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Nunes Memo v Schiff Memo: Neither Were Entirely Right

As I noted, I spent much of the last month wading through the DOJ IG Report on Carter Page. Back when the IG Report came out, a bunch of people — largely Devin Nunes flunkies — declared, incorrectly and apparently without close review, that the IG Report shows that Devin Nunes was right and Adam Schiff was wrong in their memos from 2018.

The reality is that both were talking past each other, with Nunes trying to make the Steele dossier stand in for and discredit the entire investigation, and Schiff trying to point out that the Steele dossier did not predicate the entire Russia investigation. Nunes made dishonest claims about the Ohrs and Comey’s briefing of the Steele dossier to Trump. Schiff wrongly defended the FBI’s treatment of the September 23, 2016 Michael Isikoff story and overstated the known reliability of the dossier at the time of the memo, to which additional details were added by the IG Report.

Schiff overstates both the predicted and actual efficacy of the FISA collection, which is something it’d be nice to see both parties return to. Though it has long been evident that the FBI and the IC generally often continues surveillance (and surveillance programs) past their point of usefulness, the Intelligence Committees do a piss poor job of challenging such collection.

Before I compare the two, though, consider that both memos came before almost a year of parallel investigations (one conducted by House Republicans, another conducted by the DOJ IG) into the process. Even Nunes was not aware when he wrote his memo of some of the problems identified in the IG Report. I say that with great confidence, not least because I spoke with a Republican who had read the FISA application closely months after the Nunes memo was written who told me there was so much else in Carter Page’s FISA application that approval of the application was not a close call even with concerns about the dossier; the person changed his opinion after that time. In other words, when both parties released a memo about the Carter Page application in early 2018, neither side knew of some of the problems revealed in the IG Report. That’s actually evident from the things Nunes does not complain about in his memo (though he may remain silent about Page’s past relationship with CIA for classification reasons), and it means some of Schiff’s assurances about the dossier have been proven inaccurate since.

This post will conduct a paragraph-by-paragraph assessment of the letters that uses the IG Report, with one key exception, as arbiter of accuracy. The exception is DOJ IG’s conclusions on (but not facts presented about) Bruce Ohr, as that is one area where DOJ IG can be shown to misrepresent the record.

Nunes Memo

¶1-4: The introductory paragraphs of the Nunes memo lays out when FBI obtained FISA orders on Page and who approved them. These details are true, though uncontroversial. From there, Nunes adopts an outline of allegations that are either less sound or inaccurate:

¶5 (marked as 1):

“The dossier was essential:”

The IG Report said the FBI lawyer said ” the Steele reporting in September ‘pushed it over’ the line in terms of establishing probable cause,” and generally the IG Report shows that FBI would not have initiated the FISA process without the dossier, though by the time the application was approved FBI had collected more damning information on Page.

The IG Report describes five things substantiated probable cause against Page:

  • Russia’s effort to influence the election
  • The Papadopoulos report
  • Page’s past history with Russia, including his Gazprom dealings, his serial recruitment by Russian intelligence officers, his comments about what he had told the FBI
  • The Steele allegations
  • His enthusiasm about being offered a “blank check” to start a pro-Russian think tank on his July trip to Russia

“Steele was a longtime FBI source:” Steele had been known to Bruce Ohr and Andrew McCabe via mutual interest in combatting organized crime since the 2000s. Ohr first introduced Steele to an FBI handler in 2010. He was formally opened as a CHS in 2013, though the two sides disagreed about the terms of that relationship.

Steele was paid over $160K, to obtain derogatory research: True, but not part of the IG Report. The Nunes memo doesn’t note that Steele was paid $95,000 by the FBI, none of it for dossier-related work.

¶ 6, 7 (marked as 1a and 1b): “Neither the initial applications nor the renewals disclose the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials:” The footnote disclosing this did not name any Democrat, but it wouldn’t have in any case. It did say that,

[Steele], who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to [Steele] that a U.S.-based law firm had hired the identified U.S. person to conduct research regarding Candidate #l’s ties to Russia (the identified U.S. person and [Steele] have a long-standing business relationship). The identified U.S. person hired [Steele] to conduct this research. The identified U.S. person never advised [Steele] as to the motivation behind the research into Candidate #l’s ties to Russia. The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate # 1 ‘s campaign.

The political origins of the dossier were suspected by senior FBI and DOJ officials before the first application. After that, they had far more specific knowledge of it, thanks largely to Bruce Ohr. The FBI did not disclose its enhanced understanding of the nature of the project in reauthorizations, though some of the people involved believed the initial footnote remained adequate.

“The FBI had separately authorized payment to Steele for the same information.” It wasn’t the same information. FBI authorized Steele to be paid if he completed taskings focused on the subjects of the investigation, but they offered that in the (false) expectation he’d offer them information exclusively. He was not, ultimately, paid for this.

¶8 (marked as 2): “The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff … This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself.

This entirely misstates the point of the Yahoo inclusion, which was to include Page’s denials.

Evans told the OIG that 01 included the reference to the September 23 Yahoo News article in the FISA application solely because it was favorable to Carter Page and not as corroboration for the Steele reporting in the application. According to Evans, the application’s treatment of the article was favorable to Page in three respects: (1) the application described statements in the article that the campaign distanced itself from Page and minimized his role as an advisor; (2) the application stated that Page denied the allegations in the news article in a letter to the Director; and (3) as described below, the application made clear that the people who financed Steele’s reporting were likely the same source for the information in the article.

While it is true that the FISA application did not attribute the quote to Steele (not even after FBI learned he had been the source from Bruce Ohr), the application did attribute it to Glenn Simpson.

Given that the information contained in the September 23rd News Article generally matches the information about Page that [Steele] discovered during his/her research, the FBI assesses that [Steele’s] business associate or the law firm that hired the business associate likely provided this information to the press.

¶9, 10 (marked as 2a and 2b): “Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations–an unauthorized disclosure to the media of his relationship with the FBI. … Steele should have been terminated for his previous undisclosed contacts with Yahoo.”

This is correct, insofar as Steele was closed for cause because he disclosed that he had shared information with the FBI, which amounted to being a control problem.

