So, the latest in Iran.
The Iranians are issuing outrageous threats to "thirty-five vital American positions in the region," while Trump threatens to bomb fifty-two sites "at a very high level & important to Iran & the Iranian culture" in retaliation.
Once again, forgive me for analyzing this primarily from the perspective of US domestic politics. I realize the the international repercussions are the most important, but I am not qualified to so much as speculate.
From a domestic perspective, although this strike against Iran has not produced a rally-round-the-chief response, Iranian retaliation very well could. It may well be that targeting cultural sites is a war crime, but if Iranians start killing our fellow countrymen, I doubt that most Americans will care. (Twitterati will care, but Twitterati represents a minuscule share of the total population).
At the risk of seeming a bit treasonous, I am inclined to think the Iranians' best bet is to attack the oil. That will hurt economically (and not just us), but without producing the sort of outrage that killing Americans or attacking symbolic targets would do.
Another point to make -- Trump has successfully destroyed any chance of rapprochement with Iran if he loses the next election, so congratulations (I guess). Up until now I had advise to any Democrat winning in 2020 on how to restore the Joint Comprehensive Plan of Action (JCPOA). There would be no way to openly restore it -- no way to remove the sanctions in exchange for Iran returning to compliance. The Blob would be outraged. There would be grave warnings not to reward Iran for its violations of the JCPOA (our violations would remain unmentioned), and general grave pronouncements that negotiating before the other side has surrendered is appeasement.
Instead, my advice would have to announce an official channel to let humanitarian goods through. If that met with a positive response, begin, as quietly and discretely as possible, to relax secondary sanctions and allow other countries to work around them. Each step should be taken cautiously, awaiting positive response, but in the end we might hope to get to a de facto return to the JCPOA, while keeping the moral satisfaction of leaving sanctions in place.
But I would say this latest escalation has taken any such prospect off the table. There is no going back.
Saturday, January 4, 2020
Friday, January 3, 2020
A Little More International Perspective on the Air Strike
Juan Cole has offered at least some insights into Qatiab Hezbollah and where it may go after its leader was killed.
Qataib Hezbollah is part of the al-Fath Alliance in the Iraqi Parliament, which has 48 members. That might not same like much out of a total of 329, but it is the second largest group. (The largest is the "Forward" alliance with 54). Al-Fath is also part of the governing coalition and Qataib Hezbollah is under the nominal command of the Prime Minister.
Cole predicts that al-Fath may start mobilizing angry mobs as well as militias.
This has confused some Americans. Large crowds were protesting Iranian influence in Iraq and corruption. Then large crowds started protesting the US presence. What is going on? The obvious answer is, these large crowds do not contain the same people.
Qataib Hezbollah/the Popular Mobilization Forces/al-Fath are not anything close to a majority (remember, 48 seats out of 329). But they are a significant minority and highly mobilized and determined significant minorities can be formidable, especially if they have their own private army.
Never asked is to what extent the youth demonstrators protesting Iranian influence and corruption speak for a majority of Iraqis. Americans tend to assume that they do, but that is because we like their message.
And in any event, just because the youth demonstrators resent Iranian domination, does not necessarily mean that they welcome US domination. We made that same mistake back in 2003, assuming that just because Iraqis hated Saddam Hussein, they must necessarily love us.
Stay tuned.
Iraqi Airstrike from the Perspective of Domestic Politics
All sense of fairness, perspective, and patriotism combined to require me to wait for a decent interval after the airstrike killing General Suleimani before analyzing it from the perspective of domestic US politics.
And by a decent interval, of course, I mean one day.
So here goes.
My opinion in international terms remains the same. It was a brilliant tactical strike showing the extraordinary skill of our military and intelligence services. Whether it was an appropriate response to head off an imminent terrorist attack, and what the medium- to long-term ramifications are are unknown and unknowable at present. They will be revealed over time.
I must say, though, that I don't agree with people saying this was a rash and impulsive response to the attack on our embassy. An attack of this kind has to be planned out well in advance. My guess is that the drone strikes and the airstrike were part of a pre-conceived plan. That the attack on the embassy occurred during the interval was not part of our plan, but may have stiffened our resolve.
In terms of domestic policy.
First of all, coming in the middle of impeachment proceedings, this necessarily raises Wag the Dog questions. Is Trump escalating against Iran as a matter of national interest, or to distract from his domestic political problems. I have no idea.
On the other hand, the opposite question arises. Has Trump's particularly deranged tweeting recently been a clever attempt to distract people from an ongoing military operation? That would require more foresight and self control that he has generally shown, but you never know.
Second, I continue to believe that Trump knows nothing about policy and does not care to learn, refuses to pay attention to his security briefing, and has the emotional maturity and impulse control of a small child. This nonetheless has not prevented the military and the intelligence services from doing highly competent work.
Third, the very night the strike occurred I saw an article, on of many, speculating that Trump has dementia. This one went further than most, specifically predicting that by next year he will increasingly lose balance and become "uncommunicative." (Not clear what that means). By 2021 he will need a cane and become increasingly wheelchair bound. By 2022 he was start having problems with aspiration (choking). By 2023 he will be bedridden and need 24-7 care. Clearly by that time even Trump's most devoted followers will have to admit he is unfit to govern and the 25th Amendment will come into play. But in the meantime we might be faced with the prospect of a war, or at least a highly delicate international situation that could lead in unpredictable directions, under the leadership of a President whose cognitive abilities are degenerating fast. Not an encouraging prospect!
