[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 337. Gobble, gobble, gobble! I’m Thomas-
Andrew: [Laughs]
Thomas: -that’s Andrew. How’re ya doing?
Andrew: Gobble gobble to you, Thomas! Happy Thanksgiving, we’re gonna get this episode out a little bit early for listeners so that if you have a long commute on Thursday out to visit your family you’ll have something to keep you company and maybe we’ll have some guidelines for how to have a productive conversation with your Republican family over Thanksgiving. I think that’s kind of our goal for this episode, right?
Thomas: Yeah, I think we’re gonna touch on the controversial stuff, like for example, mashed potatoes: skins in or out? I think there’s no more contentious – I mean, there’s impeachment all that crap, but-
Andrew: Yeah, but obviously that’s a skins out.
Thomas: Oh thank god!
Andrew: You’ve gotta use a-
Thomas: Oh thank god, okay, finally! We don’t have to have a big public fight, Andrew and I agree on the correct opinion. Look, I’m not throwing mashed potatoes with skins out of bed, [Laughs]
Andrew: No, that’s right!
Thomas: I mean I’ll eat them, but…
Andrew: Bad mashed potatoes, or skin on mashed potatoes are still delicious if prepared properly but yeah, you don’t even have to peel ‘em, just use a ricer, you can get it for like 5 bucks on Amazon and it does wonders for the textures and removes the skins all at the same time, so there you go.
Thomas: Well we’ve solved it everybody, we can all agree!
Andrew: [Laughs] I also wanna plug, so this episode is a good episode to try and share with your open minded Uncle Clarence, conservative family members that maybe you could persuade to listen to some or all of the show, we also have released – I should say I did a patron only special – as I explained in the beginning of that that’s not because you and I don’t wanna have that conversation, it’s because just timing on Thanksgiving. We were barely able to schedule this show out while we’re trying to get everything else taken care of, but we will certainly revisit that. So if you are a patron at any level you get about an hour of me opining as to how to talk to your Democratic, your liberal family members over Thanksgiving. So, you know, we’ve got all sides of the political spectrum covered.
Thomas: And convince them of what? The potato thing, or….
Andrew: Exactly! [Laughs] Well you’ve gotta listen, yeah, maybe it’s the potato thing.
Thomas: Okay, yeah, well I’ll check that out. Cool! Go find that everybody. Just wanted to remind you that the patron Q&A is Saturday November 30th, 11 am Pacific, 2 pm Eastern and we are gonna have the video Q&A, we’ll get it all figured out technical difficulties aside and of course everybody is invited! It’s patron only for the question thread but everyone can come on, jump in the chat, ask questions in the chat. Sometimes we get to those, mostly it’s the patron questions but still we see them, we interact with you, it’s fun we love it. Maybe you have a drink of choice at the time, don’t miss it. So set your calendars or something, set your phone, whatever, for this Saturday the 30th at 11 Pacific, 2 pm Eastern, see you then! Alright so if you happen to be a new listener, maybe you had a left-leaning family member or friend or coworker send you this, Andrew is in my opinion, legal genius, Harvard law brilliant guy, breaks down week-in, week-out just the strictly legal portions of what has turned into obviously a very insane news cycle and I think it’s the most useful thing in the world, but since there’s so many listeners who already know what we do that’s all I’m gonna say, but let’s apply Andrew’s legal mind to the latest in impeachment and see if we can establish some objectively true stuff that no matter which side of the aisle, hopefully, if you recognize, if you’re willing to recognize facts and think through these things, I think Andrew’s your guy.
[Segment Intro]
Thomas: So Andrew, what do you wanna talk about today?
Andrew: Well thank you for the kind introduction. I wanna start off and again, this is continuing to build on what we said in episode 335 last week and 333 the week before that, but I think it’s really, really important because Democratic messaging over this hasn’t necessarily been great. So the bottom line is, with respect to Trump and Ukraine there is one criminal act that will come out of the impeachment committee on this behavior. That crime, with which I believe the President will be charged and which I hope to persuade you is a meritorious charge, is the crime of bribery. Again, as kind of an aside, I get that the President’s conduct with respect to Ukraine doesn’t seem to fit kind of the “Matlock Definition” of bribery, what you see on TV, which is where you either hand or you’re being handed a bag of money. Again, all of our links are in the show notes, all of our citations are there, we encourage you to go read the law specifically for yourself and here the federal bribery law is 18 U.S.C. § 2001, and specifically subsection (b)(2). Again, this is a felony. It carries with it a minimum five-year prison sentence, so this is not – we’re not gonna talk about whether this crime constitutes a high crime or misdemeanor, we’ve talked about that on the show a lot, if your argument is that bribing someone is not a high crime or misdemeanor I guess we’re gonna have a hard argument because I sure know that if there were a Democratic president that bribed somebody or received a bribe we would be calling for the exact same application, we’d be calling for that person to be impeached. The most recent – we’ve talked about this a lot on the show, but Rod Blagojevich committed the crime of bribery by attempting to sell Barack Obama’s senate seat and not just us but pretty much all Democrats were united in saying “don’t do that.”