Strzok told the OIG that the FBI closed Steele “because he was a control problem. We did not close him because we thought he was [a] fabricator.” According to Strzok, Steele’s decisions to discuss his reporting with the media and to disclose his relationship with the FBI were “horrible and it hurt what we were doing, and no question, he shouldn’t have done it.”

But there are more serious violations, such as breaking the law.

However, a CHS must be closed for cause “if t here is grievous action by the CHS or a discovery of previously unknown facts or circumstances that make the individual unsuitable for use as a CHS.”97 Reasons that justify closing a CHS for cause include commission of unauthorized illegal activity, unwillingness to follow instructions, unreliability, or serious control problems. 98

Also, Steele’s decision to share the information, while utterly stupid from a HUMINT standpoint, was not actually a violation of any warning the FBI had given him, since he disclosed information he had collected for someone else.

Steele’s handling agent said that Steele should have been closed for cause because of the attention he was attracting for himself, but he recognized that Steele was not leaking information he had collected for the FBI (and the IG Report didn’t find any orders that he not speak to the press, either).

Handling Agent 1 told us that he understood why Steele would believe in September 2016 that he did not have an obligation to discuss his press contacts with him given that: (1) Steele’s work resulted from a private client engagement; and (2) Handling Agent 1 told Steele on July 5 that he was not collecting his election reporting on behalf of the FBI. However, Handling Agent 1 ‘s view was that while it was obvious that Fusion GPS would want to publicize Steele’s election information, it was not apparent that Steele would be conducting press briefings and otherwise interjecting himself into the media spotlight. Handling Agent 1 told us that he would have recommended that Steele be closed in September 2016 if he had known about the attention that Steele was attracting to himself. According to Handling Agent 1, Steele should have had the foresight to recognize this fact and the professionalism to afford Handling Agent 1 an opportunity to assess the situation. However, we are unaware of any FBI admonishments that Steele violated by speaking to third parties, including the press, about work that he had done solely for his firm’s clients and where he made no mention of his relationship with the FBI.

[snip]

According to Handling Agent 1, while Steele appeared to follow the directions of Fusion GPS, he did not treat his other client – the FBI – fairly. According to Handling Agent 1, if Steele “had been straight with the FBI,” he would not have been closed as a CHS.

¶11 (marked as 3): Before and after Steele was terminated as a source, he maintained contact with DOJ via … Bruce Ohr.

This is true, but it was part of a 10 year relationship based on sharing information about organized crime, and this information included non-dossier related information on Trump (focused on Oleg Deripaska’s double game offers to offer evidence against Paul Manafort) and other Russian (including doping) and non-Russian matters.

The IG Report makes the same kinds of errors in its portrayal of Ohr as the FISA Application does about Page, effectively arguing Ohr should be disciplined for the kind of information sharing DOJ and FBI have insisted they need to encourage since 9/11.

Ohr said, “Steele said he ‘was desperate.'”

This is true, though the IG Report shows (but then misrepresents) that Ohr specifically said this was an ideological desperation, not a political one: “but was providing reports for ideological reasons, specifically that “Russia [was] bad;”

¶12 (marked as 3a): “During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump … the Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.”

This is dishonest. Nellie Ohr’s last day working as a contractor for Fusion was September 24, 2016, so she was no longer employed by Fusion at the time of the first Page application or at the time when Ohr was helping FBI vet the dossier. The IG Report does not say their relationship should have been disclosed to the FISC, nor should it have been, as Nellie Ohr’s research was a separate stream from Steele’s.

¶13 (marked as 4):

“corroboration of the Steele dossier was in its ‘infancy’ at the time of the initial Page application.”

This is true, but that is not unusual in the FISA context.

Evans and other witnesses told us that the fact that the source information in the FISA application had not yet been corroborated was not unusual in the FISA context

DOJ assessed the reliability of this information, for the first application, by assessing Steele’s reliability and including information on his subsources. His past as an MI6 officer gave him more credibility than other sources might have had. All the applications misstated what Steele’s handling agent had said about the degree to which his past reporting had been corroborated.

“a source validation report … assessed Steele’s reporting as only minimally corroborated.”

The source validation that found Steele’s reporting to be minimally corroborated was done in March 2017, after the first two FISA applications and the Trump briefing.

“Yet in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steel dossier, even though it was–according to his June 2017 testimony–‘salacious and unverified.'”

This is an utterly dishonest attack. As noted, the validation review referred to here took place two months after Comey briefed Trump on the dossier. And Comey briefed Trump on it largely because it was salacious, out of desire to warn Trump about what was out there.

“McCabe testified … that no surveillance warrant would have been sought from FISC without the Steele dossier.”

McCabe said something different to the IG when asked about this quote and this discrepancy remains unresolved.

McCabe told us that he did not recall his exact testimony, but that his view was that the FBI would have “absolutely” sought FISA authority on Carter Page, even without the Steele reporting, based upon Page’s historical interactions with known Russian intelligence officers and the fact that Page told known Russian intelligence officers about the FBI’s knowledge of those interactions. However, McCabe also told us that he was not privy to the discussions that took place between attorneys in FBI OGC and Case Agent 1 on the sufficiency of the evidence to establish probable cause before the Crossfire Hurricane team received Steele’s election reports. McCabe said he could not speculate as to whether the FBI would have been successful in obtaining FISA authority from the FISC without the inclusion of the Steele reporting.

Schiff Memo

¶1-4: Introductory matter, including an assertion that ODJ would have been remiss if they had not sought a FISA warrant. The IG Report showed that while there was no question about investigating Page’s ties to Russia, there was some question about the efficacy of the FISA application.

According to Evans, he raised on multiple occasions with the FBI, including with Strzok, Lisa Page, and later McCabe, whether seeking FISA authority targeting Carter Page was a good idea, even if the legal standard was met. He explained that he did not see a compelling “upside” to the FISA because Carter Page knew he was under FBI investigation (according to news reports) and was therefore not likely to say anything incriminating over the telephone or in email. On the other hand, Evans saw significant “downside” because the target of the FISA was politically sensitive and the Department would be criticized later if this FISA was ever disclosed publicly.

¶5: “Steele’s raw intelligence reporting did not inform the FBI’s decision to initiate its counterintelligence investigation in late July 2016. In fact, the FBI’s closely held investigative team only received Steele’s reporting in mid-September.”