Finally, I have definite advice to all Democrats on what to say. Praise the tactical brilliance of the strike and then add that no one can know the long-range outcome and we must all hope and pray for the best while preparing for the worst. That is a nice vague statement that can't get you in trouble no matter what happens.
Finally, on a personal level, as the saying goes, two things can be true. (1) I am beside myself with anxiety, wonder what will be next and hating the absolute uncertainty of it, and (2) the countless commentators (expert and pundit alike) speculating on what comes next are driving me nuts!
And by a decent interval, of course, I mean one day.
So here goes.
My opinion in international terms remains the same. It was a brilliant tactical strike showing the extraordinary skill of our military and intelligence services. Whether it was an appropriate response to head off an imminent terrorist attack, and what the medium- to long-term ramifications are are unknown and unknowable at present. They will be revealed over time.
I must say, though, that I don't agree with people saying this was a rash and impulsive response to the attack on our embassy. An attack of this kind has to be planned out well in advance. My guess is that the drone strikes and the airstrike were part of a pre-conceived plan. That the attack on the embassy occurred during the interval was not part of our plan, but may have stiffened our resolve.
In terms of domestic policy.
First of all, coming in the middle of impeachment proceedings, this necessarily raises Wag the Dog questions. Is Trump escalating against Iran as a matter of national interest, or to distract from his domestic political problems. I have no idea.
On the other hand, the opposite question arises. Has Trump's particularly deranged tweeting recently been a clever attempt to distract people from an ongoing military operation? That would require more foresight and self control that he has generally shown, but you never know.
Second, I continue to believe that Trump knows nothing about policy and does not care to learn, refuses to pay attention to his security briefing, and has the emotional maturity and impulse control of a small child. This nonetheless has not prevented the military and the intelligence services from doing highly competent work.
Third, the very night the strike occurred I saw an article, on of many, speculating that Trump has dementia. This one went further than most, specifically predicting that by next year he will increasingly lose balance and become "uncommunicative." (Not clear what that means). By 2021 he will need a cane and become increasingly wheelchair bound. By 2022 he was start having problems with aspiration (choking). By 2023 he will be bedridden and need 24-7 care. Clearly by that time even Trump's most devoted followers will have to admit he is unfit to govern and the 25th Amendment will come into play. But in the meantime we might be faced with the prospect of a war, or at least a highly delicate international situation that could lead in unpredictable directions, under the leadership of a President whose cognitive abilities are degenerating fast. Not an encouraging prospect!
Finally, I have definite advice to all Democrats on what to say. Praise the tactical brilliance of the strike and then add that no one can know the long-range outcome and we must all hope and pray for the best while preparing for the worst. That is a nice vague statement that can't get you in trouble no matter what happens.
Finally, on a personal level, as the saying goes, two things can be true. (1) I am beside myself with anxiety, wonder what will be next and hating the absolute uncertainty of it, and (2) the countless commentators (expert and pundit alike) speculating on what comes next are driving me nuts!
Thursday, January 2, 2020
!!!
And, now an event powerful enough to drive impeachment into the background.
US forces bombed an Iranian convoy in Iraq, killing Iranian General Qassim Suleimani, head of the Iranian Revolutionary Guards (Quds, the intelligence service that runs the Iranian secret police and terrorist proxies throughout the world) and Abu Mahdi al-Muhandis, leader of Qataib Hezbollah, the pro-Iranian militia that attacked the US embassy in Iraq, together with a spokesman for the militia and two others.
According to Secretary of Defense Mark Esper, Suleimani's forces were planning additional attacks on US troops and diplomats throughout Iraq. If so, Suleimani was extraordinarily rash and arrogant in his actions and certain to overreach sooner or later. (Sooner, it turned out).
So what to make of this? I don't have the slightest idea. Still, a few uninformed comments.
First, clearly this was a brilliant tactical operation, supported by some extraordinary intelligence, so congratulations to our forces for a job well done.
Second, although Suleimani has headed Quds for some 20 years, it seems unlikely that this will be a decapitation strike that brings down the whole organization. Quds, by all accounts, is an entrenched bureaucracy that will be able to replace its leader.
Third, Suleimani's replacement may very well be just as bad, if not worse, but it seems unlikely that he will be as competent. By all accounts, Suleimani was extremely competent. Quds will not collapse or moderate, but it may be thrown into temporary confusion and permanently weakened.
Fourth, I have no idea whether Qataib Hezbollah will survive.
And finally, I do not know enough to even speculate on the long-term ramifications. I have heard everything from this is the beginning of the end of all Iranian influence throughout the region to this will engulf the Middle East in a massive war. (All from experts, by the way). So I will refrain from predictions and watch events unfold.
One inexpert comment, though. In general, optimism is not a good bet in the Mideast.
US forces bombed an Iranian convoy in Iraq, killing Iranian General Qassim Suleimani, head of the Iranian Revolutionary Guards (Quds, the intelligence service that runs the Iranian secret police and terrorist proxies throughout the world) and Abu Mahdi al-Muhandis, leader of Qataib Hezbollah, the pro-Iranian militia that attacked the US embassy in Iraq, together with a spokesman for the militia and two others.
According to Secretary of Defense Mark Esper, Suleimani's forces were planning additional attacks on US troops and diplomats throughout Iraq. If so, Suleimani was extraordinarily rash and arrogant in his actions and certain to overreach sooner or later. (Sooner, it turned out).
So what to make of this? I don't have the slightest idea. Still, a few uninformed comments.
First, clearly this was a brilliant tactical operation, supported by some extraordinary intelligence, so congratulations to our forces for a job well done.