Thomas: Eject him into space!
Andrew: Yes.
Thomas: We don’t need him in the party, I don’t know loyalty, a criminal is a criminal, we don’t need people like that here.
Andrew: Exactly right, exactly right. The crime of bribery has – and I’m gonna simplify this down, in legal terms it’s got three elements but given how it’s been discussed I’m gonna continue to simplify this down to two elements. So here’s what the law says, “whenever a public official” and yes, that obviously includes the President, “corruptly seeks anything of value in return for being influenced in the performance of any official act.” There are two elements you need to prove to prove bribery. The first is what you’ve heard in the media as the “quid pro quo,” that is seeking something of value in return for being influenced in the performance of your duties. You can see how that has two elements. That quid pro quo was testified to exactly [Laughs] and unambiguously by Ambassador Gordan Sondland, we talked about that in episode 335. This is a guy who still works for President Trump, it’s a guy who gave a million dollars to the Trump inaugural, it’s a guy who was absolutely part of Trump’s core set of loyalists until about two weeks ago. So not a Democrat, not a bitter-hater, not a deep stater, not anything that you can question this person’s testimony. This is absolutely somebody who has the opposite of the motive to lie to bring down President Trump. So both the quid and the quo were testified to by Sondland.
Thomas: Hmm.
Andrew: So what was the “thing of unquestionable value” that Trump sought from Ukraine? That was a public declaration in the media that his political rival, Joe Biden, was under investigation by a foreign government. Again, nobody is going to argue that’s not a thing that benefits the President, and in fact Gordan Sondland reluctantly testified to that. The Democratic questioners sort of had to pry that loose from him, it was Sean Patrick Maloney from New York who sort of had to grill Sondland who didn’t want to say that that explicitly, even though he very explicitly said there was a quid pro quo.
Thomas: Hmm.
Andrew: Then the second half, what were the two official acts that were influenced? Those official acts were the disbursement of congressionally authorized aid to Ukraine and also a formal face-to-face meeting with President Zelensky at the White House. Quick side bar, you heard a lot from Jim Jordan and Devin Nunes that well, you know, the aid was eventually released months later. [Laughs] And that Trump and Zelensky, although they never had a White House meeting, had some other meeting so it’s all fine. You will not hear that argument at trial on impeachment, and you will not hear it for two reasons. Number one, because it’s totally irrelevant under the law. Go back and read 18 U.S.C. § 201(b)(2), it does not say that you have to get what you paid for for it to be bribery!
Thomas: [Laughs]
Andrew: Right? It says you have to be influenced. So think about this in an ordinary corruption case: I go to Nancy Pelosi and I say, “Uh, Nancy, I’m gonna need you to vote against this particular piece of legislation” and then I give her a bag of money, and she takes the bag of money and delays the vote on the bill for a couple of months before calling me back and being like “well Andrew, I did what I could but I’m gonna have to hold that vote now and I’m gonna vote for it.” That’s still bribery. All of us would be saying “lock her up.” Again, Nancy Pelosi hypothetical, Rod Blagojevich not a hypothetical. We know he tried to sell Obama’s senate seat and we know that the person he eventually appointed, Bobby Rush, we know that there was zero evidence that Rush ever paid Blagojevich any money. So that’s the exact same situation. Rush didn’t buy the seat, the fact that Blagojevich sought to get paid for selling the seat is enough for it to be bribery that’s been influenced in your decision and saying “oh, eventually I did release the aid” is not only not a rebuttal, but is in fact a concession that you were influenced.
Thomas: Right, and-
Andrew: That’s the first reason you’re never gonna hear that again.
Thomas: Not only that, and I don’t know maybe the second reason is it was after he got caught! You know? It was after the Politico article was gonna be published that was saying, hey, they got notice that this article was gonna go up about the aid being withheld and all of that, and then coincidentally the stop on the aid gets lifted. That’s not one of those – oh well once you noticed I was doing a crime I stopped so therefore no crime!