This is true. The FBI opened the investigation on July 31 based off the Australian tip, and the Crossfire Hurricane team only got the Steele dossier information on September 19.

¶6-7:

“Multi-pronged rational for surveilling Page” There were five things the first Page application used to establish probable cause, as noted above.

“no longer with the Trump campaign” True.

“narrow use of information from Steele’s sources about Page’s specific activities … did not otherwise rely on Steele’s reporting, including any ‘salacious’ allegations about Trump” This is a bit cynical, because while the FBI did not use all the reports they had gotten from Steele (including the pee tape allegation), the Page application used the specific references to Page plus more general allegations about cooperation between Russia and Trump.

Specifically, the following aspects of Steele’s Reports 80, 94, 95, and 102 were used to support the application:

  • Compromising information about Hillary Clinton had been compiled for many years, was controlled by the Kremlin, and the Kremlin had been feeding information to the Trump campaign for an extended period of time (Report 80);
  • During his July 2016 trip to Moscow, Carter Page attended a secret meeting with Igor Sechin, Chairman of Rosneft and close associate of Putin, to discuss future cooperation and the lifting of Ukraine-related sanctions against Russia; and a secret meeting with Igor Divyekin, another highly placed Russian official, to discuss sharing compromising information about Clinton with the Trump campaign (Report 94);
  • Page was an intermediary between Russia and the Trump campaign’s then manager (Manafort) in a “well-developed conspiracy” of cooperation, which led, with at least Page’s knowledge and agreement, to Russia’s disclosure of hacked DNC emails to Wikileaks in exchange for the Trump campaign’s agreement to sideline Russian intervention in Ukraine as a campaign issue (Report 95); 267 and
  • Russia released the DNC emails to Wikileaks in an attempt to swing voters to Trump, an objective conceived and promoted by Carter Page and others (Report 102).

“interaction with Russian officials during the 2016 campaign … FBI interviewed Page in March 2016.” It is both true that Page’s actual interactions with Russian officials — including the offer of an “open checkbook” to open a pro-Russian think tank during his July 2016 trip — and his comments to the FBI in March 2016 were part of the case for probable cause.

“DOJ also disclosed” It is true DOJ disclosed Steele’s prior relationship and the details of his termination as a source — though at first they incorrectly only said he had been suspended — but they did not supplement the application with details of the Fusion project as they became known after the first application.

¶8-10: Repetition of the opening blather.

¶11-13: The investigation was started based off Australia’s tip about Papadopoulos and by the time the Crossfire Hurricane team received dossier information on September 19, they had already opened investigations against 4 Trump people, Page, Papadopoulos, Flynn, and Manafort [the other three names of which are redacted]. That’s true. Here’s what the government told FISC about the Papadopoulos tip:

In or about March 2016, George Papadopoulos [footnote omitted] and Carter Page (the target of this application) were publicly identified by Candidate #1 as part of his/her foreign policy team. Based on reporting from a friendly foreign government, which has provided reliable information in the past … the FBI believes that the Russian Government’s efforts are being coordinated with Page and perhaps other individuals associated with Candidate #l’s campaign. In or about July 2016, the above-referenced friendly foreign government provided information to a senior official within the U.S. [government] regarding efforts made by the Russian Government to influence the 2016 U.S. Presidential election. Specifically, according to this information, during a meeting in or about April 2016 between officials of the friendly foreign government and George Papadopoulos … Papadopoulos suggested that Candidate #l’s campaign had received some kind of suggestion from Russia that Russia could assist with the anonymous release of information during the campaign that would be damaging to another candidate for U.S. President (Candidate #2). It was unclear whether Papadopoulos or the Russians were referring to material acquired publicly or through other means. It was also unclear from this reporting how Candidate #l’s campaign reacted to the alleged Russian offer. Nevertheless, as discussed below, the FBI believes that election influence efforts are being coordinated between the RIS and Page, and possibly others.

Note the Schiff memo supplements what the government told FISC and what FBI knew at the time with information from Papadopoulos’ plea deal, though by October 2016, the FBI had come to learn outlines of Papadopoulos’ interactions with Mifsud via an informant.

¶14: Details about the Page applications. As corrected these claims are true. The Schiff memo doesn’t list the judges, but they are:

  • September application: Rosemary Collyer, W appointee
  • January application: Michael Mosman, W appointee
  • April application: Anne Conway, Poppy appointee
  • June application: Raymond Dearie, Reagan appointee

Note that the Schiff memo describes both electronic surveillance and physical search; the IG Report hides the latter. The physical search authorization is important because that provided FBI authorization to obtain Page’s stored communications, including emails.

¶15: FISA was not used to spy on the campaign. True, but the use of physical surveillance would permit the FBI to obtain stored communication, and it’s not public whether the specific minimization procedures adopted by FISC limited the access to emails Page sent while on the campaign.

¶16-17: Page’s connections to Russian Government and intelligence officials. To the extent this information is public, this is largely true (though it’s probably more accurate to state that one of the Russians indicted, Victor Podobnyy, attempted to recruit Page, and he talked about it with a second). We now know, however, that an earlier attempted recruitment happened with the knowledge of CIA, and there’s no allegation that Page hid his willingness to share information with Russian intelligence officers until 2017. That raises problems for claims he was secretly working with Russian spies.

¶18: Page’s suspicious activity during the 2016 campaign. To the extent this is public, it does reflect what FBI told FISC. The memo doesn’t deal with real questions about the allegations about whom Page met with in Russia. There’s still no corroboration that Page met with anyone named Divyekin (indeed, Dmitry Peskov affirmatively chose not to set up a meeting for him with the Kremlin), but the IG Report reveals that the people who brought Page to Moscow provided RUMINT that he had met with Igor Sechin. The Mueller Report concluded Page’s activities in Moscow “were not fully explained.”

¶19: Subsequent renewals. Much of this discussion is redacted, though it’s clear it provides details of Page’s December trip to Moscow, where he met with the Deputy Prime Minister again, and probably refers to Page’s meeting with the VP of Gazprombank in Singapore.

This table shows the new claims made in each FISA application described in the IG Report.

It’s not clear that Page’s denials in the HPSCI interview are as damning as Schiff makes out, as some of them amounted to denials of claims in the dossier than have not been proven. The IG Report would go on to describe other denials from Page that were provably true, denials that did not get included in reauthorization applications.

