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. 

The Mueller Team’s Latest Charges In the Russia Investigation Follows the Money Trail to One of America’s Largest Law Firms

Special Counsel Robert Mueller’s Office filed another important criminal charge yesterday (February 20, 2018) as part of its investigation of Russian interference in the 2016 election. These charges are being brought against attorney Alex Van Der Zwaan, who is scheduled to plead guilty later today for lying to the FBI about a conversation he had with Rick Gates, Trump’s Deputy Campaign Chairman. The conversation with Gates was about the work that Van Der Zwaan and his law firm, Skadden Arps, Slate, Meager and Flom, were doing in Ukraine for the pro-Russian regime of then-President Viktor Yanukovich.

Van Der Zwaan, who worked out of the Skadden Arps London office until he was fired last year, was part of that law firm’s legal team that was hired at the behest of Paul Manafort, a senior advisor to the Yanukovich regime and his pro-Russian party during 2011 and 2012, who then went on to become Trump’s Campaign Chairman in 2016.  Skadden Arps was hired by the Ukraine government to counter the adverse publicity that the Ukraine government was receiving over its arrest and prosecution of Yulia Tymoshenko, the former Prime Minister of Ukraine who lost the presidential election to Yanukovich in 2010.

Immediately after taking office, Yanukovich directed that a politically-motivated investigation be conducted into Tymoshenko’s handling of a natural gas deal between Russia and Ukraine, leading to her arrest, incarceration and prosecution on baseless trumped-up political charges in 2011.

When an international storm of protest erupted, and with the U.S. government, the European Union and human rights groups calling for Tymoshenko’s immediate release, Manafort and Gates convinced the Ukraine government to hire the Skadden Arps firm to counter this adverse publicity and to lend an air of respectability to the government’s relentless and unfounded prosecution of Tymoshenko, who by this time was in urgent need of specialized surgery in Germany to relieve a painful back condition. However, the Yanukovich regime steadfastly refused to permit her to travel to Germany for the operation.

Manafort and Gates orchestrated the retention of the Skadden Arps team for the ridiculously low contract amount of $12,000 in order to keep the contract just below the threshold requirement under Ukraine law for the public bidding of all government contracts.

Since I was Ms. Tymoshenko’s U.S.-based attorney at the time, I helped her Ukraine-based legal team to calculate the actual legal fees and expenses that Alex Van Der Zwaan and the other members of the Skadden Arps team were incurring for their frequent trips to Kiev, where they stayed at expensive hotels and dined at expensive restaurants while they were being led around Ukraine by Manafort, Gates and their pro-Russian cronies as part of their so-called investigation. We estimated that the law firm must have been paid at least $1-2 million for its legal services in preparing their “whitewash” report, which unsurprisingly concluded that there was some legitimate basis for the Tymoshenko prosecution and that it was not (at least not completely) a political hit-job by Manafort, Gates and the Yanukovich Regime they were working for.

When we turned the results of our investigation into the missing $1-2 million in payments over to the FBI and Department of Justice prosecutors, they apparently incorporated this  information into their larger money laundering and influence-peddling investigation of Manafort and Gates, which led to the recent charges that Manafort and Gates used an offshore account to  “funnel $4 million to pay secretly for the report” supporting Tymoshenko’s conviction. The work was revealed in last year’s indictment of Manafort and Gates, in which prosecutors asserted that the two men lobbied members of Congress and their staffs about Ukraine, including the issue of whether Yanukovych had a legitimate basis for imprisoning and prosecuting his political rival, Yulia Tymoshenko.

The pubic release of the charges against Van der Zwaan signals that the Special Counsel’s office has reached  plea agreements with both Van der Zwaan and Rick Gates, and that both of them are cooperating with the continuing investigation into the both Manafort and Gates’ work for the pro-Russian Ukrainian President, as well as their continuing work for the pro-Russian Ukrainian political party even after Yanukovich was forced to flee Kiev for the safety of Moscow in March of 2014 during the Maidan Revolution in Ukraine.

The results of this investigation should answer the longstanding question as to why then-Candidate Trump hired Manafort and Gates to head up his Presidential Campaign in the summer of  2016, knowing how closely affiliated they were with pro-Russian interests in Ukraine. The recent charges and plea agreements should also substantially advance the ongoing Mueller investigation on many fronts, including the question of whether it was Trump himself who directed Manafort and Gates to water down the Ukrainian plank in the party platform at the Republican National Convention. This revision of the Republican platform eliminated the call for the U.S. to send defensive military equipment to the beleaguered Ukraine government, which was facing the annexation of Crimea and a Russian-incited rebellion in eastern Ukraine.

One thing is clear: there is much, much more to come from the Special Counsel’s office.

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

As the Special Counsel’s investigation picks up steam, with the indictments of Paul Manafort and Rick Gates already filed and the guilty pleas with now cooperating witnesses Michael Flynn and George Papadopoulis publicly disclosed, Mueller’s team has amassed a wealth of information regarding President’s heavy-handed attempts to obstruct justice.

The avalanche of damning evidence of Trump’s obstruction of justice started with the firing of FBI Director James Comey on May 9, 2017 after direct attempts by Trump failed to extract from Comey a pledge of loyalty and a commitment to drop the FBI’s investigation of his former National Security Advisor Michael Flynn. There is also evidence that Trump pressured Director of National Intelligence Dan Coats to urge Comey to end his investigation into Flynn and his Russian connections, which was eerily reminiscent of former President Nixon’s attempt to use the CIA to derail the FBI investigation into Watergate and which ended up being included as part of the Articles of Impeachment against Nixon.

Despite the White House’s initial disinformation campaign to persuade the public that Comey was fired for other legitimate concerns, Trump could not resist telling NBC’s Lester Holt during a live interview on May 11, 2017 — two days after the firing — that Comey’s firing was due to “the Russia thing.”

If there was any doubt whatsoever that Trump fired Comey in order to try to quash the FBI’s and the Justice Department’s investigation of possible collusion between the Trump Campaign and Russian intelligence operatives to interfere with the 2016 election and to swing it in Trump’s direction, those doubts were dispelled when Trump told Russian Ambassador Sergey Kislyak and Sergey Lavrov, the Russian Foreign Minister, in the Oval Office on May 10, 2017,  the day after the firing of the FBI Director, that he had discharged “Nut Job” Comey in order to take “pressure” off the Russian investigation. Only Trump, the two Russian officials, and a Russian news representative were permitted to be in the Oval Office during this critical discussion, which also involved the disclosure of highly sensitive and classified information that the U.S. had obtained from Israeli intelligence about the Islamic State.

Two months before he fired Comey, Trump ordered White House Counsel Don McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation, saying that he needed Sessions to provide active oversight over the Russia investigation in order to “protect him” and “safeguard” him. Mueller can persuasively argue that the only possible reason why Trump would be so desperate for Sessions to “protect” him was that Trump had something to hide from the federal prosecutors, and that he was desperately afraid that the investigation would lead into troubling areas regarding the underlying “collusion” investigation, or into collateral areas such as the Trump Organization’s heavy reliance on Russian money of suspicious origin in possible violation of U.S. money laundering laws.

After Comey was fired and replaced by Deputy FBI Director Andrew McCabe, who corroborated Comey’s testimony regarding Trump’s repeated requests for a “loyalty oath” from Comey, Trump pressured FBI Director Christopher Wray to fire McCabe, causing Wray to threaten to resign, according to news reports. Trump continued to berate McCabe in a barrage of twitter rants, until McCabe finally capitulated and announced his abrupt and early retirement from the FBI.

Trump is also reported to have ordered White House Counsel McGahn to fire Special Counsel Mueller, only to back down – at least for the time being- when McGahn threatened to resign.

The question being pondered by the Special Counsel’s office is what to do with all of this evidence of criminal obstruction of justice by Trump himself. Although the Justice Department issued two legal opinions in 1973 and 2000 during the investigations of Presidents Nixon and Clinton, concluding that a sitting President could not be indicted, there is nothing in the U.S. Constitution itself that explicitly says that. All that the Constitution says about the prosecution of the President is that, in Article I, Section 3, he (or she) is subject to prosecution after being impeached by the House of Representatives, and then convicted and removed from office by a two-thirds vote of the Senate.[1] It is silent on the issue of whether a President can be indicted before being impeached, or whether the two proceedings can take place simultaneously.

Legal memos prepared in 1973 for the Watergate Special Prosecutor and for Kenneth W. Starr, the Independent Counsel investigating allegations against President Clinton, reached the conclusion that a sitting President could be indicted if the evidence warranted it, which put both of these special federal prosecutors at odds with official Department of Justice policy.

Special Counsel Mueller, in consultation with Deputy Attorney Rosenstein, may well decide that the evidence of President Trump’s violations of the criminal obstruction of justice statutes is so compelling that the Grand Jury should be asked to return an indictment against him. President Trump’s lawyers will make an inevitable motion to dismiss the indictment on constitutional grounds, and that question will then finally have to be decided by the U.S. Supreme Court.

In the alternative, if the Special Counsel merely ask the Grand Jury to issue a Report laying out the evidence against President Trump, or name President Trump as an unindicted co-conspirator in an Obstruction of Justice indictment, then they will be violating the sacred principle that “No man is above the law,” even a sitting President. Passing the buck to Congress to consider impeachment of the president is not a good option, since impeachment is, at its core, a political decision as to whether a sitting president who has demonstrated that he is unfit to fulfill the duties of the office should be allowed to complete his term or not. That decision (whether to impeach or not) may have little or nothing to do with the issue of whether a president has violated the criminal laws, and whether he should be prosecuted for violations of those laws “without fear or favor,” just like every other citizen.

[1] Article 1, Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”