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The Whack-a-Mole Cover Story: Bill Barr’s Knowing Complicity Moved a Month Earlier

Attentive readers of yesterday’s NYT Bolton story have noted that Bolton says that by August, Trump’s demand in the quid pro quo was not just the announcement of an investigation, but “all materials they had about the Russia Investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.”

In his August 2019 discussion with Mr. Bolton, the president appeared focused on the theories Mr. Giuliani had shared with him, replying to Mr. Bolton’s question that he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.

That is, in August of last year, Trump was extorting Ukraine to obtain materials about 2016.

Some have suggested this is new news. But it’s not. It came up at Mick Mulvaney’s October 17, 2019 press conference. As he told it, the hold was primarily because of corruption and to press the rest of Europe to provide their fair share of funding for Ukraine. Mulvaney made a statement that — given that we now know DOD reviewed how much Europe provided and concluded they were providing more than the US — is fairly breathtaking in retrospect. Mulvaney gets away with this by claiming it’s just about lethal aid.

So we actually looked at that, during that time, before — when we cut the money off, before the money actually flowed, because the money flowed by the end of the fiscal year — we actually did an analysis of what other countries were doing in terms of supporting Ukraine.  And what we found out was that — and I can’t remember if it’s zero or near zero dollars from any European countries for lethal aid.  And you’ve heard the President say this: that we give them tanks and other countries give them pillows.  That’s absolutely right, that the — as vocal as the Europeans are about supporting Ukraine, they are really, really stingy when it comes to lethal aid.  And they weren’t helping Ukraine, and then still to this day are not.

From those two excuses — corruption and European support — Mulvaney then adds, as what he probably intends to be a throwaway comment, that part of this was investigating the DNC server, all the while trying to pretend that an investigation into the DNC server (he can never seem to label this the Crowdstrike conspiracy theory) pertains to corruption.

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

[snip]

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

Someone latches on to Mulvaney’s admission that Trump was demanding an investigation into his opponents, and raises “the Bidens.” Someone else notes that even if you’re just talking about the DNC, it still means Trump engaged in a quid pro quo to investigate his prospective opponents, since the DNC is also involved in 2020.

Q    Mr. Mulvaney, what about the Bidens, though, Mr. Mulvaney?  Did that come into consideration when that money was held up?

MR. MULVANEY:  I’m sorry, I don’t know your name, but he’s being very rude.  So go ahead and ask your question.

Q    Just to clarify, and just to follow up on that question: So, when you’re saying that politics is going to be involved —

MR. MULVANEY:  Yeah.

Q    — the question here is not just about political decisions about how you want to run the government.  This is about investigating political opponents.  Are you saying that —

MR. MULVANEY:  No.  The DNC — the DNC server —

[snip]

Q    Are you saying that it’s okay for the U.S. government to hold up aid and require a foreign government to investigate political opponents of the President?

MR. MULVANEY:  Now, you’re talking about looking forward to the next election.  We’re talking —

Q    Even the DNC.  The DNC is still involved in this next election.  Is that not correct?

Mulvaney starts to panic, and to get out of that panic, invokes the Durham investigation. To defer from 2020, Mulvaney says Trump was just obtaining information for an ongoing investigation.

MR. MULVANEY:  So, wait a second.  So there’s —

Q    So are you saying —

MR. MULVANEY:  Hold on a second.  No, let me ask you —

Q    But you’re asking to investigate the DNC, right?

MR. MULVANEY:  So, let’s look at this —

Q    Is the DNC political opponents of the President?

MR. MULVANEY:  There’s an ongoing — there’s an ongoing investigation by our Department of Justice into the 2016 election.  I can’t remember that person’s name.

Q    Durham.

MR. MULVANEY:  Durham.  Durham, okay?  That’s an ongoing investigation, right?  So you’re saying the President of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing?  That’s just bizarre to me that you would think that you can’t do that.

In other words, in Mulvaney’s presser, he excused the political aspect of Trump’s quid pro quo by claiming the President was pressing Ukraine to cooperate in the Durham investigation. He claimed that this wasn’t about Biden but instead about 2016.

Of course, that had to have caused all sorts of heartache over at DOJ, because they had been saying for almost a month that Bill Barr had no clue about any of this and here Mulvaney was saying that the quid pro quo was about the investigation Barr set up and was micromanaging.

After DOJ pushed back, the White House adopted the line that this was about Burisma’s corruption.

To be sure, the impeachment witnesses didn’t always support that. Kurt Volker, for example, invented a story that when he pushed Ukraine to investigate Burisma, he meant they should investigate the corrupt company, not Biden and that the request to investigate 2016. He discounted the request for an investigation into 2016 by suggesting Ukrianians might be trying to buy influence.

SCHIFF: Ambassador, let me also ask you about the allegations against Joe Biden, because that has been a continuing refrain from some of my colleagues, as well. Why was it you found the allegations against Joe Biden, related to his son or Burisma, not to be believed?

VOLKER: Simply because I’ve known Vice President — former Vice President Biden for a long time, I know how he respects his duties of higher office and it’s just not credible to me that a Vice President of the United States is going to do anything other than act as how he sees best for the national interest.

[snip]

SCHIFF: I take it since you say that — you acknowledge that asking for an investigation of the Bidens would have been unacceptable and objectionable, that had the President asked you to get Ukraine to investigate the Bidens, you would have told him so?

VOLKER: I would have objected to that. Yes, sir.

SCHIFF: Mr. Goldman?

GOLDMAN: Thank you, Mr. Chairman. Just one follow up on that, Ambassador Volker. When — when you say thread the needle, you’re — you mean that you understood the relationship between Vice President Biden’s son on — and Burisma but you were trying to separate the two of them in your mind? Is that right?

VOLKER: Well I believe that they were separate, that — and I — this references the conversation I had with Mr. Giuliani as well, where I think the allegations against Vice President Biden are self-serving and not credible.

A separate question is whether it is appropriate for Ukraine to investigate possible corruption of Ukrainians that may have tried to corrupt things or buy influence. To me, they are very different things. As I said, I think the former is unacceptable, I think the latter in this case is …

[snip]

GOLDMAN: Now he was insisting from a public commitment from President Zelensky to do these investigations, correct?

VOLKER: Now, what do we mean by these investigations?

GOLDMAN: Burisma and the 2016 election.

VOLKER: Burisma and 2016, yes.

GOLDMAN: And, at the time that you were engaged in coordinating for this statement, did you find it unusual that there was such an emphasis on a public statement from President Zelensky to carry out the investigations that the president was seeking?

VOLKER: I didn’t find it that unusual. I think when you’re dealing with a situation where, I believe the president was highly skeptical about President Zelensky being committed to really changing Ukraine after this entirely negative view of the country, that he would want to hear something more from President Zelensky to be convinced that — OK, I’ll give this guy a chance.

GOLDMAN: And he — perhaps he also wanted a public statement because it would lock President Zelensky in to do these investigations that he thought might benefit him?

VOLKER: Well again, we’re — when we say these investigations what I understood us to be talking about was Ukrainian corruption.

GOLDMAN: Well, what we’re talking about is Burisma and the 2016 election, let’s just —

VOLKER: Correct, correct — yes, right.

[snip]

VOLKER: I do remember having seen some of the testimony of Mr. Kent, a conversation in which he had asked me about the conspiracy theories that were out there in Ukraine. I don’t remember what the date of this conversation was.

And my view was, well, if there are things like that, then why not investigate them? I don’t believe that there’s anything to them. If there is — 2016 election interference is what I was thinking of — we would want to know about that. But I didn’t really there was — believe there was anything there to begin with.

It was a thin story, but necessary to explain why Volker did something he knew to be utterly corrupt, and then got caught doing it. While not explicitly, he was endorsing the possibility that Ukraine might have had a corrupt role in 2016.

All that said, Bolton’s certainty that Trump was also asking for Ukraine to provide the US with information on 2016 raises the import of this detail: Bolton claims (and DOJ has been releasing conflicting comments since yesterday) that he warned Bill Barr about this shadow Ukraine policy in July.

Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.

After releasing an initial denial yesterday, today DOJ has issued a non-denial confirmation.

A Justice Department official familiar with the matter said Mr. Bolton did call Mr. Barr to express concerns about Mr. Giuliani and his shadow foreign policy in Ukraine. It wasn’t clear what, if anything, the attorney general did with that information.

Department spokeswoman Kerri Kupec denied that Mr. Barr learned of the Ukraine call from Mr. Bolton. The department has repeatedly said he learned about it in mid-August.

We don’t know for sure, but the difference in timeline may be utterly critical to Barr’s implication in this conspiracy. For starters, Bolton’s warning to Barr undoubtedly came before Barr stopped into a meeting in September with Rudy Giuliani about the Venezuelan who happened to be funding some of the Ukrainian grift. Bolton’s warning may make DOJ’s efforts to bracket off the Parnas and Fruman investigation, which Barr undoubtedly knew about, from the whistleblower complaint far more suspect.

Most importantly, we don’t know when multiple Ukrainians offered John Durham dirt (much less who they are). But if happened between Bolton’s warning in July and when Barr has previously claimed to have learned that Trump told Zelensky that he, Bill Barr, would happily receive the dirt he was extorting, it would make Durham’s acceptance of that dirt part of the conspiracy itself. That is, it would make Barr’s efforts to use DOJ to investigate Trump’s opponents a key part of both a conspiracy being investigated in SDNY, from which Barr has irresponsibly not recused, as well as an impeachment investigation, from which Barr has also not recused.

Bolton’s certainty that Trump wanted Ukraine to provide materials for a US investigation into Trump’s foes is not at all new. But the fact that Barr should have known he was part of this conspiracy a month earlier than he had previously admitted is.

Dick Cheney’s Apprentice Strikes

John Bolton may lack the courage of Marie Yovanovitch, Jennifer Williams, Fiona Hill, or Alex Vindman. But he learned the art of bureaucratic murder from the master, Dick Cheney. And so it is that after the President’s lawyers have already laid out their defense, it magically happened that NYT learned the damning details about Ukraine in the draft of Bolton’s book that would make his testimony in the impeachment trial monumental.

Apparently, the book describes:

  • In an August meeting about releasing the aid, Trump said he didn’t want to release it until Ukraine sent all documents pertaining to Biden and Hillary
  • Mike Pompeo knew Rudy’s allegations about Marie Yovanovitch were false and believed Rudy may have been working for other clients when he floated them
  • Bolton told Bill Barr that he was mentioned in the call in July; Barr has claimed he only learned that in August
  • Contrary to Mick Mulvaney’s claims, the Chief of Staff was present on at least one call with Rudy
  • Bolton, Pompeo, and Secretary of Defense Mark Esper counseled Trump to releasee the aid almost a dozen times

The details I most relish — not least because Dick Cheney hurt the country using his bureaucratic skills but included none of them in his autobiographical novel — are there bureaucratic details.

Mr. Bolton’s explosive account of the matter at the center of Mr. Trump’s impeachment trial, the third in American history, was included in drafts of a manuscript he has circulated in recent weeks to close associates.

[snip]

White House officials … said he took notes that he should have left behind when he departed the administration.

Bolton has notes. And “close associates” of his have drafts of the manuscript.

Bill Barr may be sending FBI agents out to pick up Bolton’s notes as they went to pick up Jim Comey’s memos detailing Trump’s damning behavior, but at this point, I think Bolton could instead send them to NARA to comply with the Presidential Records Act. And if Barr goes after Bolton, I assume his friends will release the drafts.

Plus, there are several other ways this can get out. Bolton has just won himself an invitation to testify to SDNY about Rudy (and Pompeo may have as well). The House could go after Bolton for investigations of everyone else he implicated — Pompeo, Barr, Mulvaney — all of whom deserve to be impeached themselves.

Already, a significant majority of voters want the Senate to call witnesses like Bolton. Now, if they don’t so they can acquit, it will make this a bigger story going forward.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Will Hurd

Will Hurd’s Sparkle Pony Approach to the Solemn Duty of Upholding the Constitution

There was yet another stunning impeachment hearing, with Fiona Hill and David Holmes laying out yet more evidence that Trump subordinated the national security of the United States to his own personal needs.

But that didn’t sway Will Hurd, who used his minutes at the end not to ask the question he has asked of many other witnesses, for a list of Ukrainians close to Volodymyr Zelensky with whom Rudy was interacting (Holmes had already made clear the list is much longer than the list Hurd had previously used to dismiss the inquiry).

Instead, he used his time to:

  • Grossly misrepresent the totality of the inquiry to two words in Trump’s call
  • Admit that this is a terrible precedent (one that Trump has already repeated with other countries)
  • Affirm that Trump’s actions harmed national security
  • Grossly misrepresent crystal clear messages to Ukraine, pretending they were unclear to the Ukrainians
  • Call willful actions for personal benefit a “bungling” foreign policy
  • Accuse Democrats (and nonpartisan witnesses) of undermining Ukraine for observing its reliance on us
  • Falsely claim there were differences of opinion about the call: no witness expressed having no concern about it
  • Call an investigation in which not a single witness was a partisan Democrat (just Tim Morrison, as a Congressional staffer, and Jennifer Williams, as a George W Bush campaign worker expressed any partisan affiliation) an extremely partisan process
  • Completely ignore Trump’s violation of the Budget Impoundment Act to create his extortion, effectively blessing the usurpation of his own power as a Congressman
  • Remain silent about the Administration’s refusal to cooperate at all in the inquiry, withholding every senior official’s testimony

Most cynically, though, Hurd blamed the focus on the President’s crimes for the distraction from Ukraine, not the President’s crimes itself. He blamed Democrats for the shift of focus, not the Administration’s refusal to respond to very simple, bipartisan requests about Ukraine, most notably on funding.

Then he suggested this investigation was rushed.

The delay is hurting Ukraine (and our own national security), but the inquiry has been rushed, said the former CIA officer.

And then, he laid out what he needed to assess whether this was really a crime: more testimony. Not from Mike Pompeo, Rick Perry, Mick Mulvaney, or John Eisenberg, all of whom can answer key questions that remain unanswered.

But from three people who should not testify:

  • Rudy Giuliani (because he is being criminally investigated for this activity and it’d be insane for him to do so–which is probably why he refused Lindsey Graham’s request for testimony)
  • Hunter Biden (because there has been no credible claim he did anything that Trump’s children aren’t currently doing)
  • The whistleblower (because every other witness has corroborated the whistleblower’s complaint and the President has already been retaliating against him for a month)

In short, Hurd offered up these three impossible witnesses, knowing that neither Democrats nor Republicans would agree to the request, as his condition to consider the matter further.

Hurd admitted in his statement that this is a gravely serious duty under the Constitution. And, having admitted that seriousness, he asked for a Sparkle Pony — something he knew he would not get — to excuse his own cowardice for refusing to do anything about Trump’s abuse of office.

Bill Barr’s Screed: Blindness about Current Threats

A lot of people are talking about the intemperate speech that Bill Barr gave to the Federalist Society yesterday. I’ll leave the detailed unpacking, about both its legal and historical claims, to others. To me, I find it unsurprising from a guy who used to be a serious authoritarian attorney but who has rotted his brain for the last two decades watching Fox News.

Obviously, Barr makes claims about “progressive” politics while ignoring that some things he celebrates — such SCOTUS letting conservatives gerrymander their fellow citizens out of representation — show that Republicans, not “progressives” are the ones “willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications.” Relatedly, Barr absolutely disappears all trace of conservative opposition to Trump (or, for that matter, any other opposition aside from those who adopt the term “resisistence”), and they’re the people who actually fit the description of “conservative” that he imagines he can still claim.

Conservatives, on the other hand, do not seek an earthly paradise.  We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing.  This means that we naturally test the propriety and wisdom of action under a “rule of law” standard.  The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?

Donald Trump’s Republican Party is no longer conservative, in any way, and it is sheer denial for Barr to think he merits this moniker any more.

Given that fact, I’m amused, reading the speech, by the possibility that Barr’s own actions may (or may not) bring about the state he claims to fear, with the Executive actually being reined in. It is his own hubris, in fact, that poses the risk here.

I’m also struck by how he admits that his job is to “carry into effect the laws passed by the Legislature,” because it is here that Bill Barr, personally, has failed this country.

To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.

Congress passed (and the Executive approved) a law requiring entities to share information that the Federal Election Commission to do his job. This is a law that Barr’s DOJ continues to enforce. But his own DOJ broke the law by failing to share the whistleblower complaint with the FEC.

Congress passed (and the Executive approved) a law requiring Inspectors General to share whistleblower complaints with Congress within stated timelines. Barr’s DOJ broke that law, and in the process allowed the President to continue to extort Ukraine when Congress should have had warning.

Congress passed (and the Executive approved) the Budget Control Impoundment Act, a means of enforcing their power of the purse. If the President fails to spend money appropriated by Congress in the way they intend it to be spent, he must inform them, and provide them a timely way to override his actions. This is a crime that lies at the core of the impeachment investigation, but Barr has done nothing to pursue action even against Mick Mulvaney, who admitted that the Administration violated the law, to say nothing of the President.

Bill Barr complains that Congress is spending too much time conducting oversight and not enough time legislating (though he should take this up with Mitch McConnell, because the House is getting plenty of legislating done). But meanwhile, he has failed to do his duty, as he himself describes it.

But the most striking part of this speech is how he ends it. He suggests that the best moments in history (including Americas genocide of Native Americans and imperialism) have been accomplished through robust Executive power.

At every critical juncture where the country has faced a great challenge –

– whether it be in our earliest years as the weak, nascent country combating regional rebellions, and maneuvering for survival in a world of far stronger nations;

– whether it be during our period of continental expansion, with the Louisiana Purchase, and the acquisition of Mexican territory;

– whether it be the Civil War, the epic test of the Nation;

– World War II and the struggle against Fascism;

– the Cold War and the challenge of Communism;

– the struggle against racial discrimination;

– and most recently, the fight against Islamist Fascism and international terrorism.

One would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount the challenge and brought us success.

He may have a point about some of these, especially the Civil War and Civil Rights.

Except Bill Barr appears to have zero clue what the biggest current threats to the country are. There’s no mention of climate change, of course, but President Trump has undercut efforts to respond to that emergency.

Closer to home for Barr, there’s a mention of what he calls “Islamist Fascism,” but no mention of white supremacist terrorism, which the FBI considers an increasingly grave threat. The President Barr enables fuels that terrorism, in large part because no one will rein in his worst behaviors.

Finally, there are the threats to our sovereignty posed by the ability of foreign powers — and Russia is just one — the buy up or compromise our politicians, starting with the President, and set US policy in ways that harm this country. This is the threat that Barr not only denies aggressively, but fosters, by flying around the world to find foreign propaganda to inject into our criminal justice system.

It may be true that some of our greatest moments as a nation were shepherded by a strong Executive. But in this particular case, the Executive that Barr is enabling is accelerating three of the greatest threats to this country. And making Trump stronger only exacerbates those threats.

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.

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.

How Trump Put Volodymyr Zelensky in a Public Box, After All

Some weeks ago, I predicted museums would one day display a copy of John Dowd’s letter describing how Lev Parnas and Igor Fruman — who was arraigned the other day, with the latter being represented by Paul Manafort’s lawyer in his NY State case — were in a nest of ethically ridiculous conflicts with Rudy Giuliani, the President, and Dmitry Firtash’s lawyers. Another document that will be displayed as a key record of history, I think, is William Taylor’s statement to Congress Monday, which WaPo managed to obtain and republish.

The whole thing is worthwhile. But I want to pay particular attention to what Taylor said about Trump’s demand that Volodymyr Zelensky state on the record his willingness to investigate the 2016 election and Joe Biden, because it changes the import of Trump’s decision to release the call transcript.

As Taylor describes it, he first learned of Trump’s demands regarding investigations on June 27, when Gordon Sondland told him about it. The next day, Sondland went to some lengths to prevent any contemporaneous transcript of a call with Zelensky, at which Sondland explained Trump wanted “cooperation on investigations to ‘get to the bottom of things'” (a line Trump would use in the July 25 call). Taylor would learn on July 19 that at a July 10 meeting (the one after which John Bolton accused Mick Mulvaney and Volker of setting up a drug deal), Sondland tied “investigations” to an Oval Office meeting with Trump. The same day he learned that, Sondland participated in a 3-way WhatsApp chat where Volker said that on an upcoming call, Zelensky should “say that he will help investigation–and address any specific personnel issues–if there are any” (another line that would appear in the July 25 call, this time parroted, though not as exactly, by Zelensky). The next day, Sondland told Taylor he had scripted Zelensky to say, “I will leave no stone unturned” on investigations (this particular line did not make it into the final call).

All that scripting (as well as more scripting from Sondland for Trump immediately beforehand) happened before the July 25 call.

In the call that Zelensky surely expected would remain private, he repeated much of what the back channel advisors had cued him to say. In addition to scolding Europe for not supporting Ukraine as well as the United States and providing assurances that he would and already had made personnel changes Trump wanted to see, Zelensky repeatedly agreed to cooperate on investigations.

I also plan to surround myself with great people and in addition to that investigation, I guarantee as the President of Ukraine that all the investigations.will be done openly and candidly. That I can assure you.

[snip]

I wanted to tell ·you about the prosecutor. First of all I understand arid I’m knowledgeable about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look. into the situation, specifically to the company that you mentioned in this issue. The issue of the investigation of the case is actually the issue of making sure to restore the honesty so we will take care of that and will work on the investigation of the case. On top of that, I would kindly ask you if you have any additional information that you can provide to us, it would be very helpful for the investigation to make sure that we administer justice in our country with regard to the Ambassador to the United States from Ukraine as far as I recall her name was Ivanovitch. It was great that you were the first one who told me that she was a bad ambassador because I agree with you 100%.

[snip]

I also wanted to thank you for your invitation to visit the United States, specifically Washington DC. On the other hand, I also wanted to ensure you that we will be very serious about the case and will work on the investigation.

These assurances came in response to clear demands from Trump. First he asked for an investigation into 2016.

I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I guess you have one of your wealthy people… The server, they say Ukraine has it. There are a lot of things that went on, the whole situation. I think you are surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.

Then he made several demands that Zelensky investigate Biden.

The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

He then seems to demand that Zelensky reinstate Viktor Shokin, the corrupt prosecutor Biden (and much of international community) called to be fired.

I will have Mr. Giuliani give you a call and I am. also going to have Attorney General Barr call and we will get to the bottom of it. I’m sure you will figure it out. I heard the prosecutor was treated very badly and he was a very fair prosecutor so good luck with everything.

In the following weeks, as Trump’s Attorney General made at least four efforts to cover up a whistleblower complaint about this call, Trump made increasingly alarming (to Taylor) demands from Zelensky, even after he had provided the assurances he thought Trump wanted in this private call.

On August 16 — by which point DOJ had learned of the outlines of the whistleblower complaint from John Demers’ review of the transcript — Taylor learned that Andriy Yermak wanted to ask DOJ to make a formal request that Ukraine investigate Burisma (and, presumably, Hunter Biden).

Then, on September 1, after DOJ had already received the formal whistleblower complaint and as the risk of security cooperation initially withheld in mid-July would become permanent, Mike Pence refused to release it, instead renewing a request that Ukraine “do more to fight corruption.” Taylor also learned that Sondland had told Yermak that security assistance would not be released until Zelensky “committed to pursue the Burisma investigation.”  That’s when Sondland told Taylor that,

President Trump had told him that he wants President Zelenskyy to state publicly that Ukraine will investigate Burisma and alleged Ukrainian interference in the 2016 U.S. election.

Ambassador Sondland also tole me that he now recognized that he had made a mistake by earlier telling the Ukrainian officials to whom he spoke that a White House meeting with President Zelenskyy was dependent on a public announcement of investigations–in fact, Ambassador Sondland said, “everything” was dependent on such an announcement, including security assistance. He said that President Trump wanted President Zelenskyy “in a public box” by making a public statement about ordering such investigations.

That was one day before Acting Director of National Intelligence Joseph Maguire should have transmitted the whistleblower complaint to Congress. It was two days before OLC would write a memo, which it overclassified as Top Secret, claiming Maguire could ignore the law and withhold the complaint.

On September 8, Taylor would learn that even after (on Taylor’s request) Sondland tried to push back on Trump’s demands for a public statement from Zelensky, Trump sustained them, and so Sondland passed on that demand.

He said he had talked to President Trump as I had suggested a week earlier, but that President Trump was adamant that President Zelenskyy, himself, had to “clear things up and do it in public.” President Trump said it was not a “quid pro quo.” Ambassador Sondland said that he had talked to President Zelenskyy and Mr. Yermak and told them that, although this was no a quid pro quo, if President Zelenskyy did not “clear things up” in public, we would be at a “stalemate.” I understood a “stalemate” to mean that Ukraine would not receive the much-needed military assistance. Ambassador Sondland said that this conversation concluded with President Zelenskyy agreeing ot make a public statement in an interview with CNN.

[snip]

Ambassador Sondland tried to explain to me that President Trump is a businessman. When a businessman is about to sign a check to someone who owes him something, the businessman asks that person to pay up before signing the check.

Taylor, of course, immediately saw the game and laid a record. “nightmare is they give the interview and don’t get the security assistance. The Russians love it.”

Taylor, apparently without even knowing about the brewing fight over the whistleblower complaint, sent a text the next day, September 9, making it clear he understood this to be a quid pro quo. “I think it’s crazy to withhold security assistance for help with a political campaign.”

That same day, after three bipartisan Congressional requests had already been made to release the assistance, 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,” (which would heighten the impoundment risk).  And the next, September 10, Adam Schiff sent the first letter making it clear he knew of the whistleblower complaint DOJ was so actively suppressing.

On September 11, Trump released the funds.

Taylor spent the next several days trying to get assurances from Ukrainians that they would not follow through on the CNN interview they had agreed to, which Oleksandr Danyliuk agreed to on September 13.

And that’s where everyone seems to believe it ended, with Taylor managing to prevent Trump from getting what he wanted, a public announcement from Zelensky that he would carry out Trump’s dirty work, but was doing so willingly.

But that’s an entirely incorrect understanding of what happened. Indeed, Taylor alludes to as much when he describes what happened when Trump — under gathering pressure about the complaint — chose to release the transcript of the call. As Taylor described, it happened as Zelensky went into his meeting with Trump at the UN, and Ukraine got no notice Trump was going to do so.

On September 25, at the UN General Assmebly session in New York City, President Trump met President Zelenskyy face-to-face. He also released the transcript of the July 25 call. The United Staes gave the Ukrainians virtually no notice of the release, and they were livid.

While they were at the UN, Danyliuk, who’d been central to these negotiations, got fired.

The first question at the joint presser after their meeting was about the call, and Zelensky had little choice but to claim, dishonestly, that Trump had put no pressure on him.

We had good phone call. It was normal. We spoke about many things. I think, and you read it, that nobody pushed, pushed me.

By staging it that way — by responding to Congressional demands the way he did — Trump got what he wanted in the first place, and got it in a way that got far more publicity than a CNN interview. By putting Zelensky in this position, Zelensky had not choice but to agree that both the investigations Trump wanted — into 2016 and 2020 — were legitimate investigations and not, themselves, abject corruption.

Corrupt hacks like Trump and Putin make great efforts to undermine any claim that others — the West, the pre-Trump — have greater moral standing than they do. And by ensuring that within months after taking power, someone who won on a platform of reform was publicly humiliated into embracing corruption, it normalizes corruption and undercuts Zelensky’s independent base of authority.

And it was not just Zelensky that Trump displayed as a corrupt hack, either. Bill Barr has spent the last month denying that his own corrupt effort to undermine the Barr investigation had any tie to this call and the President’s extortion. With Barr, it likely doesn’t matter. He would have happily done that anyway. Barr’s effort aims to do precisely what Trump did in that presser, to paint a legitimate investigation into Russian organized crime as, itself, corrupt, all the while undermining the rule of law in this country. But by implicating Barr in his extortion attempt, Trump eliminated Barr’s ability to distance himself from the larger corrupt enterprise.

This was not, as many people imagine, about getting Zelensky to led credence to the claims about Biden, though that’s a side benefit. It was about upending the very notion of corruption.

And Trump got that, without even needing that CNN interview.

How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

As the legal saga of Lev Parnas and Igor Fruman plays out against the background of an impeachment inquiry launched when DOJ tried to bury a whistleblower complaint, DOJ has been forced to offer a series of increasingly inconsistent explanations about who at DOJ knew what when. I’ve been working on a timeline examining What Did Bill Barr Know and When Did He Know It (that work in progress appears below). While I’m not ready to answer that question, one thing is clear: the personnel under Brian Benczkowski who reviewed and dismissed the complaint in August could not have followed normal process on assessing a referral if NYT’s reporting and Benczkowski’s most recent claims are true.

Benczkowski tries to prevent Rudy Giuliani from implicating him in his crimes

I’m speaking of a comment that Benczkowski had released to NYT for an October 20 story explaining why Benczkowski and fraud investigators would be willing to hear Rudy Giuliani pitch a client’s case when he was under active investigation for influence peddling in SDNY himself.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

That comment was a response to this Rudy-sourced Ken Vogel story that revealed the meeting, though without any of the answers as to Who What When questions that normally appear in finished news stories. The story may have been Rudy’s attempt to do the same thing he did as his shenanigans at State became public, raise the costs of making him the sole scapegoat by making it clear that his activities had high level knowledge and approval by Trump officials at the agency in question. That is, Rudy may have been making sure that if he gets in trouble for influence peddling, Brian Benzckowski will be implicated as well.

Importantly, both NYT stories on the meeting say the meeting happened a few weeks before October 18, a timeline that DOJ sources may be walking back in time considerably to “earlier this summer” included in this CNN article. One of the only ways for all these descriptions of timing be true is if the meeting took place around September 20, which would make it highly likely it involved Victoria Toensing, since Rudy was pictured meeting her and Lev Parnas across the street from DOJ that same day. (h/t DK for that insight) If it did (or if the descriptions of the meeting taking place a few weeks before October 18 are correct), then it means the meeting happened after DOJ reviewed and dismissed the whistleblower complaint about Trump’s July 25 call with Volodymyr Zelensky in late August.

As I’ll show below, the Peter Carr quote to the NYT might be true. But if it is, it means that well-connected Republicans can get a meeting with the Assistant Attorney General with almost no due diligence.

But if the Carr quotation is true (and if the timing of the meeting described to NYT is correct), then it is an on-the-record admission on behalf of Benczkowski that investigators working underneath him who reviewed and dismissed the whistleblower complaint did not follow procedures designed to keep our nation safe that have been codified since 9/11.

Benczkowski’s claim he didn’t know ignores what DOJ knew

Benczkowski’s explanation in the October 20 NYT story is based on a further one that suggests the only way he could have known about the criminal investigation into Parnas, Fruman, and Rudy is if a subordinate informed him directly.

While the Southern District of New York has been investigating Mr. Giuliani’s associates — an inquiry that may be tied to a broader investigation of Mr. Giuliani himself — prosecutors there had not told Mr. Benczkowski of the Criminal Division of the case, as he does not oversee or supervise their work. The United States attorney’s offices report to the deputy attorney general, Jeffrey A. Rosen.

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official.

DOJ has locked into a statement that Bill Barr had been briefed on this investigation shortly after he was confirmed in February and repeatedly thereafter since the day the arrest of the Ukrainian grifters became public. But Benczkowski claims he didn’t know about it because he’s not in that chain of command. SDNY reports to the Deputy Attorney General, which would have been Rod Rosenstein when Barr was initially briefed, but would be Jeffrey Rosen in any of the briefings DOJ has admitted to since.

This table attempts to summarize what DOJ learned of Parnas, Fruman, and Rudy when. It’s incomplete in at least one important respect, as I’ll show. But it captures most of the ways DOJ and FBI would have been informed about parts of the Ukrainian grift.

Remarkably, we don’t yet know how the SDNY came to open the investigation. It could have been a Mueller referral, SDNY could have discovered the grift from something that happened in NYC (though the venue that ultimately got laid out in the indictment suggests the obvious signs of corruption took place in FL), or it could have stemmed from a Campaign Legal Center complaint filed with the FEC on July 25, 2018. But by the time Barr was briefed in February, we should assume that DOJ knew at least as much as CLC knew the summer before, which is that Parnas and Fruman had set up a shell company, Global Energy Producers, that they were using to make big donations to Republicans, including a $325,000 donation to a Trump SuperPAC just days after Parnas and Fruman met with Trump at the White House. That’s what Barr would have learned when he got briefed shortly after he was confirmed on February 14: that these Ukrainian-Americans were giving straw donations to Republicans in apparent coordination with key meetings with the recipients.

Here’s where the gap in this table comes in. Someone trying to spin the CNN for its version of the Benczkowski quote claimed that Rudy was not yet a focus of the SDNY investigation at the time Barr was briefed (the claim is silent, however, about all the other times Barr was briefed, per an October 10 statement from DOJ). Nevertheless, as CNN lays out, that claim is probably not true, because a NY lawyer was already getting questions from FBI counterintelligence agents by that time.

A person familiar with the matter said that at the time, Giuliani wasn’t a central figure in the case as he is now. That emerged in recent weeks, the person said.

Still, New York federal prosecutors had their eyes set on Giuliani months ago. A New York lawyer told CNN that FBI counterintelligence agents asked him questions in February or March related to Giuliani and his associates.

