The Synopsis: Nov. 17-23
Welcome to the newest incarnation of my weekly recap and analysis: The Synopsis! Please excuse the long intro…
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- The first is what you are looking at now – The Synopsis is an in-depth review of the biggest stories from the past 7 days, summing up what you need to know in order to be prepared for the week ahead in political-legal news.
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Contents: Upcoming in impeachment, White House reviews aid, Nunes implicated, State Dept. FOIA, Giuliani investigations, FISA report, the imminent SCOTUS decision on Trump’s taxes, and McGahn ruling.
Let’s dig in!
The Synopsis: Nov. 17 – 23
What’s Next in Impeachment
Last week we likely saw the end of public testimony from witnesses in the impeachment inquiry, hearing from nine witnesses in four days. That brings the total to twelve witnesses across seven public hearings, in addition to 17 closed-door depositions.
There are more witnesses who could potentially be called – such as John Bolton – and top Democrats have said they’re not opposed to extending the inquiry stage. “We’re not foreclosing the possibility of additional depositions or hearings, but we’re also not willing to wait months and months and let them play rope-a-dope with us in the courts,” House Intelligence Chairman Adam Schiff told the Los Angeles Times on Friday.
Breaking news late Sunday (the 24th) from ABC News reported that last week Lev Parnas provided the House Intelligence Committee with audio, video, and photographs of Giuliani and Trump. This new evidence increases the likelihood that the Intelligence Committee is not yet done with its work and may still call Parnas to testify. See the Nunes and Giuliani sections below for more on Parnas.
- Reminder: A ruling is expected on Monday in the House Judiciary Committee’s lawsuit to force former White House Counsel Don McGahn to testify about the allegations of obstruction of justice detailed in the Mueller report. If the judge rules in favor of the Democrats, there will be more pressure on obstructing witnesses to testify. However, as we’ve seen this past year, McGahn could appeal the ruling and further delay his own testimony.
- Is there a different way to force testimony? Edward Foley, an esteemed professor of constitutional law, suggests that House Democrats should “set a fixed deadline for its vote on articles of impeachment” and argue in court that it requires the testimony of key witnesses before the deadline. Foley cites previous cases to support his assertion that he is “confident that the federal judiciary — including the Supreme Court — can and will definitively rule on the House’s emergency motion in the required time frame.”
How it works
According to CNN, House Democrats will be drafting a report next week that details their findings and serves as the basis for articles of impeachment that the House Judiciary Committee will consider. After the Intelligence Committee passes this report on, the Judiciary Committee will create the articles of impeachment, which are charges to be brought against the President. The Committee will vote on these charges and then advance them to a vote by the full House. Should a simple majority (51%) of the full House vote to charge the president on these counts, the Senate will take over for the trial portion of impeachment.
It is during the Senate trial that the president gets to argue his defense (despite Republicans arguing that the president deserves to defend himself in the House inquiry, which is not true). Supreme Court Chief Justice John Roberts presides over the Senate trial with House Representatives acting as the prosecutors (called “managers”) and the president’s legal team acting as his defense attorneys. The decision to convict Trump will be determined by the Senators, acting as jurors. Two-thirds of the Senate, or 67 Senators, are required to convict a president.
- The Republican plan: Senate Republicans do not plan on shutting down the trial before it begins; Trump said on Friday that he wants a trial. A group of Republican Senators met with White House officials on Thursday to plan their strategy, proposing limiting the proceedings to about two weeks as a “favorable middle ground – substantial enough to give the proceedings credence without risking greater damage to Trump by dragging on too long.” Other options were discussed and the final strategy may ultimately rest with Trump.
- Past impeachment: For context, the impeachment trial of Bill Clinton lasted five weeks. Clinton was acquitted.
White House review
The White House Counsel’s Office conducted a confidential review of the events surrounding Trump’s decision to withhold military aid to Ukraine – the results are not good for the President. According to The Washington Post (non-paywall), the review surfaced hundreds of documents exposing “extensive efforts to generate an after-the-fact justification for the decision and a debate over whether the delay was legal.” Acting Chief of Staff Mick Mulvaney features prominently in these exchanges, pushing for White House and OMB staff to come up with a legal rationale to defend Trump’s decision.
