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Paul Nakasone’s Concerns about Mike Ellis Hiring Vindicated

DOD Inspector General released a report yesterday finding there was no evidence of impropriety in the hiring of Michael Ellis as General Counsel, but also suggesting that NSA Director Paul Nakasone was vindicated in his concerns about Ellis’ hiring. DOD IG made those conclusions without succeeding in getting Pat Cipollone — who might know a back story to Ellis’ hiring — to sit for an interview about his role in the process.

The hiring process

As the report lays out, Ellis was one of 29 candidates who were deemed qualified for the position to apply in early 2020. An initial vetting process did not work as one of the participants said it had in the past, partly because of how the panel considered the technical requirements, partly because they did not conduct interviews. But by all accounts Ellis was deemed one of the top seven candidates, and so qualified for the position.

In the next round, just three people were reviewed, including Ellis. Several of the three panel members deemed a different candidate to have had an exceptionally good interview, but all agreed Ellis did quite well and that it was a close decision.

After that DOD General Counsel Paul Ney, who had selection authority, chose Ellis. When asked why he preferred Ellis, he cited Ellis’ more extensive Intelligence Community experience and his experience both on the Hill (where he wrote dodgy reports for Devin Nunes) and in the White House (where he ran interference for Trump), though there’s no evidence Ney understood Ellis’ role on those bodies. Ney told DOD IG that he had several calls with John Eisenberg and one with Pat Cipollone where the lawyers spoke favorably of Ellis during the hiring process, but he did not regard those as being an attempt to pressure him.

The law requires that the NSA Director be consulted in this process. After the decision was made, Nakasone conducted interviews and decided that the same candidate who had had the exceptionally good interview would best manage the 100-person General Counsel department at the NSA. He also shared concerns with Ney about the way that Ellis had done the classification review of John Bolton’s book (probably reflecting that Ellis was pursuing a political objective on that front). Nevertheless, Ney picked Ellis, and after the election, his hiring was announced.

As the transition wore on and Congress got involved, Nakasone raised concerns about whether the Office of Personnel Management had done an adequate review of the hiring of a political appointee. The review is not required (the IG Report recommended that it be required going forward), and was not used with Obama’s General Counsels Raj De and Glenn Gerstell either. On January 15, Nakasone attempted to stall the on-boarding process, citing the OPM review and concerns from Congress. But then Ney got Christopher Miller to order Nakasone to hire Ellis by the end of the following day, which Nakasone did.

After that (but before the inauguration), Nakasone learned of two security incidents involving Ellis, and based on that and the ongoing IG investigation, put the newly hired General Counsel on leave.

The Eisenberg and Cipollone calls

The IG Report considered whether in calls from John Eisenberg and Pat Cipollone, they inappropriately influenced Ney. It credibly shows they did not. That’s true, first of all, because the IG Report makes it clear that Ney had regular interactions with Eisenberg, Ellis, and Cipollone. Ellis’ bosses at the White House wouldn’t have needed to push him — he was a known figure to Ney.

Eisenberg’s positive comments were credibly described as a supervisor expressing positive comments about someone.

When we asked Mr. Eisenberg about the rationale for his comments to Mr. Ney, he told us,“I would not have been happy with myself if somebody who … works so hard for me, that I … couldn’t be bothered to basically give a recommendation before somebody makes a decision.” Mr. Eisenberg told us, “[T]here’s nothing inappropriate about … somebody from the White House in an appropriate context, providing an evaluation of their employee.”

The IG Report doesn’t describe (and it would be beyond its scope) that Eisenberg played a central role in some key cover-ups for Trump, the most notable of which was Trump’s attempt to coerce election assistance from Ukraine. Ellis was a part of those cover-ups (indeed, that’s arguably what the Bolton classification review was). Eisenberg also played a key role, way back in 2008, in withholding information from FISC for the first programmatic review of PRISM.

That is, a recommendation from Eisenberg is a recommendation from someone who did questionable things to protect the President, often with Ellis’ help. John Eisenberg is a very credible, experienced national security lawyer. He’s also someone who helped Trump undermine democracy.

Still, the IG Report credibly describes this as the normal kind of comment that a supervisor would make. It’s only important given who the supervisor was and what the supervisor had asked Ellis to do in the past.

I’m rather interested, however, that Cipollone blew off DOD IG’s request for information.

Shortly after interviewing Mr. Ney on March 15, 2021, we attempted to contact Mr. Cipollone. He did not respond; however, his assistant responded on July 12, 2021, and we asked to interview Mr. Cipollone. Neither Mr. Cipollone nor his assistant provided any response to our request. Based on the witness testimony and documents we reviewed, we determined that Mr. Cipollone likely did not have any additional information different from what we obtained from other sources, and we decided, therefore, not to further delay our review waiting for a response from Mr. Cipollone or his assistant.

Cipollone had no legal obligation to cooperate, and DOD IG had no legal means to coerce him to do so. But he’s also the kind of person who would know better than to get himself in an interview where he might have to reveal other pertinent details. For whatever reason, he just blew off the request.

In the days after January 6, Ellis was discovered to have two security violations

After determining, credibly, that Ellis was legally hired, DOD IG then considered whether Ellis was legally put on leave as soon as he was hired. The analysis involves the discovery of two security violations on January 7 and January 8, as laid out in this table.

In the first incident, NSA discovered that Ellis had put together and shared notebooks of documents of “compartmented, classified [NSA] information” without NSA knowledge or consent.

An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.

[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.

In the second, more alarming instance, two days after Trump’s coup attempt, an NSA employee tried to retrieve “some of the most sensitive information that NSA possesses” from Ellis, only to discover he was storing it with inadequate security and refusing to return it. (After DDIRNSA Barnes asked for help from Eisenberg, NSA got the information back.)

On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” Mr. Barnes added:

And then we started to get the pressure on the 15th is when Acting SecDef ordered us to issue a job offer to him. And so, in that intervening several days, all’s we knew his [sic]is we have a problem, we have to investigate the nature of how these documents were handled, distributed outside of our purview and control. And so that was—the flares were up but we didn’t have time to actually do anything yet and Mr. Ellis was not our employee so we didn’t have a chance to contact him yet for questioning for anything. We had to get security involved to do it right whenever we do an investigation because we didn’t know if there was a disconnect or an understanding that so these were just—the flares went up on the 7th and the 8th.

Effectively, at a time when NSA was trying to ensure that outgoing Trump officials didn’t walk out with NSA’s crown jewels, they learned that Ellis wanted to keep the crown jewels on White House servers.

Importantly, two aspects of these violations repeat earlier concerns about Ellis’ tenure: He shared information with people (like Nunes) not authorized to have it, and that he and Eisenberg played games with White House servers to avoid accountability. And while it’s not clear why Ellis was violating NSA’s security rules, it does seem of a part of his efforts to politicize classification with the John Bolton review.