Second, although Suleimani has headed Quds for some 20 years, it seems unlikely that this will be a decapitation strike that brings down the whole organization. Quds, by all accounts, is an entrenched bureaucracy that will be able to replace its leader.
Third, Suleimani's replacement may very well be just as bad, if not worse, but it seems unlikely that he will be as competent. By all accounts, Suleimani was extremely competent. Quds will not collapse or moderate, but it may be thrown into temporary confusion and permanently weakened.
Fourth, I have no idea whether Qataib Hezbollah will survive.
And finally, I do not know enough to even speculate on the long-term ramifications. I have heard everything from this is the beginning of the end of all Iranian influence throughout the region to this will engulf the Middle East in a massive war. (All from experts, by the way). So I will refrain from predictions and watch events unfold.
One inexpert comment, though. In general, optimism is not a good bet in the Mideast.
Wednesday, January 1, 2020
Impeachment Hearings, Continued
Also Day Three: Alexander Vindman and Jennifer Williams
This was a somewhat unusual pairing in that both parties brought the perspective of Washington; neither was stationed in Ukraine. Also somewhat unusual: I don't really understand the point of Williams' testimony. Vindman is a career military man who was serving on National Security Council (NSC) at all relevant times. Williams is a career diplomat worked for the Office of the Vice President at all relevant times. Both were present during the fatal phone call of July 25.
Vindman also attended the inauguration of President Zelensky. (He played no role in deciding who was to attend). He was also present when Ukrainian National Security Adviser Oleksandr Daniluk visited Washington and met with US national security officials and Gordon Sondland. It was during this meeting that Sondland insisted in investigations of the 2016 election, Burisma, and the Bidens. This led National Security Adviser John Bolton to cut the meeting short. Vindman told Sondland directly that such a demand was improper and reported it to the NSC lawyer. He also was present during the July 25 phone call and reported it to the NSC lawyer. He also testified (and Williams agreed) that a reference in the July 25 transcript to "the company" actually said "Burisma," and that it was most unusual that a US President, asking a foreign government to root out corruption, would mention a specific company. Vindman did not directly address security assistance.
Williams' testimony was mostly supplemental. She was also present on the phone call and thought it unusual to bring up specific individuals or companies. (She agreed that Burisma was specifically named). She attempted to schedule the Vice President's attendance at President Zelensky's inauguration, but had a very narrow window to schedule and was ultimately ordered from above, for unknown reasons, that he would not be attending. She was also present at a meeting in Warsaw between President Zelensky and Vice President Pence in which Zelensky asked about the hold on security assistance and Pence assured Zelensky of US support.
In his cross examination of the witnesses, Devin Nunes raised some questions about Ukraine that seemed quite alarming, if true. The fact that no other Republicans raised the issue led me to suspect that the allegations were false. (More on that later). He also pressed on identifying the whistle blower, until Chairman Schiff cut him off.
Day Four Gordon Sondland
Gordon Sondland testified alone, and properly so, I would say. Sondland was the only witness before the committee who had significant knowledge of events in both Washington and Ukraine. I did not find his testimony to be either as damning as Democrats believed, or as exculpatory as Republicans claimed. Furthermore, Sondland, like Volker, was far enough implicated in the whole scheme to have strong reasons to be self-serving.
Sondland began by acknowledging that he is not a note-taker and was not given access to official documents, so his memory was imperfect. He would also defer to career diplomats who were note takers. Like Volker, Sondland denied being part of any irregular back channel, and he kept all officials back in Washington apprised of what was going on. This was his primary emphasis throught his opening statement and, like Volker, it seems likely his emphasis was self-serving. Like Volker, he also denied knowing that investigating Burisma was code for investigating the Bidens, although he considered it clear in hindsight. Unlike Volker, he did understand "talk to Rudy" as a directive to talk to Rudy. Although he was never told why security aid was suspended, he did come to understand it was conditional on investigating Burisma and 2016. Sondland thus redoubled his efforts to get the Ukrainians to do those investigations, but did not press them to investigate the Bidens.
Sondland was present during the meeting between Ukrainian National Security Adviser Oleksandr Daniluk and members of the US National Security Council. He acknowledged pressing Daniluk on the need for investigations at that meeting, but denied that the demand led to any conflict. He was not present on the July 25 call and did not learn that anything improper happened until the transcript was made public. But he did prep Zelensky to discuss investigations before the call, and worked with him on preparing an announcement after the call. At the multilateral Warsaw conference, he pulled aside Zelensky's adviser Andrei Yermak to tell him that security aid depended on investigations. And at some point he proposed that the prosecutor general announce the investigation, only to be told that it had to be Pesident Zelensky. Probably also significant and consistent with the testimony of every other witness -- no one Sondland talked to favored withholding the military aid.
Sondland's supposedly most damning testimony was:
This was a somewhat unusual pairing in that both parties brought the perspective of Washington; neither was stationed in Ukraine. Also somewhat unusual: I don't really understand the point of Williams' testimony. Vindman is a career military man who was serving on National Security Council (NSC) at all relevant times. Williams is a career diplomat worked for the Office of the Vice President at all relevant times. Both were present during the fatal phone call of July 25.
