Rudy Hears it Through the Grapevine

Paul Waldman writes,

In an interview Tuesdaywith former Fox News host Bill O’Reilly, the president seemed to be road-testing a new explanation for the entire scandal, that Giuliani was some kind of freelance rogue agent who unbeknownst to Trump took over American policy toward Ukraine, doing things that Trump was neither aware of nor bears any responsibility for.

What was Giuliani doing in Ukraine on Trump’s behalf? “Well, you have to ask that to Rudy, but Rudy — I don’t, I don’t even know,” Trump said.

But isn’t he Trump’s lawyer? “Rudy has other clients, other than me,” Trump said. “He’s done a lot of work in Ukraine over the years.”

So he didn’t direct Giuliani to go to Ukraine and pressure their government? “No, I didn’t direct him.”

Even for Trump, that’s a brazen set of lies. We now know without a shadow of a doubt that Trump tasked Giuliani with managing his Ukraine “policy,” including his effort to pressure Ukraine to help smear Biden in advance of 2020. Giuliani engineered the firing of U.S. Ambassador to Ukraine Marie Yovanovitch. American diplomats worked with Ukraine to craft a public statement vowing the investigation Trump wanted — but had to run it by Giuliani. Giuliani and Secretary of State Mike Pompeo were in regular contactabout Ukraine.

And as the testimony of multiple witnesses in the impeachment inquiry made clear, Trump continually, repeatedly decreed that Ukraine policy should be coordinated with Giuliani. “He just kept saying: Talk to Rudy, talk to Rudy,” testified Ambassador Gordon Sondland.

Indeed, Trump told Ukrainian President Volodymyr Zelensky on their July 25 call: “Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great.”

Separation of Power, Esyay, But Ixnay on the Checks and Balances

Checks and Balances

Day before yesterday’s decision in House Judiciary Committee v. McGahn was a big deal. It runs to 121 pages, and if you want to read it yourself, here it is. Be my guest.

Last night I had a spot of insomnia, and—in lieu of a visit with my friend Jack Daniels—I read part of it and skimmed part of it. As you may know, the case involves the House Judiciary Committee’s effort to subpoena Don McGahn, Esquire, former White House Counsel. The committee wanted McGahn to give public testimony covering the same ground as his thirty hours of testimony to Bob Mueller, dealing with the Orange Man’s efforts to obstruct justice.

Here are some highlights, in the form of Q and A.

McGahn was White House Counsel, so, on the face of things, you might think that any conversations between McGahn and the Orange Man would be protected BOTH by executive privilege AND By attorney-client privilege. Is that what this week’s case was about?

No, it was not. Though there most definitely some privilege issues to be resolved. According to the Mueller Report, the Orange Man wanted McGahn to assist in his illegal obstruction of justice. There is a “crime/fraud exception” to the attorney-client privilege—the gist of which is that you and your lawyer can’t hide behind attorney-client privilege if you’re asking your lawyer to help you commit an ongoing crime. It is widely thought that the same exception would apply to executive privilege.

Also, there’s the fact that Trump waived any claim of privilege vis-à-vis McGhan’s testimony to Mueller. (Presumably, the Orange Man thought that McGahn was going to lie through his teeth to protect Dear Leader, aka God’s Chosen One—an expectation that was grievously disappointed.) And, generally speaking, once a privilege is waived, it can’t be unwaived.

But this week’s opinion told us nothing about these matters. What this week’s opinion said was that McGahn had to show up pursuant to the congressional subpoena, answer whatever questions he thought he could answer, and assert whatever privileges he thought might prevent him from answering any question he felt he couldn’t answer.

OK, then, what WAS the case about?

The case was about the Trump’s Administration’s argument that the system of checks and balances, as traditionally understood and as depicted in the above chart, is wrong in important respects. First, the Administration argued that “close advisors” of a President are entitled to an absolute “testimonial immunity.” In other words, a President has the power to obstruct congressional investigations of possible wrongdoing in the executive branch by directing “close advisers” not to show up at all.

Second, the Administration argued, the courts have no right, under the Constitution, to referee such a dispute between Congress and the President.

Foundational to our system of constitutional government is the 1803 case, Marbury v. Madison, where the Supreme Court declared, “It is emphatically the province and duty of the judicial department to say what the law is.” The Trump Administration wanted to overturn Marbury, at least in important respects.

The Trump Administration is big on “separation of powers,” but doesn’t cotton to “checks and balances.” What would be the effect on our constitutional system of the Administration’s position prevails?

The effect would be to protect presidential criminal conduct and other wrongdoing from congressional investigation, and probably from judicial accountability as well.

What did the judge say this week about the Trump Administration’s constitutional arguments?

She said they were bullshit.

Has this issue come up before the Trump Administration?

Yes, it has. The administration of Bush the Younger asserted similar legal claims to try block the House Judiciary Committee from looking into its mass firing of federal prosecutors. A district court decision blew the Bush the Younger Administration out of the water. While the case was on appeal, the Administration and the Judiciary Committee negotiated a settlement in the form of an “accommodation,” setting parameters on how the investigation would proceed. In effect, Bush the Younger used an untenable, extreme legal position as a tool of negotiation to gain some leverage in protecting its interests.

What about the Obama Administration?

The House of Representatives—then under Republican control—got into a pissing contest with Attorney General Eric Holder over congressional investigative powers. In a 2013 case, I am sorry to say that the Obama Administration made an argument that was sort of a first cousin of the Trump Administration’s position. The judge said that “the Attorney General takes the position that a dispute between the legislative and executive branches must be resolved through negotiation and accommodation, and that the judiciary may not, or at least, should not, get involved.” (emphasis added)

How did the judge rule in that case?

She said it was still a bullshit argument.

What happens now?

The case is being appealed to the Court of Appeals for the D.C. Circuit. If you would like to best on a sure thing, please bet that appellate court will side with the district court.

God’s Chosen One will appeal to the Supreme Court, which may or may not take the case.

What will the Supreme Court do?

I have no earthly idea.

What would an entirely cynical, politicized right wing majority of the Supreme Court do?

If they think that Republicans will continue to be elected president indefinitely, then a presidential dictatorship might look like a really good thing, from such a cynical perspective.

On the other hand, if they entertain the possibility that Democrats may sometimes win future presidential elections, then a presidential dictatorship might tend to lose its appeal.




Loony Tunes Tuesday

GOP Senator Says He Mistakenly Spread a Ukraine Conspiracy on Fox News. He Meant to Push a Different Falsehood.

Ukraine trap

Trump Wonders Why Coin Commemorating 100-Year Anniversary of Women’s Suffrage Wasn’t “Done a Long Time Ago”


Peter Wehner, Are Trump’s Critics Demonically Possessed? Two of the president’s prominent evangelical supporters are literally demonizing his opponents.


The Senate Impeachment Trial: Evidence and Procedure

impeachment ticket

Benjamin Wittes, who is very smart, writes today on What Impeachment Is Revealing About the Republican Party: Trump’s Senate trial will force voters to evaluate nihilism as the governing philosophy of a political movement.

He addresses several topics of interest, but I want to draw attention to his observations on process and rules of evidence in the Senate. Mr. Wittes writes,

Things get even murkier when the articles [of impeachment]—whatever they end up including—land in the Senate chamber. The Senate’s rules for impeachment trials are an odd combination of the highly specific and the maddeningly vague. On the one hand, they specify the precise time of day the impeachment trial shall go into session the day after the House members appointed to manage the trial march into the Senate chamber and present the articles the House has passed (1:00 pm, in case you were wondering—unless it’s a Sunday). On the other hand, they don’t specify rules of evidence, leaving almost everything of substance initially to the judgment of Chief Justice John Roberts and ultimately to the judgment of 51 members of the body, the vote required to overrule Roberts on a wide variety of motions.

In other words, the course of the Senate trial will ultimately depend on two variables that are, at this stage, mysterious. The first is how Roberts understands his own role as the trial’s presiding officer. The rules permit the chief justice to be—if he chooses—quite activist in ruling on evidentiary motions and the like, subject to being overturned by a vote of the Senate itself. The rules also permit him to be—if he chooses—quite passive; he’s entitled simply to submit such matters to the vote of the body itself in the first instance. So one key question is what role Roberts himself thinks he should play.

The other question is whether Republicans will be as disciplined in the Senate as they have been in the House in opposing Democratic actions, or whether a small number of defectors will give Democrats the 51 votes they will need to prevail on evidentiary disputes—either if Roberts’s rulings are challenged or if he submits questions to the judgment of the Senate. In other words, if the initial question is the personality and attitudes of the chief justice, the ultimate question is which side has the votes to carry motions.

A lot turns on these issues: Depending on the answers, one can imagine a Senate trial in which Mulvaney and Bolton would have to testify and executive-privilege claims would be unsustainable. One can also imagine a trial that would be short and, for Democrats, deeply frustrating.

Getting Crazier by the Day, and the Fat Lady’s Still Warming Up

N.Y. Times, A Senate Trial Could Put Trump’s Use of Aggressive Defense Tactics to Their Biggest Test

Greg Sargent, Trump’s impeachment trial will be a sham. Here’s how to blow up his lies.

As I said, gettin’ crazier by the day. Sometimes by the hour.

It feels like the irresistible force is about the collide with the immovable object. It feels like things are about to blow up.

I don’t know how this ends. I haven’t spoken with my daughter Pollyanna lately. I am not here to spread sunshine and joy and optimism. I am not here to tell you that good always triumphs over evil and truth always triumphs over lies. But I am here to say that things are about as fluid as they can be, and that it’s going to get worse for the Orange Man.

At some point, John Bolton will shoot his bolt. Giuliani’s goon is said to be about the sing like a canary. Giuliani, himself, may yet be thrown under the bus—causing him to invoke his insurance policy. More civil servants will probably come forward. More documents will be leaked.

And now this.

Often, Trump lies with conscious intent to deceive. Sometimes, he acts delusionally: the person he has deceived is himself. As far as I can tell, in the latter category is his fairy tale about a Ukrainian company that isn’t Ukrainian and a Democratic server that is not in fact being held in a secret location in Ukraine.

As the above two articles detail, Trump has ordered that his impeachment trial must try to prove these fairy tales and that all members of the Republican Cult must endorse them. Some are now doing that very thing.

Meanwhile, as Gerg Sargent points out, the Senate Intelligence Committee, chaired by a Repubican senator, has investigated these claims thoroughly and is about to declare them to be the fairy tales they are.

Like I said, push coming to shove.