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.
Monday, December 30, 2019
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.
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*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.
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*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.
Wednesday, December 25, 2019
Mainstream Stories About Ukrainian "Interference"
All of that puts mainstream Republicans in an awkward position. On the one hand, they don't want to be caught quoting ridiculous conspiracy theories and make fools of themselves. On the other hand, if Donald Trump says there was Ukrainian interference in the election, then that is the party line and they must not dissent from it. So the response of mainstream Republicans has been to take the position that:
One: The current Ukrainian interior minister and a former prime minister said nasty things about candidate Trump on Facebook (in Ukranian). The author acknowledges that the Ukrainians' hostility toward Trump was somewhat understandable, given that they were being invaded by Russia and that Trump was running on a pro-Russian platform, even to the extent of allowing Russia to annex Ukrainian territory. In any event, it is not illegal foreign government officials to say mean things about US candidates on Facebook. It is illegal to hack servers and distribute private, hacked e-mails.
Two: The Ukrainian ambassador to the US published an editorial in The Hill strongly critical of Trump's pro-Russian stance. That is not illegal either.
The Facebook posts and the editorial are examples of white propaganda, i.e., material intended to persuade, with an acknowledged author. White propaganda is usually considered the least dangerous kind because the author is known, can be exposed as biased, and can be held accountable. The reason political ads identify who is paying for them is because of campaign finance laws requiring our political advertising to stay in the realm of white propaganda. And in any event, neither editorials nor Facebook posts are covered by campaign finance laws.
Three: Ukrainian journalist and member of parliament Serhei Leshchenko published a "black ledger" of payoffs by Ukraine's former pro-Russian government to various persons, including Trump's then-campaign chairman, Paul Manafort. Apparently Republicans recognize that it is going a bit far to ask Ukrainians to refrain from publishing a list of payoffs in their own domestic newspapers, lest it affect the US election. The main argument, therefore, is that the black ledger may not be genuine. The main evidence that it is not genuine is that the Mueller investigation did not charge Manafort for the payoffs listed in the ledger.
In any event, if this account of Leshchenko's publications are accurate, that, too, fits in the category of white propaganda. Leschchenko, it should be noted, disputes this account. According to Leshchenko, he received and published 22 pages of the black ledger (out of 400 to 800 total), none of which mentioned Manafort. He first learned that Manafort was named in the black ledger from an August 15, 2016 article in the New York Times. The National Anti-Corruption Bureau of Ukraine (NABU) confirmed the story a few days later, and it is fairly clear from the article that NABU was the source. So, a Ukrainian government bureau leaked information to the New York Times about payoffs to Manafort. This fits in the category of "gray propaganda," i.e., material intended to persuade, from an unknown author. That is somewhat more troubling than white propaganda. But the use of anonymous leakers is routine in journalism and there are no laws against publishing material from foreign leakers.
The Russian troll farm, by contrast, was black propaganda, i.e., material that actively conceals its source.
Four: Leshchenko was reported a source for Fusion GPS doing opposition research on Trump and family's foreign business dealings. More accurately, Nellie Ohr (wife of senior Justice Department official Bruce Ohr) mentioned that her bosses at Fusion GPS mentioned Leshchenko as a source. Leshchenko has denied any contact with anyone from Fusion GPS and speculates they may have been referring to his public speeches or interviews. Nellie Ohr also stated that her research was based on open sources, and that there was abundant work by Leshchenko available from open sources. In short, Leshchenko's work was probably a source for opposition research and might have been incorporated into gray propaganda if Fusion GPS's work ever became public, which it did not.
Five: Alexandra Chalupa. This is based mostly on a story in Politico that Alexandra Chalupa, a Ukrainian-American Democratic consultant, researched Paul Manafort and had extensive sources, some in Ukraine. In the process, she may have coordinated with both the DNC and the Ukrainian embassy in violation of laws against foreign interference in elections. So at last we have something that might constitute illegal foreign meddling, although we still know very little about it, and it was certainly nothing so direct as the e-mail Donald Trump, Jr. received telling him that the Russian government was going to share damaging information on Hillary Clinton as "part of Russia and its government’s support for Mr. Trump." Chalupa, for what it is worth, has declared herself eager to testify and clear her name.
So, mean Facebook posts, a hostile editorial, release of documents damaging to Paul Manafort, and possible assistance in researching Manafort. Not only is this rather weak tea, it raises an obvious question. If this is election "interference," just how common is it. Is Ukraine truly the only government ever to criticize a US candidate for president, or to release possibly damaging information?