Vindman also attended the inauguration of President Zelensky. (He played no role in deciding who was to attend). He was also present when Ukrainian National Security Adviser Oleksandr Daniluk visited Washington and met with US national security officials and Gordon Sondland. It was during this meeting that Sondland insisted in investigations of the 2016 election, Burisma, and the Bidens. This led National Security Adviser John Bolton to cut the meeting short. Vindman told Sondland directly that such a demand was improper and reported it to the NSC lawyer. He also was present during the July 25 phone call and reported it to the NSC lawyer. He also testified (and Williams agreed) that a reference in the July 25 transcript to "the company" actually said "Burisma," and that it was most unusual that a US President, asking a foreign government to root out corruption, would mention a specific company. Vindman did not directly address security assistance.
Williams' testimony was mostly supplemental. She was also present on the phone call and thought it unusual to bring up specific individuals or companies. (She agreed that Burisma was specifically named). She attempted to schedule the Vice President's attendance at President Zelensky's inauguration, but had a very narrow window to schedule and was ultimately ordered from above, for unknown reasons, that he would not be attending. She was also present at a meeting in Warsaw between President Zelensky and Vice President Pence in which Zelensky asked about the hold on security assistance and Pence assured Zelensky of US support.
In his cross examination of the witnesses, Devin Nunes raised some questions about Ukraine that seemed quite alarming, if true. The fact that no other Republicans raised the issue led me to suspect that the allegations were false. (More on that later). He also pressed on identifying the whistle blower, until Chairman Schiff cut him off.
Day Four Gordon Sondland
Gordon Sondland testified alone, and properly so, I would say. Sondland was the only witness before the committee who had significant knowledge of events in both Washington and Ukraine. I did not find his testimony to be either as damning as Democrats believed, or as exculpatory as Republicans claimed. Furthermore, Sondland, like Volker, was far enough implicated in the whole scheme to have strong reasons to be self-serving.
Sondland began by acknowledging that he is not a note-taker and was not given access to official documents, so his memory was imperfect. He would also defer to career diplomats who were note takers. Like Volker, Sondland denied being part of any irregular back channel, and he kept all officials back in Washington apprised of what was going on. This was his primary emphasis throught his opening statement and, like Volker, it seems likely his emphasis was self-serving. Like Volker, he also denied knowing that investigating Burisma was code for investigating the Bidens, although he considered it clear in hindsight. Unlike Volker, he did understand "talk to Rudy" as a directive to talk to Rudy. Although he was never told why security aid was suspended, he did come to understand it was conditional on investigating Burisma and 2016. Sondland thus redoubled his efforts to get the Ukrainians to do those investigations, but did not press them to investigate the Bidens.
Sondland was present during the meeting between Ukrainian National Security Adviser Oleksandr Daniluk and members of the US National Security Council. He acknowledged pressing Daniluk on the need for investigations at that meeting, but denied that the demand led to any conflict. He was not present on the July 25 call and did not learn that anything improper happened until the transcript was made public. But he did prep Zelensky to discuss investigations before the call, and worked with him on preparing an announcement after the call. At the multilateral Warsaw conference, he pulled aside Zelensky's adviser Andrei Yermak to tell him that security aid depended on investigations. And at some point he proposed that the prosecutor general announce the investigation, only to be told that it had to be Pesident Zelensky. Probably also significant and consistent with the testimony of every other witness -- no one Sondland talked to favored withholding the military aid.
Sondland's supposedly most damning testimony was:
I know that members of this committee frequently frame these complicated issues in the form of a simple question. Was there a quid pro quo?
As I testified previously, with regard to the requested White House call and the White House meeting, the answer is yes.
Mr. Giuliani conveyed to Secretary Perry, Ambassador Volker, and others that President Trump wanted a public statement from President Zelensky committing to investigations of Burisma and the 2016 election. Mr. Giuliani expressed those requests directly to the Ukrainians and Mr. Giuliani also expressed those requests directly to us. We all understood that these prerequisites for the White House call and the right -- White House meeting reflected President Trump's desires and requirements.
But an opponent of impeachment might respond, so what. Quid pro quo simply means an exchange of value, which is the lifeblood of diplomacy, just as it is the lifeblood of business or politics. The real questions is not whether there was a quid pro quo, but whether there was a corrupt quid pro quo, and this statement leaves room for doubt. Sondland speaks of exchanging a White House visit for investigation of Burisma and the 2016 election, not of exchanging military aid for investigation of the Bidens. And, after all, a president has absolute discretion to decide what foreign leaders he wants to invite to the White House, while the military aid was appropriated by Congress and was mandatory. and Burisma, at least, might be seen as investigating domestic corruption, rather than intervening in US politics. Even the 2016 election cannot absolutely rule out the possibility that Alexandra Chalupa might have improperly cooperated with the Ukrainian embassy. But he also made clear that Trump never expressly told him that aid was tied to investigations.*
The supposedly exculpatory statement occurred on September 9 when Sondland asked Trump what he wanted in order to release military aid and Trump said, "I want nothing. I want no quid pro quo. Tell Zelensky to do the right thing." This is entirely unconvincing for two reasons. First, it was spoken after the scandal had become public, so anything Trump might say (even in private) was obviously self-serving. Second, saying you are making no demands, followed by a demand is obviously self-refuting.
The fourth day was a long day, with Gordon Sondland followed by testimony from Laura Cooper and David Hale (no opening statement). Both are career employees, Cooper the Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia and Hale the Undersecretary of State for Political affairs. Both witnesses brought the perspective of Washington, not Ukraine.
Anything else they had to say was overshadowed by a bombshell dropped by Laura Cooper. Up until then, Trump's defenders might argue that he could not have used military aid to pressure the Ukrainians because they were not aware of the hold until it appeared in Politico. Cooper revealed that her staff had searched their e-mails and discovered two from the Ukrainian embassy complaining about a hold on security assistance on July 25, the day of the infamous phone call. She did not know how the Ukrainians learned of the hold. Any concerns about the had had been certified by the Pentagon in May. Every agency except the OMB favored release of the aid.
Hale was a witness requested by Republicans. He testified that military aid has been withheld from other countries too, such as Pakistan, Lebanon, and countries in Central America.
This testimony took place at night after Sondland's testimony and, it seems safe to assume, the committee members were tired. Schiff decided to forego his usual 45 minute question and answer sessions the two party leaders on the committee and their lawyers and go directly to 5-minute question sessions. On the whole it was one of the more forgettable sessions, other than Laura Cooper's bombshell.
The fourth day was a long day, with Gordon Sondland followed by testimony from Laura Cooper and David Hale (no opening statement). Both are career employees, Cooper the Deputy Assistant Secretary of Defense for Russia, Ukraine and Eurasia and Hale the Undersecretary of State for Political affairs. Both witnesses brought the perspective of Washington, not Ukraine.
Anything else they had to say was overshadowed by a bombshell dropped by Laura Cooper. Up until then, Trump's defenders might argue that he could not have used military aid to pressure the Ukrainians because they were not aware of the hold until it appeared in Politico. Cooper revealed that her staff had searched their e-mails and discovered two from the Ukrainian embassy complaining about a hold on security assistance on July 25, the day of the infamous phone call. She did not know how the Ukrainians learned of the hold. Any concerns about the had had been certified by the Pentagon in May. Every agency except the OMB favored release of the aid.
Hale was a witness requested by Republicans. He testified that military aid has been withheld from other countries too, such as Pakistan, Lebanon, and countries in Central America.
This testimony took place at night after Sondland's testimony and, it seems safe to assume, the committee members were tired. Schiff decided to forego his usual 45 minute question and answer sessions the two party leaders on the committee and their lawyers and go directly to 5-minute question sessions. On the whole it was one of the more forgettable sessions, other than Laura Cooper's bombshell.
______________________________________
*Sondland appears to be the only witness to talk to President Trump directly.
Monday, December 30, 2019
Comments on the Impeachment Witnesses, Days 1-3
I don't intend to discuss the impeachment hearings in detail, just to give my brief impressions of the witnesses and their testimony.
Day One: William Taylor and George Kent.
These were the first witnesses. A lawyer's usual strategy is to end with the strongest witness, start with the second-strongest, and put weaker witnesses in the middle. Taylor was the acting ambassador to Ukraine at the time of the relevant events; George Kent is Deputy Assistant Secretary of State for European Affairs. In other words, Taylor had the Ukrainian perspective and Kent the Washington perspective.
Taylor was a strong witness. He gave a detailed chronological account of events, date by date, based on contemporaneous notes that he took. He reported that when serving as acting ambassador, he began to notice that there was a second, irregular channel of communications, consisting of the Three Amigos -- Gordon Sondland, Kurt Volker and Rick Perry. At first the irregular channel seemed to share his goal -- to arrange a meeting between President Trump and Ukrainian President Zelensky.
But by mid-July, it was apparent to Taylor that the meeting was conditioned on investigation of Burisma, and alleged Ukrainian interference and the 2016 U.S. elections. Taylor also realized about the same time that security assistance was on hold, but did not immediately connect the two. That left Taylor in an awkward position. Ukrainians very appreciative of US security assistance and Taylor aware that assistance had been withheld and not authorized to disclose this fact and not knowing why. Taylor first learned of the link on September 1 when he received a readout of a call between Zelensky and Vice President Pence that quoted Sondland linking military aid to "investigations." He promptly texted Sondland -- to create a paper trail, many of us suspect. Sondland promptly answered, "Call me," -- to avoid a paper trail, many suspect. Sondland confirmed in the call that security aid as well as the White House meeting depended on a public commitment to "investigations."
All these discussions of "investigations" invariably just mentioned Burisma and the 2016 election but Taylor figured out along the way that "investigations" implied the Bidens. (No specific date of revelation; the only thing not dated). Sondland quoted Trump as denying a "quid pro quo," but saying that without investigations things were at a "stalemate" and that when a businessman is about to sign a check to someone who owes him something, the businessman asks that person to pay up before signing the check. (Not made clear: What the Ukrainians "owed" Trump). The release was made September 11, and Taylor followed up by urging the Ukrainians not to announce "investigations." Indeed, no investigations were announced.
Kent gave decidedly less information in his opening statement and answered many fewer questions. He did, however, make the point that if the genuine concern was corruption, there were official channels to follow, that Vice President Joe Biden did have a potential conflict of interest pressing Ukraine on corruption while his son was serving on the Burisma board of directors, but that there was never any attempt by the US government (Obama Administration) to shield Burisma and many calls to resume investigation.
Day Two, Marie Yovanovich.
Marie Yovanovich was the Ambassador to Ukraine before William Taylor. She was removed as a result of smears, largely orchestrated by Rudy Giuliani. I did not find her testimony very useful, to be honest. She was recalled before the relevant events and therefore did not witness any of them. Her opening statement focused mostly on refuting various smears, and the questions asked by the committee were painfully focused on her feelings (perhaps because she is a woman).
Day Three, Kurt Volker and Tim Morrison.
Volker and Morrison are considered defense (i.e., Republican) witnesses. Once again, Volker was the witness to events in Ukraine and Morrison the witness to events in Washington.
