacted:
A second e-mail chain, actually sent during the Trump-Zelensky call as Leahy noted, appears to detail what happened next:
American Oversight’s Executive Director Austin Evers issued a general statement about the document dump’s utility during the current phase of the impeachment process.
“President Trump’s lawyers stood in the Senate on Tuesday arguing that documents are totally unnecessary for the impeachment trial, but these documents give lie to that entire position,” Evers said. “Despite the Trump Administration’s obstruction and the rhetoric at the trial, the public can now see even more evidence of the president’s corrupt scheme as it unfolded in real time. The volume of material released, and the volume of material still secreted away, only highlights how much the administration has withheld from the House, the Senate, and the American public.”
What Sort of “Abuse of Power” Would Amount to an Impeachable Offense?
Some have argued that the president has executive power in order to act in the national interest, and that when he uses that power to further his personal or political interests, he is abusing his office. As Professor Noah Feldman put it, “You define the abuse of power by the idea that the president is doing something that’s within his constitutional authority, it’s within his power, like putting pressure on a foreign government, but he’s doing it not to serve the interests of the United States but to serve his personal interest and the interest of getting reelected.”
But this can’t be right. The White House will negotiate a photo-op with the Queen (with no significant diplomatic content) for no other reason than creating campaign materials. Many trade deals are negotiated against a background shaped by the electoral prospects of incumbents from agricultural and manufacturing states; the timing of foreign arms control treaties is often calibrated against the timing of upcoming elections.
It wasn’t simply that President Trump in his conversations with the Ukrainian president attempted to entice a “favor” that might prove helpful in Trump’s campaign for reelection. Rather it was what the president did to get that favor: the refusal of the president to disburse congressionally authorized military assistance is a violation of law that strikes at the heart of Constitutional government. To use that violation as the basis for securing a political advantage is an abject abuse of power. The fact that releasing the funds was conditioned on Ukraine doing a political favor to Donald Trump is what transmutes an ordinary bit of politics into the subversion of our most important constitutional structures.
Many supporters of this president see nothing significant in the withholding of funds appropriated by Congress to support Ukraine in its struggle against Russian aggression—an aggression that has already claimed 13,000 lives and dismembered parts of the Ukrainian state. They may want to think again.
Suppose the next president withheld emergency disaster relief, appropriated by Congress from American taxpayers and signed into law, until a state official promised to announce an investigation into the president’s political opponent. (Watch professor Pamela Karlan’s articulation of that hypothetical in congressional hearings.)
Or suppose a president redirected funds appropriated by Congress for medical assistance to a stricken country—perhaps even one on our borders where a pandemic raged — until local officials opened criminal investigations of American political figures or their relatives.
The reason such maneuvers are so constitutionally damaging, the reason they are precisely the sort of high crime—like bribery and treason—that the framers made the basis for impeachment, is that they strike at the heart of government under constitutional law. In this case it is the constitutional law of Congressional appropriations, which is more fundamental to the integrity of our constitutional system than seems to be widely appreciated.
The central bargain of representative government is that the taxing and spending powers are placed in the hands of elected officials who are accountable to the voters every two years. When the president refuses to disburse funds, or finances US government operations out of private funds, he commits the gravest of Constitutional offenses.
This is why the Impoundment Control Act of 1974 was adopted: to prevent the president from acquiring a super-veto over legislation by simply refusing to execute appropriated funds. And that is why the finding last week by the GAO that the president had violated that law is so salient to the ongoing impeachment proceedings, and should be a game changer of sorts at least for those not fully paying attention. The GAO was deliberate in saying that President Trump’s withholding the aid ran afoul of his constitutional duty. “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” the agency stated.
What’s more, this is not the only statutory (and constitutional) violation implicated by the president’s maneuvering to get the Ukrainians involved in our elections. Federal law makes it a crime to “attempt to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate…by means of the denial or deprivation, or the threat of the denial or deprivation, of…. any payment or benefit of a program of the United States ,… if such……payment, or benefit is provided for…by an Act of Congress” (emphasis supplied). It’s hard to imagine a statutory provision more closely matching the fact pattern in the Ukraine scandal than that provision.