Last week did not go well for House Intelligence Ranking Member Devin Nunes (R-CA). Lev Parnas, a Soviet-born associate of Rudy Giuliani, claims that he helped arrange meetings and calls in Europe for Nunes in 2018. Parnas’ attorney told the Daily Beast the meetings were arranged to assist Nunes in his investigative work, but did not specify what those investigations entailed. The following day, Parnas’ team revealed more details: he is reportedly willing to testify to Congress that Nunes met with former Ukrainian prosecutor Victor Shokin to discuss digging up dirt on Joe Biden. Parnas claims this meeting occurred in December 2018.
Late-breaking news Sunday night: According to Parnas’ lawyer his client is also willing to testify that aides to Nunes planned a trip to Ukraine earlier this year to meet with two prosecutors who claim to have evidence that would help Trump’s campaign, but scrapped the idea when they realized Chairman Schiff would be aware of their trip. Instead, the aides had Parnas set up meetings with the Ukrainian prosecutors over phone and Skype.
Nunes told Breitbart (archived link) that the reports are “demonstrably false” and announced plans to sue the Daily Beast and CNN for defamation. However, it is public record that Nunes and three aides traveled to Europe during the time frame Parnas specifies, taking a taxpayer-funded four-day trip from Nov. 30 to Dec. 3, 2018. Congressional records do not identify which country Nunes visited.
During Thursday’s impeachment hearings, Rep. Eric Swalwell (D-CA) entered into the record the Daily Beast’s article on Nunes, pointing out that despite Nunes accusing Schiff of being a “fact witness,” Nunes “may be the fact witness if he’s working with indicted individuals around our investigation.” On Saturday, Chairman Schiff said there’s “quite likely” to be an ethics investigation into Nunes’ relationship with Parnas. Rep. Jackie Speier echoed this sentiment, tweeting: “If Devin Nunes was using taxpayer money to do “political errands” in Vienna for his puppeteer, Donald Trump, an ethics investigation should be initiated and he should be required to reimburse the taxpayers.”
- How do ethics investigations work? Often, an investigation starts with the Office of Congressional Ethics (OCE), an independent entity made up of eight citizens. The OCE collects evidence and determines if the violation in question should be referred to the House Ethics Committee, which is made up of five Republicans and five Democrats. However, the Ethics Committee does not need a referral from the OCE in order to open an investigation. The chair and ranking member review the evidence and determine if the full committee should impanel an investigative subcommittee on the complaint. This subcommittee uses its subpoena power to investigate and produces a letter of reproval outlining the member’s violations. The inquiry could stop here, or go further and suggest a number of sanctions, including censure, a reprimand, or expulsion from the House (which is rare because it requires two-thirds of the House to vote in approval).
State Department FOIA
Late Friday night, an ethics watchdog called American Oversight published a trove of State Department documents that they requested as part of a Freedom of Information Act lawsuit. Totaling 100 pages, the records show that Secretary of State Mike Pompeo was more involved with Giuliani’s various schemes than previously reported. American Oversight Executive Director Austin Evers said the documents reveal “a clear paper trail from Rudy Giuliani to the Oval Office to Secretary Pompeo to facilitate Giuliani’s smear campaign against a U.S. ambassador.” While Eyers does not mention it, the State Dept. was also in possession of documents detailing Giuliani’s meetings with Ukrainian officials in search of damaging information on Joe and Hunter Biden.
The White House connection is evidenced in emails of then-Director of Oval Office Operations Madeleine Westerhout, showing that she put Giuliani in contact with Pompeo after Giuliani’s team had “been trying and getting nowhere through regular channels.”
Finally, in light of Lev Parnas’ accusations against Devin Nunes, the FOIA release casts more suspicion on the top Republican Representative: Mike Pompeo talked to Nunes on a secure line for 20 minutes just days after multiple calls with Giuliani. The timeline is as follows: Pompeo speaks with Giuliani on March 26; Giuliani says he gave Pompeo a file of documents with unproven allegations against Biden on March 28; on the same day, Pompeo asks staff to speak with Giuliani again, they speak first thing March 29; then Pompeo has 20 min secure call with Nunes April 1. Unlike Pompeo’s calls with Giuliani, his staff does not note a topic of discussion for the call with Nunes.
We now know that Giuliani is the subject of at least three different investigations: one out of Manhattan and one out of D.C. for campaign finance and FARA (foreign lobbying) violations, as well as a counterintelligence investigation by the FBI.
SDNY federal prosecutors have been making the most news this past week, setting a ferocious pace contacting Ukrainian witnesses and issuing subpoenas. As part of their investigation, prosecutors are reportedly examining whether Giuliani stood to profit from a Ukrainian natural-gas proposal pushed by his associates Lev Parnas and Igor Fruman earlier this year. Parnas and Fruman pitched the idea in meetings with Ukrainian officials and executives while simultaneously pushing for assistance on investigations that could benefit Trump.
- Don’t miss it: As described in the opening section of The Synopsis, ABC News reported that last week Lev Parnas provided the House Intelligence Committee with audio, video, and photographs of Giuliani and Trump.
- Background: Parnas and Fruman were arrested last month on four charges, including conspiracy to commit campaign finance fraud, false statements to the Federal Election Commission, and falsification of records.
According to CNN, SDNY prosecutors are also pursuing reports that Giuliani, Parnas, and Fruman lobbied to replace the CEO of Ukraine’s state-run energy company Naftogaz with someone who would be more beneficial to their own natural-gas company, Global Energy Products. Andry Kobolyev, Naftogaz’s CEO, told TIME on Friday that there is “a high likelihood” he’ll be asked to testify, adding that he is willing to cooperate with U.S. prosecutors.
One of the individuals they wanted to replace Kobolyev with, senior Naftogaz executive Andrew Favorov, told CNN that Parnas and Fruman not only tried to recruit him in March, the pair also “boasted” of their ties to the U.S. government. “This is completely crazy … I obviously declined this offer right away,” Favorov told CNN in an interview. “It was the first time in my experience when two private actors were offering or discussing the issues that are supposed to be part of US foreign policy.”
- Similarities: Kobolyev is known for his anti-corruption reforms; like the situation with Yovanovitch, Giuliani’s team sought to install someone more amenable to prioritizing profit over ethics.
- Perry implicated: According to an AP piece published last month, Energy Secretary Rick Perry also tried to shake up the membership of Naftogaz’s board, though it is not clear if he coordinated with Giuliani, Parnas, and Fruman. During his May trip to Kyiv for Zelensky’s inauguration, Perry admits to delivering a list of four candidates to replace a member of Natfogaz’s supervisory board.
SDNY investigators have also issued subpoenas to Trump fundraisers in recent weeks, asking for communications and documents relating to Giuliani, Parnas, Fruman, and a specific fundraiser at Trump super PAC American First Action. One of the individuals subpoenaed, Brian Ballard of lobbying firm Ballard Partners, paid Parnas $45,000 in 2018, reportedly for client referrals.
Others who received subpoenas include Paul Okoloko, who heard a pitch from Parnas to invest in his company Fraud Guarantee, and Meredith O’Rourke, a prominent GOP fundraiser who worked with Trump Victory Fund.
- Background: The campaign finance charges against Parnas and Fruman include illegally funneling part of $325,000 to America First Action during the 2018 midterm cycle.
Breaking update: In a piece by The New York Times, it is revealed that Parnas and Fruman told Russian-friendly Ukrainian oligarch Dmitry Firtash that he would receive help with his case fighting U.S. extradition if he assisted the pair in digging up dirt on Trump’s opponents – and if he hired two Trump associates as lawyers. Firtash seems to have fulfilled at least part of the bargain, hiring Victoria Toensing and Joseph diGenova to represent him. Parnas’ lawyer says his client confirms the report and contacted Firtash at Giuliani’s direction.
