Mayor Pete, Anyone?

Sleepy Joe

Washington Post, Biden calls Iowa voter aa ‘liar’ after he brings up his son and Ukraine:

Democratic presidential candidate and former vice president Joe Biden got into an extraordinary exchange Thursday afternoon with an Iowa farmer who first called him too old to run and then challenged him on Hunter Biden’s activities in Ukraine, triggering Biden to call the man “a damn liar.”

“You’re damn near as old as I am,” the man started. “You’re too old for the job. I’m 83, and I know damn well I don’t have the mental faculties I did 30 years ago.”

Then he turned toward what he said was a more pressing concern.

“We all know Trump has been messing around in the Ukraine over there, holding their foreign aid . . . saying they’re going to investigate you,” he said. “He’s got no backbone, we know that.”

“But you, on the other hand, sent your son over there to get a job and work for a gas company that he had no experience with gas or nothing, to get access to the president,” he continued. “You’re selling access to the president just like he was.”

“You’re a damn liar, man,” Biden said. “That’s not true. And no one has ever said that.”

“The hell it ain’t,” the man replied. “I see it on the TV.”

“You see it on the TV?” Biden said.

“All I do is watch TV,” the man continued.

“No, I know you do,” Biden responded, as he moved closer to the man, looked him in the eye and instructed one of his staffers not to take the microphone away from the man.

“And by the way, I’m not sedentary,” Biden, 77, continued. “Look, the reason I’m running is I’ve been around a long time, and I know more than most people know. And I can get things done, that’s why I’m running. And you want to check my shape, man, let’s do push-ups together here, man. Let’s run. Let’s do whatever you want to do. Let’s take an IQ test. Okay?”

“Number two,” Biden said. “No one has said my son has done anything wrong. And I did not on any occasion — and no one has ever said it.”

The Iowan interjected, saying, “I didn’t say you were doing anything wrong.”

“You said I set up my son to work on an oil company!” Biden said, growing more agitated and raising his voice. “Isn’t that what you said? Get your words straight, Jack!”

“That’s what I hear on MSNBC all day,” the man said.

“You don’t hear that on MSNBC,” Biden said.

“The hell I didn’t,” came the response.

“You did not hear that at all. What you heard — look, okay,” Biden said, trying to calm the exchange. “I’m not going to get in an argument with you, man.”

“I don’t want to either,” the man said.

“Well, yeah you do,” Biden responded.

“It looks like you don’t have any more backbone than Trump does,” the man said, as the crowd groaned.

“Any more questions?” Biden said, turning elsewhere in the audience.

As he sat down, the man said he wasn’t going to be voting for Biden.

Every Day, It’s A-Getting Closer, Going Faster Than a Roller Coaster

THE COVERUP COMPLETELY UNRAVELS.

OF COURSE THERE WAS A QUID PRO QUO. GET OVER IT, ASSHOLES.

Washington Post, Live updates: Mulvaney confirms Ukraine aid was withheld in part over request to investigate Democrats, despite Trump’s denial of a quid pro quo

I knew they would get there, because they had to get there, and there was absolutely nowhere else for them to go: Withholding military aid to a country under invasion until they did up dirt on your political opponents.

Happens all the time. Perfectly normal. Nothing to see here. So …

IMPEACH ME IF YOU DARE!

The Joy of Truthiness

Truthiness

Gordon Sondland, hotel magnate, Trump donor, current United States ambassador to the European Union, and Ukraine fixer, will be deposed next Thursday. I have speculated about whether he will (i) rend his garments, confess his sins, and throw Trump under the bus or (ii) lie, spin, and attempt to weasel his way out of the mess he got himself into.

Around 10PM last night, a 32-paragraph article appeared, chock full of information about his forthcoming testimony, with abundant citations to an unnamed source familiar with what he is going to say. (I leave it to you to speculate about the name of the unnamed source.)

It appears that Ambassador Sondland is planning to opt for truthiness. He will say lots of quite interesting things—please read the article for yourself—including that Trump told him to say there was no quid pro quo. And that, poison ally, he himself does not know whether Trump was being truthful when he denied the quid pro quo, or whether Trump was lying through his teeth.

He will throw Giuliani under the bus. As to himself, he will deny that he knew that the Ukraine exercise was about Biden.

The latter claim is raising eyebrows by several centimeters throughout the city of Washington

The Pea Under the Shell

shell game

Opinion of the Office of Legal Counsel, Department of Justice, September 24, 2019

Philip Rotner, DNI Maguire, The President, and the Attorney General

The Office of Legal Counsel opinion runs to eleven pages of serious legalese. But it rests on a simple word trick which should be obvious to any competent lawyer.

The relevant statutory language is as follows:

 In this paragraph, the term “urgent concern” means any of the following:

(i) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.

The key is “relating to.” The DOJ opinion repeatedly paraphrases the statute, replacing “relating to” with “concerning” or “in connection with” or “involving.”

Anyone who spent several years of his life construing subpoenas and other legal document requests—and has done so with a view toward keeping his client and himself out of jail—knows that there is a big difference between “relating to,” on the one hand, and language such as “concerning” or “describing” or “referring to.” The former phrase–“relating to”–is much broader than the words the OLC opinion substitute, in paragraphing the statute.

Yesterday, DNI Maguire testified that foreign interference with our elections is the gravest national threat we face. Therefore, a communication soliciting foreign interference with our elections does indeed “relate to” “operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence.”

Moreover, the communication was one “involving classified information,” because, at the time the opinion was written, evidence of the communication was still classified.

And Apart From That

There is also the little matter of the Justice Department’s conflict of interest in construing a statutory term that is, at best, slightly ambiguous.

Things Are Getting Interesting

shit hits fan

“Transcript”of July 25 call between Trump and Zelensky

Whistleblower Complaint

Testimonyof Joseph Maguire, Acting Director of National Intelligence, before the House Intelligence Committee

White House Talking Points, Sent in Error to Democratic Congressmen

Well, it was quite a morning. I was just drinking my first cup of French roast coffee and swallowing a few pills when the teevee cut to the hearing. I sat through all of it. I have a few observations.

Defending Trump—or Not

Only one Republican congressman—or maybe two, depending on how you count—actually defended what Trump did. The one clear defender was Rep. John Ratcliffe (R-Idiot). Meanwhile, one other Republican said the phone call was “not OK.” At least, I believe those were his words.

In sum, the Republicans members of the Intelligence Committee tried to score points, but the points they tried to score were tangential to the substance of the charges against Trump.

“No Quid Pro Quo”  

Rep. Ratcliffe (R-Idiot) tried manfully to uphold the White House talking point that there was no quid (US military aid) in exchange for a quo (dirt on the Bidens). But the “transcript” has Trump using the word “reciprocal.” Friends and neighbors, “reciprocal” means quid pro quo. And, when Zelensky* said he wanted to buy some anti-tank missiles, Trump responded, in the next sentence, by asking for a “favor.”

So that dog won’t hunt.

I have long heard from experienced litigators that it’s important not to impose on yourself the burden of proof on a legal element that isn’t actually necessary to prove the case. Consistent with that thought, a fellow lawyer whom I greatly respect has said the Democrats should urge that impeachment is justified whether or not there was a quid pro quo.

The general principle is salutary, but I’m not sure it applies in this case. First, the ground is littered with evidence of quid pro quo. Secondly, it’s the withholding of military aid that adds so much to vileness of the deed.

“The Bidens are Corrupt and Trump Has the Right to Ask for Investigative Help”

Inviting foreign government oppo research should be enough for impeachment. Inviting foreign government oppo research + withholding military aid to coerce foreign government operation surely ought to be enough.

But, to clench the case with a lot of folks, you need to make the additional point that the dirt Trump wanted Ukraine to dig up was bogus dirt. You need to prove that, even if Hunter Biden made an unwise career move, his pappa’s actions were in fact opposed to Ukrainian corruption, not in support of it. And that case is factually complicated.

In that connection, it will be recalled that Republicans control the Senate—and that at least some of them want to investigate Biden.

I say, investigate away. And thank you very much.

“The Whistleblower Relied on Hearsay”

Lots of the Republicans beat that drum this morning. But the answer is, well then, let’s find out who the whistleblower spoke to, and call all of them before us, and find out first hand what they know.

Acting Director Maguire’s Integrity or Lack Thereof

The Democrats made a mistake in focusing the hearing on Maguire’s integrity. First off, Maguire’s integrity has no bearing on whether Trump has committed impeachable offenses. Second, Maguire came off as a chain-of-command guy thrust into a situation where he was out of his depth.

So, that dog didn’t hunt, either. Probably the wrong conclusion—exercising poor discretion is not the same as immorality—on a tangential issue, leveled against an individual who seemed sympathetic to me, and I suspect to most others as well.

“Maguire Violated the Whistleblower Act”

I haven’t studied the matter, but, based on this morning’s hearing, the question appears debatable.

“Maguire Exercised Poor Discretion”

The gist of Director Maguire’s testimony is that, while he was not compelled to disclose the complaint (based on the statutory interpretation he felt bound to follow), he nevertheless had discretion to disclose it to Congress. And, furthermore, that he would have exercised his discretion to disclose it, but for the fact that it was based on a conversation protected by executive privilege—which is, of course, the President’s prerogative to waive or to assert.

But, generally speaking, one may not hide behind a “privilege” to cover up a communication in furtherance of a crime or fraud. By logical extension, the President ought not to be able to hide behind a privilege in order to cover up a communication made in an effort to undermine the Constitution.

A wiser man that Acting Director Maguire would have seen that.

“Did You Talk with Trump about the Whistleblower Complaint”

Maguire refused to answer that question, on grounds of privilege, but let the fixed impression that yessiree, indeedy, he did that very little thing.

The privilege, however, would extend only to cover up the substance of a conversation, not identification of a topic discussed. Maguire apparently did not know that.

Trump’s Three Big Mistakes

In conclusion, let me talk about mistakes. You probably know Christopher Columbus’s three mistakes: when he started, he didn’t know where he was going; when he got there, he didn’t know where he was; and when he came back, he didn’t know where he had been.

By like token, Donald J. Trump has made three colossal errors. That is because Donald J. Trump is a delusional nincompoop.

His first error was to think that the “transcript” he released is exculpatory, when it fact is inculpatory.

His second error was failure to recognize that, by releasing the “transcript,” he was waiving any colorable claim of executive privilege concerning the subject matter of the document.

His third error was not understanding that his actions were going to lead him into a world of hurt.

**

* There seems to be some controversy about how many y’s are in the Ukrainian president’s name.

Circling the Wagons

circling the wagons

N.Y. Times, May 1, 2019 ,Biden Faces Conflict of Interest Questions That Are Being Promoted by Trump and Allies

Business Insider, Sept. 21, 2019, Here’s the truth about the allegations involving Joe Biden’s son and Ukraine drummed up by Trump and Rudy Guiliani

Republican senators, we are told, are by and large not circling the wagons around Trump. Meanwhile, it seems, lots of folks arecircling the wagons around Joe Biden. Claiming to have learned from Hillary Clinton’s missteps, they are refusing to answer questions about Hunter Biden and haranguing the press not to inquire.

Let me review the bidding here.

Hunter Biden, now aged 49, son of Joe Biden, is a Yale Law grad, sometime lobbyist, sometime business consultant, and sometime international dealmaker. Between 2014 and April of this year, Biden the Younger served as a director of Burisma Holdings, a Ukrainian corporation that produces natural gas. On the corporate board, Biden served along side a “high profile international” group of fellow directors assembled by the company’s principal, a Mr. Mykola Zlochevsky, typically described as a Ukrainian “oligarch.”

Some say that Mr. Zlochevsky and his company had a penchant for money laundering, tax evasion, and miscellaneous acts of corruption. These suspicions led the local authorities to investigate the alleged wrongdoing.

The extent of Burisma’s payments to Biden the Younger, and the reasons for those payments, are not clear. During all or part of his relationship with Burisma, he was wearing three hats:

  • first, as a Burisma director
  • second, as an employee of Boies Schiller Flexner, a well respected firm providing legal services to Burisma, the exact nature of which remains unknown, and, last but far from least,
  • as a principal in international consulting company that received millions in payments from Burisma.

Biden the younger has denied that his legal efforts involved any investigation of Burisma or Mr. Zlochevsky. According to the younger Biden, “I explicitly limited my role to focus on corporate governance best practices to facilitate Burisma’s desire to expand globally.” (That may or may not be the case, but one would suppose that, wearing his other hat, that of director, he would have a duty to be concerned with the company’s criminal exposure, if any.)

As for Biden the Elder, he has said that he learned of Biden the Younger’s excellent Ukrainian adventure by reading the newspapers—and that he never discussed these activities with his son. His son says that’s right.

Why Did Zlochevsky Hire Biden the Younger?

Three explanations are metaphysically possible.

One. Zlochevsky was bribing Joe Biden. Two. Zlochevsky was unsuccessfully attempting to bribe Joe Biden. (Unsuccessful, that is, because Biden the Younger paid over none of the loot to Biden the Elder, and because Biden the Elder took no account of his son’s activities.) Three, Zlochevsky regarded the payments as money well spent to create the impression that he had an in with the Vice President of the United States, who was at the time tasking a large interest in Ukrainian corruption, a topic with which Mr. Zlochevsky was familiar. Possibilities two and three are consistent with one another, and might both be true.

Joe’s Got Some ‘Splainin’ to Do

Sometimes our close friends and family do things that are unwise—even things that cause us serious harm. That’s just the way life is. A situation like that creates all sorts of dilemmas. It’s hard to know how to respond. And, in the final analysis, you can’t control the unwise decisions made by a son in his forties.

All that said, it just doesn’t work to say, when a reporter thrusts a microphone in your face and asks for comment, “Move along. Nothing to see here. Don’t ask me any more questions. And if you do ask me any more questions, obviously you’re a tool of Trump. And if you persist and keep on raising the issue, then I’ll just throw a hissy fit.”

Nor will it work to claim that “the real story is Donald Trump’s betrayal of his oath of office.”

Well, that’s ONE real story, all right.

But it’s not the ONLY real story.

I Can Relate to Biden—to the Elder and to the Younger

I can relate because I did a fair amount of legal work for bad actors on the international scene. Not to help them commit new crimes and frauds, but, yes, to help protect them from the crimes and frauds they may have committed in the past. And, in many cases, to help them clean up their act going forward.

But if my father had been a leading US politician, with a special concern over corruption in a particular foreign country, I would have had the sense to decline representation of malefactors in that country. And my father would have had a moral right to ask me to decline any such legal work.

Joe just cannot claim the moral high ground here while denying there is anything wrong and denouncing anyone who says otherwise.

That dog won’t hunt.

splainin