February 26, 2021 / by 

 

Trump’s Impeachment Defense Is Silent about His Unconstitutional Demand of Mike Pence

There are some weaknesses and gaps in the House impeachment case against the former President (which I’ll probably return to).

But there’s one giant gap in Trump’s defense.

Generally, Trump argues three things: his incitement was speech protected by the First Amendment. The House moved too quickly to impeach but having impeached him while he was still President the Senate can’t now try him, as required by the Constitution. Along the way he makes a soft case that his attempts to undermine the election results can’t be proven to be unjustified (in at least two places, those claims are demonstrably false).

But I’m most struck by Trump’s silence about his treatment of Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

The House brief describes how, even as Pence released his letter saying that he could not, constitutionally, do what Trump asked, Trump demanded again that the Vice President do anything besides certify the vote.

He also demanded again that Vice President Pence illegally interfere with the work of the Joint Session—a position that the Vice President rejected even as President Trump spoke.

The House brief then describes how the rioters threatened to, “hang Mike Pence” and left targeted threats for him.

Videos of the events show that dozens of the insurrectionists specifically hunted Vice President Pence and House Speaker Nancy Pelosi—the first and second in the line of Presidential succession, respectively. “Once we found out Pence turned on us and that they had stolen the election, like, officially, the crowd went crazy,” said one rioter. “I mean, it became a mob.”98 Rioters chanted, “Hang Mike Pence!” 99 Another shouted, “Mike Pence, we’re coming for you … fucking traitor!”100

[snip]

One of them shouted “Trump won that election!” on the Senate dais where Vice President Pence had presided. 115 Another rioter climbed onto the dais, announcing that “I’m gonna take a seat in this chair, because Mike Pence is a fucking traitor.”116 He left a note on the Vice President’s desk stating, “ITS ONLY A MATTER OF TIME / JUSTICE IS COMING.”117

It describes how, even as the attack was going on, Trump continued to complain that Pence had upheld his own oath to the Constitution.

Just over thirty minutes later, at 2:24 PM, while rioters were still attacking police and after Vice President Pence had been evacuated from the Senate floor, President Trump again tweeted to excoriate the Vice President for refusing to obstruct the Joint Session: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”144 President Trump thus singled out Vice President Pence for direct criticism at the very same time the Vice President and his family were hiding from a violent mob provoked by President Trump. [emphasis original]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

6. He also willfully made statements that, in context, encouraged – and foreseeably resulted in – lawless action at then Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.” Thus, incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious act.

Answer 6: Admitted in Part, denied in part. It is admitted that persons unlawfully breached and vandalized the Capitol, that people were injured and killed, and that law enforcement is currently investigating and prosecuting those who were responsible. “Seditious acts” is a term of art with a legal meaning and the use of that phrase in the article of impeachment is thus denied in the context in which it was used. It is denied that President Trump incited the crowd to engage in destructive behavior. It is denied that the phrase “if you don’t fight like hell you’re not going to have a country anymore” had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech. It is denied that President Trump intended to interfere with the counting of Electoral votes. As is customary, Members of Congress challenged electoral vote submissions by state under a process written into Congressional rules allowing for the respective Houses of Congress to debate whether a state’s submitted electoral votes should be counted. In 2017, Democratic Members of Congress repeatedly challenged the electoral votes submitted from states where President Trump prevailed. In 2021, Republican Members of Congress challenged the electoral votes submitted from states where President Biden prevailed. The purpose of the Joint Sessions of Congress in 2017 and on January 6, 2021 was for Members of Congress to fulfill their duty to be certain the Electoral College votes were properly submitted, and any challenges thereto properly addressed under Congressional rules. Congress’ duty, therefore, was not just to certify the presidential election. Its duty was to first determine whether certification of the presidential election vote was warranted and permissible under its rules. [my italics]

Trump undoubtedly solicited Members of Congress to do just that, challenging individual states, which was itself an abuse of power (indeed, one weakness of the House brief is they don’t mention Rudy Giuliani’s second attempt to call Tommy Tuberville asking for a specific delay on vote counting, which shows that Trump was indeed trying to use the mob to delay the certification).

But Trump also made an explicit demand of Pence, one Pence refused. That demand, by itself, was proof that Trump intended to interfere with the Constitutional counting of votes.

And he doesn’t address that — speech which is in no way protected — in his defense.

Nor does he address how he almost got Pence killed.


Donnie The Wimp And His Impeachment Coffin

There was a pretty astounding report by CNN early this morning depicting the, and I am being kind here, disarray in Trump’s impeachment defense. The gist is this:

Butch Bowers and Deborah Barbier, who were expected to be two of the lead attorneys, are no longer on the team. A source familiar with the changes said it was a mutual decision for both to leave the legal team. As the lead attorney, Bowers assembled the team.
Josh Howard, a North Carolina attorney who was recently added to the team, has also left, according to another source familiar with the changes. Johnny Gasser and Greg Harris, from South Carolina, are no longer involved with the case, either.

No other attorneys have announced they are working on Trump’s impeachment defense.

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.

That sounds ominous!

But here is the part that even more stuck out to me:

“As the lead attorney, Bowers assembled the team.”

and, most notably,

“The attorneys had not yet been paid any advance fees and a letter of intent was never signed.”

Lol, for the uninitiated, that means Trump never paid a dime as to a retainer, and never signed a fee agreement. That not only is inappropriate, in most jurisdictions it is, in and of itself, unethical. Even when the lawyer is agreeing to do work pro bono, there is a retainer agreement. Always, because real lawyers don’t blithely hang their asses out on the line without specified parameters. That is just how it is.

As I said on Twitter:

A rather large discussion ensued. Go look if you so desire, but I will stand by that for now. No, I do not really know, but it almost makes sense.

Trump is not cash rich. Expending collected campaign funds to perpetrate a fraudulent defense might be a dicey proposition. And no competent attorneys are lining up to pitch that. Trump may literally be down to Rudy and Jenna Ellis. Dershowitz and Jon Turley are squirrely as shit, but even they may not be that stupid.

So, where art thou go Donald?


Productive Ways to Hold Trump Accountable

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.


Impeaching Donald John Trump — Again [UPDATE-3]

[NB: Check the byline. Updates will be posted at the bottom. /~Rayne]

The House is now voting on H.R. 24 to impeach Trump for high crimes and misdemeanors.

At 4:24 p.m. ET the vote stands at 228 Yea, 194 Nay, with 11 Not Voting or as-yet uncast votes.

There was a report that no GOP House member from North Carolina was present, which may boost the NV number higher than expected.

~ ~ ~

UPDATE-1 — 4:36 PM ET   — 

House members are being asked if they have voted and if any of them wants to vote. There’s no change.

H.R. 24 passes, 231 Yeas (including 10 GOP votes) to 197 Nays with 5 Not Voting.

Donald John Trump has been impeached a second time during his term, this time for High Crimes and Misdemeanors.

~ ~ ~

UPDATE-2 — 4:50 PM ET —

In comments below I said I’d like to know how many phone calls there were from the White House to GOP reps over the last 24 hours.

Rep. Jason Crow told MSNBC, “I had a lot of conversations with my Republican colleagues. … A couple of them broke down in tears … saying that they are afraid for their lives if they vote for this impeachment.”

Sure sounds like the White House may have extorted Nays from GOP representatives considering the level of fear Crow shared.

In other words, even as the House was preparing to vote to impeach Trump for High Crimes and Misdemeanors, he may well have been committing more crimes.

House whip Steny Hoyer committed to sending H.R. 24 immediately to the Senate for action. What happens next is on Senate Majority Leader Mitch McConnell, who has been making noises which sound supportive of conviction — but this is McConnell, who has so far done nothing during the last four years to the benefit of the country and in defense of the Constitution, sucking up instead to Trump or the corporate donor class.

Who will McConnell suck up to with this resolution? Will he ignore the clear and present danger Trump poses to national security every moment he remains in power between now and noon ET on January 20?

~ ~ ~

UPDATE-3 — 2:25 AM ET 14-JAN-2021 —

The final vote count was 232-197, with the following GOP representatives voting for impeachment:

Adam Kinzinger (IL)
Liz Cheney (WY)
John Katko (NY)
Fred Upton (MI)
Jaime Herrera Beutler (WA)
Dan Newhouse (WA)
Peter Meijer (MI)
Anthony Gonzalez (OH)
Tom Rice (SC)
David Valadao (CA)

Nice that two were from my state, Michigan, and one of the two a freshman; still, Michigan had five Trump-y GOP representatives who voted No.

These members did not vote:

Kay Granger (TX)
Andy Harris (MD)
Greg Murphy (NC)
Daniel Webster (FL)

All four are GOP representatives.

This past weekend Senate Majority Leader toyed around with GOP donors — or perhaps with Trump — indicating he had left Team Trump’s camp.

McConnell spoke to major Republican donors last weekend to assess their thinking about Trump and was told that they believed Trump had clearly crossed a line, the strategist said. McConnell told them he was finished with Trump, according to the consultant.

After the impeachment vote McConnell issued this statement saying the earliest he can start a trial is next week.

It’s not like there’s a clear and present danger to national security in the White House which has encouraged the assassination of the Vice President and members of Congress including the next couple of people in the line of presidential succession.

I wonder what McConnell received in exchange for refusing to move to an emergency session to take up the trial.

I’d also like to know what the big GOP donors think of McConnell’s foot dragging. The number of corporate PACs which have said they won’t donate to seditionist members of Congress has grown and includes Fortune 100 companies; how do they feel about McConnell leaving national security hanging as it is for another week?

House Speaker Pelosi named the impeachment managers Tuesday; the nine House members are a good lineup of attorneys including litigators, public defenders, and prosecutors:

Jamie Raskin (MD), lead
Diana DeGette (CO)
David Cicilline (RI)
Joaquin Castro (TX)
Eric Swalwell (CA)
Ted Lieu (CA)
Stacey Plaskett (VI)
Joe Neguse (CO)
Madeleine Dean (PA)

Let’s hope they make a tight and impactful case for conviction though Trump did a pretty good job all by himself, caught entirely on camera a little after noon on January 6, exhorting the rioters to show strength and march on the Capitol Building.

It’s a pity the seditionist caucus can’t be tried at the same time. Every member of Congress who aided and abetted this insurrection should be expelled; their districts and states deserve better representation from people who take their oath of office seriously, including protecting the Constitution from all enemies foreign and domestic.


Triage and Impeachment: Prioritize a Legitimate Criminal Investigation into the Wider Plot over Impeachment

I want to talk about triage in the wake of the terrorist attack on Wednesday as it affects consideration of how to hold Trump accountable for his role in it.

First, some dates:

If Mike Pence were to invoke the 25th Amendment (with the approval of a bunch of Trump’s cabinet members), it could go into effect immediately for at least four days. Trump can challenge his determination, but if the same cabinet members hold with Pence, then Trump’s disqualification remains in place for 21 more days, enough to get through Joe Biden’s inauguration.

Both the House and Senate are not in session, and can’t deviate from the existing schedule without unanimous consent, meaning Mo Brooks in the House or Josh Hawley in the Senate could single-handedly prevent any business.

Because of that, impeachment in the House can’t be started until tomorrow. Right now, Pelosi is using the threat of impeachment as leverage to try to get Pence to act (or Trump to resign, though he won’t). If that doesn’t work, then the House seems prepared to move on a single article of impeachment tied to Trump’s attempts to cheat and his incitement of the insurrection. Pelosi won’t move forward on it until she’s sure it has the votes to succeed.

Even assuming a majority of the House votes to impeach Trump, that will have no impact on his authority to pardon co-conspirators, and he’ll surely attempt to pardon himself, one way or another. Because of Wednesday’s events, he will be doing that without the assistance of Pat Cipollone, which means he’s much more likely to make his plight worse.

Impeaching this week would, however, force Republicans to cast votes before it is clear how the post-insurrection politics will work out (indeed, while Trump still has the power of the Presidency). Significantly, a number of incoming members are angry that Kevin McCarthy advised them to support the insurrection. The vote may be as much an attempt to undo complicity with Wednesday’s actions as it is anything else. Done right, impeachment may exacerbate the fractures in the GOP; done wrong, it could have the opposite effect.

