Just the Tips?

 

The FBI said some of the 4,500 tips it received about Justice Brett Kavanaugh during its investigation into sexual misconduct allegations against him were given to the Trump White House, leading some Democrats to call the process a sham. https://t.co/vp4eq75JLC

— The New York Times (@nytimes) July 22, 2021

I didn't think that I'd be blogging about this again so soon, but apparently, the FBI hotline into Brett Kavanaugh's conduct led to 4,500 tips, and you'll never guess what happened next:

In a letter dated June 30 to two Democratic senators, Sheldon Whitehouse of Rhode Island and Chris Coons of Delaware, an F.B.I. assistant director, Jill C. Tyson, said that the most “relevant” of the 4,500 tips the agency received during an investigation into Mr. Kavanaugh’s past were referred to White House lawyers in the Trump administration, whose handling of them remains unclear. 

The letter left uncertain whether the F.B.I. itself followed up on the most compelling leads. The agency was conducting a background check rather than a criminal investigation, meaning that “the authorities, policies, and procedures used to investigate criminal matters did not apply,” the letter said.

And my guess from that is then Don McGahn bundled them up, loaded them onto a raft, doused them in kerosene, and let the whole mess sail down the Potomac as he played "Dust in the Wind". 

Admittedly, I do have a particularly picturesque imagination. 

So yes, Alice, this did just get "curiouser and curiouser". Of course, tiplines do generate duplicate claims and sometimes sheer nonsense, but what a series of rabbit holes are suggested here!

Eventually McGahn-a Testify?

So, this is totally being appealed and we'll just see where that leads, but Judge Ketanji Brown Jackson basically dismantled the idea that White House and former White House aides can claim "absolute immunity" from testifying to Congress. The Don McGahn's testimony doesn't seem so important right now, in the midst of discussion of Ukraine, but if the House wants to more fully explore the regular pattern of obstruction that the White House has engaged in at every turn, it becomes a pretty significant part of the picture. And of course, this ruling effects other Trump Administration and former Trump Administration folks who have declined to speak--Mulvaney, Kupperman, Bolton, etc. 

It's hard not to read through the decision, though, and not hear a refutation of AG William Barr's speech to the Federalist Society. 

Presidents are not kings. They just aren't. 

TWGB: This Isn't Fifth Avenue, Though

One of the things that shouldn't escape notice from this week's news was that Trump's lawyers made an interesting claim that led to (I guess) to a reductio ad absurdam argument being read for real, which is that Trump really could shoot someone on Fifth Avenue, and not only not be indicted (a DOJ stylesheet item, courtesy of the OLC going back several years, not to be taken as law, mind you) but probably not even be investigated, thank yew very much, to which I would say "Really, out loud, where the people would hear, you said this argument, William Consovoy?"  Checks and balances, anyone? The separation of powers can't possibly mean that the law is powerless to stop an unlawful act of a president. That system would be bound for failure. 

Which is basically what was laid out when a federal district judge gave explicit voice to the idea that the idea that a president was immune for investigation and indictment made no sense over the issue of whether Trump's tax returns could be kept from local investigation. Of course, the president in his person shouldn't be above the law--we don't have kings here. It's also been determined that the Mueller grand jury testimony should be given to Congress. This settles (well, for now) the issue of whether the House proceedings are legitimate, and classified them as in effect, judicial and not political. The House has the power via the Constitution, without any direction as to process, which makes these process arguments out here look even dumber than they already were. 

But this is where we are in the current contretrumps: the great refutations. For example, it was not just Bill Taylor who explicated that there was a quid pro quo, but Ambassador Gordon Sondland did as well. Independent reporting from the news media indicates that Volodimir Zelenskyy felt pressured regarding what he should do with respects to Trump's apparent demands of an investigation into Biden even before taking office. We also know now that Ukraine was aware of the interruption in aid sooner than was previously indicated from Taylor's testimony. We also know Trump wasn't that concerned about corruption in general, because he cut funding to programs to fight corruption. 

It really looks like the president was extorting a bribe from another world leader. It really looks like he wanted to use taxpayer funds approved by Congress to elicit a personal favor benefitting his re-election campaign from Ukraine. More than this, though, trade help to Ukraine was also apparently being held up, reinforcing the idea that the White House (Trump) was using whatever power available to leverage an outcome Trump wanted. This would be something former NSA John Bolton would directly have knowledge of, which should prove for interesting questioning if/when his date for an impeachment inquiry deposition comes through. (I also am very interested in what we can get from Don McGahn regarding Trump's constant obstruction of justice and very bad ideas in these regards. I am sure Trump thought White House Counsel literally meant "taxpayer-funded in-house defense attorneys".)

In other, weirder news, Giuliani's butt dial indicates that the shadow foreign policy needs money and has something to do with Bahrain, which bothers me because of the human rights abuses in Bahrain, and also that Giuliani can just dial up someone for a hundred thousand or so dollars for whatever. Foreign policy ops that are so-called "American", but not with congressional approval, or any appointed person, and independent money, just the president's tacit approval? That's some straight up Logan Act shit, right? I don't think flashing a screenshot of texts with the State Department is going to fish Trump's personal lawyer out of the soup here. And I don't think we should consider Giuliani a great source or trust people who use sources like him, or diGenova and Toensing, as anything but propaganda, either. 

Despite how Trump wants to run his administration, we just aren't on Fifth Avenue, and no, it shouldn't be okay for him to shoot anyone, or even just think it's okay to shoot his mouth off. His actions are representing a great nation, and I think he's letting us down for his grift, like his brother's company's contract. Or big tax cuts for machers like Dan Gilbert or Mike Milken. 

I don't know exactly how Trump ran things from Trump Tower. But Pennsylvania Avenue isn't Fifth Avenue.  He needs to be held accountable. 

TWGB: Obligations

Sometimes, I find it amazing the things that people feel obligated to do over the things they are genuinely supposed to do. Take former White House Counsel Don McGahn, who defied a subpoena out of a sense of obligation, perhaps, to President Trump, despite the real possibility of being held in contempt of Congress and any penalties that might pertain to that. 

It's questionable that Trump has a legitimate reason to direct McGahn not to testify--he is a former, not current, employee of the White House, and he would have been questioned regarding things he already discussed in about 30 hours of questioning by the Special Counsel's team. I'm just an old D-list blogger, but that doesn't look like his testimony should fall under anything like executive privilege to me. It seems less questionable, though, that Trump has a less-legitimate purpose in having McGahn refuse to testify; one of the more disturbing items in the Mueller report is that McGahn was told by Trump to fire Mueller, didn't do it, and then was advised by the White House to publicly state that Trump never tried to obstruct justice (even if it seems like he knew Trump did). 

If requesting McGahn dodge the hearing is another form of obstruction, we've got like, three layers of obstruction, right there. This is the deeply weird place we're in, where we can just watch this sort of thing unfold in all its transgressive enormity. But why wouldn't McGahn dodge when AG Barr has yet to be penalized for being found in contempt? And there is an additional wrinkle:

If McGahn were to defy Trump and testify before Congress, it could endanger his own career in Republican politics and put his law firm, Jones Day, in the president’s crosshairs. Trump has mused about instructing Republicans to cease dealing with the firm, which is deeply intertwined in Washington with the GOP, according to one White House official and a Republican close to the White House not authorized to speak publicly about private conversations.

Even if McGahn felt no specific obligation to Trump, having his personal career fucked with in this way certainly could have been convincing. (I can't say how well this reflects on Jones Day if they encourage their attorneys to ignore subpoenas over a business issue, you know, if that's what they did.) And he (and Barr, as well, for that matter) may still find themselves in some bother over contempt. (AG Barr seems to be concerned about the enforcement and wants everyone to be very pleased if he offers something short of full compliance which is, I think, pretty cute, but, just no. It seems to me he should have more of an obligation to the Constitution in general rather than to covering Trump's ass.)

There's something familiar in the obligation trap McGahn is in to recently unsealed transcripts of private testimony Trump's former lawyer Michael Cohen gave to House members. He discusses being offered assistance if he stayed loyal:

Cohen said Trump and his legal team dangled pardons because they wanted to keep people in the joint defense agreement. He withdrew from that agreement, he told lawmakers, because “there was so much that was going on, that I had just decided it was time to stop with the lying, stop protecting the president.”

At one point, though, Cohen was exchanging emails with a lawyer named Robert Costello who touted his “back channel” to the White House — Giuliani. “I spoke with Rudy,” Costello wrote Cohen in April 2018. “Very Very Positive. You are ‘loved.’”

According to emails Cohen shared with the panel, Costello wrote that Giuliani saw the “communication channel” as crucial, and told Cohen to “sleep well tonight, you have friends in high places.” Cohen told Congress he believed Costello was referring to Trump.

Trump and his legal team created an environment intended to produce certain results--namely, not being honest and forthcoming when questioned about Trump's activities. There's a word for that.

While I'm on the subject of obligations, though, apparently, a federal district judge and IRS legal staff seem to agree that House subpoenas regarding Trump's tax documents should be complied with. It seems to me that if the law and Trump are in contention, the law really should have the benefit of the contest, but you'd be surprised how many people don't actually agree with that.

Anyway--more subpoenas are being issued. We will just have to see who feels obliged to comply.

He Can't Help It

Huh. If you could sit down and think of all the ways you'd probably make McGahn's eventual testimony more likely, you probably still would not do more than Trump did in one Tweet. On a technicality of course, Trump "was NOT" going to fire Mueller--he was going to have someone else do it! I would also question the claim of "unprecedented cooperation". But the point stands that Trump has plainly indicated here that Mueller was safe--

Only who would actually know that, or be able to disprove that? Someone who sat 30 hours with Mueller's team! And with the added dig "Never a big fan!" Is that intended to influence potential testimony?

This....is not the poster child for impulse control.

TWGB: It's Getting Real, Now

A top House Democrat issues subpoenas for six years of President Trump's tax returns, giving Treasury secretary, IRS commissioner a May 17 deadline to deliver them. https://t.co/3yPYyBqlw9

— The Associated Press (@AP) May 10, 2019

So, adding to the subpoena issued to Don Jr. (which he could very well try to bail on, thanks to the weird blow-off advice of Uncle Lindsey and his own really dumb failure to still know what trouble looks like), we've now got subpoenas for Trump, Sr.'s tax returns.

And maybe these subpoenas will go nowhere at first--after all, former White House Counsel Don McGahn was subpoenaed to provide documents and testimony, and seems to be hanging in with White House instruction to just say "No" to that (even though, as a former White House employee and a grown man, he doesn't have to let them tell him to do anything.) Maybe that will change though, as it comes out that just after the Mueller report dropped, the White House tried to induce McGahn to go on record saying he effectively wasn't told to obstruct justice, in a way that looks sort of further obstruction of justice-y. And while McGahn isn't going to say it totally did happen out loud where the people can hear, he also doesn't want to say it didn't.

I feel like there are good reasons for that. But the truth might actually be more compelling in the long run because it looks like McGahn actually was told by Trump to do a crime, and didn't, which I guess really counts for something? (This nudge to say Trump is cleared on at least one count of obstruction reminds me ever so much of his pressure on Comey to say that he wasn't under investigation--it is hard to separate whether he has consciousness of guilt or just consciousness of looking bad. Heh--narcissism!)

But maybe there's reason to think the IRS/Treasury tax requests are going to also resolve themselves sooner than later--and one thing to note from my happy little New York appreciation post--once the information from the NY returns are out and about, the justification for holding back the federal returns weakens. The toothpaste doesn't get back in the tube.

Also. House Democrats are exploring a legal basis to add juice to their subpoena power by investigating the seldom utilized power of inherent contempt to make their legal requests more compelling. (And honestly, Jr. should just honor the Senate subpoena after contacting a good lawyer or so because eventually....I think he's just going to have to say something, and doing it as CYA as possible is his best bet.)

In my last post, I noted that public opinion is a factor in impeachment, and one of the things I think should be considered is that so many former US prosecutors have found themselves willing to sign their name to support the evidence for obstruction of justice in Trump's case. These are professionals who are legitimately saying they think, knowing what they know that they could try that one. That is really saying a lot.

Now, the White House and Barr's DOJ are still stalling on releasing the full Mueller report, and we hear that Mueller won't be reporting in person on May 15 after all. This seems to have something to do with the White House preferring he doesn't , which is really amazing for folks who want to pretend the Mueller report exonerated Trump when, oh, for goodness sakes, no. Also, Mueller too, is a grown person whose investigation was ended and doesn't need to keep hanging around DOJ, and if he wasn't at Trump's or Barr's say so, would be able to agree on his own volition without strings I am pretty sure?

I don't know. I'm not at that level. But from where I'm looking, Senator McConnell's claim that what we know of the Mueller report thus far means "Case closed" is like pretending the Super Bowl is over at the half based on who's up in the scoring.

That isn't how this works, at all. That isn't going to be how this works, regardless of what he wants to say.