The Synopsis: Nov. 10 – 16

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Let’s dig in!

The Synopsis: Nov. 10 – 16

New transcripts released

On Saturday, House impeachment investigators released the transcripts of the private testimony of Jennifer Williams, Special Adviser to the Vice President for Europe and Russia, and Tom Morrison, former Deputy Assistant to the President and National Security Council staffer.

Williams’s deposition

Williams told lawmakers that not only was it President Trump who asked Pence to attend Zelensky’s inauguration, but it was also Trump who directed Pence to cancel plans to attend just seven days before the event (transcript). The whistleblower complaint mentioned that Pence did not attend as planned, raising concerns that Trump blocked Pence from going to Ukraine until his team figured out if Zelensky would “play ball” on launching investigations into Biden. Williams testified that she was not aware of Trump’s reasons for sending the “Three Amigos” – Rick Perry, Kurt Volker, and Gordon Sondland – instead of the Vice President.

In addition to Vindman, Williams is one of the few witnesses with first hand knowledge of Trump’s July phone call with Zelensky, as she was listening in on the discussion. She testified that the call was “unusual and inappropriate,” adding that “it shed some light on possible other motivations behind a security assistance hold.”

Morrison’s deposition

Morrison confirmed the testimony of all other witnesses that Gordon Sondland, Ambassador to the European Union, led an informal and unusual “second track” of engagement with Ukraine that involved Rudy Giuliani and related to Burisma, Hunter Biden, and the “2016 server” (transcript). Sondland told not only told Morrison that he was receiving “instruction” from Trump, Morrison checked to see if he had actually spoken to the President each time and found that he had. In total, Morrison estimated that from July to September Sondland and Trump spoke “half a dozen” times that he was aware of.

“…when I met with Ambassador Sondland on 10 JuIy, I found he represented to me that…his mandate from the president was to go make deals. And he expressed – this is in the 10 July meeting – he expressed his frustration that he felt that on occasion Fiona [Hill] thwarted him.”

Morrison was also privy to Sondland conditioning the release of security assistance on a public announcement that Ukraine was opening investigations into Biden, Burisma, and the 2016 election:

”[Sondland] told me that in his—that what he communicated was that he believed the— what could help them move the aid was if the prosecutor general would go to the mike and announce that he was opening the Burisma investigation…My concern was what Gordon was proposing about getting the Ukrainians pulled into our politics.”

”…it was the first time something like this had been injected as a condition on the release of the assistance. So it was not something I had been tracking as part of our process for calculating how do we get the President the information he needs to make the decision that it was within American interest to release the assistance.”

Just days later, Sondland called Morrison to tell him about a conversation he had with President Trump, in which Trump made it clear Zelensky himself had to make the announcement:

He told me, as is related here in Ambassador Taylor’s statement, that there was no quid pro quo, but President Zelensky must announce the opening of the investigations and he should want to do it.

  • Why it matters: Sondland has not been forthcoming about President Trump’s involvement in directing his actions. He is set to testify on Wednesday and will surely face questions about whether he truly was acting at Trump’s instruction (and about the previously unreported phone call that is described in the section below). If House impeachment investigators can get Sondland to more directly state Trump’s quid pro quo, it will be difficult for Republicans and the White House to create ‘fall guys’ out of Sondland and Giuliani.

Public hearings

The House Intelligence Committee began the public stage of its impeachment inquiry last week, hearing the testimony of three current and former State Dept. diplomats.

Taylor, Kent, and Holmes

On the first day, Deputy Assistant Secretary of State for European and Eurasian Affairs George Kent and acting Ambassador to Ukraine Bill Taylor testified for the majority of the day (transcript). While their testimony largely matched the contents of their private depositions, one important piece of new information emerged: Taylor told lawmakers that he recently learned that a member of his staff overheard a phone call (on the day after Trump’s July 25 call with Zelensky) in which Gordon Sondland discussed Ukranian “investigations” with President Trump.

That staffer was David Holmes, who testified behind closed doors Friday afternoon. He recounted:

During the lunch, Ambassador Sondland said he was going to call President Trump to give him an update…I could hear the President’s voice through the earpiece of the phone…Ambassador Sondland held the phone away from his ear for a period of time, presumably because of the loud volume.

I heard Ambassador Sondland greet the President and explain that he was calling from Kyiv…[Sondland] went on to state that President Zelenskyy “loves your ass.” I then heard President Trump ask, “So, he’s gonna do the investigation?” Ambassador Sondland replied that “he’s gonna do it,” adding that President Zelenskyy will do “anything you ask him to do.”

