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How to Talk about Impeachment: Preventing Harm to the Country

In the Atlantic, Yoni Appelbaum has a very long article making the case that the House should start the process of impeaching Donald Trump as a way to start reining in his abuses. At its core, the article argues that impeachment serves as a check on abusive Executive power, whether or not it succeeds. It describes five benefits of starting an impeachment proceeding.

In these five ways—shifting the public’s attention to the president’s debilities, tipping the balance of power away from him, skimming off the froth of conspiratorial thinking, moving the fight to a rule-bound forum, and dealing lasting damage to his political prospects—the impeachment process has succeeded in the past. In fact, it’s the very efficacy of these past efforts that should give Congress pause; it’s a process that should be triggered only when a president’s betrayal of his basic duties requires it. But Trump’s conduct clearly meets that threshold. The only question is whether Congress will act.

I don’t agree with everything in the article. I’ll also note that it dismisses the possibility Trump will be charged with bribery, with virtually no real consideration of the issue.

 The Constitution offers a short, cryptic list of the offenses that merit the impeachment and removal of federal officials: “Treason, Bribery, or other high Crimes and Misdemeanors.” The first two items are comparatively straightforward. The Constitution elsewhere specifies that treason against the United States consists “only in levying War” against the country or in giving the country’s enemies “Aid and Comfort.” As proof, it requires either the testimony of two witnesses or confession in open court. Despite the appalling looseness with which the charge of treason has been bandied about by members of Congress past and present, no federal official—much less a president—has ever been impeached for it. (Even the darkest theories of Trump’s alleged collusion with Russia seem unlikely to meet the Constitution’s strict definition of that crime.) Bribery, similarly, has been alleged only once, and against a judge, not a president.

I’ve argued there’s a good deal of evidence Trump did enter in a quid pro quo agreement — Trump Tower and dirt on Hillary for sanction relief and help with Syria and Ukraine — that would meet even the narrowed standards of bribery laid out in John Roberts’ McDonnell decision.

In any case, the Atlantic piece is very worthwhile. And it serves as welcome background for what I was initially trying to write when I wrote that bribery post.

First, there are more reasons than just Trump’s compromise by Russia to pursue impeachment. Rashida Tlaib laid out the following in the op-ed that preceded her “motherfucker” comment.

We already have overwhelming evidence that the president has committed impeachable offenses, including, just to name a few: obstructing justice; violating the emoluments clause; abusing the pardon power; directing or seeking to direct law enforcement to prosecute political adversaries for improper purposes; advocating illegal violence and undermining equal protection of the laws; ordering the cruel and unconstitutional imprisonment of children and their families at the southern border; and conspiring to illegally influence the 2016 election through a series of hush money payments.

David Leonhardt laid out the reasons this way:

He has repeatedly put his own interests above those of the country. He has used the presidency to promote his businesses. He has accepted financial gifts from foreign countries. He has lied to the American people about his relationship with a hostile foreign government. He has tolerated cabinet officials who use their position to enrich themselves.

Appelbaum describes all the ways Trump violated his oath of office this way:

The oath of office is a president’s promise to subordinate his private desires to the public interest, to serve the nation as a whole rather than any faction within it. Trump displays no evidence that he understands these obligations. To the contrary, he has routinely privileged his self-interest above the responsibilities of the presidency. He has failed to disclose or divest himself from his extensive financial interests, instead using the platform of the presidency to promote them. This has encouraged a wide array of actors, domestic and foreign, to seek to influence his decisions by funneling cash to properties such as Mar-a-Lago (the “Winter White House,” as Trump has branded it) and his hotel on Pennsylvania Avenue. Courts are now considering whether some of those payments violate the Constitution.

More troubling still, Trump has demanded that public officials put their loyalty to him ahead of their duty to the public. On his first full day in office, he ordered his press secretary to lie about the size of his inaugural crowd. He never forgave his first attorney general for failing to shut down investigations into possible collusion between the Trump campaign and Russia, and ultimately forced his resignation. “I need loyalty. I expect loyalty,” Trump told his first FBI director, and then fired him when he refused to pledge it.

Trump has evinced little respect for the rule of law, attempting to have the Department of Justice launch criminal probes into his critics and political adversaries. He has repeatedly attacked both Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller. His efforts to mislead, impede, and shut down Mueller’s investigation have now led the special counsel to consider whether the president obstructed justice.

As for the liberties guaranteed by the Constitution, Trump has repeatedly trampled upon them. He pledged to ban entry to the United States on the basis of religion, and did his best to follow through. He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events. He has assailed black protesters. He has called for his critics in private industry to be fired from their jobs. He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. Elected officials of both parties have repeatedly condemned such statements, which has only spurred the president to repeat them.

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.

Russia is but one of the reasons why Trump should be impeached.

Indeed, in the last day two new pieces of evidence about the damage Trump has done with his conflicts of interest have come out. A CREW report cataloging all the conflicts of interest generated from the use of Trump properties to curry favor with him.

  • CREW has identified 12 foreign governments that have made payments to Trump properties during his first two years in office, each of which is likely a violation of the Constitution’s foreign emoluments clause. At least three foreign countries held events at Trump properties during his second year in office, and two of them did so after having held similar events elsewhere in previous years.
  • Instead of pushing back on President Trump’s refusal to divest from his business, allies in Congress have embraced the arrangement. 53 U.S. senators and representatives made more than 90 visits to Trump properties during his second year in office, up from 47 visits by 36 members the prior year, and similarly, at least 33 state-level government officials visited Trump properties, likely resulting in taxpayer funds going into Trump’s coffers.
  • More than 150 political committees, including campaigns and party committees, have spent nearly $5 million at Trump businesses since he became president. In Trump’s second year in office, CREW tracked 33 political events held at Trump properties—13 of which Trump himself attended, meeting and speaking with wealthy donors.
  • Special interests held at least 20 events at Trump properties during the president’s second year in office. Since Trump took office, at least 13 special interest groups have lobbied the White House, some for the first time, around the same time they patronized a Trump property, suggesting that making large payments to Trump’s businesses is viewed as a way to stay in his administration’s good graces.
  • Over the past year, President Trump made 118 visits to properties he still profits from in office, bringing his two-year total to 281 visits. CREW also identified 119 federal officials and employees who visited Trump properties over the past year, up from 70 the prior year.
  • In addition to making frequent visits to his properties, President Trump and other White House staff have promoted Trump businesses on at least 87 occasions. Trump himself mentioned or referred to his company 68 times during his second year in office, more than double the 33 times he did so the prior year.
  • Paying members at Trump’s resorts and clubs have received benefits beyond getting occasional face time with the President. Four Mar-a-Lago members have been considered for ambassadorships since his election, and three other members—with no federal government experience—acted as unelected, non-Senate-confirmed shadow officials in Trump’s Veterans Administration.

Yesterday, the Inspector General for the General Services Administration released a report showing that GSA recognized that Trump’s Old Post Office property might present a problem under the Emoluments Clause, but basically blew off reviewing what to do about it.

We found that GSA recognized that the President’s business interest in the OPO lease raised issues under the Constitution’s Emoluments Clauses that might cause a breach of the lease; however, GSA decided not to address those issues in connection with the management of the lease. We also found that the decision to exclude the emoluments issues from GSA’s consideration of the lease was improper because GSA, like all government agencies, has an obligation to uphold and enforce the Constitution; and because the lease, itself, requires that consideration. In addition, we found that GSA’s unwillingness to address the constitutional issues affected its analysis of Section 37.19 of the lease that led to GSA’s conclusion that Tenant’s business structure satisfied the terms and conditions of the lease. As a result, GSA foreclosed an early resolution of these issues, including a possible solution satisfactory to all parties; and the uncertainty over the lease remains unresolved.

Congress doesn’t have to wait for Mueller to begin reviewing Trump’s conflicts of interest. Indeed, it’d be a far better use of the Oversight Committee’s time to chase down these issues than to interview Michael Cohen and in the process endanger a witness central to the Mueller probe.

Importantly, by focusing on the other ways — other than potential Russian compromise — that Trump has placed his self-interest above the good of the country, an impeachment inquiry might step beyond the debate as it currently stands, where impeachment is considered a political question, to one where it becomes a question of preventing ongoing damage to the country (on top of the legal remedy provided by the Constitution, as I noted in my bribery post).

Sure. An impeachment inquiry may not get 20 Republican votes in the Senate to impeach. But it might. In his first post after laying out why impeachment is necessary, Leonhardt laid out numbers showing that Trump is actually weaker than a lot of people assume.