Andrew: [Laughs] Yeah! That’s right, and I want to go back. So if you’re skeptical, Politico’s a left – whatever. If you’re skeptical of that reporting I want to go back to the statement of Acting Director of National Intelligence Maguire before congress at the end of September. Again, this is somebody who was appointed by Trump. Joseph Maguire, Acting Director for National Intelligence, testifying to congress in his own words (quote) “we consulted with the White House counsel’s office and were advised that much of the information in the complaint was in fact” (the whistleblower’s complaint, that is) “was in fact subject to executive privilege so because of that” (those are his words) “because of that we were unable to immediately share the details of the complaint with the committees” (that is with congress) “but continued to consult with the White House counsel’s office in an effort to do so.” So sidebar, nothing in the complaint is subject to executive privilege, you can go read it, but Maguire explicitly testified that when he received the whistleblower’s complaint the first place he went was Bill Barr, then he talked to White House counsel’s office, so the President’s Attorney General, the Department of Justice, the Office of Legal Counsel and the White House Counsel’s Office all had evidence of the complaint weeks before that was made public and weeks before the decision to reinstate the aid that they were required to reinstate to Ukraine was made. That is just unambiguously clear and it is such a bad argument it’s gonna look so much worse for the President if they try and raise this argument. I think you’re not gonna see this argument. Yeah, right as we were about to be caught and as lawyers are briefing the President every day that this is terrible, then we relented and removed the hold, everybody can see that that’s a stupid argument. Again, it’s also stupid because even if it were true, which it’s not, it wouldn’t speak to the criminal element of bribery. But there is one defense that we talked about last time that is still available and now we’ve got some notion of how that defense is going to play out. That is that Donald Trump did not have (quote) “corrupt intent” in demanding a thing of value from Ukraine. In episode 335 we focused on the argument that he was investigating corruption in Ukraine, so it wasn’t this illicit thing, he was just trying to get to the bottom of all the corruption in Ukraine. We broke that down, go back and listen to 335, I think we did a pretty good job of breaking that down. I also want, in prepping for this episode, I realized just how inconsistent that is with Donald Trump’s own words, so I wanna go back to the TELCON, which is the edited transcript of the July 25, 2019 phone call between Trump and Zelensky, and again, this is posted on the White House, whitehouse.gov. I’m gonna link it in the show notes. Here’s what Trump says and what Zelensky responds. The President (quote) “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people wanna find out about that, so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution, so if you can look into it it sounds horrible to me.” (End of quote). I have not alighted over anything, there is an internal ellipses but that’s in the White House’s own release of the transcript, I have not alighted over anything I have read that word for word. As a quick sidebar, by the way, that’s 100% not true, it’s beyond the scope of this episode, Biden did not stop prosecution into Burisma or into his son and, you know, we could discuss that, but assume that it was! Zelensky then says, “I wanted to tell you about the prosecutor. First of all, I understand and I’m knowledgeable about the situation. Since we have won the absolute majority in our parliament, the next prosecutor general will be 100% my person, my candidate, and will start as a new prosecutor in September. He or she will look into this situation, specifically to the company that you mentioned in this issue,” (end of quote). There has been testimony that the actual transcript said Burisma but that was deleted. Again, doesn’t really matter. I wanna point out on the corruption end, when you look at that testimony, if you’re an ordinary juror, the gravamen of what Trump cares about in the investigation is, again, to quote his own words, that Biden went around bragging, and I want to disprove that. So even if that’s true, even if you’re right that Biden – that is very clearly a personal goal not a public one. But since then, we’ve gotten a handle on a new angle, and that is there is a legitimate inquiry into whether Ukraine interfered in the 2016 U.S. elections and that therefore the President can condition aid on that. I don’t know if you’ve seen some of those ones.
Thomas: [Sighs] I mean I’ve seen now the breakdown, it was very confusing to even try to follow the tinfoil hat yarn bulletin board of what was even supposed to be it, but now I think I kind of understand it and this is amazing because Donald Trump really thinks these things and, you know, he’s asking about them to President Zelensky in a call that when it happened I don’t know that he had any reason to believe would be public knowledge, so I don’t see it as any sort of lie to make a point or anything or just one of those things where, you know, he kind of knows what he’s saying is not true but he’s saying it to make a point. None of that, he thinks that when the DNC was hacked that – and let me know if I get this right and you can add anything in that I miss – he thought that when the DNC was hacked the company the FBI investigated and then for whatever reason had a physical server that, like the hardware of a server which makes no sense because it would all be cloud based by now but whatever, he thinks that the FBI instead of taking custody of this physical server for, I don’t know, evidence purposes of what the Democrats were doing wrong I guess? I don’t know, or maybe it proved – in Trump’s mind it proved that it wasn’t the Russians it was actually the Ukrainians that hacked them to begin with? But the FBI gave that physical server to Crowdstrike I think it is, which is a company that he thinks is Ukrainian but it’s actually American, it’s just that whoever started it I believe might have been born in Ukraine and immigrated here? And that therefore now that Ukrainian company has physically taken this server which, again, doesn’t exist, has physically taken it to Ukraine and has hidden it or something and that’s part of what Trump wants. So I know that’s a lot of yarn, but did I get it? [Laughs]
Andrew: So you got a lot of it.
Thomas: Okay, get another spindle going! [Laughs] Whatever, unspool…
Andrew: Yeah, there are a few things that are wrong and I wanna unpack it in such a way that explains how pernicious this is. Look, I don’t like delving into conspiracy theories, you don’t like delving into conspiracy theories. This is a law show not a “who has the shiniest tin foil hat” show, but I believe – I’m gonna emphasize the reasons why – that this is going to be part of Trump’s defense as to why he lacked corrupt intent and therefore I think it’s really, really important that we get out in front of this crazy, because this is bananas in pajamas level nonsense, regarding Crowdstrike, but A) unpacking a conspiracy theory is hard, B) this is what Russia does and I’m gonna give you undisputed evidence for that, and C) like any good conspiracy theory there are enough actual facts that you can sort of muddy the waters with even though they have nothing to do with the underlying argument. So let’s unpack Crowdstrike, Chalupas, and everything else and show why this is nonsense as a defense. Again, remember Uncle Clarence, we’re doing this now! You’re gonna hear this defense two months from now and I want you to go back and remember, hey those left leaning guys on Opening Arguments told me that this is Russia propaganda two months ago and they predicted that this is exactly where the Trump defense was going to go. Maybe I should be skeptical. So let’s unpack this. Thomas, you summarized a lot of the public reporting on Crowdstrike, I wanna unpack it a little bit. So first, as we will demonstrate here, the evidence is unambiguous, undisputed, corroborated in a bipartisan fashion, often in investigations and testimony elicited by Senate Republicans, not by crazy Democrats and leftists, that Russia interfered in the 2016 U.S. Presidential election. Russia engineered the hacking of the Democratic National Committee servers and then disseminated that information via their contacts to Wikileaks who then disseminated that information to the Trump campaign and ultimately to the American people. The best evidence we have that it was Russia hacking the DNC servers comes from a cybersecurity company called Crowdstrike that was engaged by the DNC and that turned over all of their records to the FBI. There were other companies that were involved, why was a private company involved? Because nobody in the government – I mean, how are-
Thomas: I mean it was the DNC, it was the company the DNC was using for their cybersecurity so when they were hacked-
Andrew: Yup.
Thomas: They call Crowdstrike-
Andrew: Exactly right.
Thomas: -to try and clear out, get the hackers out, that kind of thing. I just wanna add, you don’t have to take our word for it that it was the Russians when I believe it was Fiona Hill when she testified and said “hey, I’m worried that some of you Republicans are not recognizing that it was Russia and not Ukraine.” We got, what, half a dozen angry Republican House members who were like “how dare you suggest we don’t realize that it was Russia?” So take it from Republicans themselves that they realize it was Russia and they don’t even understand Hill’s claims that they haven’t been recognizing that it was Russia. There you go, we all agree, it’s Russia.
Andrew: I’m actually gonna quote from Dr. Hill’s testimony, but yes. That is exactly right. But the crucial part here is that the server, the IP, and again I’m not a technical person so I’m probably using the wrong language to describe this. Crowdstrike was responsible for generating much of the evidence that created that link back from Russia to the hack. Crowdstrike was working for the DNC, Crowdstrike was also working for the RNC! [Laughs] They are a nonpartisan cyber security company.
Thomas: Right.
Andrew: That uses the best practices in the industry to investigate hacking, high-level, high-dollar hacking for big clients like the DNC, like the RNC. I’m gonna link their report in the show notes because now you’ve got this company that is being demonized by conspiracy theorists. So the conspiracy theorists, and almost everything you’ve said was correct, but I wanna emphasize the most important part. The core of the Crowdstrike conspiracy is that Russia did not hack the DNC. Put a pin in that because the way in which Republican defenders of Donald Trump are spreading misinformation is by kind of throwing up their hands, I’m gonna read quotes, and saying “well, you know, yes we know Russia interfered but it could also be Ukraine” and that is not a plausible thing to say. This is not a case where maybe multiple – there were not multiple hacks of the DNC. One person did “the hack.” One nation did the hack.
Thomas: Yeah.
Andrew: It was either Russia or it was someone else. It cannot have been both, and Russia, by the way, in 2016 was and is in a hot shooting war with Ukraine and occupies a portion of their territory.
Thomas: Yeah, they’re not hacking buddies. They’re not LAN party buddies.
Andrew: Yeah.
Thomas: It’s not like when Gucifer or whatever gets a line into the servers in the DNC I don’t think Gucifer then goes to what, the UN, and is like “any other countries wanna join in on the hacking? Anyone make this a co-op or just us? Just Russia? Okay.”
Andrew: Yeah, yeah. So the Crowdstrike thesis says Russia did not hack the DNC, instead Hillary Clinton went to Ukraine and engaged a Ukrainian company, Crowdstrike, to hack the DNC herself in order to move the evidence that Clinton’s private email server had been compromised, so they were trying to get the evidence related to Clinton’s emails out of the country and then Crowdstrike downloaded it all onto a server and then put the server on a plane and flew it to Ukraine where it remains in their possession today, and also the FBI is corrupt because they won’t open an investigation into Ukraine. You said most of that stuff, I want to point out not only is Crowdstrike an American company, but the cofounders are George Kurtz, American citizen and somebody who started a pervious security company and sold it to McAfee, cofounded Crowdstrike with Dimitri Alperevich. Dimitri Alperevich is not a Ukrainian, he’s a Russian-born U.S. citizen who’s spent all of his adult life in the United States and has no connection to Ukraine whatsoever. So again, part of what makes this conspiracy theory plausibly sounding on its face is because of all the Ovich’s and Shanko’s and Slauvic sounding last names and people are like “oh yeah, Dimitri Alperevich, I’ll bet he’s a Ukrainian” and you repeated that. [Laughs] He’s a U.S. citizen, he’s a Russian-born U.S. citizen, but if anything his connection would be pro-Russia not pro-Ukraine.
Thomas: Well I don’t eve – we should not even say that. Look, part of the problem with this is the demonization of immigrants and people who weren’t born here.
Andrew: Yup. I agree 100%.
Thomas: You saw that even in the testimony of all these amazingly professional career diplomats and people working in the foreign service who are just the peak of integrity and work ethic and American attitudes, but because they maybe have an accent or weren’t born here we get a lot of people challenging their facts just based on that and it’s sickening and unamerican and I apologize that I said, I had heard the guy was born in Ukraine and I only mentioned it because that was part of the conspiracy theory-
Andrew: Oh, yeah yeah yeah! No, I mean I think that that was – I hope you understand I wasn’t trying to pick on you, I was trying to say that even in just trying to piece it out there are elements of the conspiracy theory that – because it took me like 12 hours of digging to go down all of these rabbit trails and debunk all of the lies, so that’s part of why conspiracy theories can take root. So A, I definitely appreciate 100% of the sentiments you just made, and B, I certainly wasn’t trying to cast any aspersions your direction, I was trying to say even when you are, like Thomas, very well read, very well informed, and not inclined to believe this sort of nonsense, there’s still elements, it’s so pernicious that there are elements that it’s hard to debunk because that’s part of how an effective, and I’m gonna read the evidence, that the Russians are really, really good at concocting these sorts of things.
Thomas: Yeah.
Andrew: I thought that was a good point of-
Thomas: Let me make one more point because I think you’re totally right that when you hear things like “oh, this is some company with a guy with a Russian or a Ukrainian sounding name, wow sounds suspicious.” I just wanna point out from Crowdstrike’s website they work with, to stop data breaches they work with 44 of the top Fortune 100 companies, 37 of the top global companies, 9 of the 20 major banks, 5 of the top 10 largest healthcare providers and 7 of the top 10 largest energy institutions. So this is not like oh, mom and pop shell company or whatever the Russian sounding mom and pop, whatever that would be.
Andrew: [Laughs] Right.
Thomas: It’s not some little thing that was started for a conspiracy, but like that’s a heck of a conspiracy if you’ve been a leader in the business for seven, it looks like seven, eight years, working with not just Democrats but just companies, any company.
Andrew: Yeah.
Thomas: That’s-
Andrew: That would be a very long con, yeah.
Thomas: Long con, yeah! [Laughs] That’s an Oceans 97.
Andrew: [Laughs] Right, exactly. And I don’t wanna lose sight of the other point you made which is that for an internet conspiracy theory, for this to be true requires an appalling level of lack of understanding about how information that’s online works. It’s not like you a server is a vacuum cleaner.
Thomas: [Laughs] Yeah.
Andrew: Like sucks it all up, now it’s stored on a hard drive and now we can move that over to Ukraine.
Thomas: Right. I love the idea that it’s not that she wanted to get rid of evidence, if there’s some sort of incriminating evidence you just delete those files, but no it’s like she needs to save it on a physical server. [Laughs]
Andrew: Yeah, and then move it.
Thomas: And then move it to a country. [Laughs] Oh, okay, sorry.
Andrew: And Donald Trump has been pedaling this theory since April of 2017. Again, I’m gonna link his own interview with the Associated Press and quote his own words. (Quote) “They brought in another company that I hear is Ukrainian based,” the President said, “Crowdstrike?” the surprised reporter asked, referring to the California cybersecurity company, and then Trump continues, (quote) “That’s what I heard,” Mr. Trump resumed, “I heard it’s owned by a very rich Ukrainian, that’s what I heard.”
Thomas: [Sighs]
Andrew: So, right, that is the President of the United States pedaling an insane conspiracy theory for the past two years, two and a half years.
Thomas: Can I just take a quick second to say…
Andrew: Oh yeah.
Thomas: In 8 years I bet you a billion dollars that never on any diplomatic phone call with a foreign leader Obama ever said “oh, what’s going on? I heard, I dunno I heard that there’s some-“ Come on, it’s the President! He has access to the best intelligence!
Andrew: Yeah! There was no way George W. Bush ever said such a thing.
Thomas: Right! Yeah. He might have said “I heard they have WMD’s” [Laughs]
Andrew: Yeah. Let’s not go down that rabbit trail.
Thomas: [Laughs] Sorry, yeah.
Andrew: Okay, now let’s go back to Fiona Hill’s testimony which you referenced, because I want to emphasize parts of it. Again, for Uncle Clarence here, Fiona Hill was first appointed by George W. Bush as a National Intelligence Officer for Russia and Eurasia. She stayed on under the Obama administration and was elevated by Donald Trump to the National Security Counsel in 2017. The person Trump placed in charge of hiring Hill was General Michael Flynn! The other person who signed off on Hill’s hire was former National Security Advisor H.R. McMaster, again a direct Trump appointee, this is not a Democrat, this is not a deep state operative, this is somebody who was appointed by Republicans, elevated by Republicans, not a crazy Democrat. Here’s what she says about the Crowdstrike thesis:
Thomas: Before you tell us what she said, we need to take a quick beak for an ad, but tune in to find out what she said.
[Commercial – getquip.com/oa for free first refill]
Thomas: Okay, what did she say?
Andrew: Okay, and this is to what you were eluding. Dr. Hill: “Based on questions and statements I have heard, some of you on this committee appear to believe that Russia and its security services did not conduct a campaign against our country and that perhaps, somehow, for some reason, Ukraine did. This is a fictional narrative that has been perpetrated and propagated by Russian security services, by the Russian Security Services themselves. The unfortunate truth is that Russia was the foreign power that systematically attacked our democratic institutions in 2016, it is the public conclusion of our intelligence agencies, confirmed in bipartisan congressional reports, it is beyond dispute even if some of the underlying details must remain classified.” Again, what I wanna flag for you there is Fiona Hill did not, unfortunately because she didn’t know this was where Republicans were going to go, did not point out that you cannot simultaneously accept the findings of the Intelligence Community that Russia perpetrated the DNC hack, and also have any legitimate questions about Ukraine being involved in hacking the 2016 election in any way, in influencing the 2016 election in any way. They are binary alternatives. So, first, I want to explain why this came on my radar. It came on my radar when John Kennedy, Republican Senator from Louisiana and prominent Trump ally, somebody who has appeared at various Trump rallies and will be mounting the full-throated defense of Donald Trump during the impeachment trial in the Senate, went on Chris Wallace’s show, Fox News Sunday, Sunday at 9 am, and was asked “who do you believe was responsible for hacking the DNC? Was it Russia or Ukraine?” He said, (quote) “I don’t know, nor do you, nor do any of us.” Less than 24 hours afterwards he was forced to recant that, he said in a piece that’s been widely quoted in a bunch of sources including the AP, “Oh, I misheard the question. I didn’t mean to say that, I do accept the findings of our intelligence agencies,” but he added a caveat. Again, this is nonsense. He said (quote) “It could also be Ukraine,” (end of quote).
Thomas: [Sighs]
Andrew: No! No it cannot. If Russia hacked the DNC servers Ukraine didn’t. If Ukraine hacked the DNC servers, Russia didn’t. They are not complimentary. The reason we went through debunking the entire bananas in pajamas thesis of Crowdstrike is to show that the core idea behind the inquiry is that Hillary Clinton got a Ukrainian company to undertake the DNC hack herself in order to hide evidence. You cannot believe it was both. So now I’m going to go to the overwhelming evidence, again this was written by Republican Senator Richard Burr that this is what Russia does. This is how Russia disseminates propaganda and influences elections. Again, you do not have to take my word for it, I want you to take the word of a conservative Senator on the U.S. Senate Intelligence Committee in a written report, this is Volume II, I’m gonna link it in the show notes. This was the Republican Senate’s investigation into the 2016 elections. The report mentions Ukraine five separate times in Volume II and it is eerily prescient. First, it talks about – and this section is called “Russia’s weaponization of social media.” Quoting from an expert the report says, “Russia is waging the most amazing information warfare blitzkrieg we have ever seen in the history of information warfare. Social media platforms enabled Russia’s Ukraine campaign, aided materially in the realization of its military’s adoption of information warfare doctrine. Russia’s aptitude for weaponizing internet-based social media platforms against the United States resulted from their experience conducting online disinformation against their own citizens for over a decade.” So in other words, Russia has been out there testing active disinformation campaigns for over a decade before, and now closing in on two decades, before testing them out on the United States in 2016. One key element of that is promoting conspiracy theories. I’m gonna give you a specific example, and again, it overlaps with Ukraine. On July 17th of 2014 a Russian surface to air missile fired from the Russian occupied area of Ukraine in Crimea, shot down a passenger jet, Malaysia Airlines flight 17. Killed 283 passengers, all the passengers and all the crew, 15 crew, who were flying from Amsterdam to Kuala Lumpur. I’ll link the Wikipedia article on that. Notice that what I didn’t say was the really simple conclusion that you should draw from that, which is also true, which is Russia shot down the jet. The reason I can’t quote a single person saying “obviously Russia shot the jet” is because within hours of shooting down the jet they waged an unbelievably effective disinformation propaganda conspiracy theory campaign. Now I’m gonna go back to quoting the report. “Speed is critical to Russia’s use of disinformation. Online themes and narratives can be adapted and trained towards a target audience very quickly, this allows Russia to formulate and execute information operations with a velocity that far outpaces the responsivity of a formal decision making loop in NATO, the United States, or any other Western democracy. For example, within hours of the downing of Malaysian Airlines flight 17 over Ukraine, Russian media had introduced a menu of conspiracy theories and false narratives to account for the plane’s destruction, including an alleged assassination attempt against President Putin,” totally false, “a CIA plot” totally false, “an onboard explosive,” totally false, “and the presence of a Ukrainian fighter jet in the area,” which again is based on a misleading kernel of truth but has nothing to do with, that jet wasn’t scrambled, wasn’t immobilized and didn’t shoot down the Malaysian passenger jet. So Crowdstrike is exactly the kind of thing that we know that Russia does, and in fact you go to page 18-19 of the report, we have how things like Crowdstrike get disseminated by paid troll farms operating out of Russia. (Quote) “Kremlin backed entities have spent years professionalizing a cadre of paid trolls investigating in large scale industrialized troll farms which peddle conspiracy theories among other tactics. In addition to the aggressive and persistent pushing of Kremlin-narrated themes and content, a principle objective of the Russian internet troll appears to be stifling Democratic debate entirely. The Russian troll-army’s goals are primarily (quote) ‘to overwhelm social media with a flood of fake content seeding doubt and paranoia, destroying the possibility of using the internet as a democratic space,’ in the words of one expert to create an atmosphere of hate (quote) ‘so stinky that normal people wouldn’t want to touch it.’” (End of quote).
Thomas: Hmm.
Andrew: The report describes at great lengths how various elections around the world have been flooded with these sorts of conspiracy theories to which ordinary people respond like [Sighs] okay, I just don’t wanna wade in, okay fine maybe it was Russia maybe it was Ukraine, I don’t care anymore. Demobilizing people is part of the goal, again going back to direct quoting from the report. “Those online methods create (quote) a class of useful idiots, referring to unwitting Americans who are exploited to further amplify Russian propaganda unbeknownst to them.” (End of quote). So here is my plea to you, Uncle Clarence, anybody listening to this show. Please do not be a useful idiot. Now I want to inoculate you because here is how you are going to be recruited. We just talked about what Russia’s techniques are, that is to sow disinformation, to expound on a bewildering variety of alternative theories none of which are compatible with each other, none of which stand up to scrutiny, but all of which are based on a kind of grab bag of weird facts to cause you to throw up your hands and be like “well, maybe we don’t know.” Here’s the thing: we do know. Here are the facts. Again, the reason I’m able to draw these out as facts is this is the 2017 Politico story that Kennedy cited upon which he purported to rely in saying “well maybe it could be Ukraine.” I’m gonna link it in the show notes, that story talks about how Alexandra Chalupa was one of the first people in 2016 to notice that Paul Manafort had led to the installation of Viktor Yanukovych, the pro-Russian stooge who was forced to flee the country leading to the Russian invasion of Ukraine in 2014. It is undisputed that Chalupa wanted to bring down Paul Manafort. It is also undisputed that Chalupa worked for the DNC. It is also undisputed that various Ukrainian officials were certainly happy to pass information onto Chalupa. None of that is a crime, none of that has anything to do or demonstrates in any way that Russia didn’t hack the DNC. What it demonstrates is Donald Trump’s campaign manager helped engineer the election of a pro-Russian stooge in Ukraine and we had a DNC operative who was really, really interested in bringing down Paul Manafort. Not a crime, nothing wrong. By the way, Ukrainians, having been invaded by Russia as a result of electing the pro-Russian stooge and still suffering under Russian invasion and finally in 2019 managing to elect someone else, in 2016 Ukrainians did not feel particularly well disposed towards Paul Manafort who helped elect their pro-Russian stooge. None of that is a crime. I also wanna add, I haven’t seen this anywhere, it is possible that Chalupa gave misleading evidence to the DNC, because as we’ve covered on this show in addition to Paul Manafort aiding Viktor Yanukovych, Democratic political strategist Tad Devine was over there, he worked for Manafort, he got paid by Manafort, and as we’ve always said if Tad Devine was involved he should go to jail just like Manafort’s in jail. So is it possible that Chalupa omitted or failed to mention that Devine worked for Manafort and helped engineer? That’s possible and I don’t know if that’s gonna come up but if that does it’s another red herring. Again, Devine should go to jail. What American political operatives did in Ukraine was a crime, I’m super happy that Manafort is in jail, I can’t imagine anyone who’s not as I suspect there are some. None of that, that’s it by the way. All of that is the extent of the facts surrounding Alexandra Chalupa and notice none of them connect up with Crowdstrike, with Ukraine hacking the DNC in any way. They are not evidence for that even though we have already heard the first stages of the trial balloon, we have already heard a Republican Senator rely obliquely on the Chalupa evidence as evidence that “well maybe it was Ukraine?” Don’t. Be. A. Useful. Idiot. Don’t fall for this. It is Russian propaganda and it is Russian propaganda as confirmed by Republican members of the United States Senate.
Thomas: I also know that was a lot of words, that was a lot of information and I’m glad we did the deep dive. I also just want to, I guess if we’re drawing this to a close, emphasize the basic, basic facts, which is that the President asked the leader of an ally to announce an investigation of his political rival on CNN. They had scheduled this interview, the prosecutor or whoever was gonna do it in Ukraine, they had scheduled the CNN interview, we know that from CNN. They only cancelled it once the full quid pro quo was being brought to light and Trump was forced to back down because Ukraine doesn’t wanna do this. Zelensky didn’t want to do this because it’s nonsense. It’s the most basic thing that we’ve already established and seems to be not disputed at all. I don’t hear even Republicans trying to dispute the basic facts which is that he withheld aid to ask for an announcement, a public announcement of an investigation. An actual investigation? Not even sure that mattered to him, which just shows you how much this was about damaging someone else for his own personal gain and not about any serious attempt to root out corruption at all.
Andrew: I love that summary, and ‘cuz I can’t resist I wanna append one thing onto it, which is Uncle Clarence, you’re still listening, you do not want to make the argument that the President of the United States can use his or her own judgment to interfere with congressionally authorized delegations of aid to a foreign country, because when we have a Democratic president, if the Congress directs that president to fund aid to another nation, you do not want that president to be able to overrule the wishes of Congress. Congress has the power of the purse, Congress gets to decide whether and how much aid we give to Ukraine or any other foreign nation and you Republicans may be back in charge of Congress under a President Elizabeth Warren in 2022, 2023 Congress I guess, 2022 elections. I promise you that you do not want to give Elizabeth Warren the discretion to decide, eh, Congress told me to do X but I’m gonna do Y, regardless of whether it is for personal gain or not.
Thomas: Alright, so we can all put our yarn away for now. [Laughs] I’m covered, I’m just completely wrapped in yarn, I don’t even know how I’m gonnna get this out! It’s like bubble gum in your hair, just everywhere. But let’s stop for a quick C segment that Andrew, true to his form in that I roasted him about this very thing the other day on Vulgarity for Charity, find it on the Cognitive Dissonance podcast, it was a lot of fun! True to form left too many bullet points so he’s gonna go through these last bullet points as fast as he can, which are the latest court rulings! I’m sure we’ll be talking more about them in the future ‘cuz it seems to me that there have been some big ones lately. So what’s happening in the courts? Give us the rundown.
Andrew: Yup, here’s the rundowns. So first, with respect to Don McGahn being compelled to testify before the House Intelligence Committee, D.C., District Court judge Ketanji Brown Jackson issued a 120 page comprehensive opinion making it explicitly clear that yes, McGahn has to testify and that the justifications being proffered by the White House of absolute executive immunity are nonsense. I’m gonna quote, this is page 115 of that opinion, go read it for yourself. (Quote) “To make the point as plain as possible it is clear to this Court for the reasons explained above,” again that’s 115 pages of legal reasoning, “that with respect to senior level presidential aides, absolute immunity from compelled Congressional process simply does not exist. Indeed, absolute testimonial immunity for senior level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinions”-
Thomas: [Laughs]
Andrew: “-and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation. The contention that a President’s top advisors cannot be subject to compulsory Congressional process simply has no basis in the law.”
Thomas: Wow.
Andrew: Courts don’t usually write that way. [Laughs] That was issued November 25th, on November 26th Don McGahn appealed to the D.C. Circuit, because of course he did, and the real question is is the D.C. Circuit going to stay the enforcement of the mandate? I believe they will not. Then that will go up to the Supreme Court, and the Supreme Court will have to decide whether to stay implementation of the mandate or whether to allow it to go through. I know what you’re thinking, you’re thinking “well of course the Supreme Court is just gonna stay implementation of the mandate, after all that’s what they did in the Trump v. Mazars case.” They could, but there is reason to believe that they will not. There is reason for optimism, and that reason comes from a 1998 decision, Ruben v. United States which I’ll link in the show notes. It’s the exact same fact pattern but it’s reversed because it’s Bill Clinton. [Laughs]
Thomas: Hmm.
Andrew: It was Bill Clinton’s Treasury Security, Robert Ruben, who lost below, was required on behalf of himself and various other of his subordinates, to testify in connection with a subpoena in connection with the Federal grand jury investigating Bill Clinton, and appealed to the U.S. Supreme Court and Chief Justice Rehnquist said “No, no, no! Get out of here with that!” Said the Secretary of the Treasury’s application to stay enforcement of the subpoenas pending a decision by this Court is denied, he has not demonstrated that the interim enforcement of subpoenas requiring the President’s protectors to testify before a federal grand jury investigating the President will cause irreparable harm, nor has he shown a likelihood that this Court, assuming it granted certiorari, would reverse the Court of Appeals judgment. The key part of Rehnquist’s opinion here is that an applicant for a stay must show, in addition to irreparable harm, that there’s some likelihood that this Court, having granted certiorari and heard the case, would reverse the judgment of the Court of Appeals. So there is ample grounds for first the D.C. Circuit and then even the Supreme Court to say, yeah, the law is super clear, we’re not gonna overturn this so we’re not gonna stay the enforcement of judgment pending an application for certiorari. We’re going to let that compulsory process go through. Now that’s the Optimist Prime, that’s the most optimistic scenario. I will point out in the Trump v. Mazars case the Supreme Court went the other way, they said – in a limited fashion they said we’re going to stay enforcement of the D.C. Circuit’s rule requiring Mazars to turn over Trump’s taxes and we are going to stay that until December 5th for the President to file a petition for certiorari with any opposition due by December 12th, so rapid, rapid briefing schedule on whether the Supreme Court will take up the question of the Mazