The Synopsis: Nov. 24 – 30 [with test podcast]

Welcome to the newest incarnation of my weekly recap and analysis: The Synopsis.

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Contents: Schedule of the upcoming week, new evidence undermines Trump’s defense, next phase in impeachment, McGahn appeal, and the Dems launch a new census lawsuit


The Synopsis: Nov. 24 – 30

Busy week

The first week of December is set to be a crazy one.

  • Today, Monday, the DOJ is due to submit a brief to the DC Circuit arguing against the release of Mueller’s grand jury materials to the House Judiciary Committee. Also today, Giuliani associates Lev Parnas and Igor Fruman will appear in court for a hearing focused on discussing discovery findings and setting a trial date.
  • Tuesday, the House Intelligence Committee will vote to send their report on the impeachment inquiry to the House Judiciary Committee.
  • The House Judiciary Committee’s first impeachment hearing is set for Wednesday (see below), the same day that briefs are due in former Deputy National Security Advisor Charles Kupperman’s challenge of a House subpoena to testify in the impeachment inquiry.
  • Thursday is the deadline for Trump to submit his argument for the Supreme Court to take up his lawsuit of the House’s subpoena to Mazars for his financial information.

Trump’s defense falling apart

Last week, we learned of several developments that severely weaken Trump’s defense in the impeachment inquiry.

A damning timeline

First, lawmakers released the transcript of career Office of Management and Budget (OMB) official Mark Sandy’s closed-door deposition. Sandy filled in important details in the timeline of events, saying that Trump first began asking about the funds on June 19, 2019 (page 24, 25, 30), after seeing a media report about the government’s approval of military aid for Ukraine. Then, on July 12, Sandy was first told that Trump was directing a hold on military support funding for the country (page 39). This was 13 days before Trump’s phone call with Ukrainian president Zelensky. Note that Pence aide Jennifer Williams and NSC Ukraine expert Lt. Col. Alex Vindman both testified that they first learned of the hold on July 3.

Sandy also revealed that just hours after that phone call on July 25, the OMB signed a document formally withholding the $250 million in Pentagon funds for Ukraine (page 50-53). It is unclear what prompted the hold to be formalized on paper immediately after the two leaders spoke. Perhaps Trump was not reassured that Zelenksy meant to open the investigations he desired; perhaps he did not think Zelensky took him seriously. Whatever the reason, testimony from Laura Cooper proves that the Ukrainians were aware of the hold, having sent her office inquiries the same day.

The hold stayed in place throughout August while officials like Mark Sandy scrambled to determine the cause of the hold, its legality, and how to secure its release. Despite many attempts, Sandy was not given an explanation. Two OMB officials resigned during this period out of frustration with the freeze, the lack of information, and concern that it was illegal (page 149-155).

Then, in late August, White House lawyers briefed President Trump about the whistle-blower’s complaint about his dealings in Ukraine, including the hold on aid for the country. The first media report of the hold was published on August 28 by Politico. In early September, Sandy received his first explanation for Trump’s actions: an email from political OMB appointee Michael Duffey purporting that the hold was placed because Trump was concerned that other countries weren’t contributing enough to Ukraine (page 42). Undercutting this logic, Sandy said that simultaneously he received the first inquiries about how much the other countries actually were contributing (page 45-46).

Finally, Trump released the aid on September 11 – three months after becoming aware that aid was obligated; two months after directing the hold; one-and-a-half months after formalizing the hold on paper; three weeks after being briefed on the whistleblower’s complaint; two weeks after coming up with an official reason; and three days after the House announced an investigation into the hold.

In other words, the defense that Trump did nothing wrong because the aid ended up being delivered has been destroyed. Trump attempted to bribe/extort Ukraine and was caught. He learned that someone called the cops (the complaint), he saw the cops start to investigate (the House committees), so he quickly released the aid and pretended nothing happened.

No record of exonerating phone call

TLDR: According to The Washington Post, the White House cannot locate any record of the Sept. 9 phone call that Trump claims exonerates him of all accusations of a quid pro quo. This undermines Sondland’s testimony that while on the phone, Trump declared he wanted nothing from Zelensky. Evidence shows there was a phone call two days earlier, on Sept. 7, during which Trump told Sondland there was “no quid pro quo” while at the same time saying that Zelenksy must publicly announce his desired investigations or the aid would not be released. The National Security Council has records of this Sept. 7 call and its contents but has not released them.

Background

Ambassador to the European Union Gordon Sondland testified that on Sept. 9 he called the President to determine if he was asking for a quid pro quo, prompted by acting U.S. Ambassador to Ukraine William Taylor’s questioning via text message. Sondland recounts the call:

Sondland: I asked him one open-ended question: What do you want from Ukraine? And as I recall, he was in a very bad mood. It was a very quick conversation. He said: I want nothing. I want no quid pro quo. I want Zelenskyy to do the right thing. (Deposition transcript page 106)

Republicans have latched onto Sondland’s recollection of this conversation, using it as supposed proof of Trump’s innocence. Trump himself took handwritten notes of Sondland’s recollection to the White House lawn last week to emphasize to the press that it proved all accusations against him are empty: “That means it’s all over,” Trump said.

New information

The White House cannot locate a record in its switchboard logs of a call between Trump and Sondland on Sept. 9 (Sondland is not known to have Trump’s cell number). But there is evidence of another call between Trump and Sondland days earlier on Sept. 7. Sondland briefed both William Taylor and Tim Morrison, Senior Director for European Affairs for the National Security Council (NSC), about this Sept. 7 call shortly after it occurred. Both officials’ accounts are consistent with each other.

Morrison and Taylor testified that Sondland separately told each of them that while Trump said there was no quid pro quo, he also demanded that President Zelensky publicly announce the opening of Trump’s desired investigations before the security assistance would be released:

Morrison: In the phone call, he told me that he had just gotten off the phone — the September 7th phone call — he told me he had just gotten off the phone with the President… He told me…that there was no quid pro quo, but President Zelenskyy must announce the opening of the investigations and he should want to do it. (Deposition transcript page 190)

Taylor: on September 7, I had a conversation with Mr. Morrison in which he described a phone conversation earlier that day between Ambassador Sondland and President Trump… President Trump told Ambassador Sondland that he was not asking for a “quid pro quo.” But President Trump did insist that President Zelenskyy go to a microphone and say he is opening investigations of “Biden and 2016 election interference,” and that President Zelenskyy should want to do this himself. (Deposition transcript page 38)

Taylor: [O]n September 8, Ambassador Sondland and I spoke on the phone. He confirmed that he had talked to President Trump as I had suggested a week earlier, but that President Trump was adamant that President Zelenskyy, himself, had to “clear things up and do it in public.” President Trump said it was not a “quid pro quo.” I believe this was the same conversation between Ambassador Sondland and President Trump that Mr. Morrison had described to me on September 7. (Deposition transcript page 39)

So why did Sondland call Trump on Sept. 7? Prior to this date, officials had been trying to find a compromise solution to Trump’s demands. During a bilateral meeting between VP Pence and Zelensky in Warsaw, Sondland and top Ukrainian aide Andriy Yermak discussed having the Ukrainian Prosecutor General make the investigation announcement instead of Zelensky. The phone call on Sept. 7 was Sondland attempting to determine if the Prosecutor General would be acceptable to Trump… it wasn’t. Trump required Zelensky himself make the announcement.

Morrison: …the President said there was not a quid pro quo, but he further stated that President Zelenskyy should want to go to the microphone and announce personally – so it wouldn’t be enough for the Prosecutor General, he wanted to announce personally, Zelenskyy personally, that he would open the investigations. (Deposition transcript page 144-145)

Taylor: Ambassador Sondland also said that he had talked to President Zelenskyy and Mr. Yermak and had told them that, although this was not a quid pro quo, if President Zelenskyy did not “clear things up” in public, we would be at a “stalemate.” I understood a “stalemate” to mean that Ukraine would not receive the much-needed military assistance. Ambassador Sondland said that this conversation concluded with President Zelenskyy agreeing to make a public statement in an interview on CNN. (Deposition transcript page 39)

Sondland: As far as the other part of your question, relating to whether or not the prosecutor could make the statement or Zelensky could make the statement, I don’t recall who told me, whether it was Volker, whether it was Giuliani or whether it was President Trump, “It’s got to be Zelensky, it can’t be the prosecutor.” (Public testimony about 45 min)

What this means

Despite Trump’s claim that there was “no quid pro quo,” during the Sept. 7 phone call Trump laid out his demands which were exactly the definition of a quid pro quo: in order for the military assistance to be released to Ukraine, Zelensky must publicly announce investigations into Biden and the 2016 election. Trump extorted Ukraine, withholding aid until he was given the announcement that would greatly benefit him politically.

Contrary to Republican claims that the accusations against Trump are based on hearsay, there is actual contemporaneous documentation of the Sept. 7 phone call and its contents. Immediately after Sondland described to him Trump’s demands, Morrison reported what had happened to the NSC lawyers because he was concerned that Trump was making an explicit quid pro quo demand to Ukraine. “[P]art of what I’m trying to do here in talking to the lawyers is making sure they’re aware of what Mr. Sondland is doing. And he’s saying the President is aware,” Morrison told lawmakers (Deposition transcript page 224).

The NSC has the records of this phone call as reported to them by Morrison, but as it is under the control of the White House, the NSC has chosen not to release the documentation. Even in the absence of a physical record, the testimony of Taylor, Morrison, and Sondland proves that Trump attempted to extort Ukraine. Put in its place in the timeline of events (see the first section), it is clear that Trump did not abandon his extortion plot until it was clear he was caught.

Next phase begins

Today, members of the House Intelligence Committee will receive a report on the results of the panel’s impeachment inquiry to review before a scheduled vote Tuesday evening. The vote will be to approve the report and send it to the House Judiciary Committee, which will use it to draft articles of impeachment.

