Lost in the Sauce: Dec 22 – 28

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.

SECOND, I took a break from the audio TLDR this week. My apologies, been super busy. It will return for next week’s edition.

Finally:

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Let’s dig in!

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Main Course

Ukraine aid: The truth

The New York Times published an in-depth look at what happened during the roughly three months that the aid to Ukraine was withheld, revealing new information that highlights how much evidence the administration has hidden (and is still hiding) from congressional investigators. The piece also underscores that Trump was involved in every decision every step of the way.

Acting White House chief of staff Mick Mulvaney, Russell T. Vought, the acting head of the Office of Management and Budget, Robert Blair, the senior adviser to Mulvaney, and Mark Paoletta, the budget office’s top lawyer, were the key figures in executing Trump’s pressure campaign on Ukraine. All three refused to comply with House impeachment investigation.

“I’m just trying to tie up some loose ends,” Mr. Mulvaney wrote. “Did we ever find out about the money for Ukraine and whether we can hold it back?”

It was June 27, more than a week after Mr. Trump had first asked about putting a hold on security aid to Ukraine, an embattled American ally, and Mr. Mulvaney needed an answer.

The aide, Robert B. Blair, replied that it would be possible, but not pretty. “Expect Congress to become unhinged” if the White House tried to countermand spending passed by the House and Senate, he wrote in a previously undisclosed email. And, he wrote, it might further fuel the narrative that Mr. Trump was pro-Russia.

Not everyone was onboard:

Pentagon officials, in the dark about the reason for the holdup, grew increasingly frustrated. Ms. McCusker, the powerful Pentagon budget official, notified the budget office that either $61 million of the money would have to be spent by Monday, Aug. 12 or it would be lost. The budget office saw her threat as a ploy to force release of the aid.

At the White House, which had been looped into the dispute by the budget office, there was a growing consensus that officials could find a legal rationale for continuing the hold, but with the Monday deadline looming, it was a “POTUS-level decision,” one official said.

Among those who disagreed with Trump:

In late August, Defense Secretary Mark T. Esper joined Secretary of State Mike Pompeo and John R. Bolton, the national security adviser at the time, for a previously undisclosed Oval Office meeting with the president where they tried but failed to convince him that releasing the aid was in interests of the United States.

…“This is in America’s interest,” Mr. Bolton argued, according to one official briefed on the gathering.

“This defense relationship, we have gotten some really good benefits from it,” Mr. Esper added, noting that most of the money was being spent on military equipment made in the United States.

Mr. Trump responded that he did not believe Mr. Zelensky’s promises of reform. He emphasized his view that corruption remained endemic and repeated his position that European nations needed to do more for European defense.

“Ukraine is a corrupt country,” the president said. “We are pissing away our money.”

The NYT article is very detailed and important to read to understand the events surrounding the hold on the aid. Message me if you are stuck behind the paywall but would like to read it anyway. Here are some non-paywalled summaries: Business InsiderHuffPost.

Promotion for stonewalling

Last week, President Trump gave a big promotion to Mulvaney aide Robert Blair, just weeks after Blair refused to cooperate with a House subpoena for his testimony in the impeachment inquiry. As the above NYT piece describes, Blair played a key role in withholding the aid to Ukraine despite the pushback from top officials and legal risks. Blair is now the special representative for international telecommunications policy and “will support the Administration’s 5G efforts led by the Assistant to the President for Economy Policy, Larry Kudlow.” In addition, Blair “will continue to serve as Assistant to the President and the Senior Advisor to the Chief of Staff.”

Trump’s July 25

Heidi Przybyla of NBC News noted an interesting detail from Trump’s Twitter feed on July 25, 2019 – the day that he spoke to Ukrainian President Zelensky on the phone. That morning, roughly an hour before the phone call, Trump was reading a Fox News poll (or saw the poll on TV) that showed Biden with a “commanding lead” for the Democratic nomination. The poll also included a hypothetical match-up between Biden and Trump in which Biden was favored by 10 percentage points.

Although circumstantial, this evidence provides insight into Trump’s frame of mind at the time of the July 25 phone call. He had just read a poll showing that he’d lose against Biden; he viewed Biden as a threat to his re-election. It was with this mindset that Trump pressured Zelensky to announce an investigation into Biden, effectively smearing his potential 2020 opponent.

The impact on Ukraine

NBC News reports that the delay in aid to Ukraine has worried top Ukrainian officials and has “exposed the cracks in the West’s response to an emboldened Russia, inflicted permanent damage on Ukraine and heightened the risk of Moscow extending its influence in the country.”