And the answer, or course, is that Ukraine's actions are by no means unique. The most obvious example Binyamin Netanyahu, Prime Minster of Israel who made not secret in 2012 that he wanted Obama to lose. Netanyahu denounced Obama's Iran policy on Sunday talk shows, warmly welcomed Mitt Romney to Israel, and even ran an ad saying, "The world needs American strength, not apologies." This looked very much like "interference" in the US election -- albeit legal and limited to white propaganda. And in fairness to Netanyahu, the US had often returned the favor.
Election "interference" of this kind is perfectly legal and requires no investigation. It is generally considered ill-advised, for two reasons. One reason is that most people resent foreign meddling in their elections and too close an association with a foreign leader is more likely to harm than help a candidate. The other reason is that if a country's favored candidate loses, it puts the country on a bad footing with the winner.
But personal hostility is not usually enough to overcome national interest. Obama's personal relationship with Netanyahu was frosty after the 2012 election. Obama continued to pursue a more conciliatory policy toward Iran than Netanyahu cared for, and he continued to pressure Israel on West Bank settlements. But the basic strategic partnership between the US and Israel remained, and certainly Obama never withheld funding from Israel's Iron Dome defense to protect it from Hamas rockets.**
And plenty of other governments made hostile comments about candidate Trump in 2016, but without the same sort of retaliation. Fiona Hill's testimony in that regard is revealing:
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*Or, perhaps, that there was no hack, but that Seth Rich stole the e-mails and then Ukraine framed Russia for a non-existent hack.
**That is actually not a bad analogy. If Obama had withheld funding from Israel's Iron Dome in an effort to pressure a new Israeli government to "investigate" Netanyahu's actions in the 2012 election, that would have been a scandal of the highest order.
[T]hat opinion is based on the premise that either Russia or Ukraine interfered. It could not have been both. And the critics . . . appeared to suggest that Republicans, echoing the Kremlin, are somehow denying the fact of Russian interference. . . . In reality, what Republicans were saying is that it appears that both Russia and Ukraine interfered, although not on the same scale.The problem here is that, whatever Congressional Republicans may have been saying, Donald Trump has definitely been saying that it was Ukraine, not Russia, that was behind the DNC hack.* In an effort to stay on the right side of both Trump and reality, Republicans cite five instances of alleged Ukrainian "interference."
One: The current Ukrainian interior minister and a former prime minister said nasty things about candidate Trump on Facebook (in Ukranian). The author acknowledges that the Ukrainians' hostility toward Trump was somewhat understandable, given that they were being invaded by Russia and that Trump was running on a pro-Russian platform, even to the extent of allowing Russia to annex Ukrainian territory. In any event, it is not illegal foreign government officials to say mean things about US candidates on Facebook. It is illegal to hack servers and distribute private, hacked e-mails.
Two: The Ukrainian ambassador to the US published an editorial in The Hill strongly critical of Trump's pro-Russian stance. That is not illegal either.
The Facebook posts and the editorial are examples of white propaganda, i.e., material intended to persuade, with an acknowledged author. White propaganda is usually considered the least dangerous kind because the author is known, can be exposed as biased, and can be held accountable. The reason political ads identify who is paying for them is because of campaign finance laws requiring our political advertising to stay in the realm of white propaganda. And in any event, neither editorials nor Facebook posts are covered by campaign finance laws.
Three: Ukrainian journalist and member of parliament Serhei Leshchenko published a "black ledger" of payoffs by Ukraine's former pro-Russian government to various persons, including Trump's then-campaign chairman, Paul Manafort. Apparently Republicans recognize that it is going a bit far to ask Ukrainians to refrain from publishing a list of payoffs in their own domestic newspapers, lest it affect the US election. The main argument, therefore, is that the black ledger may not be genuine. The main evidence that it is not genuine is that the Mueller investigation did not charge Manafort for the payoffs listed in the ledger.
