GAO’s Determination that Trump Broke the Law Raises the Stakes of Senate Exoneration

Since Mick Mulvaney confessed to being in violation of the Impoundment Control Act back on October 17, I’ve been waiting for that fact to take on the constitutional import that it should in the impeachment process. Finally, today, on the day the Senate starts Trump’s trial, it has done so.

That’s because the Government Accountability Office, a nonpartisan body that works for both the Democratic majority House and the Republican majority Senate, has deemed DOD’s withholding of defense support for Ukraine illegal under the Impoundment Control Act.

GAO’s findings are modest. It does not get into whether Trump’s actual purpose for withholding the funds — which evidence suggests involved extorting Ukraine to produce dirt on Joe Biden — is legal or not. It accepts that Trump had a policy purpose for delaying the funds, without getting into what that policy was. But even on those terms — even if it was done for Trump’s cover story purpose of combatting corruption — GAO finds that withholding the funds was illegal.

As it lays out, Trump cannot simply ignore Congress’ appropriations. If he wants to act contrary to appropriations, he either has to ask Congress to cancel the funds — a rescission — or delay it for one of a narrow set of reasons. Both actions require notice to Congress.

Not only did Trump’s Office of Management and Budget not provide full notice to Congress, but since the funds were ultimately spent, the delay could only be considered a deferral, and the purpose OMB stated in the explanation they did offer does not fall under the acceptable purposes of a deferral.

An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability.  See B‑329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold).  In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA.  See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also  S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).

The Constitution grants the President no unilateral authority to withhold funds from obligation.  See B‑135564, July 26, 1973.  Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA.  See 2 U.S.C. §§ 681–688.  The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”[4]  2 U.S.C. § 684.  The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”[5]  2 U.S.C. § 683.

In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal.  2 U.S.C. §§ 683–684.  These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA.  See 2 U.S.C. §§ 683–684; B‑237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).  The burden to justify a withholding of budget authority rests with the executive branch.

There is no assertion or other indication here that OMB intended to propose a rescission.  Not only did OMB not submit a special message with such a proposal, the footnotes in the apportionment schedules, by their very terms, established dates for the release of amounts withheld.  The only other authority, then, for withholding amounts would have been a deferral.

The ICA authorizes the deferral of budget authority in a limited range of circumstances:  to provide for contingencies; to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or as specifically provided by law.  2 U.S.C. § 684(b).  No officer or employee of the United States may defer budget authority for any other purpose.  Id. 

Here, OMB did not identify—in either the apportionment schedules themselves or in its response to us—any contingencies as recognized by the ICA, savings or efficiencies that would result from a withholding, or any law specifically authorizing the withholding.  Instead, the footnote in the apportionment schedules described the withholding as necessary “to determine the best use of such funds.”  See OMB Response, at 2; Attachment.  In its response to us, OMB described the withholding as necessary to ensure that the funds were not spent “in a manner that could conflict with the President’s foreign policy.”  OMB Response, at 9.

The ICA does not permit deferrals for policy reasons.  See B‑237297.3, Mar. 6, 1990; B-224882, Apr. 1, 1987.  OMB’s justification for the withholding falls squarely within the scope of an impermissible policy deferral.  Thus, the deferral of USAI funds was improper under the ICA.

Moreover, the footnotes that OMB used in lieu of notifying Congress that Trump was blowing off Congress weren’t proper, either, GAO found. That’s because DOD continued to do what it needed to do to appropriate the funds (something that the bureaucrats at DOD did in part to execute the will of the President, but partly to cover their own ass). The only reason the funds were withheld was OMB’s order, which amounts to a reportable impoundment.

OMB asserts that its actions are not subject to the ICA because they constitute a programmatic delay.  OMB Response, at 7, 9.  It argues that a “policy development process is a fundamental part of program implementation,” so its impoundment of funds for the sake of a policy process is programmatic.  Id., at 7.  OMB further argues that because reviews for compliance with statutory conditions and congressional mandates are considered programmatic, so too should be reviews undertaken to ensure compliance with presidential policy prerogatives.  Id., at 9.

OMB’s assertions have no basis in law.  We recognize that, even where the President does not transmit a special message pursuant to the procedures established by the ICA, it is possible that a delay in obligation may not constitute a reportable impoundment.  See B‑329092, Dec. 12, 2017; B‑222215, Mar. 28, 1986. However, programmatic delays occur when an agency is taking necessary steps to implement a program, but because of factors external to the program, funds temporarily go unobligated.  B‑329739, Dec. 19, 2018; B‑291241, Oct. 8, 2002; B‑241514.5, May 7, 1991.  This presumes, of course, that the agency is making reasonable efforts to obligate.  B‑241514.5, May 7, 1991.  Here, there was no external factor causing an unavoidable delay.  Rather, OMB on its own volition explicitly barred DOD from obligating amounts.

GAO notes that the communications it got from DOD and OMB were insufficient. It also notes that State gave it nothing, as it tried to figure out whether that delay, too, broke the law.