¶20: The Court-approved surveillance of Page allowed FBI to collect valuable information. Publicly, Michael Horowitz has suggested this is not the case. But the IG Report admits that that investigation team “did not review the entirety of the FISA [intelligence collected by] targeting Carter Page. We reviewed only those [redacted] under FISA authority that were relevant to our review.”

The Report suggests that the reality is that the first two, and possibly three, warrants were useful, as they captured Page interacting with Russia in suspicious ways, but that the fourth and maybe the third application were far less useful, in part because by that point Page knew he was being surveilled and by that point he was no longer a key player in Trump’s orbit.

¶21-22: DOJ was transparent with the Court about Steele’s sourcing. The Schiff memo accurately describes the footnote used to inform the court of the political nature of Steele’s project. It doesn’t describe that FBI didn’t amend that description as more information became known, though there is disagreement over whether more was necessary.

¶23: DOJ explained the FBI’s reasonable basis for finding Steele credible. The Schiff memo accurately describes how DOJ described Steele. But it doesn’t note that the reauthorizations did not reflect questions FBI had come to raise about the credibility of the dossier, nor does it note (and it probably wasn’t known) that the applications used language from an intelligence report rather than from Steele’s handling agent to describe the degree to which his past reporting had been corroborated, and as a result overstated that.

¶24-25: FBI properly notified FISC after it terminated Steele as a source. As a minor point, in the first reauthorization, FBI said Steele had been suspended rather than closed, when he had actually been closed. More seriously, the Schiff memo badly understates how obvious it should have been that Steele had a role in Michael Isikoff’s October 21 story (though, as noted, the FBI attributed the story to Simpson in any case).

¶26: The FBI never paid Steele for the dossier. Here, the two memos are talking past each other dishonestly. The FBI did authorize Steele to be paid for any exclusive reporting on specific taskings, but what he provided was always his work for Fusion.

¶27: DOJ appropriately provided the Court with a comprehensive explanation of Russia’s election interference, including … Papadopoulos. This is largely true. The IG Report complains that FBI didn’t include Papadopolous’ really damning admissions to informants, but the FBI correctly deemed the denials he made (and Joseph Mifsud’s denials) to be inaccurate, so had they been included they would have been included to substantiate deceit.

¶28: DOJ made proper use of news coverage. The unredacted claims are all true (though don’t account for FBI’s failures to identify Isikoff’s article as coming from Steele).

¶29-30: The Majority’s reference to Bruce Ohr is misleading.

This passage states that Ohr’s meeting with the Crossfire Hurricane team happened after the FISA application, which is true, but it doesn’t mention a meeting had with Andrew McCabe (not Crossfire Hurricane) days before the FISA application. The McCabe meeting included reporting from Steele (whom Ohr had spoken to the previous day) and Simpson; I argue, however, that the precipitating reason for the meeting had to do with Oleg Deripaska, which the IG Report inaccurately treats as synonymous with the Steele dossier (though it’s problematic for other reasons).

Also, the Schiff memo speaks of “debriefs” without describing the multiple meetings.

The Schiff memo correctly calls the Nunes memo on insinuating that because Ohr worked with Sally Yates and Rod Rosenstein that meant there was a conspiracy; in fact, the IG Report argues he should be disciplined because he didn’t provide them enough notice of what he was doing.

The evidence in the IG Report backs Schiff’s conclusion — that Ohr’s contacts with the Crossfire Hurricane team amounted to debriefing about Steele’s project — more than it backs its own.

¶31: Strzok and Page’s text messages are irrelevant to the FISA application. That is true. The IG Report found,

As part of this review, in order to determine whether there was any bias in the investigative activities for Crossfire Hurricane that we reviewed, we asked agents and analysts assigned to the case about the roles Strzok and Page played in the Crossfire Hurricane investigation and their level of involvement in decision making. With respect to Strzok, these witnesses told us that while he approved the team’s investigative decisions during the time he was in the supervisory chain of command for the investigation, he did not unilaterally make any decisions or override any proposed investigative steps. Priestap, in addition to telling us that it was his (Priestap’s) decision to initiate the investigation, told us that to his knowledge, Strzok was not the primary or sole decision maker on any investigative step in Crossfire Hurricane. Further, as described above, in January 2017, the Crossfire Hurricane cases were divided between two operational branches within CD, and Strzok no longer supervised the Carter Page investigation, which was transferred to Operations Branch II, CD-1, under the supervision of then DAD Boone. In this report, we describe those occasions when Strzok was involved in investigative decisions.

With respect to Lisa Page, witnesses told us that she did not work with the team on a regular basis or make any decisions that impacted the investigation.

Why Justin Amash Should Be an Impeachment Manager

I’m sitting about six blocks from one of Gerald Ford’s childhood homes. That means I live in a city with an outsized role in America’s history with impeachment. Since the time I’ve lived in this city, our Federal Building added a sign reading (over-optimistically), “Our Constitution works; our great Republic is a government of laws and not of men.”

It also means I’m a constituent of Justin Amash, who has an office in that Federal Building named after Gerald Ford.

And I’m solidly in support of the idea — floated by thirty freshman Democrats — for Amash to be among the Impeachment Managers presenting the case in the Senate.

I think Amash brings several things this impeachment effort could badly use.

First, Democrats missed an opportunity in the House Judiciary hearing on Constitutional issues behind impeachment to call someone like Paul Rosenzweig, a Republican who worked on the Whitewater investigation, who backs impeachment in this case. While a bunch of Democratic lawyers were testifying, Amash was and has continued tweeting to his colleagues about how important impeachment is to the Constitution. It is critical to have a voice making the conservative case for upholding the Constitution. Just this morning, a long time local Democratic activist I was speaking to was hailing how Amash has used his University of Michigan law degree to make the case for impeachment.

Meanwhile, even as the national press has spent countless hours interviewing demographically unrepresentative panels of voters from my county to understand how swing state voters feel about impeachment, Amash has risked his career in that swing state district. Well before queasy Democrats in swing districts came around to the necessity of impeaching President Trump, Amash left his party and took a stand to defend the Constitution. I think his courage may serve as inspiration for Republicans in the Senate who secretly recognize the necessity of impeaching Trump, even while they may worry they’ll ruin their political career. Amash also has close ties with (especially) Rand Paul and other libertarian leaning Senators (like Mike Lee and Ted Cruz), so might be persuasive with them, even if all of them have already basically opposed impeachment.

Finally, a point that some of the more hawkish people involved in impeachment (like Adam Schiff) may not understand, Amash works really well in bipartisan coalitions. He has long been a key member of the privacy coalition and currently serves as the “Republican” co-chair, with Zoe Lofgren as the Democratic co-chair, of the Fourth Amendment coalition. The cornerstone of that coalition, over more than a decade, has been honesty about where progressives and libertarians (and even traditional conservatives) share goals and where we disagree, sometimes dramatically. But with that cornerstone of shared understanding, and with a sense of responsibility for what each side can and should do to support the Constitution, he has been an invaluable member of a team. Some of the people who might also be considered as Impeachment Managers — like Jamie Raskin — would have experience with Amash in such a context. At the very least, Lofgren should be able to give Pelosi reassurances that Amash is utterly reliable when working as part of a bipartisan coalition. This is a topic, the President’s abuse of his authority, on which Amash took a Constitutional stand, which is precisely the kind of common foundation his past work with Democrats was built on.

I don’t get a vote. Speaker Pelosi gets to decide. But as an Amash constituent who has long found common ground with Amash on issues rooted in the Constitution, I think his involvement would be a tremendous value.

Speaker Pelosi Goes from Slow-Walking to Sprinting

This morning, Nancy Pelosi announced she’s asking Jerry Nadler and Adam Schiff to draw up articles of impeachment against Donald Trump.

Both reports on scheduling from members of HJC and Congress generally as well as reporting from CNN suggest Pelosi intends a very quick schedule for this process: articles drawn up this weekend, a vote in HJC next week, then a full vote before Christmas.

This is a mistake, in my opinion. I think Pelosi should bump this schedule out to early February. I say this not out of any fondness for delay, but because several things will or are likely to happen in the interim that would make impeachment more thorough.

The first is a ruling on Don McGahn’s testimony. I think the case on impeaching Trump for obstructing the Mueller investigation should most importantly focus on his abuse of the pardon power, not least because preventing a Trump pardon may give Paul Manafort and Roger Stone reason to grow more chatty. But McGahn’s testimony, describing how Trump asked him to falsify a record to cover up the fact that the President asked him to get Mueller fired in summer 2017, would be important for other reasons. Jonathan Turley cited McGahn’s testimony, for example, as the clearest case in the Mueller Report supporting impeachment (though of course he claims it doesn’t reach the level of abuse that Turley claimed lying about a consensual blowjob did back when Clinton did it). It would also be powerful to have a key player in Republican politics — they guy helped Trump stack the courts — play a key role in his impeachment.

While there’s little hope the Democrats could force the testimony of the key witnesses in the Ukraine investigation (including McGahn’s one-time deputy, John Eisenberg) without long delay, they’re more likely to get a ruling requiring McGahn’s testimony.

Then there’s the high likelihood of a superseding indictment in the Lev Parnas case. At a hearing Monday, prosecutors made it clear they’re very likely to supersede the current indictment against Rudy Giuliani’s grifters, possibly including other targets of the probe.

Prosecutor Zolkind signaled that a grand jury would probably level more charges.

“We think a superseding indictment is likely, but no decision has been made, certainly,” Zolkind said.

Repeatedly emphasizing that the government’s investigation is ongoing, the prosecutor referred obliquely to possible other targets by explaining that redactions on search warrants do not relate to the charged case. Zolkind also explained that disclosing witness statements prematurely could risk compromising the probe.

While the judge in the case, Paul Oetken, signaled his willingness to share information from this probe with impeachment investigators, and Parnas and his lawyers indicated that they’d like to comply with HPSCI’s subpoena (probably in an attempt to leverage immunity), that may take some time, perhaps two months. But I think any evidence from this case will be stronger if it comes with a grand jury indictment alleging that more of the underlying activities in this grift were probably a crime.

The next hearing in this case is February 3. That’s why I think Pelosi should hold off on until February.

Those are just two of the reasons I think Pelosi should slow things down a bit — at least on the vote in the entire House — to allow other pieces to fall into place.

The Proper Recipients for Lev Parnas’ Allegations Are the Ethics Committee and SDNY

CNN has a follow-up to Daily Beast’s story describing the jaunt Devin Nunes took to Vienna last December to dig up fabricated dirt on Joe Biden. It describes two things Parnas wants to share with HPSCI. First, Parnas wants to spill details about the Ukrainians, including Viktor Shokin, he set up Nunes with to pursue the Biden smear that has been the centerpiece of Trump’s impeachment defense.

“Mr. Parnas learned from former Ukrainian Prosecutor General Victor Shokin that Nunes had met with Shokin in Vienna last December,” said Bondy.

[snip]

Bondy tells CNN that his client and Nunes began communicating around the time of the Vienna trip. Parnas says he worked to put Nunes in touch with Ukrainians who could help Nunes dig up dirt on Biden and Democrats in Ukraine, according to Bondy.

Parnas confirms something I noted: the timing, between the time Republicans got shellacked in midterm elections and the time Adam Schiff took over as House Intelligence Committee.

Bondy told CNN that Nunes planned the trip to Vienna after Republicans lost control of the House in the mid-term elections on Nov. 6, 2018.

“Mr. Parnas learned through Nunes’ investigator, Derek Harvey, that the Congressman had sequenced this trip to occur after the mid-term elections yet before Congress’ return to session, so that Nunes would not have to disclose the trip details to his Democrat colleagues in Congress,” said Bondy.

Additionally, he wants to describe the “team,” including Rudy, Victoria Toensing and Joe DiGenova, Nunes’ chief conspiracist Derek Harvey, and John Solomon, that got together at Trump International to advance these smears.

Bondy tells CNN that Parnas is also willing to tell Congress about a series of regular meetings he says he took part in at the Trump International Hotel in Washington that concerned Ukraine. According to Bondy, Parnas became part of what he described as a “team” that met several times a week in a private room at the BLT restaurant on the second floor of the Trump Hotel. In addition to giving the group access to key people in Ukraine who could help their cause, Parnas translated their conversations, Bondy said.