In any event, if this account of Leshchenko's publications are accurate, that, too, fits in the category of white propaganda. Leschchenko, it should be noted, disputes this account. According to Leshchenko, he received and published 22 pages of the black ledger (out of 400 to 800 total), none of which mentioned Manafort. He first learned that Manafort was named in the black ledger from an August 15, 2016 article in the New York Times. The National Anti-Corruption Bureau of Ukraine (NABU) confirmed the story a few days later, and it is fairly clear from the article that NABU was the source. So, a Ukrainian government bureau leaked information to the New York Times about payoffs to Manafort. This fits in the category of "gray propaganda," i.e., material intended to persuade, from an unknown author. That is somewhat more troubling than white propaganda. But the use of anonymous leakers is routine in journalism and there are no laws against publishing material from foreign leakers.
The Russian troll farm, by contrast, was black propaganda, i.e., material that actively conceals its source.
Four: Leshchenko was reported a source for Fusion GPS doing opposition research on Trump and family's foreign business dealings. More accurately, Nellie Ohr (wife of senior Justice Department official Bruce Ohr) mentioned that her bosses at Fusion GPS mentioned Leshchenko as a source. Leshchenko has denied any contact with anyone from Fusion GPS and speculates they may have been referring to his public speeches or interviews. Nellie Ohr also stated that her research was based on open sources, and that there was abundant work by Leshchenko available from open sources. In short, Leshchenko's work was probably a source for opposition research and might have been incorporated into gray propaganda if Fusion GPS's work ever became public, which it did not.
Five: Alexandra Chalupa. This is based mostly on a story in Politico that Alexandra Chalupa, a Ukrainian-American Democratic consultant, researched Paul Manafort and had extensive sources, some in Ukraine. In the process, she may have coordinated with both the DNC and the Ukrainian embassy in violation of laws against foreign interference in elections. So at last we have something that might constitute illegal foreign meddling, although we still know very little about it, and it was certainly nothing so direct as the e-mail Donald Trump, Jr. received telling him that the Russian government was going to share damaging information on Hillary Clinton as "part of Russia and its government’s support for Mr. Trump." Chalupa, for what it is worth, has declared herself eager to testify and clear her name.
So, mean Facebook posts, a hostile editorial, release of documents damaging to Paul Manafort, and possible assistance in researching Manafort. Not only is this rather weak tea, it raises an obvious question. If this is election "interference," just how common is it. Is Ukraine truly the only government ever to criticize a US candidate for president, or to release possibly damaging information?
And the answer, or course, is that Ukraine's actions are by no means unique. The most obvious example Binyamin Netanyahu, Prime Minster of Israel who made not secret in 2012 that he wanted Obama to lose. Netanyahu denounced Obama's Iran policy on Sunday talk shows, warmly welcomed Mitt Romney to Israel, and even ran an ad saying, "The world needs American strength, not apologies." This looked very much like "interference" in the US election -- albeit legal and limited to white propaganda. And in fairness to Netanyahu, the US had often returned the favor.
Election "interference" of this kind is perfectly legal and requires no investigation. It is generally considered ill-advised, for two reasons. One reason is that most people resent foreign meddling in their elections and too close an association with a foreign leader is more likely to harm than help a candidate. The other reason is that if a country's favored candidate loses, it puts the country on a bad footing with the winner.
But personal hostility is not usually enough to overcome national interest. Obama's personal relationship with Netanyahu was frosty after the 2012 election. Obama continued to pursue a more conciliatory policy toward Iran than Netanyahu cared for, and he continued to pressure Israel on West Bank settlements. But the basic strategic partnership between the US and Israel remained, and certainly Obama never withheld funding from Israel's Iron Dome defense to protect it from Hamas rockets.**
And plenty of other governments made hostile comments about candidate Trump in 2016, but without the same sort of retaliation. Fiona Hill's testimony in that regard is revealing:
I also mentioned in my deposition of October 14th that in fact many officials from many countries including Ukraine bet on the wrong horse. They believe that Secretary Clinton, former Senator Clinton, former First Lady Clinton was going to win. And many said some pretty disparaging and hurtful thing about President Trump. But I can't blame him for feeling aggrieved about them. And when we were setting up Head of State visits, remember I have a portfolio of 50 plus countries plus NATO and the European Union, we thought it prudent to collect as much as possible about comments that people might have said about the President during the campaign when he was either one of the candidates to be the nominee for the Republican party or when he was actually the candidate running against Hillary Clinton. And I'm sorry to say that awful lot and perhaps I shouldn't name them here because it will have conscience an awful lot of Senior Officials in many Goverance (ph) including our Allied Governments said some pretty hurtful things about The President.
And I would also personally take offense at some the things that were said if I were The President. Now the difference here however is that that hasn't had any major impact on his feelings towards those countries. Not that I have seen. But I've heard The President say, and he said it in public so I'm not revealing any kind of executive privilege here that Ukraine tried to take me down. What (ph) I have seen is this ill advised Ukrainian Officials, Ambassador Charlie been removed as being the Ambassador from here. Made some pretty unpleasant statements and above all some ill advised opeds. But I could list a whole host of Ambassadors from allied countries who tweeted out, who had public comments about The President as well. And it did not affect security assistance having meetings with them. If it would there been a lot of people he wouldn't have met with.That is an important point that no one else at the hearings seems to have made, and one that Republicans should answer if they are going to claim Ukrainian "interference."
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*Or, perhaps, that there was no hack, but that Seth Rich stole the e-mails and then Ukraine framed Russia for a non-existent hack.
**That is actually not a bad analogy. If Obama had withheld funding from Israel's Iron Dome in an effort to pressure a new Israeli government to "investigate" Netanyahu's actions in the 2012 election, that would have been a scandal of the highest order.
Nutty Stories About Ukrainian Interference
Wow! It's been a long time since I last posted! OK, on to the impeachment.
I must say that one thing that surprised me during this impeachment saga is talk about Ukrainian interference in the 2016 election. I knew that Donald Trump and some conspiracy-minded right wingers denied that Russia interfered in the 2016 election. I had just never heard Ukraine mentioned in that regard.
Let's start with the most basic fact that no one disputes because it took place so publicly as to be undeniable. Wikileaks published e-mails from the Democratic National Committee (DNC) and Hillary Clinton's campaign manager, John Podesta. That is beyond dispute. Also not seriously disputed is that goal of this was to hurt Hillary's campaign. So, how did Wikileaks get the e-mails?
I was well acquainted with stories (many of the originating with Julian Assange, head of Wikileaks), that the e-mails were provided by Seth Rich, a murdered DNC staffer. Such claims invariably hint, without quite saying, that Hillary then had Rich killed to silence him.* Realizing that their e-mails had been stolen, and guessing they would be revealed, the DNC then hired Crowdstrike (a cyber security firm) to fake evidence pinning the theft on a Russian hack. Central to this claim was that the Democrats did not turn over their server to the FBI.** In fact, there were some 140 DNC servers, and turning them over to the FBI would mean suspending operations. Making an electronic image of the hard drives is actually superior to taking them into evidence, because the contents of the hard drives are constantly changing. This is long-standing and accepted practice.***
So I was familiar with all this well before Trump's phone call with Ukrainian President Volodymyr Zelensky came out. But I had never heard so much as a hint of Ukrainian involvement. Where did that come in. Apparently there is belief that the servers were taken to Ukraine. The only evidence for such a belief appears to be that the founder of Crowdstrike has a Slavic name that might sound Ukrainian. (Actually, it is Russian and he is a naturalized citizen).
I have seen many articles since the phone call came out debunking the theory. The articles generally begin with the bizarre belief that Ukraine hid the server, explaining where the story might come from, and why it was not true. All agree that the purpose of the theory was to clear Russia of hacking the DNC and claim that Ukraine framed Russia. None of them address how, under this theory, Wikileaks came into possession of the DNC e-mails. Given that Wikileaks deployed the e-mails so as to do maximum damage to the Clinton campaign, it seems reasonable to assume that someone stole the DNC e-mails and turned them over to Wikileaks.****
I could see two alternative theories here. One is that there was no hack. Seth Rich stole the e-mails and turned them over to Wikileaks. The DNC, learning of the theft and fearing the stolen e-mails would come out, hired Crowdstrike to fake a hack. And Ukraine somehow ended up with the server. The alternate theory that I see suggested more than stated, is that Ukraine conducted the hack and then forged evidence blaming it on Russia. But that makes no sense at all. Since everyone agrees that the Ukrainians wanted Hillary Clinton to win, why would they turn over the e-mails to Wikileaks to deploy against her?
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*I used to think that was for fear that claiming Hillary had Seth Rich murdered was so over-the-top that proponents of the theories refrained from saying so for fear of looking ridiculous. Now I am starting to suspect another motive. US libel law makes it very difficult for a public figure (which Hillary obviously is) to sue. But falsely accusing her of murdering a DNC staffer just might be enough.
**I was once so naive as to think that, while any evidence the FBI turned up could be dismissed as a "deep state" plot, the involvement of a private company would strengthen the DNC argument, but that ignores how the conspiracist mindset works. If a private company found evidence of Russian hacking, the private company must be part of the conspiracy.
***This source is an article dated July 17, 2018 addressing the issue of the "missing" server. The article makes no mention of Ukraine -- or Seth Rich, for that matter.
****I would take "handed over" to include handed over through an intermediary. I suppose one could argue that someone stole the e-mails from the original e-mail thief and handed them over to Wikileaks, or that Wikileaks used the e-mails in a manner the thief did not intend. But it seems most implausible.
I must say that one thing that surprised me during this impeachment saga is talk about Ukrainian interference in the 2016 election. I knew that Donald Trump and some conspiracy-minded right wingers denied that Russia interfered in the 2016 election. I had just never heard Ukraine mentioned in that regard.
Let's start with the most basic fact that no one disputes because it took place so publicly as to be undeniable. Wikileaks published e-mails from the Democratic National Committee (DNC) and Hillary Clinton's campaign manager, John Podesta. That is beyond dispute. Also not seriously disputed is that goal of this was to hurt Hillary's campaign. So, how did Wikileaks get the e-mails?
I was well acquainted with stories (many of the originating with Julian Assange, head of Wikileaks), that the e-mails were provided by Seth Rich, a murdered DNC staffer. Such claims invariably hint, without quite saying, that Hillary then had Rich killed to silence him.* Realizing that their e-mails had been stolen, and guessing they would be revealed, the DNC then hired Crowdstrike (a cyber security firm) to fake evidence pinning the theft on a Russian hack. Central to this claim was that the Democrats did not turn over their server to the FBI.** In fact, there were some 140 DNC servers, and turning them over to the FBI would mean suspending operations. Making an electronic image of the hard drives is actually superior to taking them into evidence, because the contents of the hard drives are constantly changing. This is long-standing and accepted practice.***
So I was familiar with all this well before Trump's phone call with Ukrainian President Volodymyr Zelensky came out. But I had never heard so much as a hint of Ukrainian involvement. Where did that come in. Apparently there is belief that the servers were taken to Ukraine. The only evidence for such a belief appears to be that the founder of Crowdstrike has a Slavic name that might sound Ukrainian. (Actually, it is Russian and he is a naturalized citizen).
I have seen many articles since the phone call came out debunking the theory. The articles generally begin with the bizarre belief that Ukraine hid the server, explaining where the story might come from, and why it was not true. All agree that the purpose of the theory was to clear Russia of hacking the DNC and claim that Ukraine framed Russia. None of them address how, under this theory, Wikileaks came into possession of the DNC e-mails. Given that Wikileaks deployed the e-mails so as to do maximum damage to the Clinton campaign, it seems reasonable to assume that someone stole the DNC e-mails and turned them over to Wikileaks.****
I could see two alternative theories here. One is that there was no hack. Seth Rich stole the e-mails and turned them over to Wikileaks. The DNC, learning of the theft and fearing the stolen e-mails would come out, hired Crowdstrike to fake a hack. And Ukraine somehow ended up with the server. The alternate theory that I see suggested more than stated, is that Ukraine conducted the hack and then forged evidence blaming it on Russia. But that makes no sense at all. Since everyone agrees that the Ukrainians wanted Hillary Clinton to win, why would they turn over the e-mails to Wikileaks to deploy against her?
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*I used to think that was for fear that claiming Hillary had Seth Rich murdered was so over-the-top that proponents of the theories refrained from saying so for fear of looking ridiculous. Now I am starting to suspect another motive. US libel law makes it very difficult for a public figure (which Hillary obviously is) to sue. But falsely accusing her of murdering a DNC staffer just might be enough.
**I was once so naive as to think that, while any evidence the FBI turned up could be dismissed as a "deep state" plot, the involvement of a private company would strengthen the DNC argument, but that ignores how the conspiracist mindset works. If a private company found evidence of Russian hacking, the private company must be part of the conspiracy.
***This source is an article dated July 17, 2018 addressing the issue of the "missing" server. The article makes no mention of Ukraine -- or Seth Rich, for that matter.
****I would take "handed over" to include handed over through an intermediary. I suppose one could argue that someone stole the e-mails from the original e-mail thief and handed them over to Wikileaks, or that Wikileaks used the e-mails in a manner the thief did not intend. But it seems most implausible.
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