Posts

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.

The Significance of Fiona Hill’s Testimony: “Whatever Drug Deal Sondland and Mulvaney Are Cooking Up”

A number of people on Twitter have asked me to elaborate on some comments I’ve made about the significance of Fiona Hill’s testimony before the Ukraine impeachment team yesterday.

It’s unclear whether she shared details of her testimony or whether most of the reporting comes from Jamie Raskin (who notably got the import of the State IG’s urgent briefing utterly wrong). But NYT has thus far offered the key description (citing at least two other people beyond Raskin).

Force Bolton to shit or get off the pot

First, the NYT describes Hill citing the abrasive John Bolton saying two fairly stunning things which were bound to make headlines. First, she described Bolton saying Rudy was a “hand grenade” who would blow everyone up (a quote Rudy has already responded to).

Mr. Bolton expressed grave concerns to Ms. Hill about the campaign being run by Mr. Giuliani. “Giuliani’s a hand grenade who’s going to blow everybody up,” Ms. Hill quoted Mr. Bolton as saying during an earlier conversation.

Then, after a July 10 meeting where it became clear Trump was withholding security assistance for campaign propaganda, according to reports of Hill’s testimony, Bolton asked her to tell Deputy White House Counsel John Eisenberg that he was not part of “whatever drug deal” Trump’s flunkies were pursuing.

“I am not part of whatever drug deal Sondland and Mulvaney are cooking up,” Mr. Bolton, a Yale-trained lawyer, told Ms. Hill to tell White House lawyers, according to two people at the deposition.

It was clear even before the July 25 call that kicked off this whole scandal that Bolton was on the outs. Tellingly, Bolton was specifically excluded from the call.

But since then, Bolton has (like James Mattis) been talking about writing a book, telling his story for history, rather than for the present and the sake of the Constitution.

By including these two quotes in her testimony, Hill not only ensured that Bolton will be the target of Trump’s ire (after all, Hill didn’t say these things, Bolton reportedly did). But it will force Bolton to either deny them (if he’s certain Hill didn’t take contemporaneous notes), or take a stand against activities he clearly recognized were wrong.

And if Bolton testifies in the impeachment inquiry about his concerns, it will represent someone about whom there can be no doubts as to Republican partisan loyalty. If Hill’s inclusion of Bolton’s comments leads Trump’s former National Security Advisor to provide damning testimony to the impeachment inquiry, it will change both the profile of the inquiry and the possible response attacks.

Force Sondland to rewrite his ever-evolving testimony

Hill’s testimony about that July 10 meeting also provided damning testimony about Gordon Sondland, who is scheduled to testify on Thursday.

One of the most dramatic moments she described came in the July 10 meeting in Mr. Bolton’s office that included Mr. Sondland; Kurt D. Volker, then the special envoy for Ukraine; Rick Perry, the energy secretary; and two Ukrainian officials.

The purpose of the meeting was to talk about technical assistance to Ukraine’s national security council. The Ukrainians were eager to set up a meeting between Mr. Trump and Mr. Zelensky, who was elected on a promise to clean up corruption and resolve the country’s five-year war with Russian-armed separatists.

Mr. Bolton was trying to not commit to a meeting, according to Ms. Hill’s testimony. Mr. Sondland got agitated, Ms. Hill testified, and let out that there was an agreement with Mr. Mulvaney that there would be a meeting if Ukraine opened up the investigations the White House was seeking.

Mr. Bolton immediately ended the meeting abruptly. As the group moved toward the door, Mr. Sondland said he wanted them to come down to the ward room next to the White House mess to discuss next steps. Mr. Bolton pulled Ms. Hill aside to instruct her to go to the ward room and report to him what they talked about.

When she got downstairs, Mr. Sondland was talking with the Ukrainians and specifically mentioned Burisma, the Ukrainian energy firm that had Hunter Biden, the former vice president’s son, on its board.

Sondland has already test driven two drafts of his intended testimony, much as Michael Cohen did two years ago before he gave false testimony to Congress. Even the most recent of those drafts appears to be rendered inoperative by Hill’s testimony.

I’m sure Adam Schiff would have preferred that Sondland not get another chance to craft his testimony (and I suspect Sondland’s lawyer is trying to convince him that the possibility of being named Secretary of State is not worth perjuring himself for, which is why he’s probably not yet planning on invoking the Fifth).

But thus far, Sondland doesn’t seem to have discovered a story that he can tell that coheres with the other known testimony.

Hill ties Sondland’s actions to Trump

Hill also provided testimony — testimony we know that is backed by other witnesses — that Sondland was playing the role he was playing because the President wanted him to be.

At one point, she confronted Mr. Sondland, who had inserted himself into dealings with Ukraine even though it was not part of his official portfolio, according to the people informed about Ms. Hill’s testimony.

He told her that he was in charge of Ukraine, a moment she compared to Secretary of State Alexander M. Haig Jr.’s declaration that he was in charge after the Ronald Reagan assassination attempt, according to those who heard the testimony.

According to whom, she asked.

The president, he answered.