Volker is a retired career diplomat, brought back into service to serve as one of the Three Amigos. His testimony seemed more focused on defending his own conduct than in defending Trump. Volker emphasized his highly reputable background, his role and an official, not irregular, channel, and his hawkishness toward Russia. Yet his advocacy of Ukraine was being undermined by the old Prosecutor General and by Rudy Giuliani. Volker maintained that Giuliani was acting as a private citizen and had no role in setting policy, and that he believed both Trump and Giuliani were acting out of a good-faith concern about corruption. Although Giuliani did specifically mention the Bidens, Volker assured him there was nothing to the allegation. While Volker hoped that a generic commitment to fighting "corruption" would be sufficient, Giuliani insisted that the Ukrainians mention "Burisma" and "2016." He also denied being aware of the July 25 phone call until it was made public (undoubtedly true), knowing that security assistance as well as a White House visit was tied to "investigations," (possible) or knowing that "Burisma" was code for Biden (extraordinarily naive, if true).
Volker's opening statement makes clear that Rudy Giuliani was making demands about what sort of announcement was needed before President Trump would give the Ukrainians a White House meeting, and also that he was negotiating with the Ukrainians to give the sort of statement Giuliani wanted. He seems strangely unaware that that effectively meant that a private citizen -- and Donald Trump's personal lawyer at that -- was dictating Ukraine policy. Indeed, Giuliani was clearly Trump's main source of information on Ukraine. When the Three Amigos' account did not agree with Giuliani's, Trump would say, "Talk to Rudy." Volker insisted, under questioning, that he had no idea that that was a directive to talk to Rudy.
In short, Volker made a terrible defense witness. He made no attempt whatever to defend Trump's conduct on the July 25 call, only to dissociate himself from it.
Morrison was the senior policy director for Europe on the National Security Council. He testified that he saw nothing illegal on the July 25 call and only notified the NSC lawyer because it was politically embarrassing, and denied having any role in subjecting the call to an inordinately high security rating. He did also emphasize his commitment to Ukraine's defense and his disappointment in the July 25 call. He also referred to Sondland and Giuliani as a "parallel process." Unlike Volker, Morrison said he was aware that investigating Burisma meant investigating the Bidens, and that Trump was withholding military aid to coerce the investigation. Like Volker, Morrison made no attempt to defend the policy on the merits. His defense was that it was merely a bad policy and not actually illegal.
To date, no witness has defendant Trump's actions as appropriate.
Day One: William Taylor and George Kent.
These were the first witnesses. A lawyer's usual strategy is to end with the strongest witness, start with the second-strongest, and put weaker witnesses in the middle. Taylor was the acting ambassador to Ukraine at the time of the relevant events; George Kent is Deputy Assistant Secretary of State for European Affairs. In other words, Taylor had the Ukrainian perspective and Kent the Washington perspective.
Taylor was a strong witness. He gave a detailed chronological account of events, date by date, based on contemporaneous notes that he took. He reported that when serving as acting ambassador, he began to notice that there was a second, irregular channel of communications, consisting of the Three Amigos -- Gordon Sondland, Kurt Volker and Rick Perry. At first the irregular channel seemed to share his goal -- to arrange a meeting between President Trump and Ukrainian President Zelensky.
But by mid-July, it was apparent to Taylor that the meeting was conditioned on investigation of Burisma, and alleged Ukrainian interference and the 2016 U.S. elections. Taylor also realized about the same time that security assistance was on hold, but did not immediately connect the two. That left Taylor in an awkward position. Ukrainians very appreciative of US security assistance and Taylor aware that assistance had been withheld and not authorized to disclose this fact and not knowing why. Taylor first learned of the link on September 1 when he received a readout of a call between Zelensky and Vice President Pence that quoted Sondland linking military aid to "investigations." He promptly texted Sondland -- to create a paper trail, many of us suspect. Sondland promptly answered, "Call me," -- to avoid a paper trail, many suspect. Sondland confirmed in the call that security aid as well as the White House meeting depended on a public commitment to "investigations."
All these discussions of "investigations" invariably just mentioned Burisma and the 2016 election but Taylor figured out along the way that "investigations" implied the Bidens. (No specific date of revelation; the only thing not dated). Sondland quoted Trump as denying a "quid pro quo," but saying that without investigations things were at a "stalemate" and that when a businessman is about to sign a check to someone who owes him something, the businessman asks that person to pay up before signing the check. (Not made clear: What the Ukrainians "owed" Trump). The release was made September 11, and Taylor followed up by urging the Ukrainians not to announce "investigations." Indeed, no investigations were announced.
Kent gave decidedly less information in his opening statement and answered many fewer questions. He did, however, make the point that if the genuine concern was corruption, there were official channels to follow, that Vice President Joe Biden did have a potential conflict of interest pressing Ukraine on corruption while his son was serving on the Burisma board of directors, but that there was never any attempt by the US government (Obama Administration) to shield Burisma and many calls to resume investigation.
Day Two, Marie Yovanovich.
Marie Yovanovich was the Ambassador to Ukraine before William Taylor. She was removed as a result of smears, largely orchestrated by Rudy Giuliani. I did not find her testimony very useful, to be honest. She was recalled before the relevant events and therefore did not witness any of them. Her opening statement focused mostly on refuting various smears, and the questions asked by the committee were painfully focused on her feelings (perhaps because she is a woman).
Day Three, Kurt Volker and Tim Morrison.
Volker and Morrison are considered defense (i.e., Republican) witnesses. Once again, Volker was the witness to events in Ukraine and Morrison the witness to events in Washington.
Volker is a retired career diplomat, brought back into service to serve as one of the Three Amigos. His testimony seemed more focused on defending his own conduct than in defending Trump. Volker emphasized his highly reputable background, his role and an official, not irregular, channel, and his hawkishness toward Russia. Yet his advocacy of Ukraine was being undermined by the old Prosecutor General and by Rudy Giuliani. Volker maintained that Giuliani was acting as a private citizen and had no role in setting policy, and that he believed both Trump and Giuliani were acting out of a good-faith concern about corruption. Although Giuliani did specifically mention the Bidens, Volker assured him there was nothing to the allegation. While Volker hoped that a generic commitment to fighting "corruption" would be sufficient, Giuliani insisted that the Ukrainians mention "Burisma" and "2016." He also denied being aware of the July 25 phone call until it was made public (undoubtedly true), knowing that security assistance as well as a White House visit was tied to "investigations," (possible) or knowing that "Burisma" was code for Biden (extraordinarily naive, if true).
Volker's opening statement makes clear that Rudy Giuliani was making demands about what sort of announcement was needed before President Trump would give the Ukrainians a White House meeting, and also that he was negotiating with the Ukrainians to give the sort of statement Giuliani wanted. He seems strangely unaware that that effectively meant that a private citizen -- and Donald Trump's personal lawyer at that -- was dictating Ukraine policy. Indeed, Giuliani was clearly Trump's main source of information on Ukraine. When the Three Amigos' account did not agree with Giuliani's, Trump would say, "Talk to Rudy." Volker insisted, under questioning, that he had no idea that that was a directive to talk to Rudy.
In short, Volker made a terrible defense witness. He made no attempt whatever to defend Trump's conduct on the July 25 call, only to dissociate himself from it.
Morrison was the senior policy director for Europe on the National Security Council. He testified that he saw nothing illegal on the July 25 call and only notified the NSC lawyer because it was politically embarrassing, and denied having any role in subjecting the call to an inordinately high security rating. He did also emphasize his commitment to Ukraine's defense and his disappointment in the July 25 call. He also referred to Sondland and Giuliani as a "parallel process." Unlike Volker, Morrison said he was aware that investigating Burisma meant investigating the Bidens, and that Trump was withholding military aid to coerce the investigation. Like Volker, Morrison made no attempt to defend the policy on the merits. His defense was that it was merely a bad policy and not actually illegal.
To date, no witness has defendant Trump's actions as appropriate.
Sunday, December 29, 2019
Impeachment Hearings: Some Preliminary Comments
All right, on to the impeachment hearings, knowing it is rather late. To be clear, I did not watch the hearings on TV (some of us have day jobs), but I did read the opening statements of all witnesses and listen to Lawfare Podcast recordings of their testimony, edited to ensure "no member-infighting, no speechifying, and no unnecessary fluff."
I will begin with a few comments as a lawyer.
Comment number 1: The hearings did not follow the rules of evidence as to what would be admissible at trial. Normally witnesses (with the exception of experts) are limited to what they could perceive with their five senses -- what did they see, hear, touch, smell and taste. What witnesses heard other people say is hearsay and is not admissible, subject to numerous exceptions. Witnesses are also not allowed to testify to what thought or concluded, or what was obvious but never expressly said or seen. Committee witnesses testified to hearsay, opinions and general impressions all the time.
This is not necessarily wrong. An impeachment is not the same as a trial (criminal or civil). Impeachment has been likened to an indictment and the actual "trial" taking place in the Senate. The rules of what is admissible in an indictment are much broader than what is admissible at trial.
There are other differences as well. In a trial, any juror who knows the defendant, much less has a working relationship, is automatically disqualified. A President necessarily has a working relationship with members of Congress. That is an essential part of the job. President Trump has also been attempting to influence Republicans in Congress (mostly the Senate) in ways that would land him in jail in an ordinary trial. So maybe it is appropriate to offset these advantages to the defendant with broader rules of admissibility.
Comment number 2: Witness testimony took a different form than it does in a trial. In a trial, the lawyers begin with opening statements explaining what they are going to present. Witnesses then come and testify exclusively in a Q&A format. Witnesses are not allowed to make speeches. The lawyer introducing a witness must establish the witness's account through the Q&A format and is not allowed to ask leading questions. The opposing party attempts to undermine the witness's testimony is is allowed (though not required) to ask leading questions.*
In the impeachment hearings, the witnesses began with an opening statement. The committee members and committee lawyers then asked questions (open and leading) based on the witness's opening statements, but often bringing up additional information not mentioned in opening. (All members knew what to expect, since they had previously interviewed the witnesses in closed hearings). Committee members also took some of their time to make speeches, which is never allowed in a trial. And, as mentioned above, the witnesses testified to a good deal more than would have been allowed at trial, but also took care to mention that it was not for them to decide whether President Trump's conduct was legal or illegal, impeachable or not impeachable.
Another difference (obviously) is that at trial only one witness testified at a time. In the impeachment hearing, there were usually two witnesses called at once -- most typically one to testify about events in Ukraine and one to testify to events in Washington.
Comment number 3: Despite these differences, the overall approach was what a lawyer would expect. Democrats attempted to build a case; Republicans attempted to knock it down. In particular, Democrats had witnesses present an account; Republicans tried to punch holes in the account. They got admissions, for instance, that the witnesses in Washington did not know in detail what was going on in Ukraine, and that the witnesses in Ukraine did not know what was going on in Washington and never heard the relevant telephone conversation. They got the admission that military aid to Ukraine was eventually released even though no investigation was ever announced. Republicans exposed various other gaps in the witnesses' knowledge and probed for bias. They did not make any serious attempt at a counter-case. And this is fine. It leaves non-lawyers unimpressed, but it is absolutely standard practice for defense lawyers. Defense lawyers are only required to knock down the case against their clients; they are not required to build a case of their own.