U.S. support, in particular, is seen as essential in keeping what is widely seen as a bully in the East at bay.

“Just the presence of the American army on the territory of Ukraine, in my opinion, already scares the enemy — even without any other aid,” said Ukraine Ground Forces Sgt. Maj. Yevhen Mokhtan, who works in this multinational training facility in western Ukraine.

Volodymyr Yermolenko, a professor who runs Ukraine World, an English-language media project aimed at combating disinformation and fake news: “The question about military aid to Ukraine is not about Ukraine; it’s about values. It’s about shifting Western liberal democracy eastward.”

Putin and Trump call

As has become routine, Americans learned from the Kremlin on Sunday that Russian President Vladimir Putin spoke with our president by phone earlier in the day. 24 hours later and the White House still has not acknowledged the call or provided a readout of what was discussed. The Kremlin released a readout immediately after the call, saying the two leaders discussed counter-terrorism efforts and “matters of mutual interest.”

“Vladimir Putin thanked Donald Trump for the information shared via the special services that helped prevent terrorist acts in Russia,” the Kremlin-provided statement said. “Several matters of mutual interest were discussed. An agreement was made to continue bilateral cooperation in the fight against terrorism.”

Reminder: This is a little out of date, but as of Oct. 4, 2019, Trump had privately spoken to Putin at least 16 times since his inauguration. The actual content of these conversations is often disputed and not recorded in any way. Two government watchdog organizations filed a lawsuit against Secretary of State Mike Pompeo for allowing Trump to seize notes from a meeting he had with Putin in 2017.

Trump outs the whistleblower

In an unprecedented step last week, the President of the United States put the alleged (and unsubstantiated) name of a federally-protected whistleblower out into the public. First, on Thursday, Trump retweeted a tweet sent by his re-election campaign (menacingly-named Trump “War Room”) containing an article that names the purported whistleblower. Then on Friday, in a late-night Twitter binge, Trump retweeted a post from a suspicious account with the name of the alleged whistleblower in the text of the tweet. In other words, Trump put the name of (who he believes is) the whistleblower on his official Twitter account, his main method of communication.

According to CNN, Twitter confirmed it “has suspended some of the pro-Trump accounts that Trump had promoted Friday night.” CNN also reported that the tweet containing the whistleblower’s name was removed from Trump’s account, but for many people (myself included), it is still visible on Trump’s Twitter page. I will not link to it because I do not believe in assisting Trump’s effort to out the whistleblower, even if Trump’s identification is not accurate.

Senate trial

Congressional leaders are still stuck in a stalemate regarding the next steps in impeachment, as the Democrats call for a fair trial with witnesses and the Republicans lean towards a quick Senate trial with a predetermined result.

Schumer

Senate Minority Leader Chuck Schumer sent a letter to all senators last Monday arguing that not only is witness testimony essential for a Senate trial – so is “the need for the Senate to review documentary evidence.” In addition to the four witnesses (John Bolton, OMB official Michael Duffey, and Mick Mulvaney and his senior adviser Robert Blair) previously proposed, Schumer lists a range of documents from the White House, State Department, and Office of Management and Budget. The letter specifically notes the recent – partially redacted – FOIA revelation that the aid to Ukraine was frozen just 91 minutes after Trump’s July 25 phone call with Zelensky.

There simply is no good reason why evidence that is directly relevant to the conduct at issue in the Articles of Impeachment should be withheld from the Senate and the American people. Relevant documentary evidence currently in the possession of the Administration will augment the existing evidentiary record and will allow Senators to reach judgments informed by all of the available facts. To oppose the admission of this evidence would be to turn a willfully blind eye to the facts, and would clearly be at odds with the obligation of Senators to ‘do impartial justice’ according to the oath we will all take in the impeachment trial.

Further reading: Supreme Court lawyer and former Acting Solicitor General Neal Katyal argues in The Washington Post that the FOIA email in which Duffey orders a hold on Ukraine aid is an important example of why witness testimony is necessary: “So it wasn’t enough for Duffey to order Defense Department officials to withhold the weapons from Ukraine. He needed to order them to withhold the legally required alert to Congress. And that’s just what he did… If there’s any doubt about what the email meant, Duffey could clear it up by testifying. But he has dodged all attempts to do so.”

McConnell

Alaska Sen. Lisa Murkowski told a local news station that she was “disturbed” to hear McConnell describe “total coordination” with the White House in planning and carrying out the Senate’s impeachment trial. However, Murkowski has given no other indication that she intends to break with McConnell’s approach.

Graham

A couple of weeks ago, Senate Judiciary Chairman Lindsey Graham invited Rudy Giuliani to testify before the panel about his recent trip to Ukraine. “Rudy, if you want to come and tell us what you found, I’ll be glad to talk to you,” Graham said in an interview on “Face the Nation.” However, it now seems that Graham is having second thoughts due to the realization that Giuliani may be trying to spread Russian propaganda: “My advice to Giuliani would be to share what he got from Ukraine with the IC [intelligence community] to make sure it’s not Russia propaganda. I’m very suspicious of what the Russians are up to all over the world.”

  • During Giuliani’s trip to Ukraine, he met with numerous pro-Russia individuals, including one – Andriy Derkach – who attended a KGB school in Moscow. Derkach has been identified as a source (but not the only source) of the discredited claim that Ukraine interfered in the 2016 election, not Russia.
  • Daily Beast: “I wouldn’t trust Rudy to represent me in a parking dispute so I’d say avoid,” one senior GOP Senate aide said when asked about any plans for a Ukraine briefing.

Trump’s defense

Typically, in the Senate impeachment trial, the President’s White House lawyers make up the “defense” lawyers. However, the Wall Street Journal reports that Trump’s team may include House Republicans:

The president has indicated that Mr. Cipollone would lead his legal defense team but is considering adding others with the television experience he values. Under consideration are Jay Sekulow, one of the president’s personal lawyers, and Alan Dershowitz, a professor emeritus at Harvard Law School and TV commentator, officials said. The White House is also considering adding some of the president’s staunchest defenders on the House Intelligence and Judiciary committees to the Senate trial team, according to a person familiar with the deliberations.

Legal analyst Ross Garber notes that the impeachment managers (House Democrats that “try” the case) and Senate Democrats would likely object to such an arrangement:

Curious that members of the Legislative Branch would formally represent the Executive, esp in a House v POTUS proceeding. I’d expect an objection from managers/Senate Dems. (Informal advice is one thing, but acting as the President’s – or Presidency’s – lawyers is different.)

Impeachment, Round Two?

In a court filing last week, House Judiciary Committee attorneys argued that they urgently require Mueller’s grand jury materials and Don McGahn’s testimony for their continuing impeachment investigation: “The Committee’s investigations did not cease with the House’s recent impeachment vote.” House lawyers added that if the court rules quickly, the materials and testimony would be presented in the Senate’s trial.

If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment. [page 12]

The two cases will be heard by three-judge panels of the D.C. Appeals Court on Jan. 3; the McGahn panel is made up of Judges Karen LeCraft Henderson, Thomas B. Griffith, and Judith W. Rogers; the Mueller case will be heard by Judges Griffith, Rogers, and Neomi Rao.

Dueling opinions

Washington Post columnist Paul Waldman used the recent court filings to argue that Trump could be impeached for a second time: “Don’t dismiss it as an absurd idea just yet. Not only might it happen, but it also might be absolutely necessary.” Waldman believes that between the possibility of discovering currently-unknown misdeeds Trump already committed and the possibility that Trump commits future crimes, a second impeachment “might be all but inevitable.”

However, former SDNY prosecutor Elie Honig threw cold water on the idea that the Mueller materials and/or McGahn’s testimony could lead to another impeachment push:

”Legally, yes, there’s nothing preventing the House from returning more Articles of Impeachment or impeaching again. But let’s operate in the real world: there’s just no way. No way it works politically, no way the public embraces it, no way Pelosi permits it.”

Giuliani’s interview

In yet another freewheeling interview (over daytime Bloody Mary drinks), Giuliani told New York Magazine that if the Southern District of New York Attorney’s office is investigating him, “they’re idiots” and “assholes.”

“If they think I committed a crime, they’re out of their minds,” he said. “I’ve been doing this for 50 years. I know how not to commit crimes. And if they think I’ve lost my integrity, maybe they’ve lost theirs in their insanity over hating Trump with some of the things they did that I never would’ve tolerated when I was U.S. Attorney.”

Giuliani suggested the SDNY prosecutors are jealous of him.

“It’s a terrible thing to say because it will get the Southern District all upset, but I know why they’re all upset,” Giuliani said. “Because they’ve never done anything like me since me. They haven’t done an eight years like I did since I left being U.S. Attorney. Nothing close.”

Giuliani also addressed the allegations against his client, President Trump, and in the process admitted that it would be in character for Trump to withhold military aid dedicated to Ukraine:

He didn’t think it was such a big deal once he read about it [the freeze on aid], he said, because it was “typical Trump; he withholds aid till the last minute until he makes them beg for it.”