This will tie Trump directly to this scheme and make Sondland’s later denials about whether he knew Trump to be lying about a quid pro quo even more obviously false than they already are. This is not Rudy freelancing, or State ordering him to, but Trump ordering everyone to.

Hill implicates John Eisenberg

I noted the central role of John Eisenberg in attempts to cover this quid pro quo up weeks ago (and noted that he succeeded in preventing any record of an early quid pro quo from being being made).

Eisenberg is the guy who decided to put the transcript of the July 25 call on the Top Secret server. Eisenberg had a role in framing the crimes, as described to DOJ, such that they could shunt them to Public Integrity and dismiss them, rather than open up another Special Counsel investigation into the President’s extortion.

But Hill’s testimony makes it clear Eisenberg was told of what Bolton analogized to crimes well before the call.

Ms. Hill went back upstairs and reported the encounter to Mr. Bolton, who promptly instructed her to report the issue to John A. Eisenberg, a deputy White House counsel and the chief legal adviser for the National Security Council, along with his line about the drug deal, which he meant metaphorically.

Mr. Eisenberg told Ms. Hill he would report it up his chain of command, which would typically mean Pat Cipollone, the White House counsel.

Eisenberg (whose FBI 302 from the last Trump criminal investigation DOJ is trying to withhold) would have been on the hook anyway for a clear attempt to cover up Trump’s crime. But the revelation that he had advance warning that a crime was in process — and apparently did nothing to prevent it — changes his exposure significantly.

It was the OMB Director, misappropriating funds, in the National Security Advisor’s office

Finally, Hill puts Mick Mulvaney at the scene of the crime.

As I’ve said before, one part of this scandal that has gotten far too little attention is that, to extort Ukraine, Trump withheld funds appropriated by Congress, funds about which there was bipartisan agreement.

Last week, CNN and WSJ reported that to do this, OMB changed the way the funds were distributed, putting a political flunkie in charge, also a detail that has gotten far too little attention.

Not only does that raise the Constitutional stakes of the Executive’s refusal to spend the funds Congress had duly appropriated, but it shows consciousness of guilt.

And per Hill’s testimony Mick Mulvaney, serving in the dual role of OMB chief and Chief of Staff, knew that those funds were being withheld for a quid pro quo or (as John Bolton described it) a drug deal.

Senate Republicans might not ever convict Trump for demanding foreign countries invent propaganda on his political allies. They might feel differently once it becomes clear that the crime involves refusing to do what Congress, with its power of the purse, told him to, without even telling Congress he was doing so (or why). They may not care about Trump pressing for any political advantage for their party, but they may care about Trump neutering their most important authority.

At Time of Trump-Zelensky Call, Mulvaney Was Already Under Notice From Cummings, Engel and Schiff Not to Hide Records

Note the byline.

In perusing the House Oversight Committee website while looking for something else, I ran across this remarkable letter dated February 21, 2019. It is addressed to Mick Mulvaney as Acting White House Chief of Staff and is from Elijah Cummings, Chair of the House Committee on Oversight and Reform, Eliot Engel, Chair of the House Committee on Foreign Affairs and Adam Schiff, Chair of the House Permanent Select Committee on Intelligence. The letter is part of an ongoing effort by Congress to obtain records from meetings between Donald Trump and Vladimir Putin that occurred in Hamburg on July 7, 2017 and in Helsinki on July 16, 2018.

The letter reprises press reports of Trump confiscating notes from interpreters and having a general reputation for tearing up documents. Although prompted by their frustration in getting records from these two meetings, the three committee chairmen expand the scope of their direction to Mulvaney to preserve records:

Recall that the Trump-Zelensky phone call took place on July 25, 2019, just over five months after the letter was sent. It seems particularly on point that the letter warned Mulvaney against “relocation” as well as “intentional handling which would foreseeably make such records incomplete or inaccessable”. Certainly, by relocating the Situation Room’s transcript to the code-word level computer system, Mulvaney (or other actor(s) in the White House) did indeed make the record incomplete and essentially inaccessible until the whistleblower complaint forced the publication of a partial transcript.

And how did the White House respond to the letter? The return letter came from White House Counsel Pat Cipollone exactly one month later, blowing off the request for records from the two Trump-Putin meetings in its entirety, citing a claim that the President alone conducts foreign policy. And yet, the letter claimed that the White House fully complies with the Presidential Records Act, under which the three committee chairmen had submitted their request.

I’m wondering if this letter, with its highly specific warning, will increase the legal difficulties for Mulvaney once the impeachment investigation spotlight begins to point his direction.

Don McGahn Is Not the Most Critical Witness on Impeachment

In the last several days, Jerry Nadler has stated more and more clearly that his committee is conducting an inquiry on whether to file articles of impeachment. Six months after gaining the majority, this feels like a slow walk perhaps intended to time any impeachment vote based on how it will impact the election.

In its press release and complaint seeking to enforce its subpoena against Don McGahn last week, the House Judiciary Committee made an alarming claim: that Don McGahn was the most important witness in its consideration of whether to file for impeachment.

McGahn is the Judiciary Committee’s most important fact witness in its consideration of whether to recommend articles of impeachment and its related investigation of misconduct by the President, including acts of obstruction of justice described in the Special Counsel’s Report.

That claim suggests that the House Judiciary Committee has a very limited conceptualization of its own inquiry and perhaps an overestimation of how good a witness McGahn will be.

McGahn’s probably not as credible as HJC Dems think

I say the latter for two reasons. First, in the early days of the Russian investigation, McGahn overstepped the role of a White House Counsel. For example, even after his office recognized they could not talk to Jeff Sessions about the Russian investigation or risk obstruction, McGahn followed Trump’s orders to pressure Dana Boente on the investigation.

At the President’s urging, McGahn contacted Boente several times on March 21, 2017, to seek Boente’s assistance in having Corney or the Department of Justice correct the misperception that the President was under investigation.326

Curiously, McGahn and Boente’s versions of what happened are among the most divergent in the entire Mueller Report, which might suggest McGahn was less than forthright in testimony that, per footnotes, came in one of his earlier interviews.

Plus, as the Mueller Report acknowledges, the NYT story that triggered one of the key events in the report — where Trump asked McGahn to publicly rebut a claim that he had asked McGahn to fire Mueller, which led him to threaten to resign — was inaccurate in its claim that McGahn had functionally threatened to resign (which was clear in real time). 

On January 26, 2018, the President’s personal counsel called McGahn ‘s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest.784 McGahn’s attorney spoke with McGahn about that request and then called the President’s personal counsel to relay that McGahn would not make a statement.785 McGahn ‘s attorney informed the President’s personal counsel that the Times story was accurate in reporting that the President wanted the Special Counsel removed.786 Accordingly, McGahn’s attorney said, although the article was inaccurate in some other respects, McGahn could not comply with the President’s request to dispute the story.787

Put McGahn under oath, and Republicans will ask if he was a source for that story, and if he was, why he oversold what he did. At the very least they’ll beat him up for letting the “#FakeNews NYT” spread lies.

There are far better (tactically and Constitutionally) reasons to impeach

More troubling still, asserting that McGahn is the most important witness — and stating that he’d be a witness in “criminal obstruction” — you prioritize that cause for impeachment over others, causes that might elicit some Republican support or at the very least mobilize the Democratic base.

To my mind, the best cause for impeachment — in terms of cornering Republicans and mobilizing the Democratic base — pertains to Trump’s repurposing of otherwise allocated funding for his Wall. This was an issue about which Republicans themselves had problems. It highlights Trump’s impotence to deliver on his campaign promise that Mexico would pay for his wall. It goes to issues of efficacy on national security issues. And it highlights how Trump has abused authority — authority which goes to the core of separation of powers — to facilitate his attacks on Latino immigrants. Plus, depending on when impeachment was triggered, having focused on the power of the purse would provide a tool to rein Trump in if he survived the election.

Democrats should also focus on Trump’s abuse of the Vacancy Reform Act in his appointments to lead the Consumer Financial Protection Board, DOJ, DOD, and ODNI. Violating the spirit of Consumer Financial Protection Board gave Trump a way to gut an entity meant to protect consumers, something that Elizabeth Warren will be able to magnify better than anyone (all the more so if and when the economy starts to turn south). Appointing Big Dick Toilet Salesman Matt Whitaker to fire Jeff Sessions provides a different way to get to the Russian investigation, and may (if BDTS prevented Mueller from naming Trump in the Roger Stone indictment) focus more attention on the resolution of that case (which has the potential of being both a really damaging trial or a pre-trial pardon). The appointment of Patrick Shanahan as Acting Secretary of Defense provides a way to focus on ethics complaints about his tenure, to say nothing about Trump’s tolerance for familial abuse. And Trump must be held accountable for whatever predictable problems selecting a loyalist over Sue Gordon as Acting DNI will cause — and some of the predictable problems, which might involve North Korea, Iran, or cybersecurity, could be quite damning.

Another impeachment cause that would invoke some of the same issues as the Russian investigation, but in a way that would be more awkward for the President, is Trump’s abuse of security clearances, starting with, but not limited to, Kushner’s (this is an issue where the Oversight Committee has done great work). An inquiry into why Trump gave Kushner clearance would provide a way to get to Kushner’s awkward role in foreign policy, particularly the possibility that he shared US classified information with Gulf oligarchs. If Kushner is found to have shared intelligence allowing Mohammed bin Salman to target Al-Waleed bin Talal or Jamal Khashoggi, it will invoke a slew of issues that will put Republicans in an awkward position (and have the salutary effect of focusing attention on Trump’s refusal to keep the Saudis honest).

Democrats would be idiots if they didn’t make an issue of Trump’s self-dealing, including but not limited to emoluments. It’s likely Republicans would defend the President on this point, but if they do, it can form the basis for legislation to more clearly prohibit such self-dealing going forward if Democrats do well in 2020. In addition, it goes to an issue that was absolutely key to Trump’s supporters, #DrainTheSwamp, but on which he has been (predictably) an utter failure.

Finally, Democrats should include Trump’s refusal to respond to violations of the Presidential Records Act in any impeachment inquiry. It is true that most Administrations have had problems adhering to PRA going back to Poppy Bush (Obama is to a large extent an exception, but Hillary’s avoidance of the Federal Records Act undermines that good record). But when pressed, most prior Administrations have been forced to admit the details of their failures to fulfill the law. Here, Trump has simply refused to respond to all questions about PRA violations. Some of these violations involve key players in the Russian investigation: Jared, KT McFarland, and Bannon. But these same people were involved in other scandals, such as the willingness to sacrifice US standards on nuclear security so that a bunch of Republicans can make $1 million per reactor (again, this would incorporate great work done by OGR).

This is a non-exclusive list. The point is, however, that HJC should frame their impeachment inquiry broadly, partly because some of Trump’s high crimes and misdemeanors have pissed off Republicans in the past, and partly because a failed impeachment trial can still frame Republican obstruction in a way that voters will care about.

Obviously, I think Trump’s conduct during the Russian investigation is important, and it’s all packaged up with a bow. But it’s not even just obstruction. Trump lied under oath in his written responses to Mueller. And Trump cheated to win an election. So even while pursuing impeachment on Russia, it needs to be more broadly conceived than the issues that Don McGahn can address. 

Other witnesses have more to offer than Don McGahn

So even in the emphasis on the Russia investigation, I think there is at least one better witness: Jay Sekulow. Sekulow has done a number of things that don’t qualify for attorney client privilege, such as his conversations directly with Michael Cohen to write a false statement hiding the President’s ties to Russia. That goes directly to Trump’s sworn lies.

Then there’s John Kelly. He was at DHS for the beginning of Trump’s abusive immigration policies. He knows details of Trump’s security clearance abuses (and might actually give a damn about them). He should know details of the PRA violations (and if not, should be accountable for why not). And he knows details of Kushner’s privatized foreign policy (and probably tried to control it). Kelly was a minor witness for Robert Mueller, but should be a key witness to any impeachment inquiry.

Finally, there’s the role of the Office of Legal Counsel and its head Steve Engel in all this. Some of OLC’s opinions enabling Trump’s abusive acts have been every bit as dodgy as John Yoo’s ones. It is the place of DOJ’s oversight committee to review the circumstances of those shitty opinions. While the government would likely fight this testimony particularly aggressively based on deliberative and attorney-client privileges, both John Yoo and Steven Bradbury have testified before, Yoo on an issue (torture) pertaining to abuse. Engel would still be able to testify about patterns of communication and the degree to which Trump dictated outcomes.

I’ll grant you, there are good reasons why McGahn may be a good tactical witness. I suspect that, by the time he testified, McGahn might be prepared to Bigfoot his testimony, not least in an attempt to cleanse himself of the Trump taint. So at that level, he may be a willing, damning witness.

So calling McGahn the most important witness might just be a legal tactic, a means to tie HJC’s obstruction inquiry with witnesses who have been blocked from testifying. And the White House Counsel position (to say nothing of the former White House Counsel position) is one for which there is precedent (under Clinton and Bush) for coerced testimony.

But I hope to hell HJC doesn’t really believe he’s the most important witness.

The Commander-in-Chief Keeps Instructing His National Security Officials Not to Protect the Country

One of the most alarming passages in the Mueller Report describes how, in an effort to get Corey Lewandowski to convince Jeff Sessions to reverse his recusal in the Russian investigation, Trump suggested that Mueller could be limited to investigating future election hacks. (h/t to TC who has been emphasizing this passage)

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

The President said that if Sessions delivered that statement he would be the “most popular guy in the country.”6 11 Lewandowski told the President he understood what the President wanted Sessions to do.612

In June 2017, the Commander-in-Chief of the United States suggested that the FBI should not investigate a historic cyberattack by an adversary on the United States. The investigation Trump was obstructing was not just of his own conduct, but also that of Russia.

That revelation puts two other events in dramatically different light.

First, recall that when Congress was considering bills to ensure election integrity last year, Trump pre-empted the effort with an Executive Order imposing a two step review, after the fact, to see if foreign adversaries had attempted to interfere in the election. First, ODNI does a report on the election, then he delivers it to other Executive Branch Officials. Then DHS Secretary and the Attorney General deliver a report based on that describing whether the effort to interfere had had a material effect. That report, too, just gets delivered to Executive Branch officials.

Section 1. (a) Not later than 45 days after the conclusion of a United States election, the Director of National Intelligence, in consultation with the heads of any other appropriate executive departments and agencies (agencies), shall conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election. The assessment shall identify, to the maximum extent ascertainable, the nature of any foreign interference and any methods employed to execute it, the persons involved, and the foreign government or governments that authorized, directed, sponsored, or supported it. The Director of National Intelligence shall deliver this assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.

(b) Within 45 days of receiving the assessment and information described in section 1(a) of this order, the Attorney General and the Secretary of Homeland Security, in consultation with the heads of any other appropriate agencies and, as appropriate, State and local officials, shall deliver to the President, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense a report evaluating, with respect to the United States election that is the subject of the assessment described in section 1(a):

(i) the extent to which any foreign interference that targeted election infrastructure materially affected the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results; and

(ii) if any foreign interference involved activities targeting the infrastructure of, or pertaining to, a political organization, campaign, or candidate, the extent to which such activities materially affected the security or integrity of that infrastructure, including by unauthorized access to, disclosure or threatened disclosure of, or alteration or falsification of, information or data.

The report shall identify any material issues of fact with respect to these matters that the Attorney General and the Secretary of Homeland Security are unable to evaluate or reach agreement on at the time the report is submitted. The report shall also include updates and recommendations, when appropriate, regarding remedial actions to be taken by the United States Government, other than the sanctions described in sections 2 and 3 of this order.

Predictably, when the deadlines for these reports came due after the mid-term elections last year, the Trump Administration balked at sharing all this reporting with the Senate Intelligence Committee.

Then there’s this NYT report revealing that the Mick Mulvaney told DHS Secretary Kirstjen Nielsen not to involve the Commander-in-Chief in any effort to keep this country’s elections safe, which (the report implicitly suggests) made it far more difficult for Nielsen to make protecting elections a priority.

Ms. Nielsen left the Department of Homeland Security early this month after a tumultuous 16-month tenure and tensions with the White House. Officials said she had become increasingly concerned about Russia’s continued activity in the United States during and after the 2018 midterm elections — ranging from its search for new techniques to divide Americans using social media, to experiments by hackers, to rerouting internet traffic and infiltrating power grids.

But in a meeting this year, Mick Mulvaney, the White House chief of staff, made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory. According to one senior administration official, Mr. Mulvaney said it “wasn’t a great subject and should be kept below his level.”

Even though the Department of Homeland Security has primary responsibility for civilian cyberdefense, Ms. Nielsen eventually gave up on her effort to organize a White House meeting of cabinet secretaries to coordinate a strategy to protect next year’s elections.

[snip]

Ms. Nielsen grew so frustrated with White House reluctance to convene top-level officials to come up with a governmentwide strategy that she twice pulled together her own meetings of cabinet secretaries and agency heads. They included top Justice Department, F.B.I. and intelligence officials to chart a path forward, many of whom later periodically issued public warnings about indicators that Russia was both looking for new ways to interfere and experimenting with techniques in Ukraine and Europe.

[snip]

A second senior administration official said Ms. Nielsen began pushing after the November midterms for the governmentwide efforts to protect the 2020 elections, but only after it became increasingly clear that she had fallen out of Mr. Trump’s favor for not taking a harder line against immigration.

That official said Ms. Nielsen wanted to make election security a top priority at meetings of Mr. Trump’s principal national security aides, who resisted making it a focus of the discussions given that the 2020 vote was, at the time, nearly two years away.

Trump’s refusal to protect elections accompanies a de-emphasis — one enforced by John Bolton — on cybersecurity generally.

This is, quite literally, a case where the Commander-in-Chief is refusing to take the action necessary to protect the country from being attacked in the same way were most recently were attacked.

Update: Earlier this week Politico reported on the effects of a reorganization in Office of Management and Budget’s cybersecurity office before Mulvaney left OMB to become Chief of Staff.

Few Americans may have heard of the Office of the Federal Chief Information Officer, but the unit inside the Office of Management and Budget coordinates tech improvements across the government, helping agencies boost cybersecurity and manage technology and cybersecurity budgets that totaled $105 billion in the past fiscal year.

But many OFCIO employees are overwhelmed by unclear and changing priorities, while others are simply checked out or feeling increasingly marginalized, according to an internal February staff survey that POLITICO obtained, along with data from an annual governmentwide report and interviews with a current OMB employee, five former OFCIO employees and three former senior federal officials familiar with the office.

The unit is grappling with “high turnover,” “a lot of infighting,” a “crushing workload” and “inaction from leadership,” said the current employee, who — like others interviewed for this story — requested anonymity to discuss sensitive personnel matters.

“Things do slip through the cracks,” the OMB employee said. OFCIO’s guidance “impacts the long-term implementation strategy out in the agencies,” and if that’s lacking, there will be “a debilitating effect on overall cybersecurity in the long run,” the person said, adding that there was “real concern at the staff level that if this continues, something bad will happen and we won’t be ready for it.”

[snip]

“This organization looks like it’s in free fall,” said a former senior federal IT official who worked closely with the office.

[snip]

[A] November reorganization appeared to cause significant confusion and discontent among employees. It replaced a structure built around three core units — agency oversight, cybersecurity and policy development — with one centered on “workstreams” for activities such as cybersecurity risk and data strategy.

But the reorganization was “built on the fly” and poorly explained, said a former staffer. More than 80 percent of survey respondents said it was unclear how the reorganization improved office communication.

Adding to these woes is significant frustration with OFCIO’s senior leaders, especially Kent, a former Ernst & Young consultant who took over the office in March 2018 after the team went more than a year without a leader.

Kent, who lacks a cybersecurity or IT background, has fostered “a closed-door culture,” the current OMB employee said.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Into Shutdown Day 28: Is the GOP Senate Obstructing Justice?

[NB: Always check the byline, folks. /~Rayne]

As we roll through the afternoon into the 28th day of the longest-ever government shutdown, let’s revisit Senator Amy Klobuchar’s questions to Attorney General nominee Bill Barr before the Senate Judiciary Committee this week.