In the days after I revealed that I had shared information with the FBI, I met with a few Republicans — that was a big part of the reason why I did go public. Remember, I didn’t go to the FBI about Trump, I went about information about the election year attack; but I suspected — and indeed confirmed — that even key members of Congress did not understand the full scope of the attack. My goal in meeting with those Republicans was to point out the damage they were doing by running interference for Trump instead of making sure that the country mounted an adequate response to those aspects of the attack that were not public. I started one meeting with a key Republican member of Congress (we both agreed we would not reveal we had met) literally by saying I was taking a leap of faith in even meeting with him. We agree on literally nothing in politics, except that we love our country. As I left that meeting, that member of Congress told me we may agree on more than I knew.

But that conversation was not about Donald Trump. It was, instead, about how the focus on winning a political fight over Donald Trump was distracting from ensuring the well-being of the country.

We are almost four weeks into a government shutdown that serves just one purpose: to ensure that Donald Trump doesn’t have to face Ann Coulter’s criticism, and the ego damage, of admitting he failed to implement a campaign promise he never delivered over two years of two-house Republican rule. We’ve had stupid government shutdowns before. But never before have we failed to fund the government because one narcissistic man put his own ego above the good of the country.

Now, more than ever, it should be easy to talk impeachment not as a way for Democrats to win partisan advantage by taking down Donald Trump, but as a way to protect the country from the harm he is doing. For the same reason, Democrats should be especially careful about how they talk about impeachment (as this great Balkans Bohemia thread argues); because to actually prevent further damage, impeachment needs to be a sober, legitimate process. That’s what impeachment needs to be about: not a political question. But a question about how to protect the one thing we all share — this country.

Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

Frothy Republicans Confuse Oleg Deripaska and Donald Trump

A letter from Elijah Cummings and Jerrold Nadler to Trey Gowdy and Bob Goodlatte answers two questions I’ve had since John Solomon and the rest of the propaganda mill started reporting on Christopher Steele’s communications with Bruce Ohr.

First, the communications that frothy right propagandists all seem to have, have not been officially released. Indeed, Cummings and Nadler complain that in the questioning of Ohr last week, Democrats weren’t even shown the communications that all the frothy right seems to have.

These documents were not included in the 800,000 pages of documents the Justice Department produced to our Committee during this investigation. During Mr. Ohr’s interview, the Republican Members never introduced these documents into the official record, never marked them as exhibits, never explained how they obtained them, and never provided copies to Democratic staff participating in the interview.

More hilariously, the letter reveals that Republicans read a reference Steele made to “our favorite business tycoon” and assumed — premised on the notion that everything Steele was doing at the time had to have been a conspiracy against Trump — that that must be a reference to Trump.

First, by cherry-picking portions of these documents out of context–and withholding the full set of documents–Republican Members are creating a highly misleading narrative with factually inaccurate interpretations and conjecture. For example, Republican Members read aloud a portion of one email in which Mr. Steele wrote to Mr. Ohr, “There is something I wanted to discuss with you informally and separately. It concerns our favorite business tycoon.” When Republican Members accused Mr. Ohr of discussing President Donald Trump with Mr. Steele, Mr. Orh explained that the Republican interpretation was false–and that the “business tycoon ” they were referring to was actually Russian oligarch Oleg Deripaska.

Cummings and Nadler point out that that interpretation has leaked to frothy right propagandists.

[S]elect portions of some of these same documents have no been leaked to the press to create similarly false and misleading narratives. For example, on August 7, 2018, John Solomon wrote in The Hill that he was given some of “Ohr’s own notes, emails and text messages.” In his piece, Mr. Solomon quoted the same email in which Mr. Ohr and Mr. Steele discussed “our favorite business tycoon.” Then, like the Republican Members, Mr. Solomon asserted inaccurately that this statement was “an apparent reference to Trump.”

Here’s how Solomon spun it.

Some of the more tantalizing Ohr contacts occurred in the days when Steele made his first contacts with the FBI in summer 2016 about the Russia matter.

“There is something separate I wanted to discuss with you informally and separately. It concerns our favourite business tycoon!” Steele wrote Ohr on July 1, 2016, in an apparent reference to Trump.

That overture came just four days before Steele walked into the FBI office in Rome with still-unproven allegations that Trump had an improper relationship with Russia, including possible efforts to hijack the presidential election.

And how Byron York repeated that “reasonable” supposition.

On March 17, Steele wrote a brief note asking if Ohr had any update on plans to visit Europe “in the near term where we could meet up.” Ohr said he did not and asked if Steele would like to set up a call. It is not clear whether a call took place.

There are no emails for more than three months after March 17. Then, on July 1, came the first apparent reference to Donald Trump, then preparing to accept the Republican nomination for president. “I am seeing [redacted] in London next week to discuss ongoing business,” Steele wrote to Ohr, “but there is something separate I wanted to discuss with you informally and separately. It concerns our favourite business tycoon!” Steele said he had planned to come to the U.S. soon, but now it looked like it would not be until August. He needed to talk in the next few days, he said, and suggested getting together by Skype before he left on holiday. Ohr suggested talking on July 7. Steele agreed.

Ohr’s phone log for July 7 notes, “Call with Chris Steele” from 8:00 a.m. to 8:30 a.m. eastern time.

(A caution here: It is possible the “favourite business tycoon” could be Deripaska, or perhaps even someone else, and not Trump. But no one referred to Deripaska in that way anywhere else in the communications. Also, Steele made it clear the “tycoon” subject was separate from other business. And July 1 was just before Steele met with the FBI with the first installment of the Trump dossier. So it appears reasonable, given Steele’s well-known obsession with Trump, and unless information emerges otherwise, to see the “favourite business tycoon” as Trump.)

Followed, marginally more critically, by Chuck Ross.

On July 1, 2016, Steele reached out to Ohr in hopes of discussing “our favourite business tycoon!” It is unclear if Steele was referring to Deripaska or Donald Trump. Steele met with Ohr and his wife, a Russia expert named Nellie Ohr, on July 30, 2016, at a Washington, D.C., hotel.

When I wrote this up, I noted the problematic assumption.

But in their effort to make everything an expert on Russian organized crime touched into a conspiracy against Donald Trump, the frothy right has just confused Trump and a mobbed up Russian oligarch.

I mean, there’s a clear difference. Deripaska really is as rich as he claims.

Michael Flynn: Serial Doublecrosser

Yesterday, Representative Elijah Cummings, along with the rest of the Democrats on the House Oversight Committee, released blockbuster information from a whistleblower who was at a celebratory event on Trump’s inauguration day. The whistleblower met and talked with Alex Copson, founder and managing partner of ACU Strategic Partners. Recall that I have been posting recently on Michael Flynn’s advocacy for a deal to build nuclear power plants in Saudi Arabia. I have focused so far on IP3 and their security arm, Iron Bridge Partners. First, I noted that IP3 believes US strategy in the Middle East has been to “resource conflict“. Next, I asked whether the Iron Bridge vision for security surrounding the proposed nuclear power plants actually anticipated the Saudi orb. Most recently, I described the chilling plans IP3 had for diversifying the Saudi economy.

Flynn’s reported association with IP3 was preceded by an association with ACU. In the discussion to follow, it is important to remember that the Saudi proposals from ACU have concentrated on Russia building the nuclear power plants while IP3 initially proposed working with China and then moved to advocating the US building the power plants.

When reviewing the information released yesterday, it becomes abundantly clear that Michael Flynn has been remarkably dishonest in his dealings since he was fired from his role as head of the Defense Intelligence Agency by President Obama. Here is just a partial list of key times Flynn has doublecrossed various entities.

Doublecrossing the United States

A key feature of the treasure trove of information Cummings and his colleagues released yesterday is a timeline on Flynn. Early developments on the timeline center on an appearance Flynn made on June 10, 2015 before the House Foreign Affairs Committee. As noted in the timeline, Flynn did not disclose his work at that time on behalf of ACU. Here is a key clip from his testimony, where he mentions one of two trips to the Middle East he made that month. Note especially that he is stating that he wants the US to be “in the driver’s seat” on building nuclear power plants in the region, despite being paid at that time by ACU, who wanted to have Russia build the plants (the video should start at the beginning of the relevant words from Flynn at 1:50:20; the comment lasts just under three minutes):

Note that Flynn says he doesn’t want Egypt talking to Russia about building nuclear power plants. We have learned that on one of his June 2015 trips, Egypt was one of the countries that Flynn visited. Was Flynn merely ineffective on this and other trips to the Middle East, or was he being duplicious? Just a few months later, we see this announcement from Egypt, on November 19, 2015, that Egypt and Russia have finalized a deal for Russia to build a nuclear reactor in Egypt. Further, the announcement mentions that a memorandum of understanding on the reactor had been signed back in February of 2015, several months before the Flynn trip that we know of.

But that’s not all. Just over a week after this appearance before the committee advocating for the US to be in control of the Saudi nuclear plans, both Saudi Arabia and Russia announced an agreement for Russia to build the plants. A careful reading of these announcements and in some of the contemporary press accounts of them makes it look as though the agreement signed was very preliminary and seemed to be setting the stage legally for the two countries to get into more detailed discussions. In other words, it seems even more preliminary than the memorandum of understanding between Russia and Egypt the previous February, but it certainly seemed to set the stage for Russia to be seen as clearly the frontrunner for a later agreement on actual construction of the power plants.

The information Cummings released yesterday makes me think that Flynn, despite his claims to the Foreign Affairs Committee, has actually been working to push a deal for Russia to build the power plants. From the Cummings timeline:

On January 20, 2017, according to a whistleblower, Alex Copson of ACU claimed that Flynn sent him a text while President Trump was delivering his inaugural address indicating that the nuclear project was now “good to go” and directing his business colleagues to move forward. Copson reportedly stated that “Mike has been putting everything in place for us” and that “This is going to make a lot of very wealthy people.” He added that Flynn was making sure that sanctions would be “ripped up” as one of his first orders of business and that this would allow money to start flowing into the project.

Wow. There’s just no other way to read this than that Copson felt Flynn had been working for his group all along and that “ripping up” the sanctions against Russia were a key to getting the project rolling. And that has to mean that Russia building the plants was a central feature of their plans and their excitement over Trump taking office.

That leads us to the next level of doublecrossing.

Doublecrossing Business Partners

Excerpts from a recent Washington Post article give us some dates on Flynn’s association with ACU and then IP3:

The proposal — to develop a “Marshall Plan” of investment in the Middle East — was being pushed by a company that Flynn said he had advised during the 2016 campaign and transition. The firm was seeking to build nuclear power plants in the region.

His advocacy for the project in the White House surprised some administration officials and raised concerns that Flynn had a conflict of interest. From August to December 2016, he said he served as an adviser to the company, IP3, reporting later on his disclosure forms that he ended his association with the firm just weeks before joining the administration.

/snip/

Before his association with IP3, Flynn served as an adviser from April 2015 until June 2016 to ACU Strategic Partners, which had its own plan to help build nuclear plants in the Middle East, in conjunction with Russian interests.

In June 2015, he traveled to Egypt and Israel on a trip paid for by ACU to promote the plan. Flynn later failed to disclose the trip in his security clearance renewal application in 2016, according to Democrats on the House Committee on Oversight and Government Reform, an omission they said may have violated federal law.

Got that? Flynn was with ACU from April 2015 until June 2016 and then IP3 from August 2016 until December 2016. But, the Post article notes that Flynn pushed an IP3-related article in the first week of Trump’s presidency, while we saw above that during the inauguration he was texting the head of ACU. [Note: I am still working separately to decipher the many changes of alliances of ACU, IP3, Iron Bridge and others] even though he had supposedly ended his relationships with both. It is very hard to come to any other conclusion than that Flynn may well have been trying to play the two groups off one another, only to then reclaim association with whichever one came out on top, doublecrossing the losing side.

Doublecrossing Trump

Now that Flynn has pleaded guilty to lying to the FBI about Russian contacts and is cooperating with Mueller’s probe, it is clear that he has doublecrossed Trump.

Doublecrossing Himself

Remember that this happened during the Republican National Convention:

After advocating for Hillary Clinton to be locked up, now it’s pretty hard to see how Flynn avoids prison time for his own crimes, even with a sentence that is likely to be reduced due to his participation in the Mueller probe. But given Flynn’s propensity for doublecrossing, I fully expect him to get caught violating the terms of his agreement with Mueller and wind up with some very serious time behind bars. It’s just who he is.

Darrell Issa Steps in It, Inadvertantly Reveals Improper Use of Congressional Funds to Serve AEI

United States House of Representatives Seal

United States House of Representatives Seal by DonkeyHotey

Republicans are big fans of projection. When they’re neck-deep in conflicts of interest, they like to hide it by accusing Democrats of such conflicts. When they leak stuff, they accuse Democrats. When they mismanage stuff, they accuse Democrats.

And yesterday, Darrell Issa got caught doing just that.

A year ago, on July 27, 2010, Issa accused the Financial Crisis Inquiry Commission of partisanship, largely because Democrats passed the Dodd-Frank financial reform bill before the FCIC reported its conclusions. Of particular note, Issa claimed Democrats on the FCIC were letting partisan ties direct their work.

Yet, as a report released by Elijah Cummings yesterday makes clear, the Republicans were the ones being directed by outside influences–both by their own partisan considerations, as well as two possible lobbyists. The report found that:

  • Immediately after Republicans took the House last November, some Republicans on the Committee started tailoring their contributions to make sure they would serve the goal of setting up a repeal of Dodd-Frank. Of particular note, Commissioner Peter Wallison started sending emails warning, “It’s very important, I think, that what we say in our separate statements not undermine the ability of the new House GOP to modify or repeal Dodd-Frank.”
  • Wallison (who is a fellow of AEI) also tailored his contributions–including his separate statement–largely to parrot the discredited theories of AEI fellow (and former Fannie Mae official) Edward Pinto. Pinto argued that the entire crash was caused by HUD’s affordable housing policy. Wallison’s mindless insistence on advancing Pinto’s theory got so bad that the special assistant to Republican FCIC Vice Chairman, Bill Thomas, suggested, “I can’t tell re: who is the leader and who is the follower. If Peter is really a parrot for Pinto, he’s putting a lot of faith in the guy.” Not only did Wallison serve Parrot’s propaganda, though: he also shared confidential documents made available to the FCIC, violating its ethics standards.
  • Thomas himself consulted with–and shared confidential information with–someone outside the Commission: the CEO of a political consulting firm, Alex Brill (he’s also a fellow at AEI). At one level, Brill seems to have been offering Thomas political advice. But it also appears Brill may have been trying to cushion the damage done by the FCIC to Citibank’s reputation.

Now, Cummings released this report partly because Issa refused to call Thomas and Wallison as witnesses in his inquiry into problems with the FCIC. And the release of the report seems to have convinced Issa to indefinitely postpone the investigation into the FCIC.

Good–this is precisely the kind of thing I was thinking of when I suggested we needed someone like Cummings to babysit Issa.

But it also seems like a good time to turn this into a much bigger attack.

As Cummings’ FCIC report makes clear, what Wallison and Thomas appear to have done is unethically misuse funds appropriated by Congress. While it’s not entirely clear who the ultimate beneficiaries of their ethical lapses are–aside from, vaguely, the banksters, both men were collaborating improperly with AEI fellows. More clearly, both men appear to have violated their ethical obligations–a set of rules–to try to make sure banksters didn’t have to follow any rules passed under Dodd-Frank.

Issa is teeing off today, again, against Elizabeth Warren. I do hope Cummings finds ample opportunity to remind Issa that it’s clear he’s doing the bidding not of transparency or oversight or the American people, but rather a number of corrupt banksters trying to avoid playing by the rules.

Darrell Issa Complains that Janet Napolitano Took a Whole Year to Change Michael Chertoff’s Inefficient FOIA Process

Darrell Issa has no credibility when it comes to matters of transparency. We’ve seen Issa’s rank hypocrisy in the past. He dismissed concerns about Karl Rove doing business on RNC emails as a political stunt. And he suggested that apparently deliberate attempts to dismantle email archives at the White House was all about technology.

So I’m not surprised his loud complaints that Department of Homeland Security politicized the FOIA process turned out to be oversold.

As it happens, both Issa’s and Elijah Cummings’ reports on this seem to miss the forest for the trees.

At issue is the process by which top DHS officials review–and are alerted to–sensitive FOIA releases. The policy in place up until July 2010 was put in place in 2006. That is, under Michael Chertoff. As I understand it, when certain high level issues were due to be released, the Secretary’s office (whether it be Chertoff or Janet Napolitano) would be emailed the materials for review. In some cases, that review identified additional information that, for legal FOIA reasons, needed to be redacted. In other case, this review process simply alerted the Secretary to something he or she would be asked about in the press.

In other words, Darrell Issa is complaining about a process–and a burdensome email review process–inherited from Michael Chertoff. Since then, DHS has introduced an intranet system that has gotten the Secretarial review time to one day.

In addition, Issa appears to ignore how DHS has gotten rid of the largest FOIA backlog in history. In 2006, according to Mary Ellen Callahan’s testimony, DHS had a backlog of 98,000 requests. When Napolitano took over, that backlog was 74,000 requests. The backlog is now 11,000.

This is the kind of thing Darrell Issa is bitching about.

Now I do have certain questions about what sparked all of this. Issa first latched onto the issue after this AP report–the most serious allegations of which the AP subsequently admitted they could not confirm. Call me crazy, but given the centrality of bad blood between a few career staffers here, I’d suggest the original article came right out of that bad blood. (And perhaps not coincidentally, the article came out in the same month as DHS switched to the more efficient Intranet process.)

But it also sounds like the Napolitano was particularly concerned about being alerted to sensitive requests in the early years of the Administration.

Unless I missed it, no one mentioned this debacle, Napolitano’s embarrassment with the release of a Bush-initiated report on right wing domestic extremism. Mind you, witnesses admitted that part of the concern arose from the release of information that had been generated under the Bush Administration, so it’s possible that this report was the reason for the sensitivity.

But I wonder whether part of the problem here all stems from the fact that the Bush DHS initiated a study on right wing extremists that was subsequently spun as a Napolitano project.

Darrell Issa Needs a New Baby-Sitter

If the Democratic Party wants to survive the next two years, it needs to find a new baby-sitter for Darrell Issa.

After all, no one was more gleefully prepared after the shellacking last Tuesday to take over and cause trouble for Democrats that Issa. He’s been planning a series of witch hunts for months. And since Tuesday, Issa has made it clear just how expansive he intends those witch hunts to be.

California Rep. Darrell Issa is already eyeing a massive expansion of oversight for next year, including hundreds of hearings; creating new subcommittees; and launching fresh investigations into the bank bailout, the stimulus and, potentially, health care reform.

Issa told POLITICO in an interview that he wants each of his seven subcommittees to hold “one or two hearings each week.”

“I want seven hearings a week, times 40 weeks,” Issa said.

Issa is also targeting some ambitious up-and-comers like Reps. Jason Chaffetz of Utah, Patrick McHenry of North Carolina and Jim Jordan of Ohio — all aggressive partisans — to chair some of his subcommittees.

[snip]

To give an idea of how expansive Issa’s oversight plans are, look at the record of Rep. Henry Waxman (D-Calif.) when he chaired the oversight committee during in the 110th Congress during George W. Bush’s presidency. Waxman held 203 oversight hearings in two years; Issa has signaled he’s prepared to hold about 280 in just one year.

The current Chair of Oversight, Ed Towns, is not up to the task of keeping Issa in check.

As I noted two years ago, Towns was never all that interested in Oversight; to him it was a gavel and nothing more. Plus, he’s funded by some of the industries–like Pharma–that need some oversight.

More importantly, the last two years have proven him unequal to the task of keeping Issa in line. Indeed, Issa has pushed Towns around to do things like focus on the Countrywide VIP program, even while Towns failed to do much positive with his gavel. Keeping Towns on as Ranking Member of Oversight will deprive us of any way of limiting the damage of Issa’s witch hunts.

We need someone with both the intestinal fortitude and the progressive stripes to encourage Issa where we could use more Oversight–such as on the Wall Street bailout, which Issa promises to investigate–while obstructing Issa’s efforts to shut down government or sniff through Obama’s panty drawer, as Issa’s predecessor, Dan Burton, did to Clinton.

We need someone like Elijah Cummings, who considered a run for Oversight Chair two years ago, and who has been one of the few people on Oversight demanding the Committee do what it is supposed to do. Cummings has been very good at using his spot on the Committee to expose the cronyism of government (particularly on the Wall Street bailout). And of critical importance, he speaks well enough to match a showboater like Issa. He has the ability to expose Issa’s more partisan stunts as such. Finally, replacing Towns with Cummings will limit the complaints of the CBC (particularly in case Clyburn loses to Steny in the Whip fight).

The focus since Tuesday has been on the leadership fight between Steny and others. But just as important as picking the right leader to keep the caucus as effective as possible in the minority, we need to pick a better baby-sitter for Issa–someone like Elijah Cummings.

