Tangled Webs and Telephone Cords
October 1, 2019 | View PDF
"O, what a tangled web we weave when first we practice to deceive." – Sir Walter Scott
But identifying who is being deceitful here in this Watergate-esque scandal is less than clear. There is so much bias, incompetence, deception, and potential law-breaking that it is very difficult to be objective, and ultimately that is the problem. It is the type of scandal that removes one's faith in government and anyone involved with it.
So in an attempt to untangle and better understand this mess, let's begin by asking a series of broad scope questions:
• What authorities, limitations, responsibilities, and levels of discretion do (and should) the president, members of Congress, and all other Federal Government officials have? Here, it is useful to see both of Google definitions for the word discretion:
- "the quality of behaving or speaking is such a way as to avoid causing offense or revealing private information."
- "the freedom to decide what should be done in a particular way."
• What should a president do when every action he performs and every word he says could potentially allow his political opponents to seize control from him and his political base?
• What are appropriate levels of Executive Privilege for presidential communications, specifically communications outside of the sphere of congressional control or oversight?
• What are appropriate means for a president and members of the Executive Branch to defend themselves against allegations, both real and imagined, especially against office holders of the opposing party?
• Having taken office just two days prior, what should newly appointed, Acting Director of National Intelligence Maguire have done when he was initially given politically-infused allegations that potentially jeopardized his immediate boss, the president of the United States?
• For any Federal Government official, what is the appropriate response to privately hearing or being told about conversations between two heads of state and/or government and believing something could be deemed inappropriate?
• If a government intelligence official is earnest and has credible concerns of high-level impropriety, does that mean that high-level impropriety actually occurred? Who are the appropriate judges of said impropriety?
• How should those concerns be handled while initially validating and evaluating the purported impropriety?
Upon superimposing these questions on the situation, it is clear that there is much to consider. In fact, this author's initial impression after reading the transcript was not so much what the president might have done wrong, but what happened during the last administrations in Ukraine, both the Obama and Poroshenko, that would consume that much of President Trump's conversational bandwidth with Ukrainian President Zelensky. Without having a full and unbiased understanding of those circumstances, how does one judge the appropriateness of anything that follows?
There are good reasons why the president and vice president are understood to be exempted from mixing political and official capacities in most cases. The president and vice president are generally not subject to conflict of interest laws simply by virtue of the broad nature of these offices and concurrently by being de facto heads of their respective political parties. U.S. Code, Title 18, §§ 202 & 208 apply here along with a 1974 U.S. Department of Justice memo that was drafted during the Nelson Rockefeller nomination to the office of Vice President by Nixon. At that time, Acting Attorney General Silberman advised the Senate that "The effect of applying section 208 to the President is certainly either to disable him from performing some of the functions prescribed by the Constitution or to establish a qualification for his serving as President (to wit, elimination of financial conflicts) beyond those contained in the Constitution." (https://fas.org/irp/agency/doj/olc/092074.pdf) Congress clarified the exemptions in the Ethics Reform Act of 1989 for all Federal positions of authority (https://www2.oge.gov/web/oge.nsf/0/6FED47DB4CB9B89585257F1C00752BC7/$FILE/PL101-194.pdf)
Also, several Congressional Research Service (CRS) reports have expounded on the issue, (https://fas.org/sgp/crs/misc/R43365.pdf, https://fas.org/sgp/crs/secrecy/R42670.pdf, et. al.), but everything seems to be focused on two of the Emoluments Clauses (Art. I, § 9, cl. 8), (Art. II, § 1, cl. 7) of the U.S. Constitution regarding gaining undue wealth due to position, and not specifically about undue political influence, though it could be implied. "(The) president cannot receive gifts from foreign governments without the consent of Congress...the Emoluments Clause is broader than any bribery statute in that it does not require the president actually take any reciprocating action to trigger the clause." (Emory Law Ghost writer from the article "Conflicts of Interest and the President: Reviewing the State of Law in the Face of a Trump Presidency". See (http://law.emory.edu/ecgar/content/volume-4/issue-special/essays-interviews/conflicts-president-law-trump-presidency.html)
From that framework, the current issue seems to boil down to two questions. Is any information about any potential wrongdoing in Ukraine of potential value to the president, and does he have a right to conduct an investigation into wrongdoing that occurred in 2015 and 2016 that potentially could affect the electability of his assumed general election opponent in 2020? From the information released so far, it is reasonable to presume that a quid pro quo between Presidents Trump and Zelensky and their respective subordinates exist, but it is difficult to separate the individual interest of both presidents with the logical national interest of both countries, and it could be argued that their self-interest is appropriate here.
This author would also argue that just because Congress approved funding to provide military support to a foreign nation, ergo Ukraine with $300 million in direct military aid and another $100 million from the U.S. State Department that could also be allocated to military spending, (Real Law Review https://youtu.be/BD3my03ioio), it does not mean that the president and his officials must provide those funds, immediately or otherwise, with appropriate cause. Does and should the president have the right to establish additional conditions or requirements before funds or aids are provided? This author's understanding is that official governmental actions and policy conducted outside of the United States short of declarations of war and the ratification of treaties are under direct presidential control.
But returning to the pertinent Emoluments Clause concerns, asking a foreign leader to investigate your principle political opponent is decidedly problematic, as it can be seen as something of value. Also, it could be seen as contradicting Executive Order 13848, which states: "I, DONALD J. TRUMP, President of the United States of America, find that the ability of persons located, in whole or in part, outside of the United States to interfere in or undermine public confidence in United States elections, including through the authorized accessing of election and campaign infrastructure or the covert distribution of propaganda and disinformation, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States."
To be fair, Trump and his campaign were previously investigated by potentially inappropriate means, and something similar probably happened. Although the appearance of impropriety exists, it must be remembered that a current investigation is being conducted by Attorney General Barr regarding how the Trump Investigation began. Under that lens, the requested support can be viewed as reasonable. It is obvious either way that Trump wants to discover what happened during that time, wants to know everyone involved, and how the events that transpired are related to the instigation of his campaign's surveillance and subsequent investigation, specifically where is the information regarding Former Vice President Biden and his purported intervention with the previous Ukrainian Administration and specifically what did it concern?
In the aftermath of the Church Committee, laws were enacted to restrict governmental surveillance, specifically surveillance conducted on political opponents by a reigning U.S. Government. The most junior intelligence analyst understands that the Intelligence Community and its assets cannot collect on U.S. Citizens except under very specific probable cause, and with a court ordered warrant. And to collect intelligence information on U.S. Citizens living, working, or doing business abroad, that warrant must be from the United States Foreign Intelligence Surveillance or FISA Court. And even with FISA Court approval, what entities are collecting against a U.S. Citizen and by what means can be problematic, depending on what the allegations are and who are involved, and here foreign governments have a legitimate role in the conduct of an investigation. For example, it would be good to understand what parties investigated Hunter Biden, when, for what reasons, and why the investigation was concluded.
Having reviewed some general concepts of intelligence collection on U.S. persons, this author must point out that ALL electronic and telephonic actives of the president related to his official duties are recorded and/or documented for posterity (and to call out unlawful actions by the president) per the Presidential Records Act (PRA) of 1978, U.S.C. 44 §§ 2201–2207. Another restriction that could affect the president here per Executive Order 13354, Part 1, § 1.7 states "In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error [or] (2) prevent embarrassment to a person, organization, or agency."
But the fact remains that this kind of information is normally not released to the public. The president and his officials must be able to privately and confidently discuss events and plans for past, present, and future operations in the conduct of their constitutionally and legally mandated duties. The consequences of releasing this conversation should not be downplayed or underestimated.
It must be pointed out that the president used one of his personal attorneys as a de facto official to coordinate with a foreign head of state and his government. This author does not think that Trump did this to intentionally avoid the "Treaty between the United States of America and Ukraine on Mutual Legal Assistance in Criminal Matters" or MLAC procedure; I honestly believe that he did not know anything about it or how it was supposed to work. But it does spell out the approved procedures for requests for assistance and the officials involved. One can presume that he did this to avoid some aspect of the "normal channels," the fact that he does not trust his intelligence apparatus, and wanted to keep "close hold" some aspects about this Ukrainian assistance.
It could be rightly debated that the president has the authority to charge anyone in his purview to conduct official business. But to put it plainly, using Giuliani in this capacity was ill advised, and created the appearance of impropriety as it can be assumed that, because Giuliani has no official capacity within the White House and receives no direct compensation from the Federal Government, his loyalties would be more toward Trump than the Federal Government in the event of a conflict of interest. That's problematic...just like calling himself "the real whistleblower" last week in an interview with Politico regarding his knowledge of the events that have occurred in Ukraine. (SMDH)
To further prove that the president does not trust some within his intelligence community, the whistleblower was known to have previously worked in the White House, but was not there during the events of the complaint. Why? And why was the complaint released directly to the heads of the Senate and House intelligence committees prior to the initial review for Executive Privilege? One can only presume it was to politically arm the complaint before anybody of official capacity in the Executive Branch had the opportunity to appropriately respond.
There is too much here and too many facts to come to light with each passing day to provide an adequate overview of the situation in a monthly publication. But hopefully this article will served as a tool to help the reader understand some of the key items to consider as this story unfolds, as well as to help keep the reader's political biases in check, and review whatever new facts come out with the understanding that impeachment is a political process as much a legal one, and involves many conflicting concepts. What principles the reader deems as more important will shape what he sees as appropriate or inappropriate action, or to put it another way whether the president's actions are wrong or right, impeachable or not, and your choice has a lot more influence on your elected representatives' decisions than you might imagine. Question everything you hear, and ultimately choose wisely on what and whom you believe.
• President Donald Trump
• Vice President Mike Pence
• Former President Barrack Obama
• Former Vice President Joe Biden
• Hunter Biden, Joe Biden's son, lawyer, lobbyist, Ukrainian Natural Gas Producer Burisma board member
• Marie Louise Yovanovitch, U.S. Ambassador to Ukraine from May 18, 2016 to May 20, 2019
• Former U.S. Special Envoy for Ukraine, Kurt Volker, who resigned on September 27, 2019
• Ukrainian President Volodymyr Zelensky
• Former Ukrainian President Petro Poroshenko
• Former Ukrainian Prosecutor General Yuriy Lutsenko, in office from May 12, 2016 until August 29, 2019
• Joseph Maguire, Acting Director of National Intelligence DNI
• Michael Atkinson, Inspector General of the (U.S.) Intelligence Community (ICIG)
• Rudy Giuliani, one among several of President Trump's personal attorneys with substantial access to the White House
• U.S. Attorney General William Barr
• James Comey, Former Director of the Federal Bureau of Investigations
• Unidentified Complainant and "his" attorney
• Nancy Pelosi, Speaker of the House of Representatives
• Richard Burr, Senior U.S. Senator from North Carolina and Chairman of the Senate Select Committee on Intelligence
• Adam Schiff, U.S. House Representative serving California's 28th Congressional District and Chairman of the U.S. House of Representatives Permanent Select Committee on Intelligence
• This phone call alone is not enough to remove the President Trump from office, but it does justify Congressional inquiry.
• It is illegal for Trump to use the U.S. Intelligence Community to discover information that may defame his current political opponent.
• Trump does not trust his own Intelligence apparatus, and that reservation can be objectively understood.
• The president's personal attorney, with no capacity as a U.S. official, should not be used as an ambassador- at-large.
• Trump, the Federal Government as a whole, and the American people have a legitimate interest in learning what happened in Ukraine and how it might have affected the 2016 presidential election if new information exists. The U.S. Intelligence Community concluded that the Russian Government conducted cyber operations to influence and interfered with the 2016 election, but it is unknown how the Ukraine may be involved.
• American People have a significant lack of knowledge regarding their nation's Intelligence apparatus, and what actions. It legally can perform.
• The value of the Whistleblower Program to exist to point out poor governance such as the discovery of the Veterans Affairs whistleblower who exposed poor care at the Phoenix VA hospital.
• Keeping valuable but not fully developed information secret is important, and releasing transcripts publically sets a very bad precedent for future communications with foreign leaders among others.
• As the world becomes more integrated, America becomes even more diverse, and the likelihood of potential American candidates for high office conducting business abroad grows, laws regarding appropriate surveillance of U.S. Citizens who are of political interest needs to be further clarified.
• That the intelligence from Ukraine provides clarifying information regarding the actions of Obama Administration officials and the approval process for the Trump campaign initiated by the dossier signed into evidence by Former Director of the Federal Bureau of Investigations James Comey is worth what we as Americans have lost in the process of getting it.