She asked him about his opinion on obstruction of justice. Barr discussed in his June 2018 memo addressed to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, focusing on Special Counsel Robert Mueller’s “‘Obstruction’ Theory.”

Four key points give pause:

  • Deliberately impaired integrity or availability of evidence;
  • Knowing destruction or alteration of evidence;
  • Ordering witness/es not to cooperate with investigation;
  • Misleading statements to conceal purposes.

Klobuchar asked Barr about each of these during the hearing:

(3:17) KLOBUCHAR: You wrote on page one that a president persuading a person to commit perjury would be obstruction. Is that right?

BARR: Yes.

KLOBUCHAR: Okay.

BARR: Or any, any, well, you know, or any person who persuades another, yeah.

(3:31) KLOBUCHAR: Okay. You also said that a president or any person convincing a witness to change testimony would be obstruction. Is that right?

BARR: Yes.

KLOBUCHAR: Okay.

(3:42) KLOBUCHAR: And on page 2 you said that a president deliberately impairing the integrity or availability of evidence would be an instruction*. Is that correct?

BARR: Yes.

KLOBUCHAR: Okay, and um, so what if the president told the witness not to cooperate with an investigation, or hinted at a pardon?

BARR: You know, I, I’d have to know the specific, I’d have to know the specific facts.

(4:03) KLOBUCHAR: And you wrote on page one that if a president knowingly destroys or alters evidence, that would be obstruction.

BARR: Yes.

(4:13) KLOBUCHAR: Okay. Um, so what if a president drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

BARR: Again, you know the, I’d have to know the, I’d have to know the specifics.

KLOBUCHAR: All right.

(* Not clear if she said “instruction” or “obstruction”; she was referring to the discussion obstruction in Barr’s memo.)

So what does this have to do with the shutdown? Regardless of the genesis and distribution of Barr’s memo or his opinion, these forms of obstruction are exactly what the government shutdown accomplishes.

Evidence to be gathered by and from some government resources may be limited by the furlough. IRS staff, for example, may have been called back to handle refunds but are there IRS staff on duty who may respond to subpoenas for tax returns? What of so-called “non-essential” personnel who might handle document requests in other departments? Have furloughed federal employees who are not yet called back indirectly ordered not to cooperate with investigations by virtue of their locked out status?

We already know that Trump avoided creating and processing records of his discussions with Putin, a likely violation of the Presidential Records Act. Has he further destroyed or altered evidence subject to the PRA but prevented staff responsible for handling and recovering destroyed/altered evidence from doing so with the shutdown? (Recall the archivist-records managers who had been taping together Trump’s documents but were fired by second quarter 2018.)

Has the demand for the wall itself, in any statements or writings demanding this wall, been an attempt to conceal the true intent of the shutdown as an act of obstruction? Recall how upset Trump was with Mick Mulvaney when Mulvaney tried to offer a number lower than Trump’s demanded $5.7B and higher than House Democrat’s offered $1.3B; Trump yelled at him in front of members of Congress and told him, “You just fucked it up!

Was it not the wall’s funding but obstruction by shutdown Mulvaney interfered with by trying to offer a means to reopen the government?

If there is any doubt at all about these points, Senate Majority Leader Mitch McConnell is obligated to permit bills through which would end the shutdown or at least extend temporary funding, so that obstruction by shutdown is at an end.

The GOP Senate caucus is likewise obligated to take measures to end the shutdown, including replacement of their Senate Majority Leader if he continues to obstruct government’s operation.

Neither McConnell nor the GOP Senate caucus appear to be acting in good faith about this shutdown. At least Mulvaney made a reasonable, good faith effort before being sworn at and shot down by Trump.

If we thought the GOP Senate was compromised before by Russian-furnished NRA money, they deepen their compromise by refusing to address the obstructive shutdown. Is their “lack of alarm” about the lengthening shutdown due not to their ideology but their resignation to this obstruction?

Why is Mitch McConnell still Senate Majority Leader at this point? Former Senate Majority Leader Trent Lott was asked to step down for supporting a noted racist, and McConnell know this because he was instrumental to Lott’s removal.

Why is the GOP Senate aiding and abetting this obstruction of justice at scale?

#WhyMitch

Congressional switchboard: (202) 224-3121

On Narrating Donald Trump: “Shoot me like I’m shot on ‘The Apprentice'”


Pretty much everyone I know is recommending this New Yorker profile describing how Mark Burnett created Donald Trump’s current image (and with it his electoral prospects).

Along with describing how both Trump and Burnett came to turn the popularity of the show into a marketing vehicle and a Trump’s telling claim that he initially hesitated before signing onto reality teevee because the, “contractors, politicians, mobsters, and everyone else I have to deal with in my business … don’t like, as they’re talking to me, having cameras all over the room,” the piece describes how the show depicted not reality, but a heavily edited narrative trying to retroactively justify Trump’s capricious firing decisions each week.

The result created the illusion that a serially bankrupt joker was, instead, a king.