As I noted back in October, first Trump refused to tell Congress what was going on with the funds, even though members of both parties, together, and both houses, together, asked. But then Trump exacerbated the crime by refusing to explain all this after the fact. It’s not just that Trump is withholding documentation from the impeachment inquiry. It’s also withholding documentation Congress is entitled to under its appropriation function.

In spite of the fact that a core part of the Republican brand is a claim to care about whether the Executive Branch spends money in the way Congress tells it to, this will likely not make a difference in the Senate impeachment process. Trump has flouted the power of the purse that is normally fiercely guarded by both parties in Congress. But the Republicans will still — even with this nonpartisan proof that Trump has screwed them over — vote not to remove him from office.

Which will mean, in doing so, Republican Senators will sanction even more unconstitutional acts from this President.

Lev Parnas, Creator of Echo Chambers

Last night, Lev Parnas gave the first half of a very explosive interview to Rachel Maddow.

I’ll go back and dig into it in more detail later. But for now, I’d like to make one observation about what the texts from Parnas released over the last few days show (though a large volume, because they’re in Russian, will escape close crowdsourced analysis).

Over and over, we see Parnas feeding very well placed people links to (usually) frothy media stories, many of those stories based on false claims he is getting Ukrainians and others to tell. Parnas claims — a claim that is only partly true — that these stories are all about the Bidens, though he admits they are partly about 2016. As such, Parnas presents himself as creating, then magnifying, the stories that President Trump wants to tell. He has positioned himself to be a gatekeeper because he serves as translator for Rudy, who is mentally unstable and probably desperate for other reasons but also believes he’s pursuing stories that will help his ostensible client, Donald Trump, though Trump is not the one paying to have these stories told. But he’s also the translator for John Solomon. Parnas is the only one on the American side who can assess what kind of prices Rudy (and Victoria Toensing and Joe DiGenova) are paying to create these stories. Indeed, a key part of this economy involved removing the people — not just Marie Yovanovitch, but also Fiona Hill and Bill Taylor — who could warn about the costs being incurred along the way.

In short, for the last 18 months, Parnas has played a key part in creating the right wing echo chamber, one that — particularly because the addled Rudy is a trusted advisor — forms a key part of how Trump understands the world. One way Parnas did that was by recruiting Ukrainians who were, for very crass reasons, willing to tell Trump and the rest of the frothy right what they wanted to hear, even though it was assuredly not true.

Remarkably, we really don’t know why Parnas decided to play a key cog in the right wing echo chamber in the first place. He’s a grifter, but even with a recent cash infusion from Dmitro Firtash, he’s not getting rich. He was in a powerful position, the one sober person at Trump’s hotel bar, spinning up the drunk Trump sycophants. But that “power” got him indicted for the influence peddling that first landed him in this position. Before answering why he’s telling his story now, without immunity and while facing down still more charges, we’d want to understand that primary motivation, and we don’t know it yet.

Last night’s interview continued that grift, only he moved to spin an echo chamber for the left this time. He emphasized — and Maddow predictably responded — some of the key allegations Democrats most want to be true. Mike Pence is closely involved, Parnas revealed, and while nothing he revealed would amount to impeachable conduct, Democrats immediately latched onto the possibility it would be. Everyone was involved, Parnas confirmed, including Devin Nunes and Bill Barr. It was all about Biden, Parnas almost certainly lied.

In short, doing what he appears to be very good at, Parnas is telling us what we want to hear, whether true or not.

On key parts of his story, however, he got — with the help of MSNBC’s editors — notably more reserved or deceitful. We didn’t learn the full terms of his relationship with Firtash, even though Firtash is the guy paying for the defense strategy that includes telling us these stories. Parnas describes, “we were tasked” to spin these stories, leaving the subject of the tasking unknown. Parnas dubiously claims he’s sorry about targeting Marie Yovanovitch, even while he shows no remorse at similar shivs in service of the grift. Parnas claims to have been more concerned by the breakdown Robert Hyde had at Doral than he was about Hyde’s claims to have Yovanovitch under surveillance and possible contract.

Parnas is telling us what we want to hear. And we listen, even though we all recognize that the stories he spun for the frothy right were false, but those false stories were all it took to work up half the country. We also recognize, though Parnas didn’t lay this out and it’ll take days before people have an adequate understanding of what he promised in Russian, that he made commitments on Rudy’s and Trump’s behalf but without any way for them to verify what he was promising.

Perhaps he’s doing this to pressure Bill Barr, the one guy who can constrain what SDNY does with his prosecution, and likewise can authorize criminal targets against whom Parnas might be able to cooperate against. Perhaps he believes he’ll get immunity from Adam Schiff, though as a former prosecutor, it’s unlikely Schiff will make that happen. Perhaps Parnas believes Trump will panic and pardon him. Or perhaps the corrupt oligarchs and prosecutors in whose debt Parnas has put Rudy and Trump have decided that — since they didn’t get what they wanted out of the deal — it’s now worth their while to expose those debts.