DOD IG found that it was not proper to put Ellis on leave based on the then-ongoing IG investigation. But it did find Nakasone’s decision to put Ellis on leave was proper based on Nakasone having control over Ellis’ clearance.

The investigation into Ellis’ security violations appears to have ended when he resigned in April. The IG Report includes a recommendation that it be reconsidered.

The Office of the Undersecretary of Defense for Intelligence and Security should review the allegation and supporting material that Mr. Ellis improperly handled classified information on two occasions to determine what, if any, further actions the NSA or another agency should take regarding this allegation.

It’s possible, though, that this investigation didn’t go further for a different reason. That’s because the President is ultimately the Original Classification Authority for the entire US government. If Ellis was distributing these notebooks and withholding the NSA crown jewels based on Trump’s authorization, it wouldn’t be a violation at all.

That said, that seems reason enough to chase down why he did those things.

John Bolton Versus Navy Versus Egan

June 19, 2020/35 Comments/in 2020 Presidential Election, Impeachment /by emptywheel

John Bolton filed a motion opposing the government’s legal actions against him last night (it is both a memorandum in opposition to the Temporary Restraining Order as well as a motion to dismiss). It is particularly interesting because of some things Jack Goldsmith and Marty Lederman laid out in this post. As they note, the judge presiding over today’s hearing has no tolerance for Executive Branch bullshit, even on classified matters; the government’s own description of what happened raises lots of questions about regularity of the claim of classification, particularly as respects to whether there any compartmented information (SCI) remains in Bolton’s book; and the scrutiny of the government will be particularly stringent here, since it wants to censor something before publication.

This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors. They include:

Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public. Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.

The decision to classify material here appears to be highly irregular. The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information. A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review. It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information. At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.

The D.C. Circuit in dicta in McGehee stated that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one. Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.

Bolton’s motion answers a lot of questions that Goldsmith and Lederman asked in their post. For example, they ask whether Ellen Knight consulted with other top classification authorities before she verbally told Bolton the book had no more classified information in it; Bolton’s motion describes that on the call when Knight told Bolton the book had no more classified information, she, “cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate,’ and that there were ‘some internal process considerations to work through.'”

Goldsmith and Lederman lay out a lot of questions contemplating the likelihood that Michael Ellis claimed the manuscript had SCI information after Knight informed Bolton that it had no more classified information, of any kind (remember, Ellis is likely the guy who moved Trump’s Ukraine transcript onto the compartmented server after people started raising concerns about it, so there would be precedent). Bolton’s brief lays out an extended description of why, if this indeed happened, it doesn’t matter with respect to the way his SCI non-disclosure agreement is written, because based on the record even the government presents, Bolton had no reason to believe the manuscript had SCI in it, and plenty of reason to believe it had no classified information of any type, when he instructed Simon & Schuster to move towards publication.

However, in its brief, the Government asserts for the first time that Ambassador Bolton’s book contains SCI and, therefore, that the SCI NDA applied to his manuscript and required that he receive written authorization from the NSC to publish it. See Doc. 3 at 12–14. This surprise assertion that the book contains SCI, even if true, would not alter the conclusion that the SCI NDA is inapplicable to this case.

The Government is not painting on a blank canvas when it asserts that Ambassador Bolton’s book contains SCI. Rather, the Government’s assertion comes after a six-month course of dealing between the parties that informs whether and how the NDAs apply. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (1981); see also id. § 223. Ambassador Bolton submitted his manuscript for prepublication review on December 30, 2019. Over the next four months, he (or his counsel) and Ms. Knight exchanged more than a dozen emails and letters, participated in numerous phone calls, and sat through more than a dozen hours of face-to-face meetings, painstakingly reviewing Ambassador Bolton’s manuscript. Yet, in all that time, Ms. Knight never asserted—or even hinted—that the manuscript contained SCI, even as she asserted that earlier drafts contained classified information. 102 After conducting an exhaustive process in which she reviewed the manuscript through least four waves of changes, Ms. Knight concluded that it contains no classified information—let alone SCI—as the Government concedes. Doc. 1 ¶ 46.

Nor did Mr. Eisenberg assert in either his June 8 or June 11 letters that the manuscript contains SCI. Nor did Mr. Ellis assert in his June 16 letter that the manuscript contains SCI. Indeed, not even the Government’s complaint asserted that the manuscript contains SCI, even as it specifically alleges that it contains “Confidential, Secret, and Top Secret” information. Doc. 1 ¶ 58. The first time that anyone in the Government so much as whispered that the manuscript contains SCI to either Ambassador Bolton or the public was yesterday, when the Government filed its motion. For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.

And here is the key point: Ambassador Bolton authorized Simon & Schuster to publish his manuscript weeks ago, not long after receiving Ms. Knight’s confirmation that the book did not contain classified information and long before the Government’s first assertion yesterday that the book contained SCI. 103 Thus, at the time Ambassador Bolton proceeded with publishing his book—a decision that has long-since become irrevocable—he had absolutely no reason to believe that the book contained SCI. Indeed, quite the opposite: the Government had given him every reason to believe that it agreed with him that the book did not contain SCI. And if the book did not contain SCI, the SCI NDA did not apply when Ambassador Bolton authorized the book’s publication.

Yet the Government now argues that the SCI NDA did apply based on its discovery of alleged SCI six months after the prepublication-review process began. If that argument is sustained—if, that is, an author may be held liable under the SCI NDA even though neither the author nor the Government believed that the author’s writing contained SCI through four months of exhaustive prepublication review—it would mean that any federal employee who signs the SCI NDA would have no choice but to submit any writing, and certainly any writing that could even theoretically contain SCI, and then await written authorization before publishing that writing. The risk of liability would simply be too great for any author to proceed with publishing even a writing that both he and the official in charge of prepublication review believe, in good faith, is not subject to the SCI NDA.

What Goldsmith and Lederman don’t address — but Bolton does at length in his brief — is the role of the President in these matters. Bolton lays out (as many litigants against the President have before) abundant evidence that the President was retaliating here, including by redefining as highly classified any conversation with him at a very late stage in this process.