If the House does impeach, then the Senate will not — barring a change of heart from Hawley and everyone else who was still willing to be part of this insurrection — take up the impeachment until January 19 (the parliamentarian has already ruled on this point). That means, the trial for impeachment either happens in Joe Biden’s first week in office, or the House holds off on sending the article of impeachment over to the Senate until Chuck Schumer deems it a worthwhile time. He can also opt to have a committee consider it, calling witnesses and accruing evidence, which will provide the Senate (where there are more Republicans aiming to distance from Trump) a way to further elaborate Trump’s role in the terrorism.

Meanwhile, by losing all access to social media except Parler and with Amazon’s decision yesterday to stop hosting Parler (which will mean it’ll stay down at least a week, until January 17), Trump’s primary mouthpieces have been shut down. There’s reason to believe that the more sophisticated insurrectionists have moved onto more secure platforms like chat rooms and Signal. While that’ll pose some challenges for law enforcement trying to prevent follow-on attacks on January 17, 19, or 20, being on such less accessible platforms will limit their ability to mobilize the kinds of masses that came out on Wednesday. Trump has lost one of the most important weapons he can wield without demanding clearly criminal behavior from others. That said, the urgency of preventing those sophisticated plotters — and a good chunk of these people have military training — from engaging in more targeted strikes needs to be a priority.

But Trump is still President, with his hand on the nuclear codes, and in charge of the chain of command that goes through a bunch of Devin Nunes flunkies at DOD. Nancy Pelosi called Chairman of the Joint Chiefs Mark Milley and come away with assurances that Trump won’t be able to deploy nukes.

Preventing an Unhinged President From Using the Nuclear Codes: This morning, I spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike. The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy.

Nevertheless that still leaves Trump in charge of the vast federal bureaucracy, which has been emptied out and the filled back up with people who could pass Johnny McEntee’s loyalty oaths to Trump.

Because this is where we’re at, I have argued that there needs to be a higher priority on getting at least Biden’s operational nominees, along with Merrick Garland, confirmed over impeaching Trump — yet — in the Senate.

We have not yet heard why DOD and DHS and the FBI — on top of the Capitol Police — failed to prevent the terrorist attack on Wednesday (I’ll have more to say about this later). It will take a year to sort out all the conflicting claims. But as we attempt, via reporting, via oversight in Congress (including impeachment), and via a criminal investigation to figure that out, those same people who failed to prevent the attack remain in place. Indeed, most of these entities have offered little to no explanation for why they failed, which is a bad sign.

Because of that, I think Biden needs to prioritize getting at least Garland and Lisa Monaco confirmed as Attorney General and Deputy Attorney General at DOJ, along with a new Acting US Attorney for DC, as soon as possible. I have two specific concerns. First, while FBI has generally been good at policing white supremacists in recent months, they failed miserably here, when it mattered most. One effect of retaliating against anyone who investigated Trump for his “collusion” with Russia has been to install people who were either Trump loyalists or really skilled at avoiding any slight to Trump. Indeed, one of the most charitable possible excuses for FBI’s delayed response is that after years of badgering, otherwise reasonable people were loathe to get involved in something that Trump defined as an election issue.

I have more specific concerns about the DC US Attorney’s office. Michael Sherwin, who has been less awful as Acting US Attorney than Timothy Shea, originally said on the record all options in the investigation that will be led out of his office were on the table, including incitement by Trump. But then someone said off the record that Trump was not a focus of the investigation. I suspect that person is Ken Kohl, who as Acting First Assistant US Attorney is in charge of the investigation and has been cited in other announcements about the investigation.

Ken Kohl at least oversaw, if not participated in, the alteration of documents to help Trump get elected. I’ve been told he’s got a long history of being both corrupt and less than competent. The decisions he will oversee in upcoming weeks could have the effect of giving people the opportunity to destroy evidence that lays out a much broader conspiracy, all while rolling out showy charges against people who were so stupid they took selfies of themselves committing crimes. We want this investigation to go beyond a slew of trespassing charges to incorporate the actual plotting that made this attack possible. It’s not clear Kohl will do that.

Even assuming that people currently in DOJ are willing to collect evidence implicating Trump, short of having a confirmed Attorney General overseeing such decisions, we’re back in the same situation Andrew McCabe was in on May 10, 2017, an Acting official trying to decide what to do in the immediate aftermath of a Trump crime. Trump’s backers have exploited the fact that McCabe made the right choices albeit in urgent conditions, and they’ve done so with the willing participation of some of the people — notably, FBI Deputy Director David Bowdich — who are currently in charge of this investigation.

I’m happy to entertain a range of possible courses going forward, so long as all of them involve holding Trump accountable to the utmost degree possible. I assume Nancy Pelosi, whatever else she’ll be doing, will also be counting the votes to understand precisely what is possible, given the schedule.

But I also know that I’d far rather have Trump and those he directly conspired with criminally charged than have an impeachment delay the thorough fumigation of a government riddled with people who may have had a role in this plot. And that’s not going to happen if the investigation is scoped in such a way in the days ahead to rule out his involvement.

Update: Here’s a much-cited interview with Michael Sherwin. He adopts all the right language (pointedly disavowing labels of sedition or coup, saying he’s just looking at crimes) and repeats his statement that if there’s evidence Trump is involved he’ll be investigated.

On Thursday you were quoted saying the conduct of “all actors” would be examined, which was interpreted to mean President Trump might face charges. Is that what you meant — the man who gave the speech at the start of the day could be looking at charges?

Look, I meant what I said before. In any criminal investigation, I don’t care if it’s a drug trafficking conspiracy case, a human trafficking case or the Capitol — all persons will be looked at, OK? If the evidence is there, great. If it’s not, you move on. But we follow the evidence. If the evidence leads to any actor that may have had a role in this and if that evidence meets the four corners of a federal charge or a local charge, we’re going to pursue it.

Update: This story describes how a senior McConnell aide called Bill Barr’s Chief of Staff who called David Bowdich who then deployed three quick reaction teams in response.

The senior McConnell adviser reached a former law firm colleague who had just left the Justice Department: Will Levi, who had served as Attorney General William P. Barr’s chief of staff.

They needed help — now, he told Levi.

From his home, Levi immediately called FBI Deputy Director David Bowdich, who was in the command center in the FBI’s Washington Field Office.

Capitol police had lost control of the building, Levi told Bowdich.

The FBI official had been hearing radio traffic of aggressive protesters pushing through the perimeter, but Levi said it had gone even further: The mob had already crashed the gates and lives were at risk.

Capitol police had said previously they didn’t need help, but Bowdich decided he couldn’t wait for a formal invitation.

He dispatched the first of three tactical teams, including one from the Washington field office to secure the safety of U.S. senators and provide whatever aid they could. He instructed two more SWAT teams to follow, including one that raced from Baltimore.

These teams typically gather at a staging area off-site to coordinate and plan, and then rush together to the area where they are needed. Bowdich told their commander there was no time.

“Get their asses over there. Go now,” he said to the first team’s commander. “We don’t have time to huddle.”

Not explained: why Bowdich was watching protestors get through the perimeter without deploying teams on his own. Again, I’m not saying he was complicit. I’m saying he has spent the last four years by letting Trump’s claims about politicization direct the Bureau, and can see how that habit might have led to a delayed response here.


Timing Matters: Impeach, Convict, Remove NOW [UPDATE-1]

[NB: Check the byline, thanks. Updates will appear at the bottom of this post. /~Rayne]

Photos taken during the insurrectionist Capitol Building breach on Wednesday showed a lot of riot tourism — “Look at me, Mom!” kind of behavior which causes reparable damage while irritating observers. The jerk sitting in House Speaker Nancy Pelosi’s chair with his feet on her desk is a perfect example.

But some photos showed participants who weren’t flashy, who weren’t taking selfies. They appeared intent on some objective and they were well equipped, wholly unlike the bare-chested, tattooed Qultist clown Jake Angeli.

Angeli was attention whoring.

This guy was not:

(Believe this is a cropped photo from Getty Images, shared here under Fair Use.)

Malcolm Nance noted this same person was carrying an “olive colored Blackhawk Sherpa pistol holster with a Glock 26 or 43 subcompact pistol w/hogue rubber grips, mace & Flex-cuffs” which is far from the average riot tourist’s gear. There has been speculation it’s not a Glock but a holstered taser, though the consensus appears to be that it’s a weapon.

The photo shows someone intent on doing more than a little light vandalism. They are equipped to kidnap, detain, and possibly hurt or kill someone.

They need to be identified, their situation fully investigated, and prosecuted to the fullest extent of the law.

This isn’t something which should be blown off lightly; this person was in the Senate chamber where two of the next three in line of presidential succession — VP Mike Pence and Sen. Chuck Grassley — had been only moments before, in the same building with third-in-line, House Speaker Nancy Pelosi.

There were others as well who may not have been quite as well equipped but carrying some gear like plastic zip restraints, suggesting they, too, were intent on seizing members of Congress and staff.

Until an investigation is completed, we don’t know if we haven’t just looked upon an aborted kidnapping and/or assassination attempt.

We don’t know yet how the “mobile bomb factoryfound by law enforcement figured into this picture:

… The chief also confirmed that police recovered two pipe bombs at the Democratic National Committee and Republican National Committee offices. A cooler that contained molotov cocktails also was found on U.S. Capitol grounds, the chief said. Bowser said officials will review video and issue lookout alerts for people who breached the U.S. Capitol, adding that they “need to be held accountable for the carnage.”

Federal agents also are investigating a pickup truck found outside the RNC, according to two people familiar with the investigation.

The truck, parked across the street from the party offices and near the entrance to a Metro station, contained rifles and shotguns, a great deal of ammunition, and other unspecified material, these people said. Federal agents are still trying to determine if that vehicle and its contents are connected to the suspected pipe bombs found earlier, the people said. …

This could have been extremely ugly had riot members been able to occupy and control the Capitol Building through the night.

Trump should not be allowed to pardon these people if he and his associates and family had anything to do with this — like Rudy Giuliani’s incitement calling for “trial by combat” on stage before Trump supporters that day.

The only way to ensure there is no pardon granted by Trump before an investigation is complete is to remove Trump from office.

Immediately.

GOP members of Congress: You need to take this seriously and consider where you and members of your cohort stand. There may be those among them who are complicit, who may have no problem with eliminating their fellow members who aren’t as Trumpist as they are. Until a full investigation is completed there’s no way to know, and no way to protect themselves from a possible second attack-masked-by-riot.

And there’s a second event in the offing. It’s right there in all the chatter online about the January 6 mob.

Impeach, convict, remove Trump NOW, because it’s critical to protecting the continuity of our government under the Constitution about which you swore an oath to defend.

It’s also your skin in the game.

Consider how this scenario looks to others and whether the damage would have been limited to Democratic members of Congress alone.

Next time Congress and the VP might not be so lucky. Remove luck from the equation by removing the source of incitement NOW.

~  ~ ~

UPDATE-1 — 5:10 PM ET —

The Washington Post released video showing the lead up to and the shooting of rioter Ashli Babbit. At least one member of Congress, Rep. Sean Maloney (D-NY-18), is visible at the beginning of the video before they are removed to a secure location and the rioters breach the door.

Impeachment still has traction if slow. Another set of articles of impeachment have been released, this time charging Incitement to Insurrection instead of Abuse of Power. Sorry, I don’t have time right now to type out a transcript, sharing a tweet with screen shots for now.

Pence entered the White House but apparently didn’t speak to Trump, and Sen. Lisa Murkowski is the first GOP senator to demand Trump resign, questioning her own future with the GOP.

One can only hope the news dump zone is kind to us.


Second Impeachment Ahead: Articles Have Been Drafted [UPDATE-3]

[NB: Update(s) at the bottom of this post. /~Rayne]

Representatives David Cicilline, Ted Lieu, and Jamie Raskin have drafted articles of impeachment against Trump which are now circulating among House members.