The day after the Ukrainian grifters’ arrest became public, NYT reported that Rudy was under investigation for FARA (for activities that extend well beyond his Ukraine work). Particularly given that the National Security Division is setting up a unit to prosecute FARA violations, that, plus the involvement of CI agents, should involve NSD and therefore would suggest that NSD head John Demers would know of the focus on Rudy. That can’t be guaranteed, however, because SDNY often does its own thing. So that’s the gap: We don’t know when Demers would have first learned that Rudy’s under investigation for his sleazy influence peddling.

We do know, however, that sometime in May, State Department’s Inspector General Steve Linick sent FBI (we don’t know which unit) the “Rudy Dossier,” the disinformation developed as part of his Ukraine work. Among the things that dossier includes is an email via which John Solomon sent a draft of this article to Rudy, Victoria Toensing, and Lev Parnas. Whoever received that dossier should have immediately identified that Parnas and Rudy were under active criminal investigation in SDNY for influence peddling, a topic on which that email would be directly relevant. In addition to Victoria Toensing and Rudy, the packet would also directly implicate the White House and Mike Pompeo, because the packet was sent under White House imprimatur to the Secretary of State. So by May, that dossier should have been in Parnas and Rudy’s investigative file. Except that, when Linick asked FBI if they were cool with him sharing the dossier with Congress, they were, which suggests it may not have been added to the investigative file.

Assuming that the vaunted SDNY is at least as sharp as a small campaign finance NGO, then by the time CLC updated their SEC complaint on June 20, SDNY would have known what that GEP’s straw donations (including a $325,000 donation to a Trump SuperPAC) came immediately after Parnas got a $1.2 million infusion from a lawyer who helps foreigners launder money through real estate, something that should have raised further counterintelligence and foreign campaign donation concerns.

After that, the whistleblower complaint comes into DOJ, in two different forms. The first time, it comes when CIA General Counsel Courtney Simmons Elwood and White House Associate Counsel John Eisenberg inform John Demers (who, remember, may or may not know about a FARA investigation into Rudy by this point). Demers went to the White House and reviews the transcript, which would have informed him that multiple people were concerned about the call, that Trump invoked both Rudy and Demers’ boss, Bill Barr, on the call, and that Trump was soliciting dirt related to both the investigation into the Russian operation in 2016 (ongoing parts of which Demers still oversees) and Trump’s imagined 2020 opponent, Joe Biden. If Demers did know that Rudy was under investigation for FARA at this time, Trump’s request that Ukraine share dirt with Rudy would have been directly relevant to that investigation, but in a way that implicated Demers’ boss as well. In any case, a simple database search would have revealed that, along with the $1.2 million cash transfer raising additional concerns about foreign money backing those campaign efforts.

Demers’ reported response to reading the transcript was to tell Brian Benczkowski (who claims not to have known about Parnas and Fruman, but whose Peter Carr quote was silent about whether he knew of any investigation into Rudy) and Jeffrey Rosen (who was probably confirmed after Barr’s first briefing on Parnas and Fruman, but who is currently Geoffrey Berman’s supervisor and so should be in the loop in the subsequent briefings that DOJ admitted Barr had after that initial briefing.

According to public reports, DOJ did nothing with this initial complaint.

DOJ avoids (admitting to) reviewing the full whistleblower complaint based off a false claim it doesn’t include direct knowledge

But then the whistleblower tried again, going to the Intelligence Community Inspector General and writing up his complaint, which then got referred to Brian Benczkowski and some public integrity investigators. According to Kerri Kupec, here’s what happened next.

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

In explaining how DOJ came to dismiss this complaint, Kupec cites not from the complaint itself, but from Michael Atkinson’s letter conveying the complaint. Kupec cites from the letter, which notes the whistleblower “was not a direct witness to the President’s telephone call,” and uses that to treat only the transcript of the call — not the broader whistleblower complaint itself, which does include firsthand knowledge — as the official record. And, having referred to just the call, DOJ viewed this as exclusively a campaign finance matter, and therefore dismissed it (DOJ ignores another crime laid out in Atkinson’s letter, a crime Mick Mulvaney has now confessed to, but I’ll come back to how they managed to ignore that).

In fact, parts of the whistleblower complaint make it clear that he was a direct witness to aspects of his complaint, and so DOJ should have treated the complaint itself as an official document (this is why the frothy right invested so much energy into the goddamned whistleblower form, to rationalize DOJ’s decision not to read the actual complaint).

Had DOJ read the complaint and done the most basic investigative work on the materials included in the complaint, they (including Benczkowski) would have known that Trump’s call related directly to matters under active investigation in SDNY.

While the whistleblower complaint does not mention Parnas and Fruman by name, it repeatedly invokes this OCCRP profile (see footnotes 4, 9, 10, 11), The profile would have made it crystal clear — if DOJ’s investigators couldn’t figure it out for themselves — how the evidence that SDNY was already reviewing (including the campaign finance stuff and the Rudy dossier) connected directly with the July 25 call.

Since early last year, the men have emerged from obscurity to become major donors to Republican campaigns in the United States. They have collectively contributed over half a million dollars to candidates and outside campaign groups, the lion’s share in a single transaction that an independent watchdog has flagged as a potential violation of electoral funding law.

The men appear to enjoy a measure of access to influential figures. They’ve dined with Trump, had a “power breakfast” with his son Donald Jr., met with U.S. congressmen, and mixed with Republican elites.

Months before their earliest known work with Giuliani, Parnas and Fruman also lobbied at least one congressman — former U.S. Rep. Pete Sessions, a Texas Republican — to call for the dismissal of the United States’ ambassador to Ukraine, Marie Yovanovitch. She stepped down a year later after allegations in the conservative media that she had been disloyal to Trump.

While setting up meetings for Giuliani with Ukrainian officials, the men also promoted a business plan of their own: Selling American liquefied natural gas to Ukraine to replace Russian imports disrupted by war.

Three days before the call itself, OCCRP and BuzzFeed had already laid out parts of the crime that SDNY has since indicted. And that profile was part of the whistleblower complaint provided to DOJ, in which DOJ claimed they could find no evidence of a crime.

FBI’s three investigative levels are Full Investigations (opened once FBI has evidence that a crime has occurred), Preliminary Investigations (opened once FBI has reason to believe a crime has been committed), and Assessments (the work FBI does to assess the credibility of tips). FBI Agents are expected — encouraged, explicitly, as a matter of national security — to do searches of FBI’s existing investigative databases at the Assessment level. They do this not just to make sure that suspected foreign agents like Parnas and Fruman aren’t allowed to insinuate themselves into top tiers of power unnoticed, but also for deconfliction, to make sure DOJ knows precisely which part of DOJ is investigating which people.

Had FBI followed its DIOG based on the information included in the whistleblower complaint, it would have been crystal clear that the July 25 call related to an ongoing Full Investigation, and the July 25 call — and the President’s extortion — would have been made part of that investigative record.

The Criminal Division Chief has confessed it did not follow protocols in reviewing this complaint

All of which brings me full cycle to DOJ’s efforts to pretend they didn’t know that Rudy was a suspected criminal when they met with him to discuss the accused criminals he represents.

Brian Benczkowski, the head of the Criminal Division (and yet, someone who has never prosecuted a case), claims that he had no way of knowing that Rudy Giuliani’s clients and co-conspirators were about to be indicted when he met with Rudy on some date no one wants to reveal. That may be true — though if it is, it means either his staffers did almost no due diligence before setting up that meeting, or the fact that Rudy, in addition to Parnas and Fruman, was under active investigation did not dissuade Benczkowski from taking the meeting.

But, if the meeting took place after the whistleblower review, as multiple reporters at NYT seem to believe it did, for him to claim that he didn’t know about Parnas and Fruman also amounts to an explicit confession that the investigators reviewing the whistleblower complaint did not follow FBI guidelines requiring them to look up all the names in a tip to see if the FBI already knows about them.

That is, Brian Benczkowski, in trying to claim ignorance of Rudy’s own legal problems in advance of that meeting, confessed that his division, hiding behind whatever false excuses, did not properly investigate the whistleblower complaint.


February 14: Barr sworn in.

February, undated: Barr and Public Integrity lawyers reporting to Brian Benczkowski briefed on investigation into Lev Parnas and Igor Fruman, though NYT reported lawyer questioned about Rudy in that time period.

March 5: Barr briefed on Mueller investigation.

March 22: Mueller investigation concludes.

March 24: Barr releases misleading “summary” of Mueller Report.

March 26: John Solomon posts column first reviewed by Joe DiGenova, Victoria Toensing, and Lev Parnas

April 19: DOJ releases redacted Mueller Report.

May, undated: State IG Steve Linick receives Rudy dossier, passes on to FBI.

May 31: Barr does interview explaining his Durham investigation without once explaining any irregularities to justify investigation.

June 20: Campaign Legal Center submits supplemental complaint to FEC.

July 18: OMB informs Departments that Trump has ordered suspension of all aide to Ukraine.

July 25: Trump-Zelensky phone call.

Week after call: Whistleblower informs CIA General counsel Courtney Simmons Elwood, who speaks several times to NSC lawyer John Eisenberg.

August 12: Date of whistleblower complaint.

August 14: Elwood and Eisenberg inform National Security Division head, John Demers.

August 15: Demers reads transcript of call. Senior DOJ officials, including Jeffrey Rosen, Brian Benczkowski, and Barr informed.

The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

August 26: IG Michael Atkinson hand delivers message on whistleblower complaint to Acting DNI Joseph Maguire.

September 3: Original classified OLC memo deeming the whistleblower complaint “not urgent,” treating Barr’s involvement as Top Secret.

September 20: Rudy, Parnas, Victoria Toensing and Joe DiGenova lunch at Trump International across the street from DOJ. Rudy also attends State Dinner for Australia.

September 24: Declassification of Telcon. Version of OLC memo hiding Barr’s involvement as classified issue.

September 26: Release of TelCon and whistleblower complaint. Justice Department explains non-prosecution:

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

September 29: AP claims Barr was “surprised and angry” when he learned he had been lumped in with Rudy. His further denials include a lot of wiggle room (including unofficial contacts).

Barr has not spoken with Trump about investigating Biden or Biden’s son Hunter, and Trump has not asked Barr to contact Ukranian officials about the matter, the department said. Barr has also not spoken with Giuliani about anything related to Ukraine, officials have said.

October 1: State IG Steve Linick briefs Congress on opposition packet routed to him from Pompeo. Preservation letters to Parnas and Fruman.

October 4: Initial rough date for Rudy meeting with Benczkowski.

October 9: Parnas and Fruman lunch with Rudy at Trump Hotel across from DOJ, later that eventing they are indicted and arrested.

October 10: Lev Parnas and Igor Fruman arrest unsealed. Anonymous DOJ sources report that Barr was briefed in February and “in recent weeks.”

Attorney General William Barr was briefed on the case in February, shortly after he was confirmed. Barr has received additional briefings in recent weeks and fully supports the case.

October 11: NYT reports that Rudy under investigation for Ukraine work.

October 18: NYT reports that Rudy was lobbying Brian Benczkowski and lawyers from Fraud section “a few weeks ago” about a very sensitive bribery case.

October 20: NYT story with on-the-record quote from Peter Carr states Benczkowski and fraud section lawyers would not have met with Giuliani if they had known of the investigation of his associates; it describes the meeting as taking place “several weeks ago.”

October 21: CNN adds DOJ clarification that Rudy was not central to investigation briefed to Barr in February, even though CI Agents were questioning witnesses by March, and that Public Integrity lawyers (who report to Benczkowski) were briefed.

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.