Wednesday, April 24, 2019

What Trump does not want to hear will cost the nation its election integrity

And that damage to our security is the price of his vanity.

Now I am no great fan of former Homeland Security Secretary Kirstjen Nielsen but she does deserve credit for trying to do the right thing. However, that credit is qualified. Point #1: It would have been far better for the nation had she succeeded in marshaling top level support for our cyber defenses against election tampering. Point #2: I think she should have broken this story herself.

In Push for 2020 Election Security, Top Official Was Warned: Don’t Tell Trump reports the NY Times.

In the months before Kirstjen Nielsen was forced to resign, she tried to focus the White House on one of her highest priorities as homeland security secretary: preparing for new and different Russian forms of interference in the 2020 election.

President Trump’s chief of staff told her not to bring it up in front of the president.

Ms. Nielsen left the Department of Homeland Security early this month after a tumultuous 16-month tenure and tensions with the White House. Officials said she had become increasingly concerned about Russia’s continued activity in the United States during and after the 2018 midterm elections — ranging from its search for new techniques to divide Americans using social media, to experiments by hackers, to rerouting internet traffic and infiltrating power grids.

But in a meeting this year, Mick Mulvaney, the White House chief of staff, made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory. According to one senior administration official, Mr. Mulvaney said it “wasn’t a great subject and should be kept below his level.”

Even though the Department of Homeland Security has primary responsibility for civilian cyberdefense, Ms. Nielsen eventually gave up on her effort to organize a White House meeting of cabinet secretaries to coordinate a strategy to protect next year’s elections.

While American intelligence agencies have warned of the dangers of new influence campaigns penetrating the 2020 elections, Mr. Trump and those closest to him have maintained that the effects of Russia’s interference in 2016 was overblown.

“You look at what Russia did — you know, buying some Facebook ads to try to sow dissent and do it — and it’s a terrible thing,” Jared Kushner, the president’s son-in-law and senior adviser, said on Tuesday during an interview at the Time 100 Summit in New York.

“But I think the investigations, and all of the speculation that’s happened for the last two years, has had a much harsher impact on our democracy than a couple of Facebook ads,” he said.

What does one do in the face of such incredible stupidity? Such mendacity? Trump has gotten a wall of sorts: A White House barricaded against national security interests. The result is clear.

… cyberthreats have taken a back seat among security priorities at the White House.

Mr. Trump’s national security adviser, John R. Bolton, eliminated the position of cybersecurity coordinator at the White House last year, leaving junior aides to deal with the issue. In January, Ms. Nielsen fumed when 45 percent of her cyberdefense work force was furloughed during the government shutdown.

White House Counsel Don McGahn disobeyed Trump, now expected to testify in public

Tump claims exoneration: false! The Mueller report concluded “… if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Trump said “Nobody disobeys my orders.”: Also false! At the very top of the list of those aides and cabinet members disobeying Trump’s orders is “White House counsel Donald McGahn who declined to tell Deputy Attorney General Rod J. Rosenstein to fire Mueller.”

McGahn was asked by House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.) to testify in public session on May 21. Expect fireworks.

Jennifer Rubin (Washington Post) thinks that McGahn’s testimony should rock Trumpland.

Both with regard to basic facts (aides disobeying orders) and with major conclusions (Mueller says he would have cleared Trump of obstruction if he could, but he can’t because there is plenty of evidence), some truth-telling is badly needed.

McGahn, in particular, can offer a powerful rebuttal to Trump’s delusional assertions. He both disregarded Trump’s order and reportedly sat with Mueller for 30 hours providing, we can surmise, detailed information for the obstruction section. The good news is that McGahn will get his chance.

On Monday, House Judiciary Committee Chairman Rep. Jerrold Nadler (D-N.Y.) released a written statement, which announced: “Following the scheduled testimony of Attorney General William Barr on May 2, 2019 and the expected testimony of Special Counsel Robert Mueller, which we have requested, the Committee has now asked for documents from Mr. McGahn by May 7, and to hear from him in public on May 21.” Nadler explained, “Mr. McGahn is a critical witness to many of the alleged instances of obstruction of justice and other misconduct described in the Mueller report. His testimony will help shed further light on the President’s attacks on the rule of law, and his attempts to cover up those actions by lying to the American people and requesting others do the same.”

Nadler added, “The Special Counsel and his team made clear that based on their investigation, they were unable to ‘reach [the] judgment … that the President clearly did not commit obstruction of justice.’ As a co-equal branch of government, Congress has a constitutional obligation to hold the President accountable, and the planned hearings will be an important part of that process.”