Here’s a transcript:

         Resolved, That Donald John Trump, President of the
United States, is impeached for high crimes and mis-
demeanors and that the following articles of impeachment
be exhibited to the United States Senate.

Article of impeachment exhibited by the House of
Representatives of the United States of America in the
name of itself and of the people of the United States of
America, against Donald John Trump, President of the
United States of America, in maintenance and support of
its impeachment against him for high crimes and mis-
demeanors.

ARTICLE I: ABUSE OF POWER

          The Constitution provides that the House of Rep-
resentatives “shall have the sole Power of Impeachment”
and that the President “shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors”. In his conduct of
the office of President of the United States—and in viola-
tion of his constitutional oath faithfully to execute the of-
fice of President of the United States and, to the best of
his ability, preserve, protect, and defend the Constitution
of the United States, and in violation of his constitutional
duty to take care that the laws be faithfully executed—
Donald J. Trump engaged in high Crimes and Mis-
demeanors by willfully inciting violence against the Gov-
ernment of the United States, in that:

On January 6, 2021, pursuant to the Twelfth
Amendment of the United States Constitution, the Vice
President of the United States, the House of Representa-
tives, and the Senate met at the United States Capitol
for a Joint Session of Congress to count the votes of the
Electoral College. Shortly before the Joint Session com-
menced, President Trump addressed a crowd of his polit-
ical supporters nearby. There, he reiterated false claims
that “we won this election, and we won it by a landslide”.
He also willfully made statements that encouraged—and
foreseeably resulted in—imminent lawless action at the
Capitol. Incited by President Trump, a mob unlawfully
breached the Capitol, injured law enforcement personnel,
menaced Members of Congress and the Vice President,
interfered with the Joint Session’s solemn constitutional
duty to certify the election results, and engaged in violent,
deadly, destructive, and seditious acts.

President Trump’s conduct on January 6m 2021 was
consistent with his prior efforts to subvert and obstruct
the certification of the results of the 2020 presidential
election. Those prior efforts include, but are not limited
to, a phone call on January 2, 2021, in which President
Trump urged Georgia Secretary of State Brad
Raffensperger to “find” enough votes to overturn the
Georgia presidential election results and threatened Mr.
Raffensperger if he failed to do so.

In all of this, President Trump gravely endangered
the security of the United States and its institutions of
government. He threatened the integrity of the democratic
system, interfered with the peaceful transition of power,
and imperiled a coordinate branch of government. He
thereby betrayed his trust as President, to the manifest
injury of the people of the United States.

Wherefore President Trump, by such conduct, has
demonstrated that he will remain a threat to national se-
curity, democracy, and the Constitution if allowed to re-
main in office, and has acted in a manner grossly incom-
patible with self-governance and the rule of law. President
Trump thus warrants impeachment and trial, removal
from office, and disqualification to hold and enjoy any of-
fice of honor, trust, or profit under the United States.

It’s narrow in scope, doesn’t require investigation and subsequent hearings, because the act of incitement occurred in public and was recorded on video, distributed over broadcast and cable television as well as the internet.

The inclusion of the phone call to Georgia’s Secretary of State illustrates in most minimal fashion a pattern of behavior and intent.

These articles aren’t the only approach being taken to remove Trump. Earlier today both Sen. Chuck Schumer and Rep. Nancy Pelosi called VP Mike Pence to ask for the invocation of the 25th Amendment:

They’ve since made public statements reiterating their demand for the 25th Amendment, and for impeachment leading to removal if the 25th isn’t invoked.

NBC reported earlier that Trump is fragile and feeling betrayed:

Fuck that. Trump is not the United States; Congress is not elected to fluff one delicate snowflake’s dementia-addled ego.

The United States, however, is now fragile, made so by the gross failings of a malignant narcissist in decline, who has spawned an attack on his own country with seditious incitement.

It’s time for Mike Pence to honor his oath to defend the Constitution by invoking the 25th Amendment.

If Pence should fail the republic yet again, it’s time for Congress to impeach, convict, and remove Trump before he does any further damage to this fragile democracy.

~ ~ ~

UPDATE-1 — 8:20 PM ET —

This is not good. It’s been wholly predictable to those who’ve assumed Trump suffers from a progressive neurological disorder like frontotemporal dementia on top of his malignant narcissism — but still not good.

It’s also increasingly urgent.

We need to hold Trump’s cabinet members accountable — including the “principal officers” of departments like the Acting Director in cases where the Director has left the government — for not demanding the invocation of the 25th Amendment. Pence may be resisting invocation but he’s not the only person responsible for its application and execution.

And if Pence and the cabinet aren’t going to address this, then it’s up to Congress to remove Trump from the ability to hurt this country.

All of them — Pence, the cabinet members and principal officers, members of Congress — have sworn an oath to the Constitution. It’s time to protect and defend it by removing Trump from office immediately.

Call your representative and ask them to support articles of impeachment because Trump has incited seditious behavior against the U.S. and he is acting increasingly unstable.

Call your senators and ask them to convict and remove Trump from office upon the presentation of the articles of impeachment from the House because Trump has incited seditious behavior against the U.S. and he is acting increasingly unstable.

Congressional switchboard: (202) 224-3121 — or use Resist.bot.

Time’s of the essence. Go. Leave word in comments if you’d care to share your experience.

~ ~ ~

UPDATE-2 — 10:42 PM ET —

Update on status of impeachment:

House Judiciary Committee Chair Jerry Nadler supports impeachment and wants it to go directly to the House floor:

Head count is mounting.

The number 200 without context means doodley squat. We need two very specific numbers.

We need 218 House votes, or one more than half of 435. (This may be lower because there are two seats still open IIRC.)

We need 67 Senate votes, or two-thirds of the total 100 seats.

If you manage to reach your representative or senators, ask where they stand on impeaching Trump. Then ask them to support it if they don’t, or thank them if they do.

I hope we have the numbers by morning. What could go wrong the longer Congress drags its feet is incalculable.

~ ~ ~

UPDATE-3 — 12:52 AM ET 08-JAN-2021 —

Two cabinet members, Transportation Secretary Elaine Chao and Education Secretary Betsy DeVos, have tendered their resignations. Chao’s exit is effective January 11; I haven’t checked DeVos’s exit date. Her resignation could have been effective immediately. Former White House Chief of Staff Mick Mulvaney resigned from his role as Special Envoy for Northern Ireland. Four national security aides quit.

A police officer has died of injuries sustained during the Capitol Building riot. That’s more dead police than the entirety of George Floyd/BLM protests during the summer of 2020.

A family member acknowledged the death of a 34-year-old woman who participated in the Capitol Building riot but was crushed to death. She was likely one of the three accidental deaths tallied so far.

Displeased cabinet and staff members, dead police and mob member…not good, but there was something worse afoot.

Read this entire Twitter thread. And then recall the conspiracy against Michigan’s Gov. Whitmer.

Several accounts on Twitter have noted the rioters could be sorted into two groups: the tourist mob who did sightseeing and some vandalism, and some crypto-paramilitary persons who were prepared to do more than simply take selfies and smash furniture. They came armed with knives and zip ties and may have had more weapons on their persons. They were better masked than most of the tourist rioters.

There have been videos shared which appear to show Capitol Police actively encouraging the mob. Off-duty officers may not only have participated in the rioting but aided the paramilitary participants.

And there have been repeated remarks about coming back on the 19th — “I’d do it again, and I’d have a gas mask next time.

We should not forget there were two IEDs found, one at each of the RNC and DNC offices, as well as a suspicious vehicle which has been characterized as mobile bomb factory.

There were elements inside the rioters who wanted to do more damage and possibly seize and hurt members of Congress along with VP Pence.

We don’t know if they left any preparatory materials behind or whether law enforcement did an adequate sweep considering how poorly prepared they were for the breach of the Capitol Building by rioters.

Trump must be impeached before he can encourage worse. His statement this evening suggests he is willing to encourage more seditious acts, like those at statehouses across the country yesterday while a mob rioted inside the Capitol Building.


When Secret Servers Bump Up against Prosecutorial Independence and Following the Evidence

CNN has a story reporting that President-Elect Biden will be granted access to the secret server where Trump has stashed the transcripts of his sensitive discussions with world leaders. It frames the story around the question of whether or not Biden will release those records, reporting that he probably will respect their sensitivity.

A person close to the Biden transition team told CNN that no decisions have been made about how these sensitive materials will be handled when the President-elect takes office on January 20, and that it’s likely they will maintain the Trump administration’s close hold on such information, at least at first, until they are settled in and Jake Sullivan, Biden’s pick for national security adviser, can assess their information security needs.

A senior US official said that the Biden team will be given access to a secret server containing sensitive information related to President Donald Trump’s more controversial conversations with foreign leaders on a need-to-know basis and the Trump administration is prepared to share any information that they deem to be relevant to their future decision-making process.

The story seems to be sourced to one Biden transition official, serving as a source for what the Biden administration will do, and a Trump official, serving as a source for how Trump White House will deal with this information during the Transition. In context, describing what to do about known conversations that got buried on Trump’s secret server, this comment is from the latter.

There are fast moving issues where policies or military technologies have changed in the four years since Biden’s political team left government, in particular, in relation to China and Turkey, something the current US official said will be a priority in discussions with the Biden landing teams.

The official said that basic details pertaining to Trump’s conversations with foreign leaders like Russian President Vladimir Putin and Saudi Arabia’s Crown Prince Mohammed Bin Salman, will only be shared if they are relevant to a pending policy or national security matter.

“There’s a lot to cover,” the senior US official said. “We are going to share anything that’s relevant for them to come to grips with reality when the keys are theirs. If there was something like that that’s actually of note… things on the covert side, for example, we will highlight them very quickly.”

That is, Biden will get news of Trump’s current plans involving Turkey and China, but will not get the details of what Trump promised away to Putin or whether he shared information on Jamal Khashoggi with MbS.

This particular frame comes from the sources, and while useful to know, doesn’t answer the question for the Biden administration. After all, Biden has answered questions about whether he would prosecute Trump or those close to him appropriately, by saying he plans to pick a good Attorney General and stay the fuck out of DOJ investigations. That means he might face difficult questions about what to do with these transcripts if a Congressional committee (they’ve already demanded the Putin transcripts) or prosecutors asked for known and/or relevant transcripts.

Just as an example, when the whistleblower revealed that President Trump had extorted the President of Ukraine to provide him election help, any normally functioning DOJ would have immediately identified the related case involving Rudy Giuliani’s associates Igor Fruman and Lev Parnas. That would have given SDNY jurisdiction over the fate of Trump’s extortionist call.

As of now, though, the Fruman and Parnas case remains ongoing (it will present one of the more difficult pardon decisions for Trump), and SDNY got David Correia to plead just before the election, while obscuring whether he will cooperate with prosecutors. If the case is not in some way entirely killed, then Trump’s call transcript, along with a lot of other evidence from the White House would become material to that prosecution. If Biden truly were taking a hands-off approach to prosecutions of Trump, he would not make the decision of whether to turn over this transcript (other stuff would not be covered by privilege and presumably would be handed over, including from State).

These will be the truly difficult decisions, not whether Biden gets notice now or in three months of what promises Trump made to Putin.


Convergence: Mueller Obstruction, Ukrainian Favors, and DOJ’s Altered Documents

Amid uncorrected false claims about election results and tweets inciting violence in DC, Donald Trump tweeted this last night.

After respectable law firms withdrew in AZ and PA, Trump’s legal team is now down to Rudy, DiGenova and Toensing, Sidney Powell, and Jenna Ellis, along with “other wonderful lawyers” whom he did not name.

Finally, the grand convergence: Trump’s obstruction of the Mueller investigation into Trump’s “collusion” with Russia, his demand that Ukraine’s President Volodymyr Zelensky “do him a favor” by inventing an investigation of Joe Biden, and the Billy Barr-led effort to blow up Mike Flynn’s prosecution for covering up Trump’s efforts to undermine sanctions imposed for helping Trump to win. All one grand effort led by lawyers barely clinging to reality.

That’s not a unique observation. Many people are making it (along with laughing at the sorry state of affairs for Trump, a glee that may be premature).

But it’s worth focusing on the relationship between Jenna Ellis and Powell. As I have noted repeatedly, when Judge Emmet Sullivan asked Powell whether she had been in direct contact with Trump about Mike Flynn’s case, she not only confessed to that, but also admitted multiple contacts with Trump’s campaign lawyer, Ellis. That means Ellis is directly implicated in whatever effort there was to alter documents to launch a false attack on Joe Biden, one intimately tied to DOJ’s false excuses (that the investigation was primarily about the Logan Act) for wanting to blow up the Flynn prosecution.

That is, the effort to throw out the Mike Flynn prosecution (about which the lawyers have mostly gone silent, post-election) was all part of an effort to obtain power via illegitimate means. And still is.


John Bolton Versus Navy Versus Egan

John Bolton filed a motion opposing the government’s legal actions against him last night (it is both a memorandum in opposition to the Temporary Restraining Order as well as a motion to dismiss). It is particularly interesting because of some things Jack Goldsmith and Marty Lederman laid out in this post. As they note, the judge presiding over today’s hearing has no tolerance for Executive Branch bullshit, even on classified matters; the government’s own description of what happened raises lots of questions about regularity of the claim of classification, particularly as respects to whether there any compartmented information (SCI) remains in Bolton’s book; and the scrutiny of the government will be particularly stringent here, since it wants to censor something before publication.

This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors.  They include:

  • Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public.  Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.
  • The decision to classify material here appears to be highly irregular.  The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information.  A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review.  It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information.  At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.
  • The D.C. Circuit in dicta in McGehee stated that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one.  Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.

Bolton’s motion answers a lot of questions that Goldsmith and Lederman asked in their post. For example, they ask whether Ellen Knight consulted with other top classification authorities before she verbally told Bolton the book had no more classified information in it; Bolton’s motion describes that on the call when Knight told Bolton the book had no more classified information, she, “cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate,’ and that there were ‘some internal process considerations to work through.’”

Goldsmith and Lederman lay out a lot of questions contemplating the likelihood that Michael Ellis claimed the manuscript had SCI information after Knight informed Bolton that it had no more classified information, of any kind (remember, Ellis is likely the guy who moved Trump’s Ukraine transcript onto the compartmented server after people started raising concerns about it, so there would be precedent). Bolton’s brief lays out an extended description of why, if this indeed happened, it doesn’t matter with respect to the way his SCI non-disclosure agreement is written, because based on the record even the government presents, Bolton had no reason to believe the manuscript had SCI in it, and plenty of reason to believe it had no classified information of any type, when he instructed Simon & Schuster to move towards publication.

However, in its brief, the Government asserts for the first time that Ambassador Bolton’s book contains SCI and, therefore, that the SCI NDA applied to his manuscript and required that he receive written authorization from the NSC to publish it. See Doc. 3 at 12–14. This surprise assertion that the book contains SCI, even if true, would not alter the conclusion that the SCI NDA is inapplicable to this case.

The Government is not painting on a blank canvas when it asserts that Ambassador Bolton’s book contains SCI. Rather, the Government’s assertion comes after a six-month course of dealing between the parties that informs whether and how the NDAs apply. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (1981); see also id. § 223. Ambassador Bolton submitted his manuscript for prepublication review on December 30, 2019. Over the next four months, he (or his counsel) and Ms. Knight exchanged more than a dozen emails and letters, participated in numerous phone calls, and sat through more than a dozen hours of face-to-face meetings, painstakingly reviewing Ambassador Bolton’s manuscript. Yet, in all that time, Ms. Knight never asserted—or even hinted—that the manuscript contained SCI, even as she asserted that earlier drafts contained classified information. 102 After conducting an exhaustive process in which she reviewed the manuscript through least four waves of changes, Ms. Knight concluded that it contains no classified information—let alone SCI—as the Government concedes. Doc. 1 ¶ 46.

Nor did Mr. Eisenberg assert in either his June 8 or June 11 letters that the manuscript contains SCI. Nor did Mr. Ellis assert in his June 16 letter that the manuscript contains SCI. Indeed, not even the Government’s complaint asserted that the manuscript contains SCI, even as it specifically alleges that it contains “Confidential, Secret, and Top Secret” information. Doc. 1 ¶ 58. The first time that anyone in the Government so much as whispered that the manuscript contains SCI to either Ambassador Bolton or the public was yesterday, when the Government filed its motion. For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.

And here is the key point: Ambassador Bolton authorized Simon & Schuster to publish his manuscript weeks ago, not long after receiving Ms. Knight’s confirmation that the book did not contain classified information and long before the Government’s first assertion yesterday that the book contained SCI. 103 Thus, at the time Ambassador Bolton proceeded with publishing his book—a decision that has long-since become irrevocable—he had absolutely no reason to believe that the book contained SCI. Indeed, quite the opposite: the Government had given him every reason to believe that it agreed with him that the book did not contain SCI. And if the book did not contain SCI, the SCI NDA did not apply when Ambassador Bolton authorized the book’s publication.

Yet the Government now argues that the SCI NDA did apply based on its discovery of alleged SCI six months after the prepublication-review process began. If that argument is sustained—if, that is, an author may be held liable under the SCI NDA even though neither the author nor the Government believed that the author’s writing contained SCI through four months of exhaustive prepublication review—it would mean that any federal employee who signs the SCI NDA would have no choice but to submit any writing, and certainly any writing that could even theoretically contain SCI, and then await written authorization before publishing that writing. The risk of liability would simply be too great for any author to proceed with publishing even a writing that both he and the official in charge of prepublication review believe, in good faith, is not subject to the SCI NDA.

What Goldsmith and Lederman don’t address — but Bolton does at length in his brief — is the role of the President in these matters. Bolton lays out (as many litigants against the President have before) abundant evidence that the President was retaliating here, including by redefining as highly classified any conversation with him at a very late stage in this process.

Yet, the evidence is overwhelming that the Government’s assertion that the manuscript contains classified information, like the corrupted prepublication review process that preceded it, is pretextual and in bad faith:

  • On January 29, the President tweeted that Ambassador Bolton’s book is “nasty & untrue,” thus implicitly acknowledging that its contents had been at least partially described to him. He also said that the book was “All Classified National Security.”112
  • On February 3, Vanity Fair reported that the President “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s January 23 letter asserting that the manuscript contained classified information.113 It also reported that the President “wants Bolton to be criminally investigated.”114
  • On February 21, the Washington Post reported that “President Trump has directly weighed in on the White House [prepublication] review of a forthcoming book by his former national security adviser, telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.”115 The President vowed: “[W]e’re going to try and block the publication of [his] book. After I leave office, he can do this.”116
  • As described in detail above, Ambassador Bolton’s book went through a four-month prepublication-review process with the career professionals at NSC, during which he made innumerable revisions to the manuscript in response to Ms. Knight’s concerns. At the end of that exhaustive process, she stated that she had no further edits to the manuscript,117 thereby confirming, as the Government has admitted, that she had concluded that it did not contain any classified information.118
  • At the conclusion of the prepublication-review process on April 27, Ms. Knight thought that Ambassador Bolton was entitled to receive the pro-forma letter clearing the book for publication and suggested that it might be ready that same afternoon.119 She and Ambassador Bolton even discussed how the letter should be transmitted to him.120
  • During that same April 27 conversation, Ms. Knight described her “interaction” with unnamed others in the White House about the book as having “been very delicate,”121 and she had “some internal process considerations to work through.”
  • After April 27, six weeks passed without a word from the White House about Ambassador Bolton’s manuscript, despite his requests for a status update.122
  • When the White House finally had something new to say, it was to assert its current allegations of classified information on June 8, in a letter that—by the White House’s own admission—was prompted by press reports that the book was about to be published.123
  • Even though the manuscript was submitted to NSC on December 30, 2019, and despite the exhaustive four-month review and the six weeks of silence that had passed since Ms. Knight’s approval of the manuscript on April 27, the White House’s June 8 letter gave itself until June 19—only four days before the book was due to be published—to provide Ambassador Bolton’s counsel with a redacted copy of the book identifying the passages the White House purported to believe were classified.
  • On the eve of this lawsuit being filed, in response to a question about this lawsuit, the President stated: “I told that to the attorney general before; I will consider every conversation with me as president highly classified. So that would mean that if he wrote a book, and if the book gets out, he’s broken the law.”124 The President reiterated: “Any conversation with me is classified.”125 The President added that “a lot of people are very angry with [Bolton] for writing a book” and that he “hope[d]” that Ambassador Bolton “would have criminal problems” due to having published the book.126
  • On June 16, the NSC provided to Ambassador Bolton a copy of the manuscript with wholesale redactions removing the portions it now claims are classified. Consistent with President Trump’s claim, statements made by the President have been redacted, as have numerous passages that depict the President in an unfavorable light.127

It is clear from this evidence that the White House has abused the prepublication-review and classification process, and has asserted fictional national security concerns as a pretext to censor, or at least to delay indefinitely, Ambassador Bolton’s right to speak.

While Goldsmith and Lederman focused, with good reason, on Ellis’ role, Bolton is focused on President Trump’s role. Bolton lays out abundant evidence that the reason this prepublication review went off the rails is because the President, knowing how unflattering it was to him, made sure it did.

And that raises entirely new issues because under a SCOTUS precedent called Navy v. Egan, the Executive has long held that the President has unreviewable authority over classification and declassification decisions. That doesn’t change contract law. And–given that the courts have already granted the President a limited authority to protect the kinds of things being called SCI here under Executive Privilege–it raises real questions about whether Trump is relying on the proper legal claim here (which may be a testament to the fact that Executive Privilege holds little sway over former government officials).

Still, courts have sanctioned a bunch of absurdity about classification under the Navy v. Egan precedent, arguably far beyond the scope of what that decision (which pertained to clearances) covered. Yet, I would argue that Bolton has made Navy v. Egan a central question (though he does not mention it once) in this litigation.

Can the President retroactively classify information as SCI solely to retaliate against someone for embarrassing him — including by exposing him to criminal prosecution under the Espionage Act? That’s the stuff of tyranny, and Royce Lamberth is not the judge who’ll play along with it.

Let me very clear however, particularly for the benefit of some frothy leftists who are claiming — in contradiction to all evidence — that liberals are somehow embracing Bolton by criticizing Trump’s actions here: Bolton’s plight is not that different from what whistleblowers claim happens to them when they embarrass the Executive Branch generally. Their books get held up in review and some of them get prosecuted under the Espionage Act.

What makes this more ironic, involving Bolton, is that he has been on the opposite side of this issue. Indeed, the Valerie Plame leak investigation focused closely on whether Dick Cheney’s orders to Scooter Libby to leak classified information — after which he leaked details consistent with knowing Plame’s covert status, as well as details from the National Intelligence Estimate — were properly approved by George Bush. Bolton was a party to that pushback and his deputy Fred Fleitz was suspected of having had a more active role in it. In that case, the President (or Vice President) retaliated for the release of embarrassing information by declassifying information for political purposes. But in that case, the details of what the President had done have remained secret, protected by Libby’s lies to this day.

In this case, Bolton can present a long list of evidence — including the President’s own statements — that suggest these classification decisions were retaliatory, part of a deliberate effort to trap Bolton in a legal morass.

So Bolton isn’t unique for his treatment as a “whistleblower” (setting aside his cowardice in waiting to say all this). He’s typical. What’s not typical is how clearly the President’s own role and abusive intent is laid out. And because of the latter fact — because, as usual, Trump hasn’t hidden his abusive purpose — it may more directly test the limits of the President’s supposedly unreviewable authority to classify information. So, ironically, someone like Bolton may finally be in a position to test whether Navy v. Egan really extends to sanctioning the retroactive classification of information solely to expose someone to criminal liability.

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Originally Posted @ https://www.emptywheel.net/impeachment/page/2/