FISA report due
The Justice Department Inspector General’s report on the FBI’s surveillance of the Trump campaign is due to be released on Dec. 9, after which IG Michael Horowitz will testify before the Senate Judiciary Committee on Dec. 11. According to The New York Times (non-paywall), the report criticizes certain FBI officials, even finding that a low-level lawyer “altered an email,” but does not determine that the top ranks abused their powers because they were biased against Trump. This clears officials like Jim Comey, Andrew McCabe, and Peter Strzok of accusations of political pushed by rightwing figures including President Trump.
Furthermore, Horowitz reportedly concludes that the altered email did not change the legal basis for the request to Carter Page, a former foreign policy adviser to President Donald Trump’s campaign. In other words, the investigation into Page – and thus, Trump’s campaign – “had a proper legal and factual basis.” As if that wasn’t enough a blow to Trump’s favorite conspiracies, Horowitz apparently also found that the FBI appropriately distanced itself from Christopher Steele and that Joseph Mifsud was not an FBI informant (as George Papadopoulos has claimed).
- Reaction: In Trump’s rambling phone call to Fox & Friends on Friday, Trump ignored all accounts of the report’s contents, claiming that Horowitz proved the FBI was “spying on my campaign and it went right to the top and everybody knows it and now we’re going to find out” and “they tried to overthrow the presidency.” On Saturday, Carter Page appeared on CNN to denounce the report, saying: “The keyword that you just said is sloppiness, right? And unfortunately, the way that this inspector general report has been assembled and completed over the last couple of years and particularly over the last few months, is completely sloppy. It’s only one side’s perspective.”
- Further reading:
If you read last week’s Synopsis, you’ll know that Trump took his challenge of the House Oversight Committee’s subpoena to his accounting firm, Mazars, all the way to the Supreme Court. Last Monday, SCOTUS granted a temporary stay to prevent Mazars from complying with the subpoena while both parties – the House and the President – make their arguments for and against an administrative stay. What’s the difference? An administrative stay is longer and stays in effect while the Court determines if it will hear the case at all.
The House argued in an opposition brief Thursday that the President doesn’t have the right to stall the production of documents, particularly during an impeachment inquiry:
The President certainly has no right to dictate the timetable by which third parties provide information that could potentially be relevant to that inquiry, or to enlist this Court’s aid in doing so on the basis of arguments that have been rejected by each court to have considered them.
A decision could be reached as early as today. If the justices do decide to pause enforcement of the subpoena, the House asks for a quick schedule so the issue can be decided before the of this term (June 2020).
- Background: “The House Oversight Committee subpoenaed finance firm Mazars USA to produce Donald Trump‘s tax returns and other financial documents. Trump’s legal team moved to quash the subpoena on a number of grounds, and lost. He then appealed the court’s adverse ruling up to the D.C. Circuit Court of Appeals. A panel of that court, too, ruled against Trump (2-1), and issued an order that Mazars USA produce the documents. Trump appealed to the D.C. Circuit, asking for a rehearing by the full Circuit Court of Appeals – and his request was denied. On Friday, Team Trump filed an emergency appeal to the U.S. Supreme Court, asking for an administrative stay of the lower court’s order, which brings us to Monday’s ruling.” Source.
Reminder: A decision is expected today by federal judge Judge Ketanji Brown Jackson on the House Judiciary Committee’s subpoena to former White House Counsel Don McGahn. If Judge Jackson upholds the subpoena, McGahn will have to testify before Congress about Trump (pending any potential appeals).
- Why it matters: A ruling in the House’s favor could encourage other witnesses to testify in the impeachment hearing. According to Jessica Levinson, a law professor at Loyola Law School in Los Angeles: “It could be a warm embrace for those who want to testify but need a reason to do. It would give political cover to those who want to come forward.”