McGahn, next to Mueller, may do more to puncture Trump’s web of lies than any witness. Trump has reason to panic that his bogus narrative is about to explode.

Tuesday, April 23, 2019

Trump's finances subject of suit against House Oversight Committee Chair

It’s worth remembering that any time Trump World acts like it has something to hide, it probably does. So, as Steve Benen (MSNBC/MaddowBlog) reports, To keep financial records secret, Trump sues key House Democrat.

Last week, as part of the congressional investigation into Donald Trump’s controversial finances, House Oversight Committee Chairman Elijah Cummings (D-Md.) issued a subpoena to Mazars USA, directing the firm to turn over the president’s financial records. Almost immediately, the president’s new lawyers – hired to keep Trump’s finances secret – sent a letter to Mazars USA, insisting that the firm ignore that federal subpoena.

Today, Trump and the Trump Organization took this one step further.

Lawyers for President Donald Trump and the Trump Organization are suing House Oversight and Government Reform Committee Chairman Elijah Cummings to block a subpoena for years of financial records from accounting firm Mazars USA.

The lawyers filed the lawsuit Monday in the U.S. District Court for the District of Columbia, saying the subpoena “lacks any legitimate legislative purpose, is an abuse of power, and is just another example of overreach by the president’s political opponents.”

To the extent that reality matters, the House Oversight Committee recently heard testimony from Michael Cohen, the president’s former personal attorney and fixer, who altered lawmakers to a series of alleged financial misdeeds committed by Donald Trump.

Lawmakers are also aware of credible allegations of criminal fraud, criminal tax evasion, and money laundering, which the American president exploited to fuel his rise to power.

In other words, the idea that Cummings’ request for information “lacks any legitimate legislative purpose” seems a little silly: the Oversight Committee, which has an expansive purview, is obviously following up on evidence of suspected wrongdoing.

Indeed, it seems this new lawsuit does little except make clear that the president and his team are desperate to keep his financial records, including his tax returns, secret.

And as a rule, when Trump World acts as if it has something to hide, it’s because Trump World has something to hide.

The new litigation, which asks a federal court to block compliance with Cummings’ subpoena, is online in its entirety here (pdf).

"investigations of any matter

The President’s legal team emphasizes two areas of complaint, one legal and one political. First, they argue that without a specific piece of legislation at stake, the House committee has overstepped its authority. Second, they charge that the House Oversight Committee, and specifically its chair, Elijah Cummings, has issued the subpoenas for purely partisan political reasons.

With respect to the first point they argue on pp. 2–3:

Chairman Cummings has ignored the constitutional limits on Congress’ power to investigate. Article I of the Constitution does not contain an “Investigations Clause” or an “Oversight Clause.” It gives Congress the power to enact certain legislation. Accordingly, investigations are legitimate only insofar as they further some legitimate legislative purpose. No investigation can be an end in itself. And Congress cannot use investigations to exercise powers that the Constitution assigns to the executive or judicial branch.

And, on p. 6, they pronounce “… when a subpoena is issued by a single committee, any legislative purpose is not legitimate unless it falls within that committee’s jurisdiction.”

However, Article I, Section 5, of the Constitution states that “Each House [of Congress] may determine the Rules of its Proceedings …”

The Committee on Oversight and Reform is the main investigative committee in the U.S. House of Representatives. It has authority to investigate the subjects within the Committee’s legislative jurisdiction as well as “any matter” within the jurisdiction of the other standing House Committees.

… House Rule X, clause 4(c)(2), provides that the Committee “may at any time conduct investigations of any matter without regard to clause 1, 2, 3, or this clause [of House Rule X] conferring jurisdiction over the matter to another standing committee.”

Thus, on my reading, a legislative end is not required to motivate investigations by the House Oversight and Reform Committee (but see below). Neither is the Oversight Committee prohibited from investigating matters in the jurisdiction of another committee (again, see below).

With respect to the second point in the President’s suit the plaintiffs argue, and I quote:

  • “Its goal is to expose Plaintiffs’ private financial information for the sake of exposure, with the hope that it will turn up something that Democrats can use as a political tool against the President now and in the 2020 election.”
  • Beginning on p. 6, they list numerous quotes in evidence of “House Democrats’ Campaign of Abusive Investigations.”
  • For example, on p. 9, “The Mazars subpoena is based on one of the worst examples of the House Democrats’ zeal to attack President Trump under the guise of investigations: Michael Cohen’s testimony to the House Oversight Committee on February 27, 2019. The Cohen hearing was a partisan stunt …”

That reads like a complaint that all this happens in a political environment - a charge that seems unlikely to advance a legal case.

However, and relevant to both of the two points examined above, Talking Points Memo notes that:

In a separate probe involving Trump’s tax returns, [Trump’s attorney] Consovoy accused House Ways and Means Committee Chair Richard Neal (D-MA) of intruding into the President’s private affairs as part of a political witch hunt. In that case, Neal tied the request to Congress’ responsibility to oversee the IRS. The request was linked to the Democrats’ marquee anti-corruption legislation known as H.R. 1, which includes a provision demanding that all presidential and vice-presidential candidates disclose at least ten years of their returns.

So: I think the President’s suit is without merit. But I am open to correction on these matters by those with relevant legal expertise. Write to me at wsmaki@gmail.com.

UPDATE

Steve Benen has additional comments on the viability of the suit in Trump lawsuit hopes to limit the scope of congressional oversight.

… the Washington Post highlighted an interesting tidbit from the lawsuit, which I’d overlooked after initially reading the filing.

In Trump’s lawsuit, his attorneys cited a Supreme Court decision called Kilbourn v. Thompson, which found “no express power” in the Constitution for Congress to investigate individuals without pending legislation.

The problem with that argument, said University of Baltimore law professor Charles Tiefer, is that Kilbourn v. Thompson is a case from 1880.

And it was overruled by a decision in 1927, Tiefer said.

“By reaching back to precedent to the 1880s, they’re seeking … to overturn the entire modern case law that the courts have put together to respect Congress’s investigative power,” Tiefer added, referring to Trump’s lawyers. “It’s a very long shot…. These suits look like an act of desperation by the Trump lawyers.”

It’s obviously embarrassing that the president’s new legal team didn’t realize it was citing a Supreme Court case that was overturned nearly a century ago, …

Dubious legal citations

In his April 23rd Subscriber’s post email, Judd Legum (popular.info) also comments on the Trump team’s legal logic - or lack thereof. (Emphasis added.)

The primary case cited by Trump’s lawyer, William Consovoy, is called Eastland v. U.S. Servicemen’s Fund. But in Eastland, the Supreme Court confirmed Congress’ broad authority to conduct oversight as it sees fit.

In that case, the court found that a Congressional subpoena to determine if a private organization was “undermining the morale of the Armed Forces” was in the “within the legitimate legislative sphere.” The case “oozes” with “deference to Congress” about the proper scope of an oversight investigation. The court found that the “purposes behind the subpoena didn’t matter.”

Consovoy also cites the 1880 Supreme Court case of Kilbourn v. Thompson. That case was overruled in 1927 and “has not been followed for the last 90 years.”

Trump’s lawsuit appears to be less about winning and more about signaling the administration will fight “tooth and nail to resist House Democrats’ efforts at oversight, tie them up in court, and even try to run the clock.”

So it turns out that the two cases presented by Trump’s attorney in support of the suit actually work against the suit.

Benen concludes that the suit “raises anew questions about what it is Trump and his team are so desperate to hide.”

A prize bigger than impeachment starts with Trump twisting slowly in the wind

Joe Lockhart, White House press secretary from 1998 to 2000, asks us to see that There’s a Bigger Prize Than Impeachment. He says “Keeping Trump in office will destroy the Republican Party.” Following are snippets from the NY Times article. (h/t Sherry Moreau)

President Trump should be impeached because he is unfit for the presidency. He represents a clear and present danger to our national security. We didn’t need Robert Mueller’s report for that. But if Newt Gingrich taught us anything, impeaching the president is likely to be bad politics.

For Democrats, leaving Donald Trump in office is not only good politics — it is the best chance for fundamental realignment of American politics in more than a generation. Mr. Trump is three years into destroying what we know as the Republican Party. Another two years just might finish it off. Trumpism has become Republicanism, and that spells electoral doom for the party.

Mr. Trump has abandoned most of the core principles that have defined Republicans for the past century. Free trade abandoned for protectionism. Challenging our adversaries and promoting democracy replaced by coddling Russia and cozying up to dictators near and far. Fiscal conservatism replaced by reckless spending and exploding deficits.

What’s left of the party is a rigid adherence to tax cuts, a social agenda that repels most younger Americans and rampant xenophobia and race-based politics that regularly interfere with the basic functioning of the federal government.

I fully understand the historical imperative of holding the president accountable for his behavior. I also share the sentiment of so many Americans who want to punish him for what he’s done to the country. But I believe there is something bigger at stake.

Allowing Mr. Trump to lead the Republican Party, filled with sycophants and weak-willed leaders, into the next election is the greater prize. Democrats have a once-in-a-lifetime opportunity to realign American politics along progressive lines, very much like Ronald Reagan did for Republicans in the 1980s.

Trumpism equals Republicanism as long as Donald Trump is at the top of the ticket. And a real shift to progressivism in America will be delivered by a devastating rebuke of the president and his party, a rebuke that will return control of the Senate and state houses across the nation. Politics is always a gamble — and this is the best bet we’ve had in a long time.

We Dems must play the long game. In the short term, impeaching Trump would be morally satisfying to many of us. However, we might be able to achieve that end, not by impeachment (after which the GOPlins in the Senate would not vote to convict), but by censure which does not require senate approval. (See my post Censure as a viable alternative to impeachment of the president.) Censure would put us on record as disapproving of and condemning Trump and Trumpism. But Trump would remain on the ballot thus inviting an even greater condemnation by the nation.

And envision what Trump will face with strong resistance from the House and the disapproval of the American people.

To borrow some advice from Words of Watergate as they apply to Trump: “Well, I think we ought to let him hang there,” Ehrlichman told Dean. “Let him twist slowly, twist slowly in the wind.”

'Nobody disobeys my orders' blares Trump. That's one more falsehood from the man who would be king.

538’s significant digits email reports on Trump’s assertion that “Nobody disobeys my orders.” That’s an amazing piece of autocracy. It doesn’t matter, really, that it’s false (and it is). It is a reflection of a monarch with an out-sized ego out of touch with the realities of his kingly court.

The GOPlins in Congress who support Trump need to wake up. The founding fathers fought a revolutionary war because they resisted rule by a capricious king. But who got elected in 2016 shows capricious kingly tendencies and the nation is paying for that repeat of history.

15 instances
“Nobody disobeys my orders,” President Trump claimed Monday at the White House Easter Egg Roll. However, The Washington Post tallied 15 instances documented in the Mueller report of aides disobeying the president. They include disobedience on the parts of Trump’s White House counsel, campaign manager, chief of staff, defense secretary, staff secretary, deputy attorney general, deputy national security adviser, director of national intelligence and chief economic adviser. [The Washington Post]

In that Post article, Aaron Blake reports on yet one more false claim by the President: Trump says ‘nobody disobeys my orders.’ Here are 15 recorded instances of exactly that. The complete list of 15 follows.

–1. White House counsel Donald McGahn: Declined to tell Deputy Attorney General Rod J. Rosenstein to fire Mueller.
–2. Former campaign manager Corey Lewandowski: Declined to apply pressure on Attorney General Jeff Sessions to limit the scope of the Russia probe.
–3. Deputy Chief of Staff Rick Dearborn: Declined to give Sessions a typed note Lewandowski gave him relaying the president’s message.
–4. Staff secretary Rob Porter: Declined Trump’s request to ask the No. 3-ranking official at the Justice Department, Rachel Brand, whether she wanted to be attorney general and take oversight of the Russia probe.
–5. Transition team leader Chris Christie: Declined to call FBI Director James B. Comey and tell him that Trump liked him.
–6. Deputy Attorney General Rod J. Rosenstein: Declined to do a news conference after Comey’s firing saying it was his idea.
–7. Deputy national security adviser K.T. McFarland: Declined to write an internal email stating Trump hadn’t told national security adviser Michael Flynn to talk during the presidential transition to the Russian ambassador about sanctions.
–8. Director of National Intelligence Daniel Coats: Declined Trump’s request to say there was no link between the Trump campaign and Russia.
–9. Acting Attorney General Dana Boente: According to McGahn, Boente declined Trump’s request to state publicly that Trump wasn’t under investigation. (Boente said he didn’t recall this conversation.)
–10. Chief of Staff Reince Priebus: Declined to get Sessions to resign.
–11. Chief economic adviser Gary Cohn: Along with Porter, prevented Trump from pulling out of trade deals by pulling papers off his desk.
–12. Chief of Staff John F. Kelly: Along with Cohn, declined to lobby the Justice Department to prevent the AT&T-Time Warner merger.
–13. Defense Secretary Jim Mattis: Declined Trump’s request to assassinate Syrian President Bashar al-Assad.
–14. Mattis: Declined Trump’s request to provide military options for Iran.
–15. Unnamed officials: Ignored Trump’s directive to not endorse an agreement reached at the G–7 Summit.

Turning up the heat on Trump's obstructive conduct

Judd Legum (popular.info) makes the case for the obstruction charge. The evidence is far stronger than what Barr announced in his “summary” of the Mueller report.

Mueller’s overwhelming evidence on obstruction

In his March 24 letter summarizing the Mueller report, Attorney General Bill Barr states that, on the obstruction issue, “for each of the relevant actions investigated, the report sets out evidence on both sides of the question.” Now that we can read most of the report, it’s clear this is not accurate.

The report looks at a variety of obstructive conduct and evaluates them against the three basic elements for an obstruction charge:

–1. Was there an obstructive act?
–2. Was there a nexus to an ongoing official proceeding?
–3. Was there “corrupt” intent?

In at least 4 cases, Mueller reviews conduct that meets all three elements for obstruction of justice and provides no substantial exculpatory evidence. Mueller’s analysis was helpfully summarized by Quinta Jurecic, the managing editor of Lawfare blog.

Jurecic provides a “heat map” showing the coincidence of the basic elements - or lack of it - for each of several instances of alleged obstruction. In it, below, you want to look for rows showing three red squares

Lawfare1
Lawfare2

Legum provides an example.

… the report examined various efforts Trump undertook to remove Mueller as special counsel, including ordering former White House Counsel Don McGahn to have Mueller removed.

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.

The report lays out evidence that Trump’s actions were:

–1. Obstructive. (“[T]he attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.”)

–2. Connected to an ongoing inquiry. (“Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”)

–3. Corrupt. (“There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office – and McGahn himself – could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts.”)

This goes on for hundreds of pages and numerous examples. It is an exhaustive, overwhelming case based on mountains of evidence and the testimony of Trump’s closest aides.

Jurecic’s analyses of the four cases in which the three basic elements coincide follow the break. Each is labeled with the row letter from the chart above.

These cases go beyond merely “no exoneration.” On my reading, they are proven charges of obstruction of justice by the President.

Monday, April 22, 2019

Unsafe at any speed - Boeing 737 Max, Barr's redactions, Trump's tweets

Miller time
It's Miller time in the White House

Here are the rest of themes, schemes, memes, and falemes in this edition of the Illustrated Gnus (aka cartoons from AZ Blue Meanie at Blog for Arizona).

  • Miller ascendant: send the immigrants to sanctuary cities on Boeing’s 737 Max’s.
  • Which of these former presidents would be OK with the president’s behavior described in the Mueller report? (A) Lincoln, (B) Washington, (C) Eisenhower, (D) Bush, (E) Obama, (F) Clinton, (Z) None of the above?
  • Trump is shopping for a new MAGA after Barr’s rewrite of the Mueller report.. Candidates might include My Attorney General Always and Make Allegations Go Away.
  • “When they can’t indict a sitting president, they let you do it.” Remember that one about grabbing? I’ll spare you the graphic but if you really want it, here’s the link.
  • Fitz: Trump lists his exemptions, including the law and accountability.
  • Trump: no to Ihlan Omar, yes to Yemen war.
  • The things that took centuries to build now threatened: Notre Dame, Santa Rita Mountains, Rule of Law, Presidential Norms, American Democracy.
  • New Yorker satirist Andy Borowitz reports that Sarah Huckabee Sanders Accuses Media of Anti-Liar Bias.

WASHINGTON (The Borowitz Report)—Reacting to the journalist April Ryan’s call for her to be fired, the White House press secretary, Sarah Huckabee Sanders, said, on Friday, that she has been the victim of the media’s “widespread anti-liar bias.”

“From their obsession with fact-checking to their relentless attacks on falsehoods, the media have made no secret of their bias,” Sanders said. “It’s open season on liars in America.”

“This is media hypocrisy at its very worst,” she added. “The same journalists who advocate freedom of speech want to take that freedom away from anyone whose speech consists entirely of lies.”

“This is nothing more or less than a direct attack on the lying life style,” she said. “You take away my right to lie and you take away my ability to earn a living.”

Kellyanne Conway, the White House senior counsellor, spoke out in support of Sanders, telling reporters, “An attack on one liar is an attack on all liars.”