My point is simply a clarifying one: abuse of power may indeed be the basis for the impeachment and removal from office of a president if he corruptly acts to further his political interest. This is not just a matter of perspective. To withhold funds of this magnitude in the context of active warfare in order to influence the reputation of a political adversary is a high crime of the highest constitutional importance. It is not merely a matter of politics as usual, and politics as usual do not constitute the abuse of office.
An Impeachment Trial Without Witnesses Would Be Unconstitutional
And a resulting acquittal verdict would present Americans with something far worse than a constitutional crisis.
On the opening day of the impeachment trial, the Senate, in a party-line vote of 53–47, approved an organizing resolution establishing the ground rules for the trial and rejecting efforts by Democrats to compel the testimony of witnesses and the production of documents not included by the House in its impeachment inquiry. However, the resolution allows Democrats to renew their motions to subpoena witnesses and documents after House managers and the president’s defense lawyers have completed their opening statements. The fateful battle over witnesses will thus begin in earnest next week.
In December, Donald Trump became only the third U.S. president to be impeached. If Senate Majority Leader Mitch McConnell succeeds in his intention to prevent any witnesses from testifying, Trump will become the first president to be acquitted by an unconstitutional impeachment process.
McConnell has created the mistaken impression that the Constitution does not provide any guidance about the impeachment process, and that the procedures for the trial—including motions to call witnesses—can be determined by a majority vote. Although the Senate has broad discretion to set the rules for the trial, Supreme Court Justice Byron White, in a concurring opinion in Nixon v. United States (1993), a case involving the impeachment of federal Judge Walter Nixon, found in the impeachment-trial clause of Article I, Section 3 of the Constitution a limitation on the method by which the Senate can conduct an impeachment proceeding. The text of the clause states, “The Senate shall have the sole Power to try all Impeachments.” Justice White interpreted the word try to mean that the impeachment proceeding must be in the nature of a judicial trial, and concluded that “a procedure that could not be deemed a trial by reasonable judges” would be unconstitutional.
White found support for his conclusion in the Framers’ understanding of the impeachment process, particularly the arguments by Alexander Hamilton, the delegate to the Constitutional Constitution who devoted the most attention to the impeachment function of the Senate. Contrary to McConnell’s assertion that impeachment is actually a “political process” and that “there’s not anything judicial about it,” Hamilton described the Senate in “Federalist No. 65” as possessing a “judicial character as a court for the trial of impeachments,” and in “Federalist No. 66,” he repeatedly referred to the Senate as “a court of impeachments.”
There is a widespread assumption among Americans that it is perfectly legitimate for the trial to be conducted as a no-holds-barred partisan battle, with senators voting along party lines, rather than impartially deciding the merits of the case. This is contrary to the Framers’ intent. Hamilton regarded the upper chamber as “the most fit depositary” for the impeachment trial because it provided “the necessary impartiality between an individual accused, and the representatives of the People, his accusers.”
The choice of the Senate made sense for the Framers, who contemplated a republic without strong parties and a Senate whose members —elected by state legislatures until the Seventeenth Amendment was ratified in 1913—were expected to function in a less partisan, more deliberative, and wiser manner than their popularly elected counterparts in the House. The impeachment oath, which requires senators to “do impartial justice,” is not a quaint ritual to be performed with a wink and a nod, but a procedure required by the Constitution because the Framers intended the impeachment proceeding to be run much like a judicial trial.
Senators are thus constitutionally bound to follow what Justice White described as “a set of minimal procedures.” His opinion does not specify their exact contours, except to say that they must be the kinds of procedures a reasonable judge would regard as necessary components of a court trial. Because no reasonable judge would refuse to allow witnesses with personal knowledge of the facts to testify in an ordinary trial, it is the Constitution itself that establishes the right of House managers to call witnesses such as former National Security Adviser John Bolton and Acting White House Chief of Staff Mick Mulvaney. Both men are thought to have firsthand knowledge of the president’s purpose in holding up congressionally approved military assistance to Ukraine after a phone call in which Trump asked the country’s newly elected president, Volodymyr Zelensky, to investigate Joe Biden and his son Hunter.
At least three moderate Republican senators—Mitt Romney of Utah, Lisa Murkowski of Alaska, and Susan Collins of Maine—have indicated their openness to hearing testimony from Bolton and other key witnesses, which leaves the 47 members of the Democratic caucus one vote short of the majority needed to compel testimony from the four current and former administration officials on their witness list. In addition to Bolton and Mulvaney, House managers want to call Robert Blair, a senior adviser to Mulvaney, and Michael Duffey, a top official in the White House Office of Management and Budget who, at the direction of the president, ordered the hold on the military assistance 90 minutes after the phone call. The nonpartisan U.S. Government Accountability Office has ruled that even if the president withheld the aid for national-policy reasons, rather than for personal political gain, his action violated the Impoundment Control Act because the president cannot substitute his own policy priorities for those of Congress.
New documents provided on January 14 to the House Intelligence Committee by Lev Parnas, an indicted former associate of Trump’s personal lawyer Rudy Giuliani, will increase pressure on Republican senators to allow additional testimony and evidence, including testimony from Parnas himself, because they demonstrate how much remains unknown. “There is news every day and that will likely be factored in,” Senator Murkowski said when asked about the documents, which include a letter signed by Giuliani stating that his communications with Zelensky were made with Trump’s “knowledge and consent.” Parnas also gave a rather sensational interview to MSNBC’s Rachel Maddow, in which he linked Trump to Giuliani’s efforts to pressure Zelensky to announce an investigation of the Bidens, saying the president “knew exactly what was going on.”
Even if McConnell, in the face of this new evidence, can prevent the defection of more than three Republican senators, a majority vote of the Senate cannot validate the unconstitutional exclusion of witnesses from an impeachment trial. If Republicans succeed in preventing House managers from calling witnesses with firsthand knowledge of relevant facts, an acquittal of the president will be unconstitutional. Given that a majority of the Supreme Court in Nixon ruled that a Senate impeachment trial is not subject to judicial review, the question remains, if the courts cannot overturn a Senate verdict, what are the legal consequences of an unconstitutional acquittal?
An answer is provided by a momentous opinion of the Justice Department’s Office of Legal Counsel, which is responsible for providing the president with “controlling advice” on questions of law. The relevant OLC opinion is the same one that furnished the basis for Special Counsel Robert Mueller’s conclusion that he was prohibited from prosecuting Trump before he left office, even if there was overwhelming evidence that the president had committed serious crimes.
The OLC opinion, written in 2000 by then–Assistant Attorney General Randolph Moss, explains that the reason prohibiting the prosecution of a criminally culpable president does not violate the “important national interest in ensuring that no person—including the President—is above the law” is because “the constitutionally specified impeachment process ensures that the immunity would not place the president ‘above the law.’”
If the impeachment process conducted by the Senate is unconstitutional, the unavailability of either criminal prosecution or a legitimate impeachment trial as a means of presidential accountability, according to the OLC opinion’s own reasoning, would “subvert the important interest in maintaining ‘the rule of law.’”
An unconstitutional verdict of acquittal would present Americans with something far worse than a constitutional crisis. The nation will have blundered its way into creating an accidental autocracy governed by a president who, even if not reelected, would remain in office until January 20, 2021, beyond the reach of the rule of law.
“Wherever law ends, tyranny begins,” John Locke cautioned in his Two Treatises of Government . This is how autocracy comes to America: not with a declaration of martial law and tanks in the street, but by a roll-call vote in the Senate whipped by the leader of the Senate in violation of the Constitution.
If on the day the Senate returns its verdict, history records the failure to convict the president following a trial without witnesses, that will be the day the rule of law dies in America. The courts will remain open for business. Congress will be in session. Citizens will still be able to vote. And a free press will continue to launch withering attacks on President Trump. But the American people will no longer be living in a constitutional democracy.
Two opinion articles that are connected. Don’t know if I agree.
Why every vulnerable GOP senator will stick by Trump
Mitch McConnell rigged the impeachment trial in a way that traps GOP lawmakers into backing Trump: columnist
I find these three posts a good explanation of the GOP vision of Ukraine-Russia-US relations.
I made a version re-sized for twitter:
Read this whole thing, I don’t have cable so I can’t confirm. TV People what differences are you seeing in the coverage between channels?
I checked this out just now and can confirm it. They have the impeachment video shrunk down in the corner while their pundits blather over it.