Burnett has often boasted that, for each televised hour of “The Apprentice,” his crews shot as many as three hundred hours of footage. The real alchemy of reality television is the editing—sifting through a compost heap of clips and piecing together an absorbing story. Jonathon Braun, an editor who started working with Burnett on “Survivor” and then worked on the first six seasons of “The Apprentice,” told me, “You don’t make anything up. But you accentuate things that you see as themes.” He readily conceded how distorting this process can be. Much of reality TV consists of reaction shots: one participant says something outrageous, and the camera cuts away to another participant rolling her eyes. Often, Braun said, editors lift an eye roll from an entirely different part of the conversation.

At the end of each episode, Trump determined which competitor should be “fired.” But, as Braun explained, Trump was frequently unprepared for these sessions, with little grasp of who had performed well. Sometimes a candidate distinguished herself during the contest only to get fired, on a whim, by Trump. When this happened, Braun said, the editors were often obliged to “reverse engineer” the episode, scouring hundreds of hours of footage to emphasize the few moments when the exemplary candidate might have slipped up, in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense. During the making of “The Apprentice,” Burnett conceded that the stories were constructed in this way, saying, “We know each week who has been fired, and, therefore, you’re editing in reverse.” Braun noted that President Trump’s staff seems to have been similarly forced to learn the art of retroactive narrative construction, adding, “I find it strangely validating to hear that they’re doing the same thing in the White House.”

Such sleight of hand is the industry standard in reality television. But the entire premise of “The Apprentice” was also something of a con. When Trump and Burnett told the story of their partnership, both suggested that Trump was initially wary of committing to a TV show, because he was so busy running his flourishing real-estate empire. During a 2004 panel at the Museum of Television and Radio, in Los Angeles, Trump claimed that “every network” had tried to get him to do a reality show, but he wasn’t interested: “I don’t want to have cameras all over my office, dealing with contractors, politicians, mobsters, and everyone else I have to deal with in my business. You know, mobsters don’t like, as they’re talking to me, having cameras all over the room. It would play well on television, but it doesn’t play well with them.”

“The Apprentice” portrayed Trump not as a skeezy hustler who huddles with local mobsters but as a plutocrat with impeccable business instincts and unparalleled wealth—a titan who always seemed to be climbing out of helicopters or into limousines. “Most of us knew he was a fake,” Braun told me. “He had just gone through I don’t know how many bankruptcies. But we made him out to be the most important person in the world. It was like making the court jester the king.” Bill Pruitt, another producer, recalled, “We walked through the offices and saw chipped furniture. We saw a crumbling empire at every turn. Our job was to make it seem otherwise.

[snip]

Trump took to his part more nimbly than anyone might have predicted. He wouldn’t read a script—he stumbled over the words and got the enunciation all wrong. But off the cuff he delivered the kind of zesty banter that is the lifeblood of reality television. He barked at one contestant, “Sam, you’re sort of a disaster. Don’t take offense, but everyone hates you.” Katherine Walker told me that producers often struggled to make Trump seem coherent, editing out garbled syntax and malapropisms. “We cleaned it up so that he was his best self,” she said, adding, “I’m sure Donald thinks that he was never edited.” [my emphasis]

Throughout, the piece both implicitly and explicitly suggests that the White House is adopting techniques from the show in burnishing Trump’s power. Or, at least, Trump is asking that his handlers replicate the same frames of power that Burnett used.

The show’s camera operators often shot Trump from low angles, as you would a basketball pro, or Mt. Rushmore. Trump loomed over the viewer, his face in a jowly glower, his hair darker than it is now, the metallic auburn of a new penny. (“Apprentice” employees were instructed not to fiddle with Trump’s hair, which he dyed and styled himself.) Trump’s entrances were choreographed for maximum impact, and often set to a moody accompaniment of synthesized drums and cymbals. The “boardroom”—a stage set where Trump determined which candidate should be fired—had the menacing gloom of a “Godfather” movie. In one scene, Trump ushered contestants through his rococo Trump Tower aerie, and said, “I show this apartment to very few people. Presidents. Kings.” In the tabloid ecosystem in which he had long languished, Trump was always Donald, or the Donald. On “The Apprentice,” he finally became Mr. Trump.

[snip]

Trump has succeeded in politics, in part, by borrowing the tropes of the show. Jonathon Braun pointed out to me that when Trump announced his candidacy, in 2015, he did so in the atrium of Trump Tower, and made his entrance by descending the gold-colored escalator—choreography that Burnett and his team had repeatedly used on the show. After Trump’s announcement, reports suggested that people who had filled the space and cheered during his speech had been hired to do so, like TV extras, for a day rate of fifty dollars. Earlier this year, the White House started issuing brief video monologues from the President that strongly evoke his appearances on Burnett’s show. Justin McConney, a former director of new media for the Trump Organization, told New York that, whenever Trump works with camera people, he instructs them, “Shoot me like I’m shot on ‘The Apprentice.’ ” [my emphasis]

One of the most interesting details in the piece is that Democrats actively (and successfully) lobbied musical talent to blow off Trump’s inauguration, themselves performing a kind of script-writing that has haunted Trump since.

A Democratic political operative who was involved in a back-channel campaign to dissuade big-name stars from appearing at the event told me that Burnett had tried to enlist musicians to perform. “Mark was somebody we were actively working against,” the operative said. Trump’s wish list included Elton John, Aretha Franklin, and Paul Anka—who, he hoped, would sing “My Way”—but they all claimed to be otherwise engaged. The event ended up with sparse crowds and a feeble roster of performers.

Because I dawdled before reading the piece, I was reading it at the same time as reading coverage of the shutdown. That coverage highlights the results of running a Reality Teevee star as President. There’s NYT report that the reason why Trump has shut down the government to get Congress to fund him a wall is because Sam Nunberg and Roger Stone (and Steve Bannon) used the wall as a mnemonic device to get Trump to repeat his lines.

“How do we get him to continue to talk about immigration?” Sam Nunberg, one of Mr. Trump’s early political advisers, recalled telling Roger J. Stone Jr., another adviser. “We’re going to get him to talk about he’s going to build a wall.”

[snip]

“As a messaging strategy, it was pretty successful,” [anti-immigration activist Mark] Krikorian said. “The problem is, you got elected; now what do you do? Having made it his signature issue, Trump handed the Democrats a weapon against him.”

We’ve shut down the entire government because an entertainment professional always refused to memorize his lines (or as someone on Twitter noted, use a teleprompter), and so the unstable hacks who managed him early on invented a policy promise that not even hardline anti-immigration experts want.

And Trump seems to be judging the advice on the shutdown he receives based on how sycophantically his interlocutors judge his “performance” trying to ratchet up pressure for a wall.

Trump spent much of Saturday on the phone with allies, talking through his positioning on the shutdown and hearing their reviews of his Rose Garden performance, according to a person close to him. Two people regularly on his call list — Rep. Mark Meadows (R-N.C.) and Sen. Lindsey O. Graham (R-S.C.) — have encouraged Trump to take a hard line and refuse to agree to reopen the government unless wall funding is secured, the person said.

Trump, who doesn’t understand the successful tycoon that starred in The Apprentice was the product of heavy editing, has now taken to editing himself, trying to fulfill the things the Campaign Reality Teevee star said over and over, based off what Mark Meadows and Lindsey Graham  tell him.

The New Yorker profile, however, offers scant solutions to the problem that Burnett created — just his ex-wife imploring him to tell Trump he’s not actually living a reality show, as if that will fix the problem.

One day this past fall, Burnett got a call from his first wife, Kym Gold, with whom he remains friendly. Gold was upset about what was happening in the country, and asked Burnett to intervene with Trump. “We had it out,” she told me. “I said, ‘You’ve got to help our children, for the future and safety of this country.’ ” Gold implored Burnett, “Tell him this is not a reality show. This is real life. You’re the President. You’re saying things you cannot say—to reporters, to other world leaders.”

But that wouldn’t fix it even if Burnett were willing to risk losing access to Trump by telling him.

The problem, and any potential solutions, is something I’ve been thinking about for some time. No one is going to cure Trump of his addiction to being framed to look powerful. If he doesn’t get that high from his White House handlers, he will continue to fire them and look elsewhere, to people who are even better trained at flattery than Burnett. Trump now believes he can produce himself, based largely on the feedback of nutjobs like Ann Coulter and Sean Hannity.

I’m not actually advocating letting Trump frame himself as a king. But I also think that much of Democrats’ response involves trying to fact check Trump rather than reframe him. Your typical Trump voter isn’t going to give a damn that Trump is lying until some policy he has bragged about (up to and including the shutdown, but also his trade wars) ends up making them feel personally betrayed.

Mind you, I think Nancy Pelosi understands all this. She understands (like that other great female politician, Angela Merkel) that Trump will lose more if he is shown looking weak next to a woman than if someone proves his 100,000th lie.

That last of the self-imagined productive sycophants left with John Kelly. Trump now has a temporary Chief of Staff, one who will be gone once Trump decides to internalize Mick Mulvaney’s labeling of Trump’s position on the wall as “childish.” That creates a vacuum in the function of framing Trump’s image.

Update, January 12: This important op-ed from an OLC veteran describes how lawyers there do much the same as what editors on The Apprentice does.

But when I was at OLC, I saw again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people. The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges. For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.

I often wondered, though, whether my attempts to remove the most basic inaccuracies from the face of a presidential order meant that I was myself failing to carry out my oath to protect and defend the Constitution. After all, the president had already submitted, through his early drafts or via Twitter, his reasons for issuing a particular order. I sometimes felt that, rather than engaging in professionally responsible advocacy, my OLC colleagues and I were using the law to legitimize lies.

I felt more than a twinge of recognition this month when reading a New Yorker article about Trump and the reality-TV show “The Apprentice.” Jonathan Braun, an editor on “The Apprentice,” described how editors would “reverse engineer” episodes after Trump made impulsive decisions about firing a contestant. The article described editors “scouring hundreds of hours of footage . . . in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense.” Like a staff member at “The Apprentice,” I occasionally caught myself fashioning a pretext, building an alibi.