Yet, the evidence is overwhelming that the Government’s assertion that the manuscript contains classified information, like the corrupted prepublication review process that preceded it, is pretextual and in bad faith:

On January 29, the President tweeted that Ambassador Bolton’s book is “nasty & untrue,” thus implicitly acknowledging that its contents had been at least partially described to him. He also said that the book was “All Classified National Security.”112

On February 3, Vanity Fair reported that the President “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s January 23 letter asserting that the manuscript contained classified information.113 It also reported that the President “wants Bolton to be criminally investigated.”114

On February 21, the Washington Post reported that “President Trump has directly weighed in on the White House [prepublication] review of a forthcoming book by his former national security adviser, telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.”115 The President vowed: “[W]e’re going to try and block the publication of [his] book. After I leave office, he can do this.”116

As described in detail above, Ambassador Bolton’s book went through a four-month prepublication-review process with the career professionals at NSC, during which he made innumerable revisions to the manuscript in response to Ms. Knight’s concerns. At the end of that exhaustive process, she stated that she had no further edits to the manuscript,117 thereby confirming, as the Government has admitted, that she had concluded that it did not contain any classified information.118

At the conclusion of the prepublication-review process on April 27, Ms. Knight thought that Ambassador Bolton was entitled to receive the pro-forma letter clearing the book for publication and suggested that it might be ready that same afternoon.119 She and Ambassador Bolton even discussed how the letter should be transmitted to him.120

During that same April 27 conversation, Ms. Knight described her “interaction” with unnamed others in the White House about the book as having “been very delicate,”121 and she had “some internal process considerations to work through.”

After April 27, six weeks passed without a word from the White House about Ambassador Bolton’s manuscript, despite his requests for a status update.122

When the White House finally had something new to say, it was to assert its current allegations of classified information on June 8, in a letter that—by the White House’s own admission—was prompted by press reports that the book was about to be published.123

Even though the manuscript was submitted to NSC on December 30, 2019, and despite the exhaustive four-month review and the six weeks of silence that had passed since Ms. Knight’s approval of the manuscript on April 27, the White House’s June 8 letter gave itself until June 19—only four days before the book was due to be published—to provide Ambassador Bolton’s counsel with a redacted copy of the book identifying the passages the White House purported to believe were classified.

On the eve of this lawsuit being filed, in response to a question about this lawsuit, the President stated: “I told that to the attorney general before; I will consider every conversation with me as president highly classified. So that would mean that if he wrote a book, and if the book gets out, he’s broken the law.”124 The President reiterated: “Any conversation with me is classified.”125 The President added that “a lot of people are very angry with [Bolton] for writing a book” and that he “hope[d]” that Ambassador Bolton “would have criminal problems” due to having published the book.126

On June 16, the NSC provided to Ambassador Bolton a copy of the manuscript with wholesale redactions removing the portions it now claims are classified. Consistent with President Trump’s claim, statements made by the President have been redacted, as have numerous passages that depict the President in an unfavorable light.127

It is clear from this evidence that the White House has abused the prepublication-review and classification process, and has asserted fictional national security concerns as a pretext to censor, or at least to delay indefinitely, Ambassador Bolton’s right to speak.

While Goldsmith and Lederman focused, with good reason, on Ellis’ role, Bolton is focused on President Trump’s role. Bolton lays out abundant evidence that the reason this prepublication review went off the rails is because the President, knowing how unflattering it was to him, made sure it did.

And that raises entirely new issues because under a SCOTUS precedent called Navy v. Egan, the Executive has long held that the President has unreviewable authority over classification and declassification decisions. That doesn’t change contract law. And–given that the courts have already granted the President a limited authority to protect the kinds of things being called SCI here under Executive Privilege–it raises real questions about whether Trump is relying on the proper legal claim here (which may be a testament to the fact that Executive Privilege holds little sway over former government officials).

Still, courts have sanctioned a bunch of absurdity about classification under the Navy v. Egan precedent, arguably far beyond the scope of what that decision (which pertained to clearances) covered. Yet, I would argue that Bolton has made Navy v. Egan a central question (though he does not mention it once) in this litigation.

Can the President retroactively classify information as SCI solely to retaliate against someone for embarrassing him — including by exposing him to criminal prosecution under the Espionage Act? That’s the stuff of tyranny, and Royce Lamberth is not the judge who’ll play along with it.

Let me very clear however, particularly for the benefit of some frothy leftists who are claiming — in contradiction to all evidence — that liberals are somehow embracing Bolton by criticizing Trump’s actions here: Bolton’s plight is not that different from what whistleblowers claim happens to them when they embarrass the Executive Branch generally. Their books get held up in review and some of them get prosecuted under the Espionage Act.

What makes this more ironic, involving Bolton, is that he has been on the opposite side of this issue. Indeed, the Valerie Plame leak investigation focused closely on whether Dick Cheney’s orders to Scooter Libby to leak classified information — after which he leaked details consistent with knowing Plame’s covert status, as well as details from the National Intelligence Estimate — were properly approved by George Bush. Bolton was a party to that pushback and his deputy Fred Fleitz was suspected of having had a more active role in it. In that case, the President (or Vice President) retaliated for the release of embarrassing information by declassifying information for political purposes. But in that case, the details of what the President had done have remained secret, protected by Libby’s lies to this day.

In this case, Bolton can present a long list of evidence — including the President’s own statements — that suggest these classification decisions were retaliatory, part of a deliberate effort to trap Bolton in a legal morass.

So Bolton isn’t unique for his treatment as a “whistleblower” (setting aside his cowardice in waiting to say all this). He’s typical. What’s not typical is how clearly the President’s own role and abusive intent is laid out. And because of the latter fact — because, as usual, Trump hasn’t hidden his abusive purpose — it may more directly test the limits of the President’s supposedly unreviewable authority to classify information. So, ironically, someone like Bolton may finally be in a position to test whether Navy v. Egan really extends to sanctioning the retroactive classification of information solely to expose someone to criminal liability.

A Tale of Two National Security Advisors

June 18, 2020/71 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment /by emptywheel

As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

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

January 27, 2020/104 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

Now, there was a report —

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

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

Q    The investigation into Democrats.

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

[snip]

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

Now, there was a report —

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

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

Q    The investigation into Democrats.

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

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

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

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

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

MR. MULVANEY: Yeah.

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

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

[snip]

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

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

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

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

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

Q    So are you saying —

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

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

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

Q    Is the DNC political opponents of the President?

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

Q    Durham.

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

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

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

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

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

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

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

[snip]

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

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

SCHIFF: Mr. Goldman?

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

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

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

[snip]

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

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

GOLDMAN: Burisma and the 2016 election.

VOLKER: Burisma and 2016, yes.

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

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

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

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

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

VOLKER: Correct, correct — yes, right.

[snip]

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

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

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

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

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

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

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

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

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

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

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

Charles Cooper’s Letter about Pre-Publication Review Discounts Any Executive Privilege Claims

January 27, 2020/63 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Impeachment, Unitary Executive /by emptywheel

In the wake of yesterday’s NYT story revealing damning details about John Bolton’s book manuscript, his lawyer, Charles Cooper, released the letter sent on December 30 laying out what they expected from the pre-publication review.

In it, Cooper (who while he was at the Office of Legal Counsel wrote at least one opinion laying the foundation for the unitary executive, one that helped cover up Iran-Contra) suggests there is only one basis on which the White House can object to the content of his client’s manuscript: classification.

I appreciate your assurance that the sole purpose of prepublication security review is to ensure that SCI or other classified information is not publicly disclosed. In keeping with that purpose, it is our understanding that the process of reviewing submitted materials is restricted to those career government officials and employees regularly charged with responsibility for such reviews.

