Lost in the Sauce: Jan. 19 – 25

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:

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Let’s dig in!

MAIN COURSE

Bolton manuscript

Last night, The New York Times (non-paywalled) reported that Former National Security Adviser John Bolton’s unpublished manuscript states that Trump told Bolton in August 2019 that he wanted the aid to Ukraine frozen “until officials there helped with investigations into Democrats including the Bidens.”

Over dozens of pages, Mr. Bolton described how the Ukraine affair unfolded over several months until he departed the White House in September. He described not only the president’s private disparagement of Ukraine but also new details about senior cabinet officials who have publicly tried to sidestep involvement.

For example, Secretary of State Mike Pompeo acknowledged privately that there was no basis to claims by the president’s lawyer Rudolph W. Giuliani that the ambassador to Ukraine was corrupt and believed Mr. Giuliani may have been acting on behalf of other clients, Mr. Bolton wrote.

A draft of the manuscript was sent to the White House for classification review on December 30, 2019. A spokesperson for Chief White House lawyer – and lead defense lawyer on Trump’s impeachment team – Pat Cipollone confirmed that the National Security Council has had the book for review “for weeks.” This means that Cipollone knew what Bolton’s testimony could consist of and (1) didn’t disclose it, (2) argued that additional witnesses would provide no value, (3) argued against allowing any witnesses at all, including Bolton.

Furthermore, the fact that the manuscript has been seen by people outside the White House greatly diminishes any claim of executive privilege to prevent Bolton’s testimony before the Senate.

  • Maggie Haberman reports: some GOP senators privately pushing White House for information on who at administration had visibility into the manuscript over the last month. Senators feel blindsided.
  • House managers: “The Senate trial must seek the full truth and Mr. Bolton has vital information to provide. There is no defensible reason to wait until his book is published, when the information he has to offer is critical to the most important decision senators must now make — whether to convict the president of impeachable offenses.” (Washington Post)

Impeachment

Instead of recapping the five days of the Senate impeachment trial from the past week, I’m going to direct you to read the threads that already exist, which contain key quotes, various clips, and trial-related news from that day (eg what Senators said outside of the trial, reactions, etc.).

Roberts can call witnesses

Neal Katyal, Josh Geltzer, and ex-Republican Rep. Mickey Edwards: Roberts can call witnesses.

…the impeachment rules, like all trial systems, put a large thumb on the scale of issuing subpoenas and place that power within the authority of the judge, in this case the chief justice.

Most critically, it would take a two-thirds vote — not a majority — of the Senate to overrule that. This week, Democrats can and should ask the chief justice to issue subpoenas on his authority so that key witnesses of relevance like John Bolton and Mick Mulvaney appear in the Senate, and the Senate should subpoena all relevant documents as well…The presiding officer, under our Constitution, is the chief justice. As such, the chief justice, as presiding officer, has the “power to make and issue, by himself,” subpoenas.

President Trump’s allies have tried to distort a separate rule (also still in effect), hoping that it could be stretched to say that a majority of senators can override the chief justice’s decision.

“The Democrats Are Letting Roberts Off Too Easily: By doing nothing to ensure that Trump’s trial gets at the truth, the chief justice is taking a side. And the Democrats are just watching him do it.” The Atlantic.

Roberts has the power and duty to make judgments about the conduct of the trial. In early proceedings, Roberts made it clear that he will not exercise that power unbidden. Nothing, however, prevents the House managers from making motions—either orally or in writing—to force the chief justice to take a stronger hand in the proceedings. And the Democrats have nothing to lose by trying.

…Similarly, nothing prevents the House impeachment managers, whom Schiff leads, from filing motions and legal briefs laying out their positions on the admission of evidence and other matters. The chief justice would have to do something with them. Any decision by Roberts to punt a disputed matter without a ruling—to a full Senate run by a declared Trump partisan, no less—would be hard for him to portray as merely staying above the political fray.

McGahn case contradictions

While arguing on Tuesday that the Senate should not subpoena witnesses and additional evidence, Trump’s defense team – including lead White House Counsel Pat Cipollone – said that House Democrats should have gone to court to get evidence and testimony. This is the exact opposite of what Trump’s Justice Department has been arguing in court for months. House lawyers quickly submitted memos to the D.C. Court of Appeals pointing out the discrepancy, which experts say could undermine Trump’s position in court.