Comment number 4: There was one major outlier, and it was not Jim Jordan. Many people commented on Jim Jordan appearing in his shirt sleeves (it's his schtick, deal with it), or yelling and ranting, but the substance of what he said was no different from the other Republicans -- an attempt to poke holes in the witnesses' testimony.
The real outlier was Devin Nunes, who said some very strange things. A typical trial begins with an opening statement in which the party seeking to prove its case explaining what its case is and what evidence it intends to present. That is what Adam Schiff did. The opposing party then points out defects in the case being made and (usually) presents it own theory of what happened. Devin Nunes instead engaged in a political and conspiratorial rant, convincing only to the party faithful. His questions to witnesses raised signs of conspiracy between Burisma and the Bidens that would be genuinely alarming if true. But that fact that no one else addressed these allegations was a strong hint that there was nothing there. I will get to this in a later post.
_________________________________________
*And although every academic work explaining questioning to lawyers warns them to ask only leading questions on cross examination, I have never yet seen a lawyer who actually did that. I have also found the ban on asking one's own witness leading questions is not as rigid in practice as it may be in theory.
I will begin with a few comments as a lawyer.
Comment number 1: The hearings did not follow the rules of evidence as to what would be admissible at trial. Normally witnesses (with the exception of experts) are limited to what they could perceive with their five senses -- what did they see, hear, touch, smell and taste. What witnesses heard other people say is hearsay and is not admissible, subject to numerous exceptions. Witnesses are also not allowed to testify to what thought or concluded, or what was obvious but never expressly said or seen. Committee witnesses testified to hearsay, opinions and general impressions all the time.
This is not necessarily wrong. An impeachment is not the same as a trial (criminal or civil). Impeachment has been likened to an indictment and the actual "trial" taking place in the Senate. The rules of what is admissible in an indictment are much broader than what is admissible at trial.
There are other differences as well. In a trial, any juror who knows the defendant, much less has a working relationship, is automatically disqualified. A President necessarily has a working relationship with members of Congress. That is an essential part of the job. President Trump has also been attempting to influence Republicans in Congress (mostly the Senate) in ways that would land him in jail in an ordinary trial. So maybe it is appropriate to offset these advantages to the defendant with broader rules of admissibility.
Comment number 2: Witness testimony took a different form than it does in a trial. In a trial, the lawyers begin with opening statements explaining what they are going to present. Witnesses then come and testify exclusively in a Q&A format. Witnesses are not allowed to make speeches. The lawyer introducing a witness must establish the witness's account through the Q&A format and is not allowed to ask leading questions. The opposing party attempts to undermine the witness's testimony is is allowed (though not required) to ask leading questions.*
In the impeachment hearings, the witnesses began with an opening statement. The committee members and committee lawyers then asked questions (open and leading) based on the witness's opening statements, but often bringing up additional information not mentioned in opening. (All members knew what to expect, since they had previously interviewed the witnesses in closed hearings). Committee members also took some of their time to make speeches, which is never allowed in a trial. And, as mentioned above, the witnesses testified to a good deal more than would have been allowed at trial, but also took care to mention that it was not for them to decide whether President Trump's conduct was legal or illegal, impeachable or not impeachable.
Another difference (obviously) is that at trial only one witness testified at a time. In the impeachment hearing, there were usually two witnesses called at once -- most typically one to testify about events in Ukraine and one to testify to events in Washington.
Comment number 3: Despite these differences, the overall approach was what a lawyer would expect. Democrats attempted to build a case; Republicans attempted to knock it down. In particular, Democrats had witnesses present an account; Republicans tried to punch holes in the account. They got admissions, for instance, that the witnesses in Washington did not know in detail what was going on in Ukraine, and that the witnesses in Ukraine did not know what was going on in Washington and never heard the relevant telephone conversation. They got the admission that military aid to Ukraine was eventually released even though no investigation was ever announced. Republicans exposed various other gaps in the witnesses' knowledge and probed for bias. They did not make any serious attempt at a counter-case. And this is fine. It leaves non-lawyers unimpressed, but it is absolutely standard practice for defense lawyers. Defense lawyers are only required to knock down the case against their clients; they are not required to build a case of their own.
Comment number 4: There was one major outlier, and it was not Jim Jordan. Many people commented on Jim Jordan appearing in his shirt sleeves (it's his schtick, deal with it), or yelling and ranting, but the substance of what he said was no different from the other Republicans -- an attempt to poke holes in the witnesses' testimony.
The real outlier was Devin Nunes, who said some very strange things. A typical trial begins with an opening statement in which the party seeking to prove its case explaining what its case is and what evidence it intends to present. That is what Adam Schiff did. The opposing party then points out defects in the case being made and (usually) presents it own theory of what happened. Devin Nunes instead engaged in a political and conspiratorial rant, convincing only to the party faithful. His questions to witnesses raised signs of conspiracy between Burisma and the Bidens that would be genuinely alarming if true. But that fact that no one else addressed these allegations was a strong hint that there was nothing there. I will get to this in a later post.
_________________________________________
*And although every academic work explaining questioning to lawyers warns them to ask only leading questions on cross examination, I have never yet seen a lawyer who actually did that. I have also found the ban on asking one's own witness leading questions is not as rigid in practice as it may be in theory.
Subscribe to:
Posts (Atom)