Cooper leaves unstated his assertion that the White House cannot object to material in the book on Executive Privilege grounds, or any Absolute Immunity grounds that Pat Cipollone might dream up.

Such an assertion is wholly inconsistent with Cooper’s previous assertion (made for his other client, Charles Kupperman but which Bolton adopted by association) that the White House has any say over whether Bolton must respond to a dually authorized Congressional subpoena. Normally, a subpoena can overcome Executive Branch demands that the subpoenaed person not testify, if they want to testify. Here, Cooper is suggesting that the only restriction that the White House can impose on Bolton’s non-subpoenaed speech is classification review.

I get why he said it. He was trying to lay the groundwork for the statement he released last night, in which he suggested the White House had circulated Bolton’s manuscript outside those career civil servants who are entitled to review it.

But it will make it far harder to ignore future subpoenas, whether from the Senate, the House, or SDNY (in a Rudy Giuliani investigation).

Dick Cheney’s Apprentice Strikes

January 26, 2020/130 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment /by emptywheel

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

Apparently, the book describes:

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

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

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

[snip]

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

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

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

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

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

Laura Cooper’s Forgotten Deposition

October 29, 2019/41 Comments/in Congress, Impeachment, Trump Administration /by Rayne

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

Performance art by a couple dozen GOP House members garnered a lot of media attention last week. Their noisy assault on a House sensitive compartmented information facility (SCIF) during a deposition obstructed a House investigation and compromised the security of the SCIF in an attempt to cast doubt upon the House impeachment inquiry process.

Sophomore (sophomorish-?) GOP representative Matt Gaetz stood out as both a leader of the flash mob; this was his second attempt to crash a meeting though this latest one didn’t do as much for his image.

The stunt and the GOP’s whiny little pizza party and follow-up presser drew a lot of media attention with reactions running the gamut. It was pure hypocrisy for the GOP mob to claim the deposition was an attempt to prevent the public from seeing what was going on, since the committee in attendance included both Democrats and Republicans and operated to rules written and implemented by a Republican majority in 2015

But lost in all the hullaballoo was the deposition itself. This may be exactly what the House GOP intended with their performance – not just to derail the deposition, but to prevent the public from actually knowing anything about Laura Cooper’s testimony.

Projection, as always – when the GOP’s crashers said it was about a meeting Democrats were trying to keep secret, it was about secrets the GOP wants kept.

Which should make us wonder what it was that Laura Cooper had to say that was so worrying to both Trump and the GOP that they staged this intervention.

They didn’t intervene in diplomat Bill Taylor’s deposition, after all. We knew it was going to be rough for Trump because we’d already seen some of Taylor’s texts from his side, casting Gordon Sondland and the administration in a bad light.

But the last time Gaetz pulled this stunt, trying to barge into an investigative session closed to all but House Intelligence Committee members, the subject being interviewed was Fiona Hill.

Hill was Special Assistant to the President and Senior Director for European and Russian Affairs on the National Security Council; she announced on/around June 18 this year that she planned to leave her role at the end of August. She received a subpoena to appear on/around October 10 and appeared last Monday October 14 in a closed-door session for ten hours before the House Intelligence, Foreign Affairs and Oversight committees.

The House parliamentarian ruled Gaetz was not eligible to attend this session; he’s not a member of these three committees. There were other Republican members of these committees in attendance though we don’t know exactly who or how many because the roll call has not been publicized.

The attempt to crash looked like interference at the time. Perhaps Gaetz intended worse, but the deposition went on.

This past week’s deposition of Laura Cooper was much shorter than Hill’s, at only three hours’ duration. It’s not clear whether Cooper’s testimony was not as broad as Hill’s given Hill’s background and role in the administration. It’s possible Cooper’s deposition was interrupted by the GOP flash mob.

This looks not only like an attempt to interfere with the conduct of the House inquiry and obstruct testimony, but witness intimidation and tampering.

Two patterns may be emerging though with only these two depositions be-bothered by GOP stunts it’s not enough data to cinch this.

First, both of these witnesses were women. GOP reps didn’t try to interfere with depositions or hearings of male witnesses like U.S. Ambassador to the European Union Gordon Sondland and Bill Taylor.

Did they pick these two witnesses to intimidate because they were women?

A third woman witness had been harassed but long before she became a witness for the House inquiry; former Ambassador Marie Yovanovitch had been through a character assassination by right-wing horde leading up to her recall from her post in Ukraine this past May, before the key Trump-Zelensky phone call on July 25.

Second, both Hill and Cooper were not anticipated as witnesses when the whistleblower complaint became public knowledge. Diplomats and White House personnel who were involved directly in the call were expected as likely witnesses. What was it that emerged during the earliest testimony which compelled the House committees to call Hill and Cooper?

Did Hill’s departure from her role as special adviser trigger questions?

What exactly did Office of Management and Budget tell the Defense Department and when which would have made Cooper a needed witness?

What was it about Cooper’s anticipated testimony which required such a big dog-and-pony show to suck up media attention to propel the GOP’s misdirection while cutting into time alloted for Cooper’s deposition?

Cooper in particular received a letter from the DOD informing Cooper and her counsel that she as Executive Branch personnel couldn’t “participate in [the impeachment] inquiry under these circumstances” according to an administration-wide direction. There were attachments to bolster claims made in the letter with regard to the House Committees’ refusal to allow White House counsel to attend the depositions and the legitimacy of the inquiry. The letter emerged after Reuters reported on October 17 that Cooper wouldn’t testify and before her deposition.

The letter, which looks a bit odd, wasn’t from the Acting Secretary of Defense or the Office of General Counsel for DOD. Instead it was printed on letterhead from the Deputy Secretary of Defense and signed by David L. Norquist, the Deputy Secretary of Defense.

Why note this?

1) Because the letter wasn’t dated. It has a date stamp on it – 22 OCT 2019 – but not a date typed on the letter at the time it was printed. The stamp appears to be a Received By date but it may also be the date the letter was sent; it’s not clear who or what government entity may have stamped it, whether the Pentagon, Cooper’s attorney, or the House committee which received it though it’s likely not the committee. Note also that October 22 is the date Taylor testified before the House.

2) Because the signature on the letter is almost illegible; “David L.” is legible but the last name isn’t, save for the letter T at the end. There is no name, title, department beneath the signature. Compare this letter to the first attachment, a letter from the Office of the Assistant Secretary of Defense, signed by Robert R. Hood. You’ll see there is a name, title, department beneath his signature.

3) Because there’s no subject line, though not all government-issued letters may have them, and

4) There’s no list of attachments, except in the body of the letter, and they’re referred to as Tab A, B, etc. instead of by document title or by a URL if published and available to the public.