The following day, Wednesday at 10:00 am Eastern, the House Judiciary Committee will hold its first hearing in the impeachment inquiry. Chairman Jerry Nadler (D-NY) describes the topic of the hearing as “an opportunity to discuss the historical and constitutional basis of impeachment, as well as the Framer’s intent and understanding of terms like “high crimes and misdemeanors.” Nadler adds in a Nov. 26 letter to President Trump, “we will also discuss whether your alleged actions warrant the House’s exercising its authority to adopt articles of impeachment.”

On Friday, Nadler shot off an additional letter to President Trump and Ranking Member Doug Collins extending the deadline for each individual to notify the Chairman of their intent to exercise their privileges in the inquiry, as outlined by H. Res. 660. The President has the option of sending his counsel to participate by asking questions, raising objections, and requesting witnesses; Trump must commit by a new deadline of December 6.

As Nadler said in announcing the first hearing: “the President has a choice to make: he can take this opportunity to be represented in the impeachment hearings, or he can stop complaining about the process.”

  • Update: Late Sunday night the White House informed Nadler that Trump would not be sending lawyers to represent him in the first hearing. Chief White House Counsel Pat Cipollone wrote that “an invitation to an academic discussion with law professors does not begin to provide the president with any semblance of a fair process.” Cipollone also accused the Democrats of intentionally scheduling the first hearing while Trump is at a NATO summit in London. A decision has not yet been reached on if Trump or his lawyers will attend the other future hearings.

The Ranking Member may issue subpoenas for witnesses in the inquiry, as long as the Chair approves; Collins also has until Dec. 6 to notify Nadler of his plans to participate in the hearings. On Saturday, Collins sent a letter to Nadler requesting that the first hearing include more experts with a wider range of political views.

McGahn appeals

Last Monday, U.S. District Judge Ketanji Brown Jackson ruled (120-page opinion) that former White House Counsel Don McGahn must comply with a House Judiciary Committee subpoena and testify before the House of Representatives. Jackson tore apart the Justice Department’s argument that the President can lawfully prevent his aides from complying with Congressional subpoenas: “…the President does not have the power to excuse him or her from taking an action that the law requires… Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

McGahn and the DOJ appealed Jackson’s ruling the following day, at which point the DC Court of Appeals issued an administrative stay to prevent the subpoena from taking effect while it considers granting a longer-term stay (a stay is essentially a pause on the lower court’s ruling that McGahn must testify and is a normal part of the judicial process). The appellate court also set an expedited schedule, with briefs due Dec. 9, replies due Dec. 16 and 19, and oral arguments scheduled for Jan. 3, 2020.

  • Implications: The ruling that McGahn must testify if subpoenaed, implies that all of Trump’s aides who are currently refusing to comply with the impeachment inquiry also must testify. However, Charles Cooper – lawyer for former National Security Advisor John Bolton and his deputy Charles Kupperman – claims that Jackson’s court order does not apply to his clients because the House was seeking testimony from McGahn that did not touch on issues of national security. The responsibilities of Bolton and Kupperman “are focused exclusively on providing information and advice to the President on national security” so a separate decision is required to determine whether they must defy the President’s order not to testify, Cooper argues. For this reason, Kupperman will continue to pursue his lawsuit to obtain a judicial resolution.
  • Further reading: President Trump motion to dismiss; House of Representatives motion to dismiss; Kupperman response to motion to dismiss

House files census lawsuit

Chairwoman on the House Oversight Committee Carolyn Maloney (D-NY) filed a lawsuit against Attorney General Bill Barr and Secretary of Commerce Wilbur Ross on Tuesday for failing to comply with the Committee’s bipartisan subpoenas seeking information on the administration’s attempts to add a citizenship question to the 2020 census. The addition of the question was blocked by the Supreme Court in June and the Committee held Barr and Ross in contempt of Congress in July, yet the two officials “have doubled down on their open defiance of the rule of law and refused to produce even a single additional document in response to” the subpoenas.

The Committee is seeking documents related to allegations that the citizenship question was motivated by political considerations rather than the administration’s publicly-stated effort to enforce the Voting Rights Act.

  • Why now? Newly released documents prove that the Trump administration was directly communicating with Republican gerrymandering expert Thomas Hofeller – despite the Justice Department’s repeated assertions that no proof of such association existed. Hofeller authored a 2015 study arguing that a citizenship question should be included on the 2020 Census because it “would be advantageous to Republicans and Non-Hispanic Whites” during upcoming redistricting battles in 2021 and beyond.
  • Further reading:
    • “Probe: Contact between Trump adviser and gerrymandering guru.” The AP. 11/12/19.
    • “New Evidence Shows That 2020 Census Citizenship Question Was a Sham All Along.” Mother Jones. 11/14/19.
    • “Emails Connect Census Official With GOP Strategist On Citizenship Question.” NPR. 6/15/19.