…After the call ended…I asked Ambassador Sondland if it was true that the President did not give a shit about Ukraine.” Ambassador Sondland agreed…I asked why not, and Ambassador Sondland stated that the President only cares about “big stuff.” I noted that there was “big stuff” going on in Ukraine, like a war with Russia, and Ambassador Sondland replied that he meant “big stuff” that benefits the President, like the “Biden investigation” that Mr. Giuliani was pushing.

The AP reported that a second State Dept. official also overheard the call, Suriya Jayanti, who has been stationed at the U.S. Embassy in Kyiv since September 2018. She was scheduled to testify at a private deposition last month but it was postponed due to the death of Elijah Cummings.

  • Why it matters: House impeachment investigators have so far managed to directly connect Rudy Giuliani and George Sondland to the multiple extortion/bribery attempts, but direct connections to President Trump have been elusive – the main reason being that the White House has ordered officials not to comply with the inquiry. Holmes is the first witness to testify that he heard Trump himself discuss the scheme to pressure Ukraine into open his desired investigations.
  • Implications: The revelation of Sondland’s phone call further discredits his testimony provided behind closed doors, even taking into account his return to add details he originally “forgot.” Sondland claimed that he did not know that Trump and Giuliani’s interest in investigating Burisma had anything to do with the Biden family. Holmes’s testimony quotes Sondland explicitly referring to the investigation as the “Biden investigation” in July. Sondland’s lawyer says his client will “address any issues that arise from this in his testimony” in open session Wednesday.

Risky call

Intelligence officials have responded with disbelief that Sondland would make a phone call to the President of the United States from Ukraine on a cell phone. Marc Polymeropoulos, a former CIA officer who oversaw operations in Europe and Russia, told CNN: “If true, the cell phone call between Ambassador Sondland and President Trump is an egregious violation of traditional counterintelligence practices that all national security officials — to include political appointee ambassadors such as Sondland — are repeatedly made aware of.”

Making such an unsecured call in an area where countries (like Russia) maintain a strong counterintelligence presence risks unfriendly nations intercepting the conversation. “There is little doubt that the Russians and perhaps multiple other foreign intelligence services would have intercepted this call. Moscow undoubtedly would have been pleased …This would offer the Russians some important validation that President Trump was in effect doing exactly what Moscow almost certainly was already aware of: that our President was inserting a serious wedge into ongoing US security assistance programs that Ukraine so desperately needed in their ongoing battle with Russia,” Polymeropoulos said.

Yovanovitch

On Friday, the House Intelligence Committee heard from former Ambassador to Ukraine Marie Yovanovitch (transcript), who was recalled from her post following a successful smear campaign conducted by Giuliani, his rightwing friends, and Ukrainian associates. Yovanovitch provided moving testimony about her experience and offered dire warnings of the future if the State Department continues to leave diplomats unsupported:

Moreover, the attacks are leading to a crisis in the State Department as the policy process is visibly unraveling. Leadership vacancies go unfilled and senior and mid-level officers ponder an uncertain future.

The crisis has moved from the impact on individuals to an impact on the institution itself. The State Department is being hollowed out from within at a competitive and complex time on the world stage.

This is not a time to undercut our diplomats. It is the responsibility of the department’s leaders to stand up for the institution and the individuals who make that institution, still, today, the most effective diplomatic force in the world.

Yovanovitch also spoke about Trump telling Zelensky that she was “bad news” and would soon “go through some things”:

I couldn’t believe it. I mean, again, shocked, appalled, devastated, that the president of the United States would talk about any ambassador like that to a foreign head of state — and it was me. I mean, I couldn’t believe it.

…”She’s going to go through some things.” It didn’t sound good. It sounded like a threat.

Just minutes after discussing Trump’s smears, the President launched another against her, tweeting: “Everywhere Marie Yovanovitch went turned bad. She started off in Somalia, how did that go? Then fast forward to Ukraine, where the new Ukrainian President spoke unfavorably about her in my second phone call with him. It is a U.S. President’s absolute right to appoint ambassadors.”

Asked for her reaction, Yovanovitch stated, “it’s very intimidating,” she said. She then paused, searching for words. “I can’t speak to what the president is trying to do, but the effect is to be intimidating.” Chairman Schiff agreed, telling reporters after the hearing that “we saw today witness intimidation in real-time by the president of the United States, once again going after this dedicated and respected career public servant in an effort to not only chill her, but to chill others who may come forward.”

  • Could it be charged as witness intimidation? 18 U.S.C. § 1512(b) defines witness tampering as: “Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, delay, or prevent the testimony of any person in an official proceeding.” In other words, just an attempt to change a witness’s testimony is enough to argue for charges of witness intimidation. However, as Trump claimed when asked about his tweet, a viable defense is that he was offering his opinion and context to why she was recalled. In sum, (if charges could be brought against a sitting president) Trump could be charged with the crime and may be convicted, but it is not a slam dunk case.

Republican strategy

Overall, Kent, Taylor, and Yovanovitch appeared very credible and cool-headed, not easily thrown off balance by Republican attempts to undermine their testimony. During Kent’s and Taylor’s testimony, one of the main lines of defense was that Ukraine felt no “pressure” from Trump to deliver his requested political investigations. Their claim is based on Zelensky saying (while sitting beside Trump) that he didn’t feel “pushed” on his July 25 call with Trump. As all three witnessed have explained, the Ukrainians desperately need good relations with the U.S. President; Zelensky would not say anything to anger or upset Trump. This timeline by The Washington Post also illustrates that Zelensky was pressured into agreeing to make a public statement announcing Trump’s investigations.

The second most common line from Republicans decried the witness testimony as “hearsay,” which is a legal term applicable in court – not Congress – to describe testimony that quotes what another person said. Republicans have called Kent’s and Taylor’s testimony “unreliable” because they were told of Trump’s pressure campaign, they did not have first-hand knowledge. Nick Akerman, a former Watergate prosecutor, explains: “This is not hearsay. What you have is a bribery, a conspiracy. All of this evidence is admissible. It’s not even considered hearsay under the law because these people are all acting as agents of Donald Trump. So once you make Trump as part of the conspiracy and the chief guy and the conspiracy, around which everything centers, all of these statements are admissible and they’re not considered hearsay. It’s all statements in furtherance of a conspiracy.”

I’m not even going to discuss Ranking Member Devin Nunes’ consistent conspiracy theory narratives because they have been discredited many times over. As Speaker Nancy Pelosi told Face the Nation on Sunday, “I find it a waste of my time and yours to just be talking about what Republicans say…they are in denial about what has happened in the country.”

  • Further reading:
    • “Pelosi suggests whistleblower complaint prompted release of Ukraine aid.” Face the Nation, CBS News. 11/17/19.
    • “Schiff says whistleblower testimony is ‘redundant and unnecessary.’” CNN. 11/10/19.

Upcoming testimony

All times in Eastern time zone:

  • Tuesday, Nov. 19, 9 AM: Jennifer Williams, an aide to Vice President Mike Pence; Lt. Col. Alexander Vindman, Director for European Affairs at the National Security Council.
  • Tuesday, Nov. 19, 2:30 PM: Ambassador Kurt Volker, the former U.S. special envoy to Ukraine; Tim Morrison, a White House aide with the National Security Council.
  • Wednesday, Nov. 20, 9 AM: Ambassador Gordon Sondland, U.S. Ambassador to the European Union.
  • Wednesday, Nov. 20, 2:30 PM: Laura Cooper, Deputy Assistant Secretary of Defense for Russian, Ukrainian, and Eurasian Affairs; David Hale, Under Secretary of State for Political Affairs.
  • Thursday, Nov. 21, 9 AM: Fiona Hill, former National Security Council senior director for Europe and Russia.

Bribery

Democratic House leadership seems to have heard the pleas of writers and experts the past couple of weeks, suggesting that they ditch the latin quid pro quo and use plain English to describe Trump’s impeachable offenses. During her weekly press conference, Speaker Pelosi said:

The devastating testimony corroborated evidence of bribery uncovered in the inquiry and that the President abused power and violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival. Clear attempt of the President to give himself the advantage in the 2020 election.

…we’re talking Latin around here. ‘E Pluribus Unum,’ from many one. Quid pro quo, bribery, bribery, and that is in the Constitution attached to the impeachment proceedings…The bribe is to grant or withhold military assistance in return for a public statement of a fake investigation into elections. That’s bribery.

  • Why it matters: The constitution explicitly mentions bribery as grounds for impeachment.
  • Further reading: Article II, Section 4 of the U.S. Constitution. Legal Information Institute, Cornell Law.

Did Trump commit bribery?

In modern legal terminology, bribery generally refers to a gift, offer, or promise of a thing of value to influence a public official or official act (eg 18 U.S. Code § 201). In this case, the offer of value would be the taxpayer-funded security assistance and the White House meeting, both of which had immense value to the Ukrainians. The official act Trump sought to influence was the opening of investigations into the Bidens and the 2016 election.

Impeachment does not take place in the U.S. court system and does not need to follow legal guidelines, however. The Founders wrote into the Constitution that a president could be impeached for “treason, bribery, or other high crimes and misdemeanors.” As attorneys Ben Berwick, Justin Florence, John Langford wrote in Lawfare, the Founders had a broader understanding of “bribery,” one derived from English law:

…bribery was understood as an officeholder’s abuse of the power of an office to obtain a private benefit rather than for the public interest. This definition not only encompasses Trump’s conduct—it practically defines it.

Under this definition, as the Founders intended, there’s no doubt that Trump committed bribery. During his July phone call with Zelensky, Trump asked him for a “favor” – not one that would benefit the United States, but one that would politically benefit himself. In addition, Trump told Zelensky to work with his private attorney Giuliani, further demonstrating that his “favor” was in fact personal in nature.

  • Tip of the iceberg: Trump also likely violated campaign finance laws by undertaking his pressure campaign on Ukraine. It is against the law to seek or receive help of value from a foreign entity in U.S. elections. Again, the thing of value would be the investigations and the help in elections would be damaging Democratic rival Joe Biden’s chances in the 2020 election.
  • Further reading:
    • “’This is a very strong case of bribery’ : Rep. Jackie Speier on impeachment.” ABC News. 11/10/19
    • “Rep. Adam Schiff: Trump’s Potentially Impeachable Offenses Include Bribery.”NPR. 11/12/19.

Lev Parnas dishes

A Ukrainian-American associate of Rudy Giuliani, Lev Parnas, decided to open a dialogue with House impeachment investigators after initially refusing to cooperate. Parnas ditched his former lawyer, who also represented Trump, and engaged new lawyers who say he is willing to provide the House Intelligence Committee with the requested testimony and documents. The new lawyer, Joseph Bondy, said Parnas’s change of heart occurred after Trump denied knowing him: “Mr. Parnas was very upset by President Trump’s plainly false statement that he did not know him.”

The past two weeks has featured a steady drip-drip-drip of damaging information out of the Parnas camp.

The Wall Street Journal reported that in late February Lev Parnas and his business partner Igor Fruman met with former Ukrainian President Petro Poroshenko in the offices of Ukrainian general prosecutor Yuriy Lutsenko (who pushed smears against Ambassador Yovanovitch). At the meeting, Parnas and Fruman “urged” Poroshenko to announce investigations into Biden and the 2016 election in exchange for a White House meeting. Just weeks prior, Parnas and Frumen twice met with Rudy Giuliani and Lutsenko – in New York in late January and again in Warsaw in mid-February.

The New York Times reported that Lev Parnas traveled to Ukraine shortly before incoming-President Zelensky’s inauguration in May to give an ultimatum at Giuliani’s direction: the new Ukrainian administration had to announce investigations into the Bidens or else VP Pence would not attend the inauguration and security assistance would be frozen. Both Giuliani and Fruman (who still retains Trump’s former lawyer John Dowd) deny Parnas’ account.

The Washington Post reported that Parnas and Fruman attended a Trump fundraising dinner in April 2018, during which they discussed Ukraine with the President. According to Parnas, the pair told Trump that the ambassador to Ukraine “was unfriendly to the president and his interests.” Trump reportedly “reacted strongly” and “immediately suggested” that then-Ambassador ­Yovanovitch should be fired.

Most recently, CNN reported that Parnas and Fruman attended the White House’s 2018 annual Hanukkah party; the pair are seen smiling in a picture with Trump, Pence, and Giuliani. During the party, Parnas and Fruman had a “private meeting” with Trump and Giuliani in which the President gave them “a secret mission” to pressure the Ukrainian government to investigate Joe Biden and his son Hunter. According to two confidants of Parnas, the plan was for Giuliani to issues the President’s directives to the two Ukrainians, who would carry out the orders on the ground.

  • Why this matters: If Parnas’ account can be confirmed, he will severely undermine Trump and Giuliani’s version of events. Specifically, it would prove that the attempted bribery of Ukraine began much earlier than previously known and it would link Giuliani directly to the pressure campaign. It would also prove another instance of corrupt quid pro quo on Trump’s behalf: Ukraine ultimately did not announce the desired investigations and Trump ultimately ordered Pence not to attend the inauguration.
  • Trump knows Parnas and Fruman: Despite Trump’s adamant declarations that he does not know Parnas and Fruman, CNN has documented 10 encounters between the President and the two Ukrainians. On seven of the occasions, Trump posed for photos with either Fruman or Parnas.
  • Background: Last month, the US Attorney’s Office for the Southern District of New York indicted and arrested Parnas and Fruman on campaign finance violation charges for allegedly funneling foreign donations to U.S. political candidates. The duo were caught at Dulles Airport as they were trying to leave the U.S. with one-way tickets to Vienna.

Roger Stone guilty

After only a week-long trial, Roger Stone was found guilty on Friday morning of all seven charges brought against him by federal prosecutors. The jury determined there was enough evidence to prove that Stone lied, obstructed, and tampered with a witness in the House Intelligence Committee’s Russia probe. Judge Amy Berman Jackson, who also presided over Paul Manafort’s trial, released Stone on his own recognizance until his sentencing on Feb. 6, 2020. Stone faces up to 50 years in prison – the witness tampering charge carries a maximum penalty of 20 years, while the maximum for each of the other six charges is five years.

Shortly after the verdict, President Trump took to Twitter to decry the result:

So they now convict Roger Stone of lying and want to jail him for many years to come. Well, what about Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr & Nellie, Steele & all of the others, including even Mueller himself? Didn’t they lie?….

….A double standard like never seen before in the history of our Country?

Now the question is: Will Trump pardon Stone? Stone’s daughter went on Tucker Carlon’s Fox News show just hours after his conviction, pleading with Trump to “save” her family because her father “does not deserve this.”

  • What we learned: Prosecutors revealed that Trump had much more direct involvement with Stone during the 2016 campaign than was previously known. Former Deputy Campaign Chair Rick Gates testified that Trump spoke with Stone on the phone in July 2016, after which Trump declared that “more information would be coming” from Wikileaks. This contradicts Trump’s sworn written testimony to Robert Mueller: “I do not recall discussing WikiLeaks with him,” Trump wrote to Mueller’s team. “Nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign.”
  • Background:
    • “Ex-Trump adviser Roger Stone arrested as part of Mueller probe.” NBC News. 1/25/19.
    • “Meet Roger Stone: One of Donald Trump’s most loyal supporters, who was found guilty of obstructing the Russia investigation.” Business Insider. 11/15/19.

To the Supreme Court

Last week, Trump twice asked the Supreme Court to intervene to keep his personal and business records secret: first in Trump v. Vance and the following day in Trump v. Mazars USA, LLP.

In Trump v. Vance, Trump is attempting to prevent Manhattan District Attorney Cyrus Vance Jr. from enforcing a grand jury subpoena issued to Trump’s accountants at Mazars. Both District Court and the U.S. Court of Appeals for the 2nd Circuit ruled against Trump, not buying his argument that U.S. presidents are immune from investigations while in office. Vance said the records are needed for his office’s investigation into whether the Trump Organization filed falsified business records related to hush-money payments to Stormy Daniels and Karen McDougal during the 2016 election.

In Trump v. Mazars USA, LLP, Trump is attempting to stop his accountants at Mazars from complying with a subpoena from the House Oversight Committee also requesting years of his financial information. As with the other case, both the District Court and U.S. Court of Appeals for the D.C. Circuit ruled in favor of Congress. Mazars has said it will comply with the final determination of the courts.

  • Why it matters: These two cases will determine how much power a president truly has. While Trump’s lawyers have argued that the President cannot be investigated by anyone, this has been proven false in previous cases. In United States v. Nixon in 1974, Richard Nixon’s recordings were sought in a federal criminal investigation of his aides. In Clinton v. Jones in 1997, Bill Clinton was subpoenaed for a federal civil suit. Both Nixon and Clinton lost.
  • **What timeline to expect:* Since both cases deal with such important issues, it is likely that they will be heard by the end of SCOTUS’s end of current term in June 2020. However, according to University of Texas law Professor Steve Vladeck, Trump v. Mazars, involving Congress, may be taken up before the Vance case because the District Attorney has agreed not to enforce the subpoenas at issue until the litigation is complete. Congress did not agree to such terms, meaning if SCOTUS does not act in the next couple of days Mazars will be forced to comply with the subpoena to produce Trump’s tax returns before the case is even taken up.
  • Further reading: