Storming the SCIF

On Wednesday, October 23, 2019, a day that will live in infamy, roughly two dozen Republican Congressmen led by Rep. Matt Gaetz of Florida stormed the House Intelligence Committee Hearing Room, delaying the scheduled interview of Deputy Assistant Defense Secretary Laura Cooper as part of the impeachment investigation into President Donald Trump. Ms. Cooper, who was about to begin testifying when the “storm-the-room” political stunt disrupted the proceedings, was forced to vacate the hearing room for about five hours before order was finally restored.  

Ironically, many of the Republican Congressmen who joined in this orchestrated chaos were entitled to participate in the hearing, which was open to all members of the Intelligence, Foreign Affairs and Oversight Committees. Republican members of those committees were also given equal time to cross-examine witnesses, even though they were in the minority and had less than 50% of the members of those committees.  

Most disturbingly, many of the Republican protesters breached the tight security restrictions surrounding the hearing room by bringing their cell phones and other electronic devices into this Sensitive Compartmented Information Facility (“SCIF”), knowing full well that even when a cell phone is turned off, it can be turned into recording or surveillance device by an adversaries’ intelligence services. 

The disruption came one day after Bill Taylor, the U.S.’s top diplomat in Ukraine, gave devastating hearing testimony, confirming that the White House had specifically held up desperately needed military aide to Ukraine in return for a public announcement by Ukraine President Volodymyr Zelensky that his country was investigating the conspiracy theories designed to exonerate Russia for its interference with the 2016 U.S. presidential election and targeting Joe and Hunter Biden for alleged “corruption.” 

The disruption was apparently carefully planned in advance and had the full backing of President Trump, who had met with some key Republican lawmakers the night before and approved of their planned legislative assault the next day. Trump had been complaining about the lack of support and “push back” from Republicans on the House impeachment inquiry, and some physical demonstration by the Republicans seemed to be one of their few remaining options. 

After all, there is an old saying among lawyers that when you have the facts on your side, you pound on the facts; when you have the law on your side, you pound on the law; and when you have neither the facts or the law on your side, you pound on the podium. Trump and his die-hard supporters apparently realize that the factual record of the impeachment inquiry is quickly painting a starkly disturbing portrait of a president who is willing to sacrifice the national interests of the U.S. and the security of one of its staunchest allies on the alter of his own self-interest and political expediency. Republicans also know that this factual record of a massive abuse of presidential power is beginning to squarely fall into the “high crimes and misdemeanor” category that is, in and of itself, more than enough to result in a positive impeachment vote on at least one article of impeachment. With both the facts and the constitutional law lining up against them, Trump and his rabid Republican supporters in Congress decided that they only had one remaining option, which was to unleash the “pound the podium” tactics that have been used so effectively by fascist, communist and other authoritarian forces throughout history to destabilize democratic institutions.     

On February 27, 1933, the Nazi Party finally succeeded in its goal of destroying the last democratic bastion of the struggling Weimar Republic by burning down the Reichstag – the German Parliament — precisely four weeks after Adolph Hitler had been sworn in as the Chancellor of Germany. This was the culmination of years of escalating violence and intimidation both within and outside the Reichstag by Nazi political leaders and their thuggish “brownshirt” storm troopers, which eventually tore apart the fragile democratic German republic, consolidated all state power in the hands of one leader and his fascist party, and plunged Europe and the world into war and chaos. 

Trump’s MAGA rallies have increasingly come to resemble the massive Nuremberg rallies that Hitler and his Nazi party used to prepare Germany and its youth for another world war that would inevitably lead to a glorious Third Reich that would last 1000 years. The American Nazi Party tried to transplant this ideology to this country, and Trump’s recent rally in Phoenix attended by 20,000 of his true believers was eerily reminiscent of the 1939 Nazi Rally in New York’s Madison Square Garden, which also set record attendance levels for those who found the fascist message of hate and prejudice to be irresistible. 

More recently, Putin and his autocratic cronies have used state-sponsored violence and terror to silence the press and to neutralize and eliminate all significant political opposition both in Russia and other former Soviet states that are still in the Russian orbit. In Russia itself, physical altercations between and among members of the Russian Duma (Parliament) over the span of many years has served Putin’s purposes by bringing the entire institution into disrepute and further consolidated Putin’s unchallenged executive power. 

Similarly, in Ukraine, in what BBC has referred to as the “Rumbles in the Rada,” legislative debates over Ukraine’s official language policy and other matters have repeatedly devolved into fist-swinging, clothes-ripping brawls among sweaty, screaming members of parliament. During the presidency of pro-Russian Viktor Yanukovych, pro-Russian members of the Party of Regions staged several legislative assaults on pro-democracy and western-leaning legislators who opposed the recognition of Russian as Ukraine’s second official language and who opposed Yanukovych’s heavy-handed attempts to deliver Ukraine back into the arms of Putin and his Kremlin cronies. After one particularly brutal confrontation, Volodymyr M. Lytvyn, the speaker of the Ukrainian Rada, expressed the common view that Ukraine was on the verge of a “total collapse of parliamentarianism in the country.” 

Indeed, the efforts by the pro-Russian president of Ukraine and his allies to destabilize Ukraine’s fledgling and beleaguered democracy may well have succeeded if it were not for the Maidan Uprising in February and March of 2014, where pro-democracy demonstrators in Independence Square in the center of Kyiv were able – after weeks of violence and tragic loss of life by dozens of democratic martyrs – to face down Yanukovych’s pro-Russian storm troopers and force him to flee into exile in Russia. Notwithstanding Yanukovych’s departure, however, fights in the Rada continued up to and including December 2018, undermining the effectiveness of Ukraine’s parliamentary democracy and further polarizing an already deeply-divided country that has still not recovered from the trauma of the Russian annexation of Crimea and a continuing bloody war against Russia and pro-Russian separatists in the eastern part of the country known as Donbas.  

Although the U.S. Congress has been largely free of physical confrontations over the past several decades, the recent orchestrated and partisan disruption of the impeachment hearings are most reminiscent of the last time in American history when the  House of Representatives was disrupted on a regular basis during the late 1850s, prior to the breakout of a bloody Civil War. The most infamous fistfight there erupted on February 6, 1858, while member of the House were debating Kansas’s pro-slavery constitution. It was reported that more than fifty representatives participated in the melee. Within a few short years, America’s irreconcilable divisions boiled over into a civil war from 1861 to 1865, from which we have not yet fully recovered. 

Just to ensure that the racial and regional divisions of the Civil War will never fully be healed – at least while Trump occupies the White House – Trump went out of his way earlier this year to remind us that there were some “good people” among the tiki-torch toting neo-Nazis marching in Charlottesville, and that Confederate General Robert E. Lee was “a great general.” He then threatened another civil war if Congress follows through on its likely course of action, which is to issue Articles of Impeachment against him. He tweeted a quote from a Baptist pastor’s statement to the effect that impeachment would result in a “Civil War like fracture in this Nation from which our Country will never heal.” 

In 1858, then-Senator William Henry Seward of New York correctly predicted that the accelerating divisions and violence over the slavery and “states’ rights” issues were tearing the country apart and that an “irrepressible conflict” was inevitable. The election of Republican Abraham Lincoln as president on November 6, 1860 was the final catalyst for the 11 Southern and border states, along with most of their Congressional representatives, to refuse to accept Lincoln as the country’s chief executive and to withdraw from the Union. 

Are we now at a similar crossroads in our history? Are we on the brink of Civil War II? Trump and his most ardent allies seem to relish the idea that America needs another bloodletting. Are the upper 1% of America’s super-rich class who benefitted from Trump’s recent massive tax cuts going to stand idly by while Congressional Democrats pass articles of impeachment which may not lead to his removal, but will likely lead to a landslide election in November 2020 of an Elizabeth Warren, Bernie Sanders or other progressive-leaning and audacious Democrat who is calling for the enactment of a “wealth tax” and other “radical” measures designed to remedy the growing chasm between the super-rich and the rest of us? And what about the racists, neo-Nazis, xenophobes, nativists, gun nuts, right-wing conspiracy theorists and other who irrational devotees who make up some (but not entirely all) of Trump’s base? Are they going to stand idly by when their Great Leader is impeached and removed from office or, more likely, resoundingly beaten at the polls in November 2020? Not likely. Trump followed up his earlier “civil war” threats by tweeting: “ I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP, intended to take away the Power of the People, their VOTE, their Freedoms, their Second Amendment, Religion, Military, Border Wall, and their God-given rights as a Citizen of the United States of America!” Trump even went so far as to accuse Chairman Adam Schiff of the House Intelligence Committee of “treason,” no doubt forgetting that the Constitution’s definition of “Treason” is the giving of “aid and comfort” to America’s enemies, which is something that Trump has been doing from day one in the White House. 

In other words, now that as a result of the ham-handed, amateurish and disastrous efforts of Rudy Giuliani, Mick Mulvaney, Mike Pence, a couple of Ukrainian-American mobsters (Lev Parnas and Igor Fruman) and a few rogue State Department operatives, Trump has finally been hoisted onto the “Ukraine Affair” petard and fully exposed for the narcissistic, self-serving and treasonous lout that he always was. He has no real options other than to (number 1): come to his senses, stand down, resign while the going is still good (a la Nixon), and grab a full pardon from Pence in the process as he boards the Marine 1 helicopter on the White House lawn after delivering a dark and angry non-apology complaining to the end that he was persecuted and driven from office unfairly by a “deep state” conspiracy and coup d’etat. This would be the smart move, which means that “double down” Trump is not even remotely likely to take it.

So, then, what is the only other “door” that is open to him? He will continue to whip his “base” into a frenzy, promoting acts of violence and, if necessary, an armed revolution. As Lawfare and other commentators have already noted, the internet chatter far right-wing militias about pursuing their “second amendment” options has been on the rise and is unlikely to abate.    

On June 27, 2018, a Rasmussen Reports survey of U.S. voters found that 31% said “it’s likely that the United States will experience a second civil war sometime in the next five years.”  Given the rancor engendered by the Brett Kavanaugh Supreme Court hearings, the Mueller Report, the administration’s callous caging of refugee children at the border and the commencement of Congress’ impeachment inquiry, it is likely that the percentage of Americans psychologically (or otherwise) preparing themselves for a civil war has only increased.     

For 243 years, America has been the beacon of light and protector of freedom, democracy, inalienable human rights not only in this country, but around the world. Generations of Americans have made the ultimate sacrifice to preserve these values, but if we take democratic institutions for granted and think that Trump and what he stands for is just some aberration or bad dream that will go away once the fever breaks, we do so at our peril. Numerous once-vibrant democracies such as Hungary and Turkey have slid into “illiberal democracies” with a decidedly authoritarian edge, where the rule of law with truly independent legislative and judicial branches have buckled under the stress and wily maneuverings of strong authoritarian leaders. America could very well be next.   

In 1778, Benjamin Franklin asked by a bystander outside the Constitutional Convention in Philadelphia: “What kind of government will it be?” Without hesitation, Franklin replied: “A democracy, if you can keep it.” Also painfully aware of the fragility of liberty and any democratic form of government, Thomas Jefferson wrote from Paris in 1787: “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants.” He also fretted that “lethargy … is the forerunner of death to the public liberty.”

So when our children and grandchildren ask us years from now about this watershed moment in our nation’s history, when anti-democratic and authoritarian forces occupied the White House, much of Congress, and tried their mightiest to shred the Constitution and silent dissent: “What did you do? Which side were you on?” Each of us should have a good answer to give them, because the storm clouds are forming, and it definitely feels like rain. 

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Kenneth F. McCallion is an attorney, former federal prosecutor and author of Treason & Betrayal: The Rise and Fall of Individual 1. He is currently working on his next book: Civil War Two.  Peter Borisow is a Ukrainian-American and film maker who has been active in the pro-democracy movement in Ukraine.     

October 23 was a stab in the heart, a blow to the very soul of America and all it stands for.  We must flush this evil before it destroys us altogether. 

WHY MICHAEL J. FLYNN SHOULD NOT BE GIVEN IMMUNITY

Mr. Flynn’s lawyer, Robert Kelner, recently issuing a tantalizing public statement as part of an aggressive lobbying campaign to obtain immunity for the former national security advisor: “General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit.”
While Flynn may have a story to tell, his sworn testimony would come at far too high a price if either Congress or the Justice Department were to grant him immunity in return for it. There are numerous reasons for this, and the indications that neither the House or Senate Intelligence Committees are jumping at the opportunity to immunize Flynn and thereby secure his testimony is an extremely positive development. Here’s why.
1. Flynn Is Too High Up In the “Food Chain.”
As a former senior Trump Campaign official and as the National Security Advisor to President Trump (albeit for only 28-days), General Flynn is a very high government official, and an immunity grant to him at this early stage of the investigation would violate one of the cardinal rules of any federal investigation. Absent extraordinary circumstances, immunity should only be granted to a subject or target of an investigation if he or she has credible evidence of criminal conduct by someone higher-up in the in the criminal conspiracy or racketeering organization. Immunity, therefore, is usually only offered to low-level players in order to “flip” them and obtain their sworn testimony against more prominent figures higher up in the criminal organization.
With the possible exception of President Trump and Vice President Pence, Mr. Flynn was at the top of the pyramid, at least during his short tenure in the White House. And there is no indication that VP Pence played any role in the Team Trump/Russian cabal. This leaves President Trump as someone who Flynn could implicate in his “story,” but there is absolutely no reason to give Flynn an “immunity bath” just because we are all curious to hear what he might say about the President. In all likelihood, everything will be disclosed in due time, with or without Flynn’s testimony.
2. Flynn Probably Doesn’t Know Much More Than What Has Been Publicly Disclosed.
Unlike Paul Manafort, whose ties to Russian and pro-Russian oligarchs goes back for more than a decade, General Flynn came fairly late to the “let’s play footsie with the Russians” game as a member of Team Trump.
The major tip-off that Flynn does not really have much more information that would be of interest to Congress or the Justice Department is that his lawyer took the unusual step to publicly announce that Flynn was seeking immunity. Usually, if a defense counsel has some real “smoking gun” information to offer up to government prosecutors in return for a grant of immunity to a client, they set up a closed-door, confidential meeting with the prosecutor, sit down, and go over the “proffered” testimony of the witness in great detail. Either Flynn’s lawyers had already gone down this path and had hit a dead end before issuing their press release, or Flynn did not really have much high value information to share in the first page, so the only available option was to create a media-hype that would stampede one or both of the Congressional committees into giving Flynn immunity in return for the promised “story.”
Flynn’s first major involvement with the far-flung Kremlin propaganda machine came in December 2015 where, less than a year after resigning from the U.S. military, Flynn showed up in Moscow at the 10th Anniversary Gala of Russia Today (RT), an arm of the Russian security apparatus. Flynn sat next to Vladimir Putin at this festive event and, overwhelmed with enthusiasm at being so honored as to be assigned o Putin’s table, jumped up to lead the well-heeled crowd in a rousing standing ovation for this Great Russian Autocrat.
Flynn was paid generously for his services, receiving over $67,000 from RT and three other Russian companies with close ties to the Kremlin. As if this was not enough of a red flag, Flynn apparently did not get clearance for his Moscow trip or these payments from the Pentagon, thus exposing himself to all sorts of possible disciplinary and criminal sanctions.
Then there was the now-famous December 2016 phone calls with the Russian Ambassador, which Flynn discussed the possibility of a Trump Administration lifting or at least easing sanctions against Russia. Flynn then lied to VP Pence about these phone conversations, resulting in the embarrassing situation where Pence was duped into making misleading statements to the press regarding Flynn’s contacts with the Russians. Even though he had been the DIA Director, Flynn either didn’t know or forgot that U.S. intelligence agencies monitor the phone conversations of high-level Russian officials in this country, and that it was likely that his conversations with the Russian Ambassador would be recorded. The transcript of Flynn’s fateful phone calls ended up on the desk of Acting Attorney General Sally Yates, who warned the White House that Flynn could be compromised by the Russians since he was spreading false and misleading stories about his contacts with the Russians. Shortly after the story broke, Flynn was forced to resign.
In all likelihood, before the truth came out, Flynn also lied about his conversations with the Russian Ambassador to the FBI, which is itself a federal crime under Title 18 of the United States Code, Section 1001, even though he was not place under oath at the time. If so, this would be a “slam dunk” of a prosecution since all a federal prosecutor would only have to introduce two pieces of evidence in order to get a criminal conviction: (a) the transcript of the phone conversation between the Russian Ambassador and Flynn, and (b) the transcript or notes of the FBI’s interview with Flynn. Case closed. Flynn would then be sentenced to up to five years in prison, although the sentence would probably be on the lighter side if he decided to then tell his full “story” without immunity.
Flynn also has criminal exposure for his retroactive registration as a foreign agent for the Turkish government, while, at the same time, serving as a top advisor to the Trump Presidential campaign. The $64,000 question is why Flynn waited until after he had been terminated as the national security advisor before properly registering and informing Trump and other senior officials: “Oh, and by the way, I am working as an agent for a major foreign power; that’s OK, right?” Flynn also failed to timely disclose that his former consulting firm earned $530,000 in 2016 from a Dutch entity with ties to the Turkish government. What’s his explanation: “I was very busy at the time and just plain forgot.” Not very convincing.
3. History Teaches Us that It is Virtually Impossible to Prosecute Someone After Even a Limited Grant of Immunity

Even if Flynn were to be given limited “use” immunity, as opposed to “transactional immunity,” he could theoretically still be prosecuted under the federal criminal law based upon evidence that is totally independent of the evidence he may provide under oath through his own testimony. However, in practical terms, it would be virtually impossible to prosecute Flynn for any serious criminal offenses he may have already committed once he was granted “use” immunity by either Congress or the Justice Department. History has already proved this point.
On July 20, 1980, the United States Court of Appeals for the District of Columbia vacated all three of Oliver I. North’s Iran-contra felony convictions and overturned his conviction for having destroyed classified documents while he served as an aid to the National Security Council under President Ronald Reagan. The major factor leading to this reversal was concern that North’s conviction had been tainted by testimony he had given to Congress on the promise that it would not be used against him.
In the summer of 1987, North, a former Marine Corps Lieutenant colonel who was alleged to have played a key role in getting arms from Iran to be delivered to the right-wing “contras” in Nicaragua, and his boss, John M. Poindexter, the national security advisor, had been given “use” immunity by Congress in return for his sworn testimony. This use immunity agreement had been made by Congress over the objections of independent special prosecutor, Lawrence M. Walsh, and without consultation with the Justice Department.
Similar to the current calls for an immunity agreement with Flynn — based upon the argument that the country and the public urgently needs to immediately know the whole truth about any possible collusion between the Trump Team and the Russians — there was a strong impetus by Democrats during the Reagan Administration to push the Congressional inquiry into President Reagan’s Iran-contra policies as vigorously as possible. Congressional Democrats wanted to get the public testimony of such high-profile witnesses as Oliver North, the assistant to then-National Security Advisor John Poindexter. North usually showed up for public appearances decked out in his spiffy Marine Corp uniform, and never disappointed in given dramatic testimony. The temptation was too much for publicity hungry members of Congress, and the testimony of North and Poindexter was unquestionably the high point of the hearings. Indeed, it was great theater, and many Americans, including myself, remember watching North testify before Congress.
However, the cost for such a spectacle was very high. By immunizing North and Poindexter, the Justice Department’s investigation and later prosecution of them was crippled from the start. The Justice Department invested a tremendous amount of time and money in prosecuting North and Poindexter, only to have those convictions overturned because of the prior immunity grants that they had been given by Congress. The government’s burden of establishing that the evidence used to convict North and Poindexter was completely unrelated to their Congressional testimony was an impossibly high one, and the government was unable to meet it, as the federal appeals court later determined in July 1990.
4. Immunity for Flynn Would Send the Wrong Message
Flynn’s legal predicament is entirely of his own making. Remember his chants of “Lock her up, lock her up” at the Republican National Convention in Cleveland last summer? Remember his clenched jaw and sense of total outrage over the fact that a former Secretary of State had stored confidential data on a less-than-completely-secure server and was still walking around free, and even having the temerity to run for the Presidency? Remember his rants about the five Clinton aides who had been given immunity as part of the FBI investigation, speculating that they must have been involved in criminal conduct if they or their lawyers felt that they needed immunity?
Turnabout is not only fair play, but it provides an important “teaching moment” for the all of us. One of the fundamental ethical principles of our great society is that each person must take responsibility for their own words and their own actions. President Harry S. Truman had his now-famous saying on his desk in the Oval Office: “The buck stops here.” The Trump Administration seems to have gotten a new motto: “If you can pass the buck, do so, and there will be no adverse consequences.”
Flynn is on record as believing that if someone asks for immunity, they must be guilty of something. He has now asked for immunity, so he must believe that he is guilty of something. Whatever that “something” is, a full and fair investigation should be completed by the relevant Congressional committees and the FBI/Justice Department. What Flynn has to say about it right now is largely irrelevant, since has already ventilated his views in numerous lengthy interviews with reporters. Hearing his story once again under oath in a public forum would be interesting, but probably not very enlightening. If he wants to “give up” the President, there will be plenty of time for him to share his story with us after the criminal investigation and possible prosecution has run its course.
The only rational decision for Congress and the Justice Department to make – at least in the short term – is to just say “No.”