And, finally, to top off the interview, Giuliani claimed that former U.S. ambassador to Ukraine Marie Yovanovitch is “controlled” by George Soros. Then the former NYC mayor launched into an extended anti-semitic diatribe:

“He put all four ambassadors there. And he’s employing the FBI agents.” I told him he sounded crazy, but he insisted he wasn’t.

“Don’t tell me I’m anti-Semitic if I oppose him,” he said. “Soros is hardly a Jew. I’m more of a Jew than Soros is. I probably know more about — he doesn’t go to church, he doesn’t go to religion — synagogue. He doesn’t belong to a synagogue, he doesn’t support Israel, he’s an enemy of Israel. He’s elected eight anarchist DA’s in the United States. He’s a horrible human being.”

  • Further reading: “Rudy Giuliani’s anti-Soros tirade exposes three uncomfortable truths.” CNN. 12/24/19. And “Rudy Giuliani Doubles Down On Anti-Semitic Attacks Against George Soros.” HuffPost. 12/24/19.

The Sides

New CyberCom approach

Military cyber officials are developing information warfare tactics that could be deployed against senior Russian officials and oligarchs if Moscow tries to interfere in the 2020 U.S. elections through hacking election systems or sowing widespread discord, according to current and former U.S. officials.

One option being explored by U.S. Cyber Command would target senior leadership and Russian elites, though probably not President Vladimir Putin, which would be considered too provocative, said the current and former officials who spoke on the condition of anonymity because of the issue’s sensitivity. The idea would be to show that the target’s sensitive personal data could be hit if the interference did not stop, though officials declined to be more specific.

…The intelligence community last month issued a classified update — a “national intelligence estimate” — asserting that Russia’s main goal in the 2020 campaign continues to be to sow discord. “It’s always been about exacerbating fault lines in our society,” one senior U.S. official said. (The Washington Post or non-paywalled option)

Political ads

The streaming service Spotify announced last week that “pause” political advertising in early 2020 because it does not have the resources to properly police the content of such ads. “At this point in time, we do not yet have the necessary level of robustness in our process, systems and tools to responsibly validate and review this content,” a representative of the company said.

Reminder: Twitter has banned all ads from political candidates, officials, and political parties on its platform. Google has limited advertisers’ ability to micro-target users based on political affiliation.

Meanwhile, Facebook has taken the opposite approach, allowing political ads on its platform without any fact-checking. According to the Wall Street Journal (non-paywall, millionaire Facebook board member Peter Thiel was a driving force behind the decision not to crack down on political ads, despite some directors and executives arguing for limitations or a complete ban.

Thiel is a supporter of Donald Trump; Thiel and Facebook CEO Mark Zuckerberg attended an “undisclosed dinner” hosted by Trump at the White House in October.

A major donor to Trump’s campaign, Thiel is also the chairman of Palantir, a private data technology company that has become one of the largest recipients of government defense contracts with the United States government since Trump took office. (NBC News)

State wins and setbacks

A win for voter rights in North Carolina:

Republican attempts to require photo identification to vote in North Carolina are being thwarted again by judges hearing arguments that the mandate is tainted by bias that would deter black and Latino residents.

A federal court announced that next week U.S. District Judge Loretta Biggs will formally block a photo ID requirement scheduled to begin in 2020. Unless the upcoming preliminary injunction is successfully appealed, the requirement will be halted until a lawsuit filed by the state NAACP and others is resolved. (NBC News)

And a setback for voter rights in Georgia:

Georgia doesn’t have to put almost 100,000 voters back on its rolls, a federal judge ruled Friday.

The US district judge Steve C Jones ruled that a voting rights advocacy group founded by Democrat Stacey Abrams is improperly asking him to interpret state law. Jones also said the group hasn’t proved that people who have been removed had their constitutional rights violated.

However, Jones also ordered Georgia’s secretary of state, Brad Raffensperger, to do more to warn people that they had been removed. The judge is especially singling out a south-west Georgia state House district where a 28 January special election is scheduled. Voters there who have been removed have only until Monday to re-register. (The Guardian)

Further reading: “The Decade When Republicans Stole the States: How the North Carolina GOP’s anti-democratic chicanery became the national party’s playbook for electoral theft,” The New Republic.

McCabe lawsuit

Andrew McCabe, the ousted deputy director of the FBI, says the Trump administration is withholding evidence related to his lawsuit. McCabe sued the FBI and the Department of Justice after he was fired in March 2018 by then-Attorney General Jeff Sessions just two days before he was set to retire.