Why are these points important? Because someone seeking this particular communication by FOIA wouldn’t be able to find it by date or by Norquist’s name, title, or department, or by the attachments.

If someone was looking for a letter from DOD’s general counsel telling Cooper not to respond to the House committees’ subpoena, they wouldn’t find it. Ditto if they were looking for a letter from the Acting Defense Secretary. Nor would they find it by date written.

Note also, though it’s probably just a coincidence: David L. Norquist is Grover Norquist’s younger brother. Can’t pick your family.

But you can choose whether to include a date, name, title, department on a letter.

~ ~ ~

The New York Times reported last evening that the National Security Council’s authority on Ukraine, Lt. Col. Alexander S. Vindman, will testify today before the House impeachment investigation that he objected not once but twice to the context of Trump’s July 25 phone call with Ukraine’s president Volodymyr Zelensky.

“I did not think it was proper to demand that a foreign government investigate a U.S. citizen, and I was worried about the implications for the U.S. government’s support of Ukraine,” Colonel Vindman said in his statement. “I realized that if Ukraine pursued an investigation into the Bidens and Burisma it would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained.”

Vindman was present during the phone call and remains an active member of White House staff. It’s not just Vindman’s role, though, which shakes up Trump’s supporters. His credentials will be difficult to push back against — Harvard-educated Purple Heart recipient, and a still-active member of the military, who immigrated to the U.S. as a toddler when his parents fled the former Soviet Union. The right-wing horde is already scrambling to discredit Vindman, going so far as to accuse him of being a double agent and a “hostile witness” in a “kangaroo court.”

In his written statement to the House, Vindman said objected to Sondland’s statements during a post-call debriefing session; he was the third person to do so apart from the as-yet unnamed whistleblower.

Fiona Hill, President Donald Trump’s former top Russia adviser, raised concerns about Rudy Giuliani’s role in US foreign policy toward Ukraine, telling lawmakers on Monday that she saw “wrongdoing” in the American foreign policy and tried to report it to officials including the National Security Council’s attorney, according to multiple sources.

“She saw wrongdoing related to the Ukraine policy and reported it,” one source said. …(CNN, 14-OCT-2019)

With Vindman and both Hill and Bolton sharing their objections with NSC’s top legal adviser, John A. Eisenberg has heard from the most senior and most authoritative persons on U.S. policy on Ukraine. Eisenberg’s role was already in question.

It was Eisenberg to whom several alarmed White House officials turned when Trump urged Ukraine’s President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter. It was Eisenberg who then helped order the record of that call into a system used for ultra-secret classified information. And it was Eisenberg who, several reports said, consulted with political appointees at the Justice Department on how to handle a whistleblower’s complaint about the Ukraine call. (Politico, 26-OCT-2019)

Has Eisenberg also coached others on handling of correspondence related to the quid pro quo investigation, like Norquist’s letter to Cooper? Note that Norquist isn’t an attorney.

We know now that Vindman’s testimony corroborates both Hill’s and Taylor’s, and that Gordon Sondland is exposed to at least one charge of making a false statement.

It’s this corroboration with Vindman’s testimony that Matt Gaetz tried to obstruct with his first attempt at barging into Fiona Hill’s deposition.

Was it also corroboration with Vindman’s testimony that Gaetz and his flock of GOP co-conspirators tried to obstruct with their barging into the House SCIF during Laura Cooper’s testimony last week?

Among the Republicans participating in the protest was Minority Whip Steve Scalise of Louisiana, the No. 2 House Republican. Gaetz and Scalise both suggested they might return at some point to protest further, though they did not do so Wednesday.
The storm-the-room stunt came two days after Trump said that he thought Republicans “have to get tougher and fight.” Many of the Republicans engaged in the protest were at a White House on Tuesday meeting with Trump, and a person familiar with the matter told CNN that Trump had advance knowledge of the plans to enter the space. (CNN, 23-OCT-2019 – emphasis mine)

Or is there something worse yet ahead which syncs with Cooper’s testimony, something serious enough to warrant Trump conspiring with Gaetz and House GOP members to deter comparison?

Is this why Former deputy national security adviser Charles Kupperman refused to comply with a House subpoena, filing suit instead with the D.C. district court to determine if he is required to testify? Is this suit a stunt of a more subtle nature, intended to head off the next obstructive parade of House GOP members before John Bolton is subpoenaed?

Gordon Sondland’s Statement Protects, Does Not Break with, Trump

October 17, 2019/61 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Impeachment /by emptywheel

Gordon Sondland is behind closed doors right now, trying to talk his way out of implication in crimes (he is represented, it should be noted, by the same lawyer who helped Karl Rove talk his way out of crimes in Valerie Plame’s outing, Robert Luskin).

But if Congressional staffers are doing their job, he’s going to have a hard job to spin what he did as anything but criminal. That’s true, in part, because his statement is full of obvious contradictions and evasions. But contrary to what many in the press (fed in advance with deceptive claims about his testimony) have claimed, the statement does not break with Trump, it protects him.

Who’s the boss?

Sondland’s first inconsistency pertains to one of the most important issues: why he was in charge of Ukrainian policy when Ukraine isn’t even in the EU. His general explanation for it is bullshit — and also should raise questions about what he has been doing in Georgia, Venezuela, and Iran. He studiously avoids explaining who ordered him to focus on Ukraine (as other testimony has made clear, the answer is because Trump ordered him to).

From my very first days as Ambassador, Ukraine has been a part of my broader work pursuing U.S. national interests. Ukraine’s political and economic development are critical to the long-lasting stability of Europe. Moreover, the conflict in Eastern Ukraine and Crimea, which began nearly five years ago, continues as one of the most significant security crises for Europe and the United States. As the U.S. Ambassador to the EU, I have always viewed my Ukraine work as central to advancing U.S.-EU foreign policy. Indeed, for decades, under both Republican and Democrat Administrations, the United States has viewed Ukraine with strategic importance, in part to counter Russian aggression in Europe and to support Ukraine energy independence. My involvement in issues concerning Ukraine, while a small part of my overall portfolio, was nevertheless central to my ambassadorial responsibilities. In this sense, Ukraine is similar to other non-EU countries, such as Venezuela, Iran, and Georgia, with respect to which my Mission and I coordinate closely with our EU partners to promote policies that reflect our common values and interests. I always endeavoured [sic] to keep my State Department and National Security Council colleagues informed of my actions and to seek their input.

But the logistics of it are more interesting, particularly as it pertains to coordinating with Rudy Giuliani.

At times (at both the very beginning, after his description of the July 10 meeting, and again to explain away the July 10 meeting), he emphasizes that Mike Pompeo has approved of all this.

I understand that all my actions involving Ukraine had the blessing of Secretary Pompeo as my work was consistent with long-standing U.S. foreign policy objectives. Indeed, very recently, Secretary Pompeo sent me a congratulatory note that I was doing great work, and he encouraged me to keep banging away.

[snip]

We had regular communications with the NSC about Ukraine, both before and after the July meeting; and neither Ambassador Bolton, Dr. Hill, nor anyone else on the NSC staff ever expressed any concerns to me about our efforts, any complaints about coordination between State and the NSC, or, most importantly, any concerns that we were acting improperly.

Furthermore, my boss Secretary Pompeo was very supportive of our Ukraine strategy.

[snip]

While I have not seen Dr. Hill’s testimony, I am surprised and disappointed by the media reports of her critical comments. To put it clearly: Neither she nor Ambassador Bolton shared any critical comments with me, even after our July 10, 2019 White House meeting. And so, I have to view her testimony — if the media reports are accurate — as the product of hindsight and in the context of the widely known tensions between the NSC, on the one hand, and the State Department, on the other hand, which had ultimate responsibility for executing U.S. policy overseas. Again, I took my direction from Secretary Pompeo and have had his consistent support in dealing with our nation’s most sensitive secrets to this very day.

Again, the public record makes it clear he was put in this role by Trump, not Pompeo. And while I’m sure Pompeo knew of what he was doing (his suggestion that Pompeo was “supportive of it” seems most clearly on point), he was reporting directly, via a third channel of authority, directly to Trump.

That said, his suggestion that Pompeo — a former CIA Director but now in charge of diplomacy, which is not supposed to be the realm of utmost secrecy — trusts him “with our nation’s most sensitive secrets,” suggests there’s something else going on here, something about which he’s reassuring Pompeo he’ll remain silent.

The claim that he took his direction from Pompeo, bolded above, is contradicted on the matter of Rudy Giuliani’s involvement. His description of why Rudy was involved varies slightly over time. Initially, he says he coordinated with Rudy because the Three Amigos, collectively, decided they had to involve Rudy to achieve other diplomatic objectives.

Secretary Perry, Ambassador Volker, and I were disappointed by our May 23, 2019 White House debriefing. We strongly believed that a call and White House meeting between Presidents Trump and Zelensky was important and that these should be scheduled promptly and without any pre-conditions. We were also disappointed by the President’s direction that we involve Mr. Giuliani. Our view was that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for all aspects of U.S. foreign policy towards Ukraine. However, based on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U.S. foreign policy goals in the region; or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.

We chose the latter path, which seemed to all of us – Secretary Perry, Ambassador Volker, and myself – to be the better alternative.

Later, he claims that “his understanding” is that Trump ordered Rudy’s involvement, as if he didn’t get that order directly.

Mr. Giuliani does not work for me or my Mission and I do not know what official or unofficial role, if any, he has with the State Department. To my knowledge, he is one of the President’s personal lawyers. However, my understanding was that the President directed Mr. Giuliani’s participation, that Mr. Giuliani was expressing the concerns of the President, and that Mr. Giuliani had already spoken with Secretary Perry and Ambassador Volker.

Still later, he strengthens that, suggesting he was “taking direction from the President” directly.

As I stated earlier, I understood from President Trump, at the May 23, 2019 White House debriefing, that he wanted the Inaugural Delegation to talk with Mr. Giuliani concerning our efforts to arrange a White House meeting for President Zelensky. Taking direction from the President, as I must, I spoke with Mr. Giuliani for that limited purpose.

If he was taking orders from Trump on involving Rudy (which is almost certainly the case), then the claims of Pompeo’s role are just cover.

Sondland is obfuscating on both these issues: why the EU Ambassador was put in charge of Ukraine policy, and why Rudy was allowed to dictate Ukraine policy. While the press thinks Sondland has taken a big break from Trump, he has not on the key issue: that Sondland was taking orders from Trump and doing precisely what the President ordered him to.

The royal we

There are really telling passages in this statement where Sondland slips into the first person plural. Generally, he does so when describing something that he, Rick Perry, and Kurt Volker jointly believe. As noted, he does so is to explain why he and Rick Perry and Kurt Volker coordinated with Rudy.

It was apparent to all of us that the key to changing the President’s mind on Ukraine was Mr. Giuliani. It is my understanding that Energy Secretary Perry and Special Envoy Volker took the lead on reaching out to Mr. Giuliani, as the President had directed.

Indeed, Secretary Perry, Ambassador Volker, and I were disappointed by our May 23, 2019 White House debriefing. We strongly believed that a call and White House meeting between Presidents Trump and Zelensky was important and that these should be scheduled promptly and without any pre-conditions. We were also disappointed by the President’s direction that we involve Mr. Giuliani. Our view was that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for all aspects of U.S. foreign policy towards Ukraine. However, based on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U.S. foreign policy goals in the region; or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.

We chose the latter path, which seemed to all of us – Secretary Perry, Ambassador Volker, and myself – to be the better alternative.

Another place he does so is to explain why the Three Amigos moved forward on scheduling the July 25 call when John Bolton and Fiona Hill were opposed (he’s utterly silent about the second half of his July 10 meeting with the Ukrainians).

We three favored promptly scheduling a call and meeting between Presidents Trump and Zelensky; the NSC did not.

He also uses it to describe his meeting with Zelensky on July 26, after Zelensky had delivered on the quid pro quo, where he set up the White House meeting.

During this July 26, 2019 meeting in Kiev, we were able to promote further engagement, including discussions about a future Zelensky visit to the White House.

This is Gordon Sondland’s testimony, remember, not the Three Amigos’ testimony. But in these key passages, he claims — without explaining how he can do so — to speak for all three. He doesn’t explain if they had conversations (or WhatsApp threads) agreeing on all these issues, he just suggests he can speak for all three.

And his denials that he shared this statement with State or White House would not extend to these other people he invokes as “we.”

Perhaps a more interesting invocation of the third person plural comes where he claims that Bill Taylor, along with him and Volker, had no concerns about the push to get to Ukraine to publicly commit to an investigation that would deliver part of a quid pro quo.

First, I knew that a public embrace of anti-corruption reforms by Ukraine was one of the pre-conditions for securing a White House meeting with President Zelensky. My view was, and has always been, that such Western reforms are consistent with U.S. support for rule of law in Ukraine going back decades, under both Republican and Democrat administrations. Nothing about that request raised any red flags for me, Ambassador Volker, or Ambassador Taylor.

Taylor is still with State, so if Sondland is being honest when he says he hasn’t shared his statement, then Taylor has not bought off on this claim. I look forward to seeing whether he backs it when he testifies.

[Update, 11/20: I now believe that some of this use of royal “we” is meant to invoke Trump but not necessarily the other Amigos.]

Schrodinger’s quid pro quo

The press has been most excited about the fact that Sondland claims Trump may have had a quid pro quo, but he was ignorant of it.

But in fact, Sondland does not deny a quid pro quo. In fact, his carefully written statement admitting he knew the quid pro quo involved Burisma (which he claims he had no idea meant Biden) admits that the 2016 ask was part of it.

Mr. Giuliani emphasized that the President wanted a public statement from President Zelensky committing Ukraine to look into anticorruption issues. Mr. Giuliani specifically mentioned the 2016 election (including the DNC server) and Burisma as two anticorruption investigatory topics of importance for the President.

And his denials about knowing that the quid pro quo involved the 2020 elections are laughable. His first such denial claims he only learned later about the specific nature of (part of) Rudy’s quid pro quo, but he doesn’t describe when he learned of it, either there or later.

I did not understand, until much later, that Mr. Giuliani’s agenda might have also included an effort to prompt the Ukrainians to investigate Vice President Biden or his son or to involve Ukrainians, directly or indirectly, in the President’s 2020 reelection campaign.

Later, he denies recalling having any conversations about these aspects of the quid pro quo with 1) Rudy, 2) State, and 3) any “White House official” (does that description include the President?).

Third, given many inaccurate press reports, let me be clear about the following: I do not recall that Mr. Giuliani discussed Former Vice President Biden or his son Hunter Biden with me. Like many of you, I read the transcript of the Trump-Zelensky call for the first time when it was released publicly by the White House on September 25, 2019.

[snip]

Again, I recall no discussions with any State Department or White House official about Former Vice President Biden or his son, nor do I recall taking part in any effort to encourage an investigation into the Bidens.

But he doesn’t deny talking about the nature of the quid pro quo with Volker (who’s not technically a State Department employee), Rick Perry (ditto), or the Ukrainian officials that Fiona Hill saw him discussing Burisma with on July 10.

When he denies Trump’s extortion of Ukraine, he denies only that the quid pro quo involved the 2020 election (and not Naftogaz considerations or claims about what happened in 2016 or, perhaps even more tellingly, Russian help in 2020).

Sixth, to the best of my recollection, I do not recall any discussions with the White House on withholding U.S. security assistance from Ukraine in return for assistance with the President’s 2020 re-election campaign.

In denying Bill Taylor’s concern about a quid pro quo, he dismisses it as a concern about the appearance of a quid pro quo, rather than the actuality of one.

On September 9, 2019, Acting Charge de Affairs/Ambassador William Taylor raised concerns about the possibility that Ukrainians could perceive a linkage between U.S. security assistance and the President’s 2020 reelection campaign.

Taking the issue seriously, and given the many versions of speculation that had been circulating about the security aid, I called President Trump directly. I asked the President: “What do you want from Ukraine?” The President responded, “Nothing. There is no quid pro quo.” The President repeated: “no quid pro quo” multiple times. This was a very short call. And I recall the President was in a bad mood.

Sondland here credits Trump’s statements, as if any Trump statement ever had any veracity, as true, even though they came at a time when the White House already knew about the whistleblower complaint, which makes what would already be unreliable outright laughable, if indeed Trump actually said that at all.

But the bigger point is this: Sondland doesn’t deny a quid pro quo. Just that he knew it was the quid pro quo that the House is currently most closely focused on early on in the process.

Gaps in the timeline

Given the way he is protecting Trump in all this, there are notable key gaps in his timeline.

Sondland doesn’t answer two obvious questions: why the Ambassador to the EU was part of the delegation to Volodymyr Zelensky’s inauguration, and why the inauguration delegation flew back to DC, almost immediately, to brief the President on it.

On May 20, 2019, given the significance of this election, I attended the inauguration of President Zelensky as part of the U.S. delegation led by U.S. Energy Secretary Rick Perry, along with Senator Ron Johnson, Special Envoy Volker, and Alex Vindman from the NSC. During this visit, we developed positive views of the new Ukraine President and his desire to promote a stronger relationship between Kiev and Washington, to make reforms necessary to attract Western economic investment, and to address Ukraine’s well-known and longstanding corruption issues.

On May 23, 2019, three days after the Zelensky inauguration, we in the U.S. delegation debriefed President Trump and key aides at the White House. We emphasized the strategic importance of Ukraine and the strengthening relationship with President Zelensky, a reformer who received a strong mandate from the Ukrainian people to fight corruption and pursue greater economic prosperity. We asked the White House to arrange a working phone call from President Trump and a working Oval Office visit. However, President Trump was skeptical that Ukraine was serious about reforms and anti-corruption, and he directed those of us present at the meeting to talk to Mr. Giuliani, his personal attorney, about his concerns.

One reason those players would have flown to DC to debrief Trump is because of the scheme to take over Naftogaz led by Perry, something Sondland doesn’t mention at all.

He also plays games with his antecedent in trying to claim that a June 4 meeting involving Zelensky, Rick Perry, and Ulrich Brechbuhl (where they discussed natural gas, among other things) had been long planned.

Following my return to Brussels and continuing my focus on stronger U.S.-EU ties, my Mission hosted a U.S. Independence Day event on June 4, 2019. Despite press reports, this event was planned months in advance and involved approximately 700 guests from government, the diplomatic corps, the media, business, and civil society. The night featured remarks by the Ambassador and High Representative of the European Union for Foreign Affairs. Following the main event, we hosted a smaller, separate dinner for about 30 people. President Zelensky and several other leaders of EU and non-EU member states attended the dinner, along with Secretary Perry, U.S. State Department Counselor Ulrich Brechbuhl on behalf of Secretary Pompeo, and numerous other key U.S. and EU officials. Though planned long in advance with the focus on improving transatlantic relations, we also viewed this event as an opportunity to present President Zelensky to various EU and U.S. officials and to build upon the enhanced government ties.

He uses “this event” to refer both to the larger 700 person event and the smaller 30 person meeting, effectively making a claim — that the larger event had been long-planned — that he tries to apply to the smaller one. He also is curiously silent about Jared Kushner’s involvement.

In addition to being silent about the second part of his July 10 meeting — the part that got John Bolton worried about what drug deals he was doing — Sondland is also silent about his pre-call briefing to Trump on July 25, after Bolton’s prep.

I was not on that July 25, 2019 call and I did not see a transcript of that call until September 25, 2019, when the White House publicly released it. None of the brief and general call summaries I received contained any mention of Burisma or former Vice President Biden, nor even suggested that President Trump had made any kind of request of President Zelensky.

And his denials about the post-call summaries mentioning Burisma or Biden do not amount to a denial that his prep did. Nor does that denial address his July 26 conversation with Trump (which he addresses in a different section), which he describes as nonsubstantive without addressing whether Trump mentioned the quid pro quo.

I do recall a brief discussion with President Trump before my visit to Kiev. That call was very short, nonsubstantive, and did not encompass any of the substance of the July 25, 2019 White House call with President Zelensky.

In other words, even where denies talking about the quid pro quo, the denials don’t amount to denials in the most important conversations.

Sondland’s silence about WhatsApp

Finally, Sondland is playing games regarding what communications he has had. With the exception of his July 26 and September 9 calls, doesn’t describe what direct communications with Trump he has had.

Just as key, he is mostly silent about his conduct of diplomacy on WhatsApp, precisely the crime (doing official business on private accounts) Trump accused Hillary of to get elected (though his lawyers wrote a letter claiming that they’re helpless in the face of State’s refusal to share his comms). That’s all the more telling given the structure of Sondland’s denials of extensive comms with Rudy. His statement deals with three different kind of comms. He focuses on in-person meetings and phone calls.

To the best of my recollection, I met Mr. Giuliani in person only once at a reception when I briefly shook his hand in 2016. This was before I became Ambassador to the EU. In contrast, during my time as Ambassador, I do not recall having ever met with Mr. Giuliani in person, and I only spoke with him a few times.

[snip]

My best recollection is that I spoke with Mr. Giuliani for the first time in early August 2019, after the congratulatory phone call from President Trump on July 25, 2019 and after the bilateral meeting with President Zelensky on July 26, 2019 in Kiev. My recollection is that Mr. Giuliani and I actually spoke no more than two or three times by phone, for about a few minutes each time.

[snip]

As I stated earlier, I understood from President Trump, at the May 23, 2019 White House debriefing, that he wanted the Inaugural Delegation to talk with Mr. Giuliani concerning our efforts to arrange a White House meeting for President Zelensky. Taking direction from the President, as I must, I spoke with Mr. Giuliani for that limited purpose. In these short conversations, Mr. Giuliani emphasized that the President wanted a public statement from President Zelensky committing Ukraine to look into anticorruption issues.

[snip]

Ten weeks after the President on May 23, 2019 directed the Inaugural Delegation to talk with Mr. Giuliani, I had my first phone conversation with him in early August 2019. I listened to Mr. Giuliani’s concerns

But he acknowledges that Volker introduced him to Rudy “electronically.”

Ambassador Volker introduced me to Mr. Giuliani electronically.

Nowhere in his statement does he explain what form of electronic communication this introduction took place over, and nowhere does he deny having WhatsApp (or any other kind of texting) communications with Rudy.

That’s all the more curious given that he claims — ridiculously — that his statements to Bill Taylor to avoid talking about a quid pro quo on WhatsApp were not an attempt to avoid leaving a record.

Fifth, certain media outlets have misinterpreted my text messages where I say “stop texting” or “call me.” Any implication that I was trying to avoid making a record of our conversation is completely false. In my view, diplomacy is best handled through back-and-forth conversation. The complexity of international relations cannot be adequately expressed in cryptic text messages. I simply prefer to talk rather than to text. I do this all the time with family, friends, and former business associates. That is how I most effectively get things done. My text message comments were an invitation to talk more, not to conceal the substance of our communications.

Immediately after saying those WhatsApp texts no not really record the truth, he points to some emails that, he says, show that he truthfully did not want a quid pro quo.

I recall that, in late July 2019, Ambassadors Volker and Taylor and I exchanged emails in which we all agreed that President Zelensky should have no involvement in 2020 U.S. Presidential election politics.

Remember: State is withholding all of Sondland’s electronic comms from the impeachment inquiry (even assuming he turned them all over to State). So his games with phone calls and texts should be assumed to be just that, claims made from the temporary security of believing the comms to check his claims will never be turned over.

Which is to say that Sondland says quite a bit in this statement. But the most important things are his silences.

Update: On November 5, Sondland unforgot some stuff laid out in Bill Taylor and Tim Morrison’s testimony. But many of the holes laid out above remain.

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

October 15, 2019/92 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment /by emptywheel

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.

Trump Is Being Impeached for Harming America to Extort Campaign Help

October 3, 2019/184 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment /by emptywheel

There’s a narrative solidifying among journalists that Democrats are conducting an impeachment inquiry (at least as it pertains to Ukraine) into whether Trump solicited foreign help for an election.

Even setting aside that on the call with Volodymyr Zelensky, Trump first asked Ukraine’s president to provide “evidence” backing Russian disinformation about the last election, foreign election assistance is not (all) Trump is being impeached for. Trump is being impeached for pursuing US policies that serve to coerce his foreign partners into helping him win the 2020 election.

His demand that China start an investigation into the Bidens was separated from his assertion that “if they don’t do what we want, we have tremendous power” by less than 30 seconds.

We’re looking at a lot of things. China’s coming in next week. We’re going to have a meeting with them. We’ll see. But we’re doing very well. Some of the, uh, numbers are being affected by all of the nonsense, all of the politics going on in this country, but the Democrats, I call them the do-nothing Democrats because they do nothing for this country. They don’t care about this country. But, uh, the numbers really are looking very good going into the future. So we’ll see. I have a lot of options on China. But if they don’t do what we want, we have tremendous power.

[comment on how he wants Zelensky to investigate the Bidens]

And by the way, likewise, China should start an investigation into the Bidens. Because what happened in China is just about as bad as what happened with uh, with Ukraine.

And a key part of the whistleblower’s complaint is that,

On 18 July, an Office of Management and Budget (OMB) official informed Departments and Agencies that the President “earlier that month” had issued instructions to suspend all U.S. security assistance to Ukraine. Neither OMB nor the NSC staff knew why this instruction had been issued. During interagency meetings on 23 July and 26 July, OMB officials again stated explicitly that the instruction to suspend this assistance had come directly from the President, but they still were unaware of a policy rationale. As of early August, I heard from U.S. officials that some Ukrainian officials were aware that U.S. aid might be in jeopardy, but I do not know how or when they learned of it.

Trump held up the money, which had been appropriated by Congress, overruling John Bolton’s and some other national security advisors’ counsel (which may be why Bolton was excluded from the call), as well as that of some Republican Senators. At least some of the Ukrainians in the loop claimed to be blindsided by the freeze and talked about how the freeze made Ukraine more vulnerable vis a vis Russia. Trump restored the aid only after Congress forced him to, even as the whistleblower complaint was breaking.

In short, Trump was defying Congress’ orders, and his excuses (that he was trying to get Ukraine to work on corruption) don’t hold up.

Trump has a lot of leeway to set the foreign policy of the US (but not in defiance of Congressional budgetary guidance). But he has come very close to suggesting that he is setting the foreign policy priorities of the country in such a way as to get leverage over other countries to help him politically.

And DOJ, when receiving this whistleblower complaint, did not review whether this amounts to extortion or bribery, the latter of which is specifically enumerated as an offense demanding impeachment in the Constitution.

This is what impeachment is about: Trump is considering inflicting more damage on farmers and manufacturers and this summer helped an adversary (admittedly the one who helped him get elected the last time), all in an effort to coerce help from foreign leaders.

Update: Fox just obtained encrypted texts showing that temporary Ambassador to Ukraine William Brockenbrough Taylor Jr. said “it’s crazy to withhold security assistance for help with a political campaign,” which would appear to make the intent clear.