But until we understand why Parnas is doing what he’s doing — why he inserted himself into the right wing echo chamber in the first place, and why he’s so insistent on telling us what we want to hear now — we would do well to exercise caution about the stories he’s telling.

Update: Made some minor rewrites for clarity.

Update: Fixed location of Hyde’s breakdown.

The Parnas Files Raise the Import of DOJ’s Failure to Connect-the-Dots on the Whistleblower Complaint

Last night, HPSCI released some of Lev Parnas’ files that were seized as part of the investigation into Rudy Giuliani and his grifters.

The most important document, for the legal impeachment case against Donald Trump, is a letter Rudy sent to Volodymyr Zelensky stating clearly that he was contacting the Ukrainian president as Trump’s personal lawyer, not a government lawyer.

Just to be precise, I represent him as a private citizen, not as President of the United States.

It makes it clear that — contrary to the Republican cover story — Rudy and Zelensky both knew they were negotiating a personal benefit for Trump, not a benefit to the US.

But the most important files showing Trump’s abuse of power are texts between Parnas and a thoroughly American grifter, Robert F. Hyde, who appears to have had people on the ground in Kyiv surveilling Marie Yovanovitch in the days before she was recalled. He not only appears to have known precisely where she was, but he seemed to suggest to Parnas that he could have her assassinated for a price. “Guess you can do anything in the Ukraine with money,” he quipped.

Viewed in isolation, these comments are (at least) a chilling indication of the lengths to which Trump supporters will go to push his conspiracies.

But viewed in light of Trump’s comment to Zelensky about Yovanovitch — “Well, she’s going to go through some things” — it suggests a direct tie between Trump and the more sordid things that Parnas was doing.

Which makes DOJ’s remarkable failure to connect the dots on the whistleblower complaint all the more damning.

As I have laid out, by August 15, top people at DOJ knew of the complaint and knew that Trump had invoked the Attorney General in his comments to Zelensky. Perhaps ten days later, DOJ got the full complaint from the whistleblower, discussing the call itself but also the larger context. Based on a claim that there was no first hand reporting in the complaint, DOJ evaluated just the MEMCON in their review of whether or not a crime was committed, not the complaint as a whole. (Not only was the claim that the whistleblower offered no first hand information false — he was in the loop on the July 18 call and July 23 and 26 meetings about withholding aid — but the complaint included concerns about withholding funding not mentioned on the call.) They quickly publicly declared that the call did not constitute a campaign finance violation, and then did not share the complaint with the FEC (which could have imposed civil penalties) and tried to prevent Congress from obtaining the complaint.

By reviewing the MEMCON instead of the full complaint, DOJ avoided doing what would be normal connect-the-dots database searches on all the names included in it, which — because the whistleblower included multiple references to and a link to this article, would have included searches on Parnas and Igor Fruman. As this table makes clear, if DOJ had done that basic connect-the-dots work they do when assessing tips, they would have found the investigation at SDNY — which Bill Barr had been briefed on when he was confirmed as AG and Jeffrey Rosen probably knew about as well.

And had DOJ tied the call to Zelensky — with its reference to potential violence targeting Yovanovitch — it would have immediately implicated Trump far more deeply in some really corrupt shit.

As if by magic, DOJ failed to do those searches, and therefore failed to obtain official notice that the President was personally involved with a grift that SDNY was close to indicting.

How Putin Got in Trump’s (and So, All of Our) Head

As of 8AM on December 22, this tweet has over 50,000 likes and almost 11,000 RTs.

The AP story he RTed selectively reported Vladimir Putin’s taunt in response to a Dmitry Simes’ question at his yearly epic press conference (posed well into the process, even after a possibly more interesting exchange about doping and the Olympics).

In context, Putin’s response is not that inflammatory. It uses domestic US politics as a way to pressure Trump to sign START-3. (I’ve italicized the Putin language that AP took out of context and provided their own translation of; also note: Simes was himself a subject of the Mueller investigation for the early advice he gave Jared Kushner on how to manage this relationship and is close to a number of key members of Congress.)

D. Simes:  Channel One, The Big Game.

D. Peskov : Please give a microphone.

D. Simes:  Mr. President, two days ago the US Congress passed bills on sanctions against Russia. Moreover, by such a majority that it would be very difficult for President Trump to maintain his veto.

And, as you probably know, the House of Representatives passed an impeachment act yesterday. This is the context in which he has to make decisions on foreign policy as a whole and more specifically, of course, in relation to Russia.

In this situation, what, do you think, do you and Russia have the opportunity to try to maintain or strengthen dialogue with the United States until the end of Trump’s presidency? What can you do for strategic stability, and more specifically, for the extension of the strategic offensive arms treaty START-3?

Vladimir Putin:  Regarding the extension of our dialogue until the end of Trump’s presidency, it’s as if you are already raising the question that it is ending. I’m just not sure about that. You also need to go through the Senate, where the Republicans, as far as I know, have the majority, and they are unlikely to want to remove the representative of their party from power for some, in my opinion, absolutely far-fetched reasons.

It’s just a continuation of the internal political struggle, and one party that lost the election, the Democratic Party, it is achieving results by other means, by other means, charging Trump with conspiracy with Russia, then it turns out that there was no conspiracy, this cannot lie in the basis of impeachment. Now they have come up with some kind of pressure on Ukraine. I don’t know what it is … But it’s more visible to your congressmen.

As for those decisions that are made in [respect] of Russia. They are accepted by people who practically do not bear responsibility for these decisions. These are not executive authorities, but representative ones, they must pass laws. They make such decisions regarding Russia.

Of course, this will affect the level of our interstate relations. We know the general approach, which is that the United States will work with us where it is interesting and profitable, and at the same time will restrain Russia with the help of solutions of this kind. Knowing this, we, too, will act in a mirror image, and that’s it. There is nothing good about it. These are absolutely unfriendly acts against Russia.

They want to help Ukraine maintain transit. I just told a colleague from Ukraine: we ourselves want to preserve transit, we are interested in this anyway and will do it. If you wanted to help, it would be better if they gave money. Why don’t they give money to Ukraine? Would give them the opportunity to subsidize.

Look, because they almost do not give money, they give only guarantees for possible loans, but this is not real money – there is no real support. And the IMF, at the same time as the United States, is demanding that all privileges for energy resources, including gas, be canceled. And now the population will again have a leap.

Other Westerners, the EU, are demanding that the round timber be exported and allowed to be exported to Europe. There will soon be nothing left of the Carpathians – bare rocks will be there if they take out the round timber. It seems like they support the current Ukrainian regime and leadership, but at the same time, in my opinion, they are doing some serious blows.

Now they demand that land be sold. For Ukrainians, the land has sacred significance, and I can understand it: these are the “golden” lands. Of course, the opposition immediately took advantage of this, now it begins to inflict domestic political blows on Zelensky.

They accuse us of something in relation to Ukraine, they allegedly want to help, but they really want to do something so that Ukraine replenishes its budget at the Russian expense. Give money yourself, help, give good loans at preferential rates for a long period. There is nothing.

Nevertheless, we are interested in developing and maintaining relations with the United States, and we will do this regardless of who is in the White House or who controls both houses of the US Congress.

Are there any prospects here? I think there is. You yourself mentioned one of the foundations on the basis of which we must build our relations – these are global security issues, including START-3. We have given our proposals, I have already said, and I want to repeat once again: until the end of the year we are ready to simply extend, just to take and extend the current START-3 agreement.

If tomorrow they send us by mail, or we are ready to sign and send to Washington, let the relevant leaders, including the President, put their signature there, if they are ready. But so far there is no answer to all our proposals. And if there is no START-3, then there will be nothing at all in the world that holds back the arms race. And this, in my opinion, is bad.

Along the way, though, Putin’s correct observation that Republicans will be loathe to replace their own president led AP to foreground his claimed opinion that the impeachment was like the Mueller investigation and the allegations are far-fetched.

In a world of rigorous journalism, such a report would note that the Ukraine allegations are in some ways the continuation of Trump’s efforts to undermine the Russian investigation and incorporate a hoax that Trump believes partly because Putin has convinced him to (claim to) believe.

But the AP didn’t include that. It instead included Putin’s comment with the spin he might prefer, and slapped it into a tweet that emphasized Putin’s predictive powers. And somehow that tweet attracted Trump’s attention (how it did so — after all, the AP is not Trump’s regular media diet — is one of the more interesting questions about this). And Trump tweeted it out, “A total Witch Hunt!,” like he would other tweets parroting precisely what he wants to hear.

Given Trump’s kneejerk narcissism, that he retweeted this Putin comment is not much different than him retweeting Rand Paul or Jim Jordan or Mark Meadows saying something similar. Putin is just one other person Trump has chosen to include in his echo chamber,  and he’s there for the same reason: because he says to Trump what Trump wants to hear.

Of course it is different, not just because Putin has a role in Trump’s crimes, which has made this tweet go viral in part due to outrage retweeting. A slew of stupid news coverage has followed.

But the tweet is also different because by elevating the tweet, Trump will allow Putin to claim to be correct when the Senate fails to remove Trump, not just on his analysis that Republicans won’t want to remove their own President, but also that the allegations are far-fetched, something many but not all Republicans are willing to perform belief of, but which few people who’ve read the facts actually do believe.

Along the way, Putin will co-opt those Republicans (like John Kennedy) willing to spew hoaxes about Ukraine out of partisan loyalty. Loyalty to Trump will appear to be validation of Putin, even on a question premised on the overwhelming bipartisan support for sanctions on Russia. And that, in turn, will be deemed, by Trump opponents, to demonstrate irrationality of his supporters.

It’s all very predictable and — pro Trump, anti Trump, and lazy journalist — we’re all playing our designated parts like trained monkeys. All of this reactive expression only serves to heighten partisanship on terms with real consequences for foreign policy. It doesn’t take genius by Putin to do this either (though he’s very very good at playing Trump and the western press). It just takes our own reactiveness triggered by social media.

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

I’m still working on my multi-post deep dive into the substance of the IG Report on the Carter Page FISA.

But for now, it’s worth pointing out a detail from it that debunks a key conspiracy that Rudy Giuliani is chasing as he tries to hasten his client’s impeachment.

The Report describes that the investigation into Paul Manafort that resulted in conviction in EDVA and a guilty plea in DC started in January 2016, before he joined the Trump campaign.

In addition to Ohr’s interactions with the FBI and Steele in connection with the Crossfire Hurricane investigation, Ohr also participated in discussions about a separate money laundering investigation of Paul Manafort that was then being led by prosecutors from the Money Laundering and Asset Recovery Section (MLARS), which is located in the Criminal Division at the Department’s headquarters. That criminal investigation was opened by the FBI’s Criminal Investigation Division in January 2016, approximately 2 months before Manafort joined the Trump campaign as an advisor, and concerned allegations that Manafort had engaged in money laundering and tax evasion while acting as a political consultant to members of the Ukrainian government and Ukrainian politicians.

As expressed by propagandists like John Solomon, the investigation into Manafort’s corruption was actually “resurrected” later that year, in response to the publication of the Black Ledger (which he falsely said was a suspected fake).

The second document, known as the “black cash ledger,” remarkably has escaped the same scrutiny, even though its emergence in Ukraine in the summer of 2016 forced Paul Manafort to resign as Trump’s campaign chairman and eventually face U.S. indictment.

In search warrant affidavits, the FBI portrayed the ledger as one reason it resurrected a criminal case against Manafort that was dropped in 2014 and needed search warrants in 2017 for bank records to prove he worked for the Russian-backed Party of Regions in Ukraine.

Based on this false claim, Solomon and Rudy have claimed that Serhiy Leshchenko’s publication of the ledger (but not the entries pertaining to Manafort) was part of a Ukrainian plot to defeat Trump by falsely (they suggest) portraying Manafort as corrupt.

But the Black Ledger is not what “resurrected” the investigation into Manafort. It had started long before that, even before Manafort knew (two months before it was public) that he was included in the Black Ledger. Indeed, Manafort was under investigation when Trump hired him.

Note, too, that contrary to Trump’s wails, there would be no reason to give him a defensive briefing about Manafort, as this was not a counterintelligence investigation. Indeed, the Manafort investigation remained focused on his corruption well into 2017. If you hire a spy, you might hope that the FBI would warn you. But if you hire an epically corrupt influence peddler, you own the consequences of that.

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID

Explain It To Me: What Does Impeachment Mean Now?

[NB: check the byline, thanks! /~Rayne]

Trump was impeached Tuesday evening under two Articles of Impeachment — one for abuse of power, and another for obstruction of Congress.

Got it. This is pretty straightforward.

The House has “the sole Power of Impeachment” according to Article I, Section 2, subsection 5 of the Constitution.

Understood, no problem. That’s what the House exercised under Nancy Pelosi’s leadership.

We’re now to Article I, Section 3, subsection 6 after last night:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Nothing between Article I, Section 2, subsection 5 and Article I, Section 3, subsection 6 says that the House MUST or SHALL forward any impeachment to the Senate for a trial.

I think we’re all of us watching to see how this shakes out. Since Senate Majority Leader Mitch “Sits on 400 Bills” McConnell said last week he is coordinating the handling of the senate trial with the White House — a gross conflict of interest undermining Congress’s separate powers — and senators like Majority Whip Lindsey Graham have already decided to vote to acquit Trump, it doesn’t make much sense to forward the impeachment if already moot.

It makes sense to hang on to the impeachment articles until there is clarification about the Senate acting in good faith, “on Oath or Affirmation” as Article I, Section 3, subsection 6 says.

~ ~ ~

Now we arrive at my first question: is Trump still qualified to run for re-election?

See Article I, Section 3, subsection 7:

Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Emphasis mine. Does “judgment” refer solely to conviction by the Senate after a trial once the impeachment has been forwarded to them? Or is the “judgment” when the impeachment has been pronounced by the House since the House has the sole power of impeachment? The Constitution says “Indictment, Trial, Judgment and Punishment” in subsection 7 but the wording, “Judgment in Cases of impeachment” may not mean “Judgment in Cases of conviction” — the latter would clearly limit the outcome of the House’s impeachment to a pre-indictment or indictment determination before the Senate’s trial.

This subsection occurs under Section 3 which defines the Senate’s composition and its most fundamental powers — specifically, trying the subject after impeachment — so we might assume this is the Senate’s “judgment.” But the Constitution’s wording is muddy.

We don’t have the benefit of precedent to rely upon for guidance. Andrew Johnson, impeached by the House in 1868 but not removed by the Senate, did not win his party’s nomination that year and left office in 1869 having never been elected to the presidency. In 1998 Bill Clinton was impeached by the House during his second term, though not removed by the Senate; he was ineligible to run for re-election.

~ ~ ~

My second question relates to a point Robert Reich made about a pardon for the impeached president:

… Regardless of whether a sitting president can be indicted and convicted on such criminal charges, Trump will become liable to them at some point. But could he be pardoned, as Gerald Ford pardoned Richard Nixon 45 years ago?

Article II, section 2 of the Constitution gives a president the power to pardon anyone who has been convicted of offenses against the United States, with one exception: “In Cases of Impeachment.”

If Trump is impeached by the House, he can never be pardoned for these crimes. He cannot pardon himself (it’s dubious that a president has this self-pardoning power in any event), and he cannot be pardoned by a future president.

Even if a subsequent president wanted to pardon Trump in the interest of, say, domestic tranquility, she could not. …

Apart from the specific reference to the House’s sole power to impeach, is this why the two Articles of Impeachment do not use the words “bribery” or “extortion” to describe what Trump did with regard to Ukraine — to limit the described crimes against the U.S. for which Trump could be pardoned by an interim successor or the next elected president?

Or if the crime(s) have not been spelled out in an impeachment, identified as a violation of specific U.S. law, can Trump still be pardoned for them, in essence given carte blanche after the fact?

Is this why the Articles were scoped so narrowly, to prevent an over-broad pardon?

So often it’s said the president’s pardon power is absolute, but impeachment appears to place the single limit. Where and when is that limit placed?

~ ~ ~

These questions have been chewing at me since Pelosi’s second gavel upon completion of the vote on the second article. I imagine the Republican Party will do as it’s done since 2015: roll over and let Trump run an obnoxious and corrupt re-election campaign, looking every bit as repulsive as he did Tuesday evening during his Battle Creek rally.

It’s also been niggling at me that twice in the text of the Articles of Impeachment it was written, “the President ‘shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors’.”

Shall, not may, be removed, on conviction for Bribery.

I noted also the use of the word “betrayed” in the Articles’ text:

… He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections. …

It’s not treason as we’ve discussed in comments, but a traitor shouldn’t get a pass for selling out his country’s national security interests for personal gain.

You can bet McConnell and Graham would already have ensured the conviction and removal of a Democratic president who likewise betrayed the nation. If only they moved with the same alacrity on those 400 bills sitting on McConnell’s desk.

Will Hurd

The Entire Republican Party Owns Trump’s Crimes Going Forward

Both articles of impeachment just passed Congress, with the only non-partisan votes coming from Justin Amash (voting yes on both), Tulsi Gabard (voting present on both), Jeff Van Drew and Collin Peterson (no on both) and Jared Golden (who split his vote). In spite of a pretty damning speech about Republican lack of courage from Steny Hoyer, no Republican had the courage to support the Constitution.

President Trump will be shown to have committed more crimes, even more grievous ones than withholding duly appropriate aid to cheat in an election. It probably won’t be that long from now. And the entire Republican party will own those crimes.

The Republican party favors cheating over the national security of the United States.

Amy Berman Jackson Disputes Claims of “Exculpatory” Information on Russia and Ukraine

For all its import showing the problems with Carter Page’s FISA application, I’ll eventually show the DOJ IG Report  commits some of the same errors of inclusion and exclusion of important information that it accuses FBI of. Most importantly, it treats as exculpatory comments that George Papadopoulos made to Stephan Halper and another informant in fall 2016 when the FBI agents involved rightly (the record now confirms) suspected Papadopoulos’ answer was a cover story. Notably, Rosemary Collyer did not include the Papadopoulos comments in her letter to the government yesterday, suggesting she doesn’t think exclusion of those comments to be noteworthy.

Given Michael Horowitz’s focus on FBI’s withholding of exculpatory information (which they absolutely did, on a number of occasions), I find the focus of Amy Berman Jackson’s comments at Rick Gates’ sentencing hearing yesterday notable. (Thanks to CNN for culling these comments from the transcript.)

Some of the comments — including some focusing on Ukraine — seemed targeted at Republicans debating impeachment. For example, she emphasized that Gates’ information was not hearsay, and it implicated individuals associated with Ukraine and Russia.

Mr. Gates provided information — not hearsay, but information — based on his personal knowledge, meetings he attended, conversations in which he was a participant and information that was verified with contemporaneous records of numerous, undeniable contacts and communications between individuals associated with the presidential campaign, primarily but not only Manafort, and individuals associated with Russia and Ukraine.

ABJ likely recognizes, as I have emphasized, that Paul Manafort’s August 2, 2016 meeting with Konstantin Kilimnik and its aftermath — including his booking $2.4 million from pro-Russian Ukrainian oligarchs eight days later — represents a clearcut case of Ukraine interfering in the 2016 election.

She also takes a shot at those claiming there was no basis for the investigation into Russia, and suggests that obstruction successfully prevented prosecutors from charging the underlying coordination.

Gates’ debriefings, his multiple incriminatory bits of evidence on matters of grave and international importance are a reminder that there was an ample basis for the decision makers at the highest level of the United States Department of Justice — the United States Department of Justice of this administration — to authorize and pursue a law enforcement investigation into whether there was any coordination between the campaign and the known foreign interference in the election, as well as into whether there had been any attempt to obstruct that investigation, and to leave no stone unturned, no matter what the prosecutors determined they had evidence to prove at the end of that investigation.

And she emphasizes that pursuing this investigation was critical for election security.

Gates’ information alone warranted, indeed demanded, further investigation from the standpoint of our national security, the integrity of our elections and the enforcement of our criminal laws.

But there’s a line in here that seems directed at the discussion surrounding the IG Report.

One cannot possibly maintain that this was all exculpatory information. It included firsthand information about confidential campaign polling data being transmitted at the direction of the head of the campaign to one of those individuals to be shared with Russian and Ukrainian oligarchs.

The investigation into whether Trump’s campaign coordinated with Russia in its election interference started 3 days before Roger Stone spoke to Trump about how to optimize the WikiLeaks releases. It started 5 days before Trump’s campaign manager met with Konstantin Kilimnik to explain how he planned to win the investigation, discussed carving up Ukraine to Russia’s liking (an effort Manafort pursued for over a year afterwards), and how to get paid by his Ukrainian and Russian paymasters. It started 11 days before Manafort booked $2.4 million in revenues — to be received in November — from his Ukrainian paymasters.

Again, ABJ has seen more of the underlying evidence from this investigation than anyone. And she sure seems to think that Bill Barr, Donald Trump, and Michael Horowitz are dismissing the seriousness of this investigation.

Impeachment: House of Representatives’ Debate and Vote Thread [UPDATE-4]

This post and thread are dedicated to today’s scheduled House of Representatives’ activities related to impeachment of Donald J. Trump, including the planned six hours of debate and the subsequent vote.

Live stream the House’s impeachment activities at these links:

C-SPAN: https://www.c-span.org/video/?467441-1/us-house-debates-articles-impeachment

C-SPAN’s YouTube feed: https://www.youtube.com/watch?v=fefMKNOCZ3Y

USAToday’s YouTube feed: https://www.youtube.com/watch?v=yzl9hbDoV1k

House’s feed (not labeled as impeachment-related activity): https://live.house.gov/

We can expect many tactics to filibuster and delay the debate — we’re already seeing GOP resolutions submitted (and tabled) to this end.

Last night’s #NotAboveTheLaw rallies across the country demonstrate the level of support for today’s historic action. Americans don’t stand in the dark, cold, rain, and snow if they aren’t seriously committed to protecting their democracy. They are rallying again this morning ahead of the debate and votes.

You can do your bit to support our democracy even if you can’t attend a rally this morning. Call your representative and tell them you support a vote for impeachment.

You can also push back at Senate Majority Leader Mitch McConnell’s efforts to deter a Senate trial by calling your senators and insisting they do not join McConnell’s effort to accumulate 51 votes to dismiss a trial. Let the people hear witnesses under oath before the Senate, including Trump in his own defense.

He’s going to need the opportunity after yesterday’s crackpot six-page error-riddled and lie-filled rant at House Speaker Pelosi.

Congressional switchboard: (202) 224-3121 or use Resistbot.

UPDATE-1 — 12:10 p.m. ET —

The House Rules Committee has been debating the rules of the impeachment proceeding this morning, vote on rules now complete. Along party lines, of course.

If you are looking for additional information regarding the House investigation leading up to impeachment and today’s impeachment itself, check these sources:

C-SPAN’s impeachment dedicated site: https://www.c-span.org/impeachment/

NBC’s live updates page: https://www.nbcnews.com/Trump-impeachment-inquiry

CNN doesn’t appear to have an impeachment page but they have one on Trump: https://www.cnn.com/specials/politics/president-donald-trump-45

USAToday’s impeachment page: https://www.usatoday.com/news/trump-impeachment-inquiry/

Twitter’s impeachment event: https://twitter.com/i/events/1207033032110039040

House clerk just read the revised rules and articles of impeachment; Speaker Pelosi is now up and offering opening remarks to launch the six hours of debate.

Let’s do this, keep our republic.

UPDATE-2 — 12:30 p.m. ET —

Rep. Doug Collins has offered the minority remarks which I freely admit to muting because it’s the same bullshit whining offered too loud.

For quieter coverage, here are live Twitter threads of the impeachment debate:

Marcy’s live thread: https://twitter.com/emptywheel/status/1207347805368541189

Brandi Buchman, Courthouse News: https://twitter.com/BBuchman_CNS/status/1207256948908929025

Jennifer Taub’s thread: https://twitter.com/jentaub/status/1207303012651327489

UPDATE-3 — 8:10 p.m. ET —

The House is now voting on the first article of impeachment for abuse of power. Each member will cast their vote electronically from within the House within a 15-minute window.

Keep our republic, congresspersons.

8:14 p.m. ET — already at 152 Democrats and 1 Independent voting Yea.

8:15 p.m. ET — 163 Democrats, 1 Independent voting Yea.

8:20 p.m. ET — 198 Democrats, 1 Independent voting Yea. 2 Democrats voting Nay (likely Van Drew and Peterson)

8:22 p.m. ET — 210 Democrats, 1 Independent voting Yea. 2 Democrats voting Nay (likely Van Drew and Peterson)

8:24 p.m. ET — 215 Democrats, 1 Independent voting Yea. We have impeachment.

8:34 p.m. ET —

Democrats voting Nay:

Jeff Van Drew, NJ-2

Collin Peterson, MN-7

Democrats voting Present:

Tulsi Gabbard, HI-2

UPDATE-4 — 8:39 p.m. ET —

House now voting on second article of impeachment for obstruction of Congress.

8:39 p.m. ET — 198 Democrats, 1 Independent voting Yea

8:42 p.m. ET — 214 Democrats, 1 Independent voting Yea; 3 Democrats voting Nay, 1 Democrat voting Present

8:43 p.m. ET — 217 Democrats, 1 Independent voting Yea; 3 Democrats voting Nay, 1 Democrat voting Present. We have a second count of impeachment.

8:50-ish p.m. ET —

(I confess I forgot to check the clock for the time when Pelosi hit the gavel.)

Democrats voting Nay:

Jeff Van Drew, NJ-2

Collin Peterson, MN-7

Jared Golden, ME-2

Democrats voting Present:

Tulsi Gabbard, HI-2

Analysis of Democratic defections:

Van Drew has said he is leaving the Democratic Party and becoming a Republican. Why he simply didn’t retire I don’t know because his chances of winning aren’t good in a blue wave.

Collin Peterson represents a very rural and overwhelmingly white portion of western Minnesota and is a pro-life Dem.

Tulsi Gabbard. This one is self-explanatory.

Jared Golden had indicated he was going to split his votes, saying he didn’t think the Dems had proven a threshold had been met for “high crimes and misdemeanors” with the second article. The second article seems so clear — witnesses and documents were subpoenaed as part of an impeachment inquiry, and Trump refused to allow compliance with the subpoenas — that Golden has stretched beyond rationality his effort to “work with the president.”

Golden had said, “…while the president’s resistance toward our investigative efforts has been frustrating, it has not yet, in my view, reached the threshold of ‘high crime or misdemeanor’ that the Constitution demands. For that reason, I will vote against Article II of the House resolution regarding obstruction of Congress.” If this were a criminal investigation and a target refused to comply with a subpoena, they’d be facing a charge of obstruction. Golden simply chose to split the wrong baby at the wrong time.

And I hope Stephen King, he of the myriad horror novels, gets a more progressive Democratic candidate to primary and win Golden’s seat.

Updates during the course of House activities will appear at the bottom of this post.

What Real Voters Think about Impeachment at Grand Rapids’ Brewery Vivant

Yesterday, Meet the Press did what it billed as a “focus group,” in one of five counties it predicts will decide the 2020 election (the full clip starts at 31:00). That county is Kent County, where I live. As a slew of outlets (including CJR) and individuals have noted, the sample of voters was irresponsibly unrepresentative of voters in this county. Yes, the county as a whole is very white, but the white Republicans included in the panel are far more affluent than the norm in the county (which has a median household income of $57,000).

Worse still, Meet the Press staged the “focus group” in my neighborhood brewpub, Brewery Vivant (though, predictably, none of the panelists were enjoying its superb beer), which is one of my local haunts.

What pissed me off the most is that Chuck Todd mispronounced the name of the brewery, “Vie-vant,” rather than “Vee-vant,” as if Todd has been stuck inside the Beltway for so long he doesn’t know what real life is like anymore.

And so I took matters into my own hands. With state political reporter Nick Manes and video from Carl Morrison, I decided to interview six totally random people at Brewery Vivant. To be sure, this panel is only somewhat more representative than NBC’s. The neighborhood is a liberal hotspot, even in the city as a whole, so all but one of the people we spoke with voted for Hillary in 2016. And while the people we interviewed weren’t as rich as the partner of the city’s largest law firm interviewed by Meet the Press, the neighborhood is still more affluent than the city or county. The neighborhood is predominantly white (though gets more diverse quickly just two blocks south). So these interviews aren’t meant to capture what swing voters think about impeachment or what a real cross-sample think, just what real people who could normally be found at Brewery Vivant think about it.

I’m going to post the six interviews without commentary, as I think all six offer thoughtful comment.

Chris

Nate

Jessica

Margaret

Kelly

Mark

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