Lost in the Sauce: Dec. 8 – 14
Welcome to Lost in the Sauce, keeping you caught up on political and legal news that often gets buried in distractions and theater.
Two important things:
FIRST, the headings will guide you through this piece. The Main Course covers the “big” stories and The Sides covers the “smaller” stories.
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Let’s dig in!
The Main Course
A Democratic aide sketched out this rough schedule:
- Tuesday: House hopes to vote on spending bills to keep the government funded
- Tuesday and Wednesday: House debates and votes on articles of impeachment
- Thursday: House hopes to vote on the United States-Mexico-Canada Agreement, the president’s replacement for NAFTA and one of his top policy priorities
Unless you were out of the country last week, you probably know that the House Judiciary Committee approved sending two articles of impeachment to the full House, which will begin debate on Tuesday. The two articles charge Trump with abuse of power and obstruction of Congress.
Article I: Abuse of power: “…Donald J. Trump has abused the powers of the Presidency, in that: Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. …Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation.”
Article II: Obstruction of Congress: “…Donald J. Trump has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its “sole Power of Impeachment”. President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution… without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas.”
Rebutting GOP talking points
The three days of hearings last week were filled with Republican talking points and spin that at times went unchallenged. Former U.S. Attorney Barbara McQuade rebutted the most common defenses in a Twitter thread (unrolled here).
Trump has already admitted it
In case you missed it, I wrote about all the times that Trump has admitted to the charges brought against him in the first article of impeachment. In his own words, on national television, Trump has admitted to abuse of power and bribery more than once.
- Further reading:
- “The transcript Trump released is still the only evidence needed to impeach him.” The Washington Post. 12/5/19.
- “Letter to Congress from Legal Scholars.” Letter from 500 legal scholars on Medium. 12/6/19.
- “President Trump should be Impeached.” The Los Angeles Times. 12/7/19.
Assuming the House votes to impeach Trump next week, as expected, the Senate plans to begin the trial after the holiday break. Off the record, Senators have said that Majority Leader Mitch McConnell will allow a short trial (possibly two weeks long) with a predetermined result: the Senate will acquit President Trump of the charges brought against him by the House. The Senate may not even call any witnesses, though Trump clearly desires to put on a show of his defense.
- Schumer’s letter: Over the weekend Senate Minority Leader Chuck Schumer sent McConnell a letter outlining his requests for the Senate trial. He named four witnesses he’d like to call to testify: acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton, senior adviser to the acting White House chief of staff Robert Blair and Office of Management and Budget official Michael Duffey.
- Managers: A small number of House Democrats will serve as “prosecutors” during the Senate trial, a position formerly referred to as managers. Historically, party leaders and House Judiciary Committee members were chosen for this position. 13 House Republicans served as managers during Bill Clinton’s impeachment, but Speaker Pelosi reportedly wants a smaller team this time around. House Judiciary and Intelligence Committee members are likely to be chosen, with special consideration given to those with a law background.
- A strategy: Two Washington Post authors argue that House Democrats should try to use the Senate trial to force the Trump administration to turn over the evidence that has so far been stonewalled. During Clinton’s impeachment, the Senate Minority and Majority leaders reached a deal allowing House impeachment managers to request witness and other evidence that would be voted on by the full Senate. If a simple-majority approved, the evidence would be subpoenaed by a trial controlled by Republicans. If McConnell refused to make such a deal, the Senate would have to vote on a process that essentially bans witness testimony and document requests – an action that 51 Senators may not support.
- Thin margin: “With the Senate split 53 to 47 between Republicans and Democrats (including the two independents who vote with Democrats), Mr. McConnell has a thin margin. If Democrats stick together and four Republicans defect, Mr. McConnell could lose control of the proceedings. Viewed another way, he can lose only two votes if he wants to push through a resolution with only Republican support.” (NYT)
The real collusion
On Thursday, Mitch McConnell was seen meeting with lead White House Counsel Pat Cipollone and White House Legislative Affairs Chief Eric Ueland to “talk impeachment.” Later that night, McConnell appeared for an interview on Sean Hannity’s show and admitted to colluding with the White House to set up a Senate trial with the maximum benefit to Trump:
Everything I do during this, I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this.
…We’ll be working through this process…in total coordination with the White House counsel’s office and the people representing the president in the well of the Senate… We all know how this is going to end, there’s no chance the president will be removed from office.