The group, according to Bondy,  included Giuliani, Parnas, the journalist Solomon, and the married attorneys Joe diGenova and Victoria Toensing. Parnas said that Harvey would occasionally be present as well, and that it was Parnas’ understanding that Harvey was Nunes’ proxy, Bondy said.

Solomon confirmed the meetings to CNN but said that calling the group a team was a bit of a mischaracterization. Solomon said that connectivity happened more organically, and that his role was only as a journalist reporting a story.

A detail Parnas offers that is probably not true is that Nunes was working off John Solomon stories.

Parnas says that Nunes told him he’d been partly working off of information from the journalist John Solomon, who had written a number of articles on the Biden conspiracy theory for the Hill, according to Bondy.

That timing doesn’t work, as the key Solomon stories came out after the December trip. This appears to be an attempt on Parnas’ part to hide his role not just in translating the stories, but concocting them.

The story has generated a lot of excitement among the left, with people calling to give Parnas’ attorneys exactly what they’re looking for, a date with HPSCI.

That would be a mistake.

I say that for several reasons. First, this is part of a larger disinformation campaign, in which Parnas is a key player. He is legally fucked and has little downside to share just part of his information, while leaving the key bits (such as who is behind the larger campaign) obscured. His lawyers no doubt want to wring immunity from HPSCI to screw up the SDNY case.

But thus far, particularly given HPSCI’s narrow focus, Parnas’ story doesn’t help the impeachment case much. Moreover, it risks inserting disinformation into a thoroughly credible story of corruption. More importantly, it would make most Republicans  even more defensive, as members of HPSCI came under scrutiny, making it less likely rather than more they’d support impeachment.

Finally, Schiff has gotten nowhere with his demands for the documentary backup to these stories. Thus, HPSCI would be at a distinct disadvantage in trying to suss out what was true and bullshit in Parnas’ claims (in the same way that both HPSCI and SSCI did not have the key details on Don Jr’s involvement in 2016 events, which is why he would meet with them but not Mueller).

The proper place in Congress for these allegations is the Ethics Committee. Schiff has the ability to ask all three staffers and Nunes to step down from the committee until such issues are adjudicated, where they would be pursued in private, tamping down the polarizing aspect of this.

And, too, these allegations also belong in FBI, where they already are, with investigators whose subpoena power actually works. Anything that would undercut that effort would backfire in the long run.

Hours after Donald Trump Witness Tampered in Real Time, Roger Stone Found Guilty of the Same Crime

In the middle of today’s impeachment testimony from Marie Yovanovitch Trump lost control of his emotions and attacked the witness.

Adam Schiff interrupted committee counsel Dan Goldman’s questioning, read Yovanovitch the tweet, and asked her how it made her feel.

Yovanovitch said it made her feel intimidated.

Schiff, a former federal prosecutor, knows how to substantiate a witness tampering charge. Even Bret Baier recognized this as such.

During the break in Yovanovitch’s testimony, the jury in Roger Stone’s trial came back with a verdict. They found him guilty on all seven counts. That includes a witness tampering charge for Stone’s efforts to dissuade Randy Credico from testifying before the House Intelligence Committee, the very same committee leading this impeachment hearing.

The courts are just now imposing consequences for Trump’s efforts to cheat to win the 2016 election, even as he attempts to prevent the one court that can try him for imposing consequences for cheating to win the 2020 election.

Impeachment Hearings: Day 2 – Marie Yovanovitch [UPDATE-2]

I’m putting up this post and thread dedicated to today’s hearing which was scheduled to begin at 9:00 a.m. ET. Updates to this post will appear at the bottom.

Former ambassador to Ukraine Marie Yovanovitch is now appearing before the House and opening statements have just finished.

If you’re not within range of television or can’t stream the hearing, you can follow along with these live Twitter threads:

Marcy’s thread

Brandi Buchman for Courthouse News

Law prof and author Jennifer Taub

Some of these feeds also appear in my Trump-Russia Twitter list; open it and refresh periodically.

CNN has a live update page dedicated to today’s hearing.

Washington Post’s live update page here.

Here’s a copy of Yovanovitch’s testimony on October 11 in closed door session, released November 4.

Here’s a copy of Yovanovitch’s written statement submitted today.

If you have other resources you feel are helpful, please share them in comments. Thanks.

UPDATE-1 — 10:28 a.m. ET —

Zelensky was pretty shrewd or innately savvy about the breadcrumbs he left in his interactions with Team Trump.

Trump’s tweet which Daniel Dale embedded as a snapshot:

And of course Trump can’t shut the fuck up; he’s now implied he’s had opposition research done into Yovanovitch’s work history. Why would he need to do that if his actions with regard to Ukraine were totally above board?

Adam Schiff has interrupted questioning to offer Yovanovitch an opportunity to respond to Trump’s tweet denigrating her, amounting to witness intimidation.

UPDATE-2 — 12:35 p.m. ET —

Marcy started a fresh live tweet thread for this afternoon’s testimony by Yovanovitch before the GOP’s counsel and committee members.

Emma Loop with BuzzFeed is now in the hearing room and has also begun a live tweet thread.

Related: If you didn’t hear already, Roger Stone was found guilty on seven counts of obstruction of proceedings, false statements, and witness tampering. Politico’s Darren Samuelson covered the verdict in a thread.

How odd so many of the people close to Trump have been found guilty or pleaded guilty to crimes related to his campaign or work related to Ukraine, Russia, and Turkey.

BREAKING: The First Amendment Is Part of Something Called the Constitution

There’s been a weird phenomenon during the Trump presidency, where journalists and media organizations loudly defend one small part of the Constitution — the one that benefits them personally, the First Amendment — but seem to believe it would be partisan to defend the Constitution and rule of law more generally.

That’s been evident for some time, as news outlets treat the White House arbitrarily revoking credentials as a major news story but treat Trump’s flouting of other limits built into the Constitution as a big old partisan game.

That, to me, is the real problem with this widely panned Jonathan Allen piece deeming yesterday’s impeachment hearing boring. It wasn’t quite so bad as this Reuters piece in the same vein; unlike Reuters, NBC eventually did get around to telling readers about the most shocking news from the hearing, that Gordon Sondland got on an unsecure line to call the President the day after the July 25 call and learned that the only thing Trump cared about was the investigations into his political opponents.

NBC included that news, but placed it in paragraph 17, then dismissed it as a “footnote,” without explaining that this means Sondland got caught, for the second time, lying in his sworn statement to Congress.

Taylor did create a stir when he told the committee one of his aides overheard an ambassador at the center of the story, Gordon Sondland, talking to the president about Ukraine on the phone. Afterward, Sondland told the staffer that Trump cared more about getting Ukraine to open investigations into Biden, a 2020 Democratic presidential candidate, and his son Hunter than about any issues that mattered to the Ukrainians.

But that served as more of a footnote than a headline.

Thirteen paragraphs before he buried the lead, however, Allen pitched yesterday’s events this way, as a measure of whether Democrats had achieved their goal of ousting the president.

But at a time when Democrats are simultaneously eager to influence public opinion in favor of ousting the president and quietly apprehensive that their hearings could stall or backfire, the first round felt more like the dress rehearsal for a serious one-act play than opening night for a hit Broadway musical.

Allen did that in a piece where he emphasized that witnesses Bill Taylor and George Kent spoke from their “nonpartisan roles in government,” and judged that “Republicans poked no real holes in witness testimony.”

In other words, he did that in a piece where he conceded that nonpartisan experts had presented evidence that Trump had improperly tried to extort political benefits from Ukraine by withholding duly appropriated funds. Allen deemed this hearing to be a battle between Democrats and Republicans in a piece where he conceded that the evidence presented showed that President Trump committed a crime, bribery, that the Constitution explicitly says merits impeachment.

Yes, it is the case that not one Republican took a stand for the Constitution yesterday. Even more embarrassing, not a single Republican took a stand to defend their own Constitutional authority, the power of the purse, which Trump also violated when he withheld funding without explaining to Congress why he did so, a violation of the Impoundment Act that Mick Mulvaney has already confessed was a crime.

That seems newsworthy to me, for any journalist whose ability to be one relies on the limits on authority enshrined in the Constitution.

Don’t get me wrong, Allen is not alone in treating support for the Constitution — except, of course, the part journalists have a vested interest in, the First Amendment — as a partisan spat. It’s a general feature of reporting during the Trump Administration that the press picks and chooses which parts of rule of law they will both-sides, and which they will fiercely defend as an unquestioned value.

Just 15 minutes into this hearing, well before poor Jonathan Allen got bored and tuned out, Adam Schiff reminded of when,

Benjamin Franklin was asked what kind of country America was to become. ‘A Republic,’ he answered, ‘if you can keep it.’ The fundamental issue raised by the impeachment inquiry into Donald J. Trump is, can we keep it?

That’s what Adam Schiff said this hearing was about. Not ousting the President. But keeping our Constitutional government.

If the facts were in dispute, this might be fairly deemed by jaded journalists like Allen a partisan attack.

But the facts are not in dispute, as he himself agrees. Which means he utterly mistook the two sides in this matter, in pitching it as a fight between Democratic and Republican strategists. It’s not. It’s a fight between those defending the Constitution and the Republican party.

Why Won’t Sean Hannity Defend Trump against Impeachment Under Oath?

Yesterday, the Republicans released their list of requested witnesses for the public impeachment hearings this week. The list includes:

  • Devon Archer, Hunter Biden’s business partner
  • Hunter Biden
  • Alexandrea Chalupa, the DNC consultant who conducted oppo research on Manafort [corrected] via non-official sources
  • Undersecretary of State David Hale, who gave a private deposition the details of which have not yet leaked
  • Tim Morrison, the NSC staffer who was on the Trump call but has said (in part because saying anything else would implicate him criminally) nothing he heard was a problem
  • Nellie Ohr, whom Nunes falsely accuses of assisting with the Steele dossier, but who collected oppo research on Trump based off leads which were in turn based off open source research
  • Kurt Volker
  • The whistleblower
  • The whistleblower’s sources

I’m amuses me they think Volker will help them, as it reflects their inability to process information as it has come in. In his testimony, Volker made a concerted effort to spin what happened in the least damaging way for Trump. He based much of that defense on the then-operative understanding that Trump had never mentioned Burisma in his conversation with Volodymyr Zelensky, thereby suggesting that that improper request never got beyond Rudy Giuliani to the President. But we now know that Trump did explicitly invoke Burisma in the call, but that it got redacted out by John Eisenberg and others. That is, precisely the detail that Volker used to exonerate the President has now been overtaken by events. Volker will likely spend part of his public testimony backtracking off the stances Republicans believe help the President.

While I assume Schiff will accept the request to call witnesses he himself has asked for depositions, Schiff has already ruled out calling Hunter Biden or the whistleblower.

Still, the most telling part of this list is that the most loyal defender of the President, Sean Hannity, is not on it.

It is now clear that Hannity is a key player in this information operation (unsurprisingly, given what we know about his efforts to coordinate Paul Manafort’s defense). Unlike John Solomon, Hannity’s personal implication in the slimy nest of legal conflicts that the President calls legal representation seem to have ended when Michael Cohen got busted. Unlike Rudy, Hannity’s status as a journalist should protect him from legal liability.

So there’s no reason — besides the fact he’d be under oath — why he shouldn’t be willing to testify about the several key events he played a part in.

For example, Marie Yovanovitch testified that she understands during a period when Hannity was attacking her personally, someone close to Mike Pompeo called Hannity and asked him to either substantiate the charges or stop.

THE CHAIRMAN: And did you ever find out when, you know, the allegations were being made or the attacks were being made by Donald Trump, )r., or Rudy Giuliani, did you ever find out what the Secretary of State’s position, whether the Secretary of State was going to defend you or not, apart from the refusal by the Secretary to issue a statement in your defense?

MS. YOVANOVITCH: What I was told by Phil Reeker was that the Secretary or perhaps somebody around hjm was going to place a call to Mr. Hannity on FOX News to say, you know, what is going on? I mean, do you have proof of these kinds of allegations or not? And if you have proof, you know, telI me, and if not, stop. And I understand that that call was made. I don’t know whether it was the Secretary or somebody else in his inner circle. And for a time, you know, things kind of simmered down.

THE CHAIRMAN: I mean, does that seem extraordinary to you that the Secretary of State or some other high-ranking official would call a talk show host to figure out whether you should be retained as ambassador?

MS . YOVANOVITCH: Wet 1 , I ‘m not sure that’ s exactly what was being asked.

THE CHAIRMAN: Well , they were aski ng i f what basi s they was Hannity one of the people criticizing you?

MS. Y0VANOVITCH: Yes. THE CHAIRMAN: 5o some top administration official was going to him to find out what the basis of this FOX host was attacking you tor?

YOVANOVITCH: Uh- huh.

THE CHAIRMAN: And did you ever get any readout on what the result of that conversation was?

MS. YOVANOVITCH: No, I didn’t, although I was told that it did take place.

Then later in the same deposition, Yovanovitch described how, in an appearance on Hannity’s show, the President pivoted from a question about Russia to focus on Ukraine, which the Ambassador thought might also be targeted at her.

[Dan Goldman] Are you also aware that on the night of April 25th that President Trump went on Sean Hannity’s show and discussed Ukraine?

A Yes. He was asked a question about Russia and he answered by responding about Ukraine.

Q And what was your reaction to that?

A Well, you know, I mean, I was concerned about what this would all mean.

Q In what way?

A Well, obviously, for me personally, not to make it all about me, but for me personally. But also, what does this mean for our policy? Where are we going?

In response, Hannity issued two angry denials on Twitter, not under oath, then linked to a (!!!) now debunked John Solomon piece, as if that did anything but confirm he was part of an information operation.

If Hannity wants to clear his name, surely he’s willing to do so under oath? While there, he can also explain why he keeps bringing Solomon, Joe DiGenova, and Victoria Toensing on his show, and why he doesn’t disclose that the latter two are working for mobbed up Ukrainian oligarch Dmitry Firtash.

Hannity has repeatedly hosted Joseph diGenova and Victoria Toensing, lawyers for Ukrainian oligarch Dmitry Firtash.

According to a Media Matters database, diGenova has appeared on Hannity’s show at least 37 times in 2018 and 2019. His partner Toensing has appeared on Hannity’s show at least 20 times during the same period.

Additionally, Hannity has hosted conservative writer John Solomon over 100 times in 2018 and 2019. Solomon, now a Fox News contributor, is also a client of Toensing and diGenova, and he coordinated with personal Trump lawyer Rudy Giuliani to inject his Ukraine disinformation into the media.

More importantly, when testifying under oath before the impeachment inquiry, Hannity can explain why Rudy’s Ukrainian grifters, Lev Parnas and Igor Fruman, were setting up an interview between him and Ukrainian prosecutor Viktor Shokin in Vienna, where Firtash has been bankrolling this entire influence operation.

While questions in Washington swirl around Shokin’s role in this controversy, Giuliani, Parnas, Fruman had specific plans for the former Ukrainian official up until the day of their arrest. According to those four sources, they told others they were headed to Vienna to help with a planned interview the next day: Shokin, they said, was scheduled to do an interview from the Austrian capital with Sean Hannity.

Through a spokesperson, Hannity said that “we never reveal our sources, potential sources, or persons they may or may not request to interview. Sean Hannity takes the first amendment seriously.”

He might even be able to explain whether, in Attorney General Barr’s visit to Rupert Murdoch’s home the night the grifters got arrested trying to flee the country (and so the night before Hannity was supposed to interview Shokin), he tipped off Hannity not to get on any planes?

Sean Hannity is a far more central fact witness on events associated with the impeachment than Biden, Archer, Chalupa, or Ohr. He’s one of Trump’s most loyal fans, so if there’s a defense of the President to be made, surely he’s willing to make it … under oath.

And yet, either Republicans aren’t willing to risk Hannity’s reputation, or Hannity is unwilling to repeat his claims denying involvement under oath.

People Who Illegally Withheld Duly Appropriated Funding Refuse to Explain to Congress Why

CNN reported this morning that all four witnesses who were called to testify today blew off the request under both Executive Privilege claims (for John Eisenberg) and other complaints that the Administration won’t be able to have a lawyer present.

All four White House officials who are scheduled to give depositions on Monday during the House’s impeachment inquiry won’t show up, as a source with knowledge of the situation tells CNN that National Security Council lawyers John Eisenberg and Michael Ellis will not testify.

The two officials will join Robert Blair, assistant to the President and senior adviser to the acting White House chief of staff Mick Mulvaney, and Brian McCormack, associate director for natural resources, energy & science at the Office of Management and Budget, in not testifying on Monday, CNN reported earlier. Energy Secretary Rick Perry, who was scheduled to appear Wednesday, will not participate in a closed door deposition, an Energy Department spokesperson said Friday.
An administration official says Eisenberg isn’t showing up due to executive privilege while Blair, Ellis and McCormack aren’t going to appear because they won’t be able to have an administration lawyer present.

This is being treated like other refusals to show up, but I think it’s not.

First, if Eisenberg is claiming only Executive Privilege, those claims will quickly expose the President to evidence of guilt that Senators are busy trying to explain away. That’s because he should only have Executive Privilege for stuff that actually involves the President. And given that he wasn’t on the call with Volodymyr Zelensky, he shouldn’t have it, at all, here, unless the President wants to claim that before Eisenberg engaged in a cover-up of Trump’s extortion, he asked the President for guidance first.

In fact, if Eisenberg showed up, he’d likely have to invoke the Fifth Amendment rather than Executive Privilege. And once someone does that, it’s usually child’s play to force that person to resign from government service.

As for the others, Robert Blair and Brian McCormack were being called to explain how the funds duly appropriated by Congress got withheld.  Withholding those funds is a crime, as Mick Mulvaney helpfully admitted (in public discussions that likely void any Executive Privilege claims over the decision to withhold the funds). But it’s also a crime not to explain to Congress why you withheld funds they told you to spend.

In other words, for at least three of these men, the excuses for not testifying probably amount to crimes in and of themselves, either for the President (if he really were to claim Executive Privilege over Eisenberg’s efforts to cover-up his crime) or for the men themselves.

So while this seems like the same old obstruction, I think it may be a new kind of criminally problematic obstruction.

Which may be why Adam Schiff says the first public witnesses are going to be those who illegally withheld this funding.

Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.