McCabe’s attorney, Murad Hussain, filed a declaration on Tuesday claiming that several agencies and 30 individuals — including current FBI Director Chris Wray, Attorney General William Barr and Mr. Trump — have yet to hand over any materials requested as part of his lawsuit against his former employer. (CBS News)

Flynn sentence

In a court filing last week, the Justice Department hinted that it may seek a harsher sentence for Michael Flynn, who has shifted legal strategy and taken an openly hostile approach to the DOJ. Flynn’s sentencing is set for Jan. 28.

Immigration news

Exodus of immigration judges:

Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system — which is run by the Justice Department — or passed away, according to the department. That’s nearly double the number who departed their posts in fiscal years 2018 and 2017, when 24 and 21 judges left, respectively, according to data provided by the judges union.

The reasons why individual judges have moved on from their posts on the bench vary, but in interviews with judges who left in recent months, one theme ties them all together: frustration over a mounting number of policy changes that, they argue, chipped away at their authority…Their departures come as the Justice Department faces a backlog that exceeds 1 million cases. (CNN)

Border wall:

I’m not going to excerpt this because it’s hard to separate one piece from the whole. It is a very important article and I hope everyone will take the time to read it: “Southern border wall is destroying natural habitats,” The Hill.

US Contractors supported Taliban

Nearly 400 people who were either wounded while serving in the U.S. military in Afghanistan or are family members of service members who died in the conflict sued a group of companies on Friday they say helped fund attacks against Americans by making protection payments to the Taliban.

“Defendants supported the Taliban for a simple reason: Defendants were all large Western companies with lucrative businesses in post-9/11 Afghanistan, and they all paid the Taliban to refrain from attacking their business interests,” the 288-page complaint filed in federal court in Washington, D.C. on Friday states. “Those protection payments aided and abetted terrorism by directly funding an al-Qaeda-backed Taliban insurgency that killed and injured thousands of Americans.”

…”In addition to MTN [South African telecom firm], the complaint names the London-headquartered G4S Holdings International and its subsidiaries, the Palm Beach Gardens, Florida company Centerra Group, the Bethesda, Maryland company DAI Global, the Lenoir City, Tennessee firm Janus Global Operations, Overland Park, Kansas’ Black & Veatch Special Projects and the Canadian company Louis Berger Group and its subsidiaries and affiliates. (Courthouse News)

Trump’s Christmas party

Trump held a Studio 54-themed Christmas Eve party at Mar-a-Lago, attended by Rudy GiulianiAlan Dershowitz, and recently-pardoned war criminal Edward Gallagher. Parties like these cost the American taxpayers money, as more Secret Service agents are required to provide security for a large bash. Not to mention the money spent at Mar-a-Lago by White House staff and administration officials to attend.

Who else was at the party? None other than close friend of Vladimir Putin – and captain of the Washington Capitals – Alex Ovechkin and his wife, Nastya Ovechkina.

GEO Group and Trump

Sen. Elizabeth Warren (D-MA) and Rep. Pramila Jayapal (D-WA) sent a letter to the GEO group last week expressing “serious concerns about possible corruption” raised by the private prison company’s spending at Trump’s D.C. hotel. The Senator and Representative request additional information from the company about the “ten to twenty” times GEO execs stayed at Trump’s hotel.

A senior executive of the GEO Group—the nation’s largest private prison and immigrant detention company—who lobbied the Trump administration for a multimillion-dollar cash infusion has also been staying in the luxurious Trump International Hotel Washington, D.C., billing an unknown sum to his corporate expense account, according to previously unreported records unearthed by the Project On Government Oversight (POGO), a non-profit watchdog.

The admission by David J. Venturella, GEO’s senior vice president of business development, came in a June 2019 deposition in an ongoing federal court case…Venturella testified that he had charged Trump hotel bills to his GEO credit card on at least 10 occasions.

…GEO became an avid fan of then-candidate Donald Trump after President Barack Obama’s Justice Department promised to stop approving new federal private prison contracts days after a report determined that private prisons were not necessarily cheaper than government-run ones, causing the company’s stock to plummet 40 percent. What followed was an outpouring of cash from GEO: hundreds of thousands of dollars in contributions to pro-Trump political groups and to his inauguration; and over $4 million in Washington lobbying, much of it directed at the Trump administration. For its part, the administration reversed Obama’s policy and has dramatically boosted GEO’s immigrant detention revenue. (Project On Government Oversight)