House Democrats quickly responded by calling for McConnell to recuse himself. “He’s working hand in hand with the White House, with the President’s attorney, and yet we’re supposed to expect him to manage a fair and impartial trial?” said Florida Democratic Rep. Val Demings. “I think he should recuse himself.”
- Not to be outdone in shamelessness, Sen. Lindsey Graham told CNN that the impeachment trial “will die quickly, and I will do everything I can to make it die quickly.” Asked about the appropriateness of making such a statement before the trial has reached the Senate, Graham added: “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.”
Ukraine still on the outs
Aid still held up
Last month, it was reported that $35 million in Pentagon aid approved by Congress earlier this year still had not been delivered to Ukraine. The money, earmarked for grenade launchers, secure communications, and naval combat craft, was to be distributed “over the next several weeks,” according to a Pentagon spokesperson.
However, the LA Times revealed on Thursday that over $20 million of that money is sitting in U.S. accounts to this day. The same Pentagon spokesperson, Lt. Col. Carla M. Gleason, claims the remaining funds will be sent “as quickly as possible,” but letters from lawmakers to Defense Secretary Mark Esper have gone unanswered.
No statement of support
The Trump administration reportedly told senior Zelensky aides that Trump would make a statement of support last weekend, prior to Zelensky’s meeting with Putin on the 9th. “Through all the signals we got, we firmly believed there would be a statement,” a senior Zelensky administration official told The Daily Beast. Ukrainian officials closely watched Trump’s Twitter feed, but despite over 100 tweets and retweets, no statement of support was delivered.
One of the people close to the Zelensky administration said the silence from White House—combined with Lavrov’s photo-friendly visit to Washington—sent “a terrible signal” and was “most unfortunate.”
No White House meeting
Zelenksy’s administration has been struggling to overcome Trump’s contempt for the country, desperate for U.S. support in their war with Russia. A key show of support, like a White House meeting, would “strengthen [Zelensky’s] position against Russia” and “demonstrate to his people that they are not alone.”
Yet, ever since Trump promised Zelensky such a meeting during their first conversation on April 21, Trump has hosted 16 world leaders at the White House – including Hungary’s Viktor Orban and Russian Foreign Minister Sergei Lavrov, both of whom promote anti-Ukranian views.
- Further reading: “Ukraine’s President Stands Alone Against Russia.” The New York Times. 12/11/19.
Giuliani: Crime in progress
Rudy Giuliani – Trump’s personal lawyer and partner in crime – remains defiant amidst the impeachment of his client and multiple criminal investigations. “Just having fun while Dems and friends try to destroy my brilliant career,” Giuliani wrote in a text message to The Wall Street Journal during his “secret assignment” (as he calls it) in Ukraine.
As soon as Giuliani touched down on U.S. soil on Dec. 7, Trump called him to inquire about his trip: “What did you get?” Giuliani responded, “More than you can imagine.” Later that day, Trump told reporters that Giuliani will submit a report of his findings to Congress and Attorney General Bill Barr. “He has a lot of good information,” Trump said.
While the House Judiciary Committee was voting on articles of impeachment on Friday, Giuliani was spotted entering the White House. No reason or explanation was given for his visit.
- Lindsey Graham invited Giuliani to present his report to the Senate Judiciary Committee: “Rudy, if you want to come and tell us what you found, I’d be glad to talk to you.”
- According to The Washington Post, Attorney General Barr has recently warned Trump several times that Giuliani “has become a liability” and it not serving the president well. Former U.S. federal prosecutor Elie Honig suggested Barr may have been giving Trump a heads up that his lawyer is in deep legal shit (as I call it): “Barr oversees SDNY which is investigating Rudy. Is this a wink-and-nod way of telling Trump to steer clear?” Honig wondered.
Last week we learned that SDNY prosecutors have been looking into work Giuliani has done for foreign entities – a consulting firm run by former FBI director Louis J. Freeh received a subpoena due to their employment of Giuliani in August 2018 to deliver a message to Romanian President Klaus Iohannis. There is little doubt that Giuliani was chosen for the job because of his relationship with President Trump.
In the letter, Giuliani criticized anti-corruption efforts in Romania and called for amnesty for people prosecuted for corruption. It just so happens that a client of the consulting firm, Gabriel Popoviciu, was sentenced to seven years in prison in a fraud and corruption case in 2016.
- Tangled web: As if things couldn’t get more complicated, Popoviciu originally hired Freeh at the recommendation of Hunter Biden, who was retained by Popoviciu. In other words, Giuliani was engaged in the very same conduct he criticizes Hunter Biden for. In fact, Giuliani has bragged that since Trump took office, he has “made millions of dollars” (see WaPo link above or non-paywalled article here).
In a court filing on Wednesday, SDNY prosecutors revealed (non-paywalled article) that shortly before Giuliani associate Lev Parnas was arrested in October, he received $1 million from a Russia bank account. It’s not hard to see why Putin would be pleased with the work of Parnas – and Giuliani, who was paid $500,000 dollars for his work with Parnas. Weakening Ukraine’s reputation and position on the world stage makes it easier prey for Russian machinations, including the occupation of eastern Ukraine.
- Referring to the conspiracy theory that Ukraine interfered in the 2016 election, former US ambassador to Russia Jon Huntsman told the Associated Press that Putin is “probably joyful that he has the world talking about something he may have been behind…That’s the way they operate in Moscow, to try to sow seeds of discontent between the United States and Kiev.”
Parnas did not disclose the $1 million payment from Russia to the U.S. government; accordingly, prosecutors have asked the court to revoke his bail and hold him in jail until his trial.
In addition to foreign lobbying violations, SDNY prosecutors are investigating whether Giuliani, Parnas, and Fruman violated the Foreign Corrupt Practices Act, which “prohibits a US company or individual from giving any payment, offer of payment or anything of value to a foreign official in order to obtain or retain business.” Essentially, Parnas and Fruman are accused of trying to install an executive of a Ukrainian natural gas company as the CEO of said company “in hopes of drumming up business” for their own business.
SCOTUS jumps in
On Friday, the Supreme Court announced it would hear Trump’s appeal of three cases involving subpoenas for his financial records: a subpoena from the House Intelligence Cmte. and Financial Services Cmte. to Deutsche Bank and Capital One; a subpoena from the House Oversight Cmte. to Mazars USA, Trump’s accounting firm; a subpoena from Manhattan district attorney Cyrus Vance to Mazars USA as part of a state grand-jury investigation.
The subpoenas in all three cases are on hold until the high court rules. Arguments are scheduled for March 2020, with a decision ensured by the end of the current SCOTUS term in June 2020. The decision to hear Trump’s challenges do not indicate the Justices will rule in his favor:
“These cases involve the President and his tax returns, and they may have felt no choice but to take the cases and decide them on the merits given their political importance,” said Ashwin Phatak, a lawyer with the Constitutional Accountability Center.
- The Deutsche Bank case is particularly important because improper links between the bank and Russia have been well documented. We also know that after Trump’s bankruptcy, major banks would not lend him money…except for Deutsche Bank.
- Further reading: Be sure not to miss an analysis of these three cases by Forensic News reporters Bobby DeNault and Jess Coleman. Using their legal expertise, DeNault and Coleman explain what each lawsuit is about and predict what the outcome will be.
State AG’s case
The U.S. Court of Appeals for the 4th Circuit heard arguments last week in a lawsuit brought by the Attorneys General of Maryland and the District of Columbia against President Trump for violating the Emoluments Clause of the Constitution.
All 15 judges on the panel sat in judgment, but they seemed to spar with each other more than with the lawyers presenting the case. Politico interprets the judges’ statements during the hearing to mean that the eight judges appointed by Democratic presidents support allowing litigation to continue and the six appointed by Republicans favor dismissing the case, which would be a win for Trump. One judge is a wildcard and could go either way, according to Politico’s particular reading of the situation.
The U.S. Appeals Court for the District of Columbia also heard (non-paywalled article) an Emoluments case last week, this one brought by over 200 Democratic members of Congress against Trump. A three-judge panel “expressed skepticism” that members of Congress have standing to sue Trump while at the same time acknowledging that there may be no other way to enforce the Emoluments Clause.
Lawyers for Trump argued that Congress would have to pass a new law to prevent the president from accepting payments from foreign governments. Attorneys representing Congress retorted that the constitutional clause requires Trump to receive approval from Congress before accepting emoluments – no additional law is needed.
In addition to the developments in the challenges of subpoenas for Trump’s financial records and the Emoluments lawsuits, numerous other court cases made the news:
- Rick Gates: Federal prosecutors recommended that former deputy Trump campaign chairman Rick Gates serve no prison time due to his “extraordinary assistance” in Mueller’s investigation. Gates provided over 500 hours of interviews with Mueller and other prosecutors, complied with three congressional subpoenas, and was interviewed by congressional staff. Prosecutors also revealed that an unidentified individual offered “monetary assistance” to persuade Gates not to cooperate with the government. Former federal prosecutor Elie Honig called such an offer “a lay-down-your-hand obstruction case.”
- Putin notes: Federal Judge Trevor McFadden (a Trump-appointee) ruled that a lawsuit against the Trump administration seeking documentation of Trump’s face-to-face meetings with Putin will be allowed to continue. Two government watchdogs allege that Secretary of State Mike Pompeo “violated the Federal Records Act by allowing Trump to reportedly confiscate meeting notes prepared by State Department employees and for failing to preserve them.” The government has until Jan. 10 to respond with evidence that Pompeo either complied with the law or was not required to do so.
- Census: U.S. District Court Judge Randolph Moss rejected the Trump administration’s request to delay a lawsuit brought by the House Oversight Committee against AG Barr and Commerce Secretary Wilbur Ross for failing to turn over records relating to the addition of a citizenship question to the 2020 census. Judge Moss was surprised by the administration’s incompetence, saying it should not have cut off negotiations with Congress over the subpoenaed documents and that it should have conducted a thorough review of the documents by now. Under an expedited schedule, arguments are set for January; the 2020 Census begins in April.
- Amazon: The lawsuit unsealed in the U.S. Court of Federal Claims on Monday revealed that Amazon is challenging the Pentagon’s awarding of a $10 billion cloud contract to Microsoft. Amazon claims that Trump exerted “improper pressure” and launched “repeated public and behind-the-scenes attacks to steer” the contract away from their company due to Trump’s contempt for CEO Jeff Bezos, who also owns the Washington Post.
- Border wall: District Court Judge David Briones of El Paso, Texas, permanently blocked Trump’s effort to repurpose $3.6 billion in military construction funds to build a border wall. Briones determined that the executive branch does not have the constitutional authority to redirect money appropriated by Congress. El Paso County, one of the plaintiffs in the case, argued that “the new barrier was unwanted by the community and would inflict permanent harm on its reputation as a welcoming, cross-border place.”
- Kemp: U.S. District Judge Steve Jones ruled that Georgia Governor Brian Kemp must answer questions in a deposition by Jan. 10 about his statements on minority voter registration and his oversight of election investigations. The lawsuit, filed by Stacey Abrams’s group Fair Fight Action, asks the courts to intervene in Georgia’s elections following voter purges, absentee ballot cancellations, precinct closures and other allegations of obstacles to voting.
- Lisa Page: Former FBI lawyer Lisa Page sued the FBI and the Justice Department for violating the Privacy Act by releasing her text messages with former senior FBI agent Peter Strzok. Page alleges that the FBI/DOJ officials called reporters to the department to review the messages at night and instructing them not to reveal the DOJ as the source. The purpose of the leak, according to the lawsuit, was to “elevate the DOJ’s standing with the President” and specifically to “influence public reception of Deputy Attorney General Rod Rosenstein’s December 13 testimony.”
- The report released by Justice Department Inspector General Michael Horowitz revealed that the FBI was aware of pro-Trump political messages between FBI employees. The names of the individuals are redacted and the rest of their text messages were not shared with reporters (footnote 477 on pages 339-340). This is in stark contrast to the treatment of Page and Strzok’s anti-Trump messages.
Inspector General Michael Horowitz’s report on the opening of the Russia investigation found that while there were violations of rules and guidelines, the investigation was justified and there was a proper legal basis for the FBI to seek a surveillance warrant against Carter Page. Horowitz testified to the Senate Judiciary Committee that Barr’s handpicked investigator John Durham privately agreed that a preliminary investigation was justified – but Horowitz was “surprised” by a public statement in which Durham criticized Horowitz’s findings.
- Anti-Hillary leaks: Horowitz revealed that he is continuing to investigation 2016 leaks from agents in the New York FBI field office to Rudy Giuliani about the Hillary Clinton email investigation. Since Trump’s election, it appears that this investigation has been put on the back burner in favor of pursuing Trump’s pet conspiracies. Former Attorney General Loretta Lynch told investigators that Comey knew of “a cadre of senior people in New York who have a deep and visceral hatred of Secretary Clinton…these were agents that were very, very senior.” In the months leading up to the 2016 election, Giuliani made numerous statements in the media hinting at inside knowledge he was receiving. Just two days before the DOJ reopened the Clinton email case, Giuliani told Fox News that “a surprise” was coming in “the next few days.”
- Further reading: “How Rogue Agents in the FBI’s NY Field Office Helped Elect Trump.” Washington Monthly. 12/10/18.
- Barr’s interview: In an NBC News interview, AG Barr dismissed Horowitz’s findings and attacked that Russia investigation as “completely baseless.” Barr criticized the FBI for “gross abuses,” adding that he believes the Bureau may have opened the Russia investigation in “bad faith.”
- Former Attorney General Eric Holder wrote in The Washington Post that Barr’s “nakedly partisan” and “deeply inappropriate” series of public statements prove that he “is unfit to lead the Justice Department.”
Giuliani’s “unpaid” work
For the past 20 months, President Trump has received free personal legal services from one of America’s highest-paid lawyers, who has traveled around the country and across the ocean to defend him in the special counsel’s inquiry and press Ukraine to investigate a political rival and unfounded conspiracy theories.
The lawyer, of course, is Rudolph W. Giuliani, but Mr. Trump did not mention Mr. Giuliani or his unpaid labor on the annual financial disclosure he filed in May, which requires that the value and source of gifts — including free legal work — be publicly listed.
That requirement is cut and dried, said Kathleen Clark, a law professor at Washington University in St. Louis. She cited guidance from the Office of Government Ethics, issued in November 2017, that states federal officials must disclose “gifts of legal defenses — in kind or by payment of the fees.”
… the law limits any unpaid travel expenses associated with the free legal services — meaning a trip to Europe by Mr. Giuliani as part of this work would turn into an illegal contribution to Mr. Trump, unless the expense was reimbursed by the campaign. (New York Times)
Since losing his bid for re-election in November, Kentucky Governor Matt Bevin has issued 161 pardons and 419 commutations, some of which are extremely controversial. In one such case, Bevin pardoned Patrick Baker – convicted of reckless homicide, robbery, impersonating a peace officer, and tampering with evidence – after the Baker family held a fundraiser for Bevin that raised $21,500. Baker only served 2 years of his 19-year sentence and his accomplices in the fatal home invasion remain in prison without a pardon.
Among those also pardoned: Delmar Partin, convicted of strangling a woman and stuffing her body in a barrel, and Micah Schoettle, who was sent to prison after a middle schooler testified that he had repeatedly sexually assaulted her, starting from the time she was 9.
The New York State attorney general has issued a new subpoena to the National Rifle Association, deepening her eight-month investigation and providing fresh clues about where it is headed, according to people with knowledge of the document.
The subpoena, which was described to The New York Times, was issued last week and covers at least four areas, including campaign finance, payments made to board members and tax compliance.
Seema Verma who, as a senior figure in the Trump administration, has made it more difficult for poor Americans to access health coverage, has filed a claim of $47,000 for the loss of her luggage while on a three-day work trip…She had originally estimated the cost of those pieces at $20,000, but came back with the higher $43,065 price tag after visiting a jeweler three weeks after the theft …Shouldn’t someone who values their expensive items have at least been insured? Verma, a strong advocate for fiscal responsibility when it comes to health insurance (she has suggested low-income families do unpaid community service to pay towards it) had not insured her items. (The Guardian)
Rep. Joe Kennedy (D-Mass.) Monday became the first lawmaker to call on the official overseeing Medicare, Medicaid and Obamacare to resign over POLITICO reports he said reveal “a gross misuse of public funds.” …Kennedy had also clashed with Verma during a congressional hearing this fall over her steering of more than $2 million toward public relations contractors, some of whom worked to burnish Verma’s personal brand. (Politico)
Since taking over as White House counsel last December, Pat Cipollone has repeatedly revised his personal financial disclosure—indicating the information he previously provided was incomplete or incorrect—yet the Office of Government Ethics has still not signed off on the document. It’s an unusual situation for the top White House lawyer, whose responsibilities include ensuring that the president and his staff comply with ethics laws.
“It’s very unusual for the counsel of the president not to have this resolved,” [Virginia Canter, a former White House ethics adviser] says. “What lawyer wants to put themselves in this position? It’s totally unnecessary. They should want to be in compliance with the law.” (Mother Jones)
- The Office of Inspector General for the Department of Defense will investigate a $400 million contract for border wall construction awarded to a North Dakota company after President Trump privately pushed the deal
- The Pentagon inspector general has launched a review to determine whether the U.S. military deployment to the southern border is legal, according to a Department of Defense memo obtained by NBC News. The review was opened three months after 30 members of Congress requested an investigation into whether the deployment violates a law that prohibits active duty military troops from carrying out law enforcement duties inside the U.S.
- U.S. officials have started to send families seeking asylum to Guatemala, even if they are not from the Central American country and had sought protection in the United States, the Los Angeles Times has learned.