Chief Counsel Douglas Letter submitted filings in both the McGahn case and the Mueller grand jury case stating that (1) Trump’s impeachment defense is that the House should go to court to get information withheld, yet (2) Trump’s position in both cases is that the Court cannot resolve disputes between the legislative and executive branches.

The Justice Department responded on Friday, cementing its contradiction of Trump’s impeachment defense: “[T]he House may not properly seek judicial enforcement of subpoenas against the Executive.” Jay Sekulow, attorney for Trump, said on Tuesday: “We’re acting as if the courts are an improper venue to determine constitutional issues of this magnitude? That is why we have courts… The president’s opponents, in their rush to impeach, have refused to wait for judicial review”

“Given what the president’s lawyers have argued thus far, I think we would be mistaken to search for any underlying consistency in the positions this administration takes in the courts or before Congress,” said Lisa Kern Griffin, a professor at Duke University School of Law.

“If they anticipate an unfavorable ruling, then they claim that the balance of power is none of the courts’ business,” she said. “If delay conveys some strategic advantage, then they argue that issues must be litigated all the way through the court system before evidence can be heard by Congress.”

Added Steve Vladeck of the University of Texas Law School, “It’s a pretty sobering sign of where we are that neither the Senate nor the courts, at least thus far, have seemed troubled by the inherent contradiction.” (Washington Post)

The D.C. Court of Appeals is expected to rule any day now on the issue of McGahn’s testimony. The Mueller grand jury case may be decided just as soon, or may be sent “back to a lower court for more analysis specifying the exact material sought by lawmakers and their reasons for wanting it.”

Trump on tape

Indicted Giuliani associate Lev Parnas released an audio (and later, a full video) recording from an April 2018 dinner with President Trump. On the tape, Trump can be heard telling Parnas, his partner Igor Fruman, and the other attendees (donors to Trump’s campaign) that U.S. Ambassador to Ukraine Marie Yovanovitch should be removed from her position. The recording lasts over an hour and contradicts Trump’s repeated statements that he does not know Parnas and Fruman.

In the recording, Mr. Parnas, who is the more talkative of the two, broached an energy deal the two were pursuing in Ukraine, and then went on to discuss several themes that later became central to the pressure campaign. He claimed that Ms. Yovanovitch, whose name he did not cite, had been disparaging Mr. Trump. He said that the Ukrainians “were supporting the Clintons all these years.” He even mentioned in passing the family of the former Vice President Joseph R. Biden Jr. (New York Times)

The following is a quote of the key moment:

A man, perhaps Parnas, says “the biggest problem [in Ukraine] I think, where you need to start, is we gotta get rid of the ambassador. She’s still left over from the Clinton administration.”

Trump responds, “the ambassador to Ukraine?”

“Yeah, she’s basically walking around telling everybody, ‘wait, he’s going to get impeached, just wait,’ ” the man says.

Trump quickly responds: “She’ll be gone tomorrow… Get rid of her. Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. Ok? Do it.”

The tape also includes comments about Ukraine and Russia:

“How long will [Ukraine] last in a fight with Russia?” Trump asked

“Without us, not very long,” someone replies.

“Without us,” Trump echoes.

As well as:

“Think Russia ever goes in and gets Ukraine?” Trump asks one companion.

“They would love to but they’re scared of you…They want Ukraine…” someone replies.

“How’s Ukraine feeling? They feel they’re going to be okay?” Trump asks.

“They feel they’re going to be ok if you support them.”

Needless to say, Trump went on to cut off U.S. support (aid) to Ukraine.

  • Joseph Bondy, Parnas’s lawyer, told Anderson Cooper that Parnas has more tapes of Trump that have yet to be released. Separately, Bondy told The Washington Post that Parnas has turned over other recordings to House investigators.

Context

At the time of the recording, Ukraine’s president was Petro Poroshenko. In the weeks before April 2018, Poroshenko’s administration closed investigations into Paul Manafort in order to avoid offending Trump when the U.S. was in the final stages of sending the country anti-tank Javelin missiles. The New York Times quoted Volodymyr Ariev, a parliament ally of Poroshenko, explaining: “In every possible way, we will avoid irritating the top American officials.”

The investigations into Manafort could have assisted Mueller’s U.S. investigation of Trump’s former campaign manager, as well. Not to mention the fact that the Ukrainians allowed Konstantin Kilimnik, Manafort’s partner and an alleged Russian intelligence agent, to slip away to Russia, beyond the reach of Mueller.

  • Further reading: Russia’s attempts to tie Clinton to Ukraine appear to have begun as early as 2015, with a disinformation campaign stemming from donations she received from an oligarch (who also gave to Trump). Trump began asking DOJ to investigate Ukraine as early as 2017. Read more in Politico,

Pompeo’s big week

Secretary of State Mike Pompeo is going to Ukraine this Friday where he will meet with Ukrainian President Volodymyr Zelensky, in the midst of the Senate’s impeachment trial.

The three diplomatic sources described Pompeo’s upcoming visit as substantive and not simply a drop-in. Pompeo, the sources said, is expected to also meet with top government officials, and to pay his respects to Ukraine’s fallen soldiers and revolutionaries at memorials in the capital.

…Ivan Yakovina, a foreign policy columnist for Ukraine’s Novoye Vremya newsmagazine, said one reason for Pompeo’s trip could be to make sure that “no bad surprises would come from Kyiv during the Trump Senate trial… If I were him I would assure the Ukrainians that they will be rewarded if nothing unexpected happens during the trial. And punished if comrade Trump’s enemies will get some sort of help or comfort from Kyiv.”

Meanwhile, Pompeo is facing his own controversy at home. Last Friday, NPR reporter Mary Louise Kelly held an interview with Pompeo during which she asked him about numerous topics, including the Ukraine scandal. Kelly says that Pompeo was infuriated that she pressed him on his support for Marie Yovanovitch:

“…an aide has stopped the interview – said, we’re done; thank you….I was taken to the secretary’s private living room where he was waiting and where he shouted at me for about the same amount of time as the interview itself had lasted. He was not happy to have been questioned about Ukraine. He asked, do you think Americans care about Ukraine? He used the F-word in that sentence and many others. He asked if I could find Ukraine on a map. I said yes, and he called out for aides to bring us a map of the world with no writing. I pointed to Ukraine. He put the map away. He said, ‘people will hear about this.'”

The following day, the State Department issued an official statement in which Pompeo accused Kelly of lying to him and, in an attempt to embarrass her, insinuated that she identified Bangladesh (in Asia) as Ukraine on a map. Kelly is a graduate from Cambridge University’s Masters program on European studies, as well as a veteran national security reporter.

“NPR reporter Mary Louise Kelly lied to me, twice,” Pompeo said in his statement. “First, last month, in setting up our interview and, then again yesterday, in agreeing to have our post-interview conversation off the record. It is shameful that this reporter chose to violate the basic rules of journalism and decency.”

The Washington Post reviewed the emails between Kelly and Pompeo’s press aide that set up the interview. Kelly wrote that she intended to “start” on Iran and “also Ukraine,” adding “who knows what the news gods will serve up overnight. I never agree to take anything off the table.”

  • Further reading: “Trump Threatens to Cut NPR’s Funding After Pompeo Meltdown,” Mother Jones. “Pompeo Denounces News Media, Undermining U.S. Message on Press Freedom,” The New York Times.

THE SIDES

Trump inaugural

D.C. Attorney General Karl Racine sued Trump’s inaugural committee, the Trump Organization, and the Trump company that runs his D.C. hotel, for allegedly violating its nonprofit status “to enrich the Trump family.”

In its lawsuit, the Office of the Attorney General (OAG) alleges that the Inaugural Committee, a nonprofit corporation, coordinated with the Trump family to grossly overpay for event space in the Trump International Hotel. Although the Inaugural Committee was aware that it was paying far above market rates, it never considered less expensive alternatives, and even paid for space on days when it did not hold events. The Committee also improperly used non-profit funds to throw a private party for the Trump family costing several hundred thousand dollars. (AG announcement)

Ivanka Trump is directly implicated:

Ivanka Trump was made aware of concerns about overpayment in a Dec. 12, 2016, email from Rick Gates, the deputy to the inaugural chairman, which she responded to two days later. On Dec. 16, Wolkoff raised her concerns in person with Donald and Ivanka Trump. The next day, Wolkoff again objected to the Trump hotel’s proposed rates. (ProPublica)

Obamacare at SCOTUS

On Tuesday, the Supreme Court denied a motion by a coalition of blue states and House Democrats to fast-track a challenge to the Affordable Care Act so that it could be considered this term.

Defenders of the Affordable Care Act argued that the issues raised by the case are too important to let the litigation drag on for months or years in lower courts, and that the 5th U.S. Circuit Court of Appeals in New Orleans erred when it struck down the health law’s now toothless requirement that Americans have health insurance.

The decision is a major gift to Trump and the Republicans up for re-election in November. Had Trump’s DOJ and Republicans won the case, which likely would have destroyed the ACA, Trump and his allies would have had “to campaign in an environment where 20 million just had their healthcare taken away.” Instead, the punt to next term allows Republicans to hide their intention of killing Obamacare without any plans for a replacement.

Kushner’s Mueller interviews

Last week we learned why the Justice Department failed to release memos documenting Mueller’s interview with Jared Kushner, despite a court order to do so: because “a member of the intelligence community” needs to ensure the material has been properly redacted.

Khashoggi

The Office of the Director of National Intelligence (ODNI) missed a deadline to give Congress an unclassified report on who ordered and helped in killing Jamal Khashoggi, violating a provision signed into law in December.

Sen. Ron Wyden (D-OR) threatened to unilaterally declassify and release heretofore-secret information about the murder if the Trump administration does not quickly release the unclassified report.

“If that report is not produced by the time the impeachment trial is complete, I intend to initiate a process that allows the Senate to unilaterally make information public under Senate Resolution 400,” Wyden said. “It has been more than a year since agents of the Saudi government murdered Jamal Khashoggi in the Saudi embassy in Turkey, and yet the Trump administration refuses to publicly acknowledge who ordered that assassination, and instead the Trump administration is basically running interference for an authoritarian government.”

Flynn plea

Earlier this month, Michael Flynn formally informed U.S. District Court Judge Emmet Sullivan that he wanted to withdraw his guilty plea over false statements to the FBI. Last Friday, Judge Sullivan informed Flynn that he “has a high hurdle to overcome” in persuading him to allow a plea withdrawal.

In a brief order Friday, Judge Sullivan said Flynn’s lawyers should file legal briefs addressing whether the court should hold a hearing “where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas.”

Such a hearing, the judge said, might include “testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any ‘fair and just reason’ for this court to grant his motion to withdraw.”

  • George Washington University Law professor Randall Eliason wrote in The Washington Post that “prosecutors should agree to Flynn’s request…to give him a public trial and put to rest Flynn’s claims that he is the innocent victim of some deep state conspiracy.”

Profiting off presidency

Trump’s Doral Resort golf course in Miami more than doubled its rates before the White House announced Trump’s planned visit to address the RNC on the property: from $254 a night to $539 a night.

That higher figure is just under the maximum per-night rate federal government rules permit for a hotel in South Florida, and is triple the normal “per diem” rate employees are supposed to follow.

Republicans profiting off tax law

Last week, Peter Cary, of the Center for Public Integrity, published a piece in Vox looking at how Republican lawmakers “made millions” on tax cuts they helped enact.

When the price of Apple stock hit a then-record high in October 2018, among the shareholders counting their gains were 43 Republicans in Congress, who collectively owned as much as $1.5 million worth of the tech giant’s shares…congressional Republicans themselves had a hand in the spike, stock analysts say. Legislation they championed — the 2017 Tax Cuts and Jobs Act — doled out nearly $150 billion in corporate tax savings in 2018 alone. One effect: a big boost in stock prices.

…As part of the bill, Republicans approved tax breaks in 2017 for seven classes of assets many of the wealthier members of Congress held at the time, including partnerships, small corporations, real estate, and several esoteric investment vehicles.

More pollution, please

On Thursday, the Trump administration removed many environmental protections for millions of miles of streams, wetlands, and groundwater. Opponents of the rule change “say the rollback will allow businesses to dump pollutants into newly federally unprotected waterways and fill in some wetlands, threatening public water supplies downstream and harming wildlife and habitat.”

Who benefits? Some rural farmers…but “the government’s own figures show it is real estate developers and those in other nonfarm business sectors” that stand to reap the largest financial rewards from the rollback. Among the key backers of Trump’s new rule are golf course developers. It just so happens, Trump himself owns more than a dozen golf courses.

News from states

  • WaPo: The Trump administration on Friday threatened to withhold federal funding from California over its requirement that private insurers cover abortions — a move California officials immediately denounced as a “cheap political” shot on the day the president was addressing the annual March for Life rally.
  • ABC News: …at least 101 state legislators now have been publicly accused of sexual harassment or misconduct since the start of 2017, according to an Associated Press review.
  • The AP: Democratic Gov. Tony Evers’ plan to create a nonpartisan redistricting commission to draw Wisconsin’s electoral maps may put pressure on the Republicans who control the Legislature to consider an alternative plan, but it won’t force them to do anything differently next year and GOP leaders made clear they won’t change course.
  • The NYT: The Trump administration is about to distribute billions of dollars to coastal states mainly in the South to help steel them against natural disasters worsened by climate change. But states that qualify must first explain why they need the money. That has triggered linguistic acrobatics as some conservative states submit lengthy, detailed proposals on how they will use the money, while mostly not mentioning climate change.
  • New York Magazine: Christian nationalists — who believe the United States was founded as a Christian nation and consider the separation of church and state to be a fraud — are exerting substantial pressure by drafting legislation for friendly lawmakers…Christian nationalist groups have concocted a legal strategy called Project Blitz designed to get anti-LGBTQ, anti-choice bills before state legislatures. n the 2018 legislative session, state lawmakers proposed 74 bills similar to Project Blitz draft legislation, ranging from measures designed to restrict same-sex marriage to allowing adoption agencies to deny placements because of religion.

Immigration news

  • The New Yorker’s Ben Taub: The Departments of Justice, State, and Homeland Security have been co-opted into a campaign to smear an Iraqi refugee [Omar Ameen] as an ISIS commander, frame him for murder, and extradite him to almost certain death in order to make a racist lie look true.
    • The actual article can be read here. It was behind a paywall for me so I could not quote directly from the piece. Some less-than-great outlets have reprinted excerpts, like The American Conservative.
    • Facebook and Twitter have information that may prove Ameen’s innocence, but the companies refuse to cooperate.
  • Bloomberg: U.S. Attorney General William Barr and the Board of Immigration Appeals were berated by a federal appeals court for thwarting its orders and holding up a Mexican citizen’s request to seek a special visa for immigrants who were victims of a crime in the U.S…. “The board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter,” the court said. (Read full opinion)
  • Vox: Matthew Albence, acting director of US Immigration and Customs Enforcement, said on Thursday that ICE will deport immigrants in the Deferred Action for Childhood Arrivals (DACA) program if the Supreme Court strikes it down later this year. That statement seems to contradict Chief Justice John Roberts’s understanding that such deportations will not happen.
  • CBC: U.S. border officers working at multiple Canada-U.S. border crossings were instructed to target and interrogate Iranian-born travelers in early January, said a U.S. border officer in an email obtained by CBC News. The allegation follows reports that up to 200 people of Iranian descent traveling from B.C. — many of them Canadian or U.S. citizens — were detained and questioned for hours at the Peace Arch Border Crossing in Blaine, Wash., during the weekend of Jan. 4.
  • Rolling Stone: Immigration and Customs Enforcement has lowered its standards for detaining migrants, the Texas Observer reported. Among other revisions, the new standards expand the reasons detainees can be placed in solitary confinement and remove restrictions that banned officers from using restraint methods including “hog-tying, fetal restraints, [and] tight restraints.” ICE also now allows for handcuffing of minors “as appropriate.”
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