Is AIG’s Reinsurance Side a House of Cards, Too?

The other day, Atrios pointed to this passage, explaining that AIG was reinsuring some of its own insurance businesses.

Thomas Gober, a former Mississippi state insurance examiner who has tracked fraud in the industry for 23 years and served previously as a consultant to the FBI and the Department of Justice, says he believes AIG’s supposedly solvent insurance business may be at least as troubled as its reckless financial-products unit. Far from being "healthy," as state insurance regulators, ratings agencies and other experts have repeatedly described the insurance side, Gober calls it "a house of cards." Citing numerous documents he has obtained from state insurance regulators and obscure data buried in AIG’s own 300-page annual reports, Gober argues that AIG’s 71 interlocking domestic U.S. insurance subsidiaries are in hock to each other to an astonishing degree.

Most of this as-yet-undiscovered problem, Gober says, lies in the area of reinsurance, whereby one insurance company insures the liabilities of another so that the latter doesn’t have to carry all the risk on its books. Most major insurance companies use outside firms to reinsure, but the vast majority of AIG’s reinsurance contracts are negotiated internally among its affiliates, Gober says, and these internal balance sheets don’t add up. The annual report of one major AIG subsidiary, American Home Assurance, shows that it owes $25 billion to another AIG affiliate, National Union Fire, Gober maintains. But American has only $22 billion of total invested assets on its balance sheet, he says, and it has issued another $22 billion in guarantees to the other companies. "The American Home assets and liquidity raise serious questions about their ability to make good on their promise to National Union Fire," says Gober, who has a consulting business devoted to protecting policyholders. Gober says there are numerous other examples of "cooked books" between AIG subsidiaries. Based on the state insurance regulators’ own reports detailing unanswered questions, the tally in losses could be hundreds of billions of dollars more than AIG is now acknowledging. [my emphasis]

Masaccio pointed me to these two passages in AIG’s 10K, which sound like they may describe what Gober is talking about:

Various AIG profit centers, including DBG, AIU, AIG Reinsurance Advisors, Inc. and AIG Risk Finance, as well as certain Foreign Life subsidiaries, use AIRCO as a reinsurer for certain of their businesses, and AIRCO also receives premiums from offshore captives of AIG clients. In accordance with permitted accounting practices in Bermuda, AIRCO discounts reserves attributable to certain classes of business assumed from other AIG subsidiaries. (10)

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Kucinich or Cummings for Oversight

I said most of what I’m going to say about the Waxman-Dingell fight in this post (though I will reiterate my concern that Waxman–who will now be in charge of shepherding healthcare through the House–has said almost nothing about it thus far).

Except that, now that Waxman has won, I think it crucially important that we find someone very effective to replace Waxman at Oversight. Waxman leaves some important unfinished business at oversight, including his investigation into the White House emails, the Bush Administration’s lackadaisical policy towards leakers (including Scooter Libby), and recent oversight into the financial crash. Furthermore, Darrell Issa is by most accounts set to take over as Ranking Member on Oversight. Oversight is one committee where the Ranking Member has the means to be a real pain in the arse, and Issa is a bigger pain in the arse–and more effective–than most Republicans. Finally, I don’t want to make the mistake the Republicans made; I want someone to exercise real oversight over the Obama Administration. For all these reasons, we need a real leader replacing Waxman at Oversight.

I recommend either Dennis Kucinich or Elijah Cummings.

The senior member on Oversight, after Waxman, is Edolphous Towns. I don’t know all that much about Towns–though I find it telling that, as someone who watches a great deal of Oversight’s hearings, I’ve almost never seen him contribute substantively (for that matter, I rarely see him, at all, at full committee hearings). That, plus he’s the recipient of some big love from the Pharma/Health Care and Finance industries–two industies that must remain targets of oversight.

Kucinich and Cummings are both relatively senior members of the Committee. And both have proven to be the kinds of effective 

Kucinich currently serves (opposite Issa) as Chair of the Domestic Policy Subcommittee (and many of the most critical oversight issues in the next Congress will be domestic ones). And his work on impeachment shows that his staffers have the ability to do great work and Kucinich has the ability to deliver them. Plus, he’s the perfect kind of gadfly to keep our new President honest. I suspect that Kucinich would have a tough time getting the votes in a straight fight, but if there are multiple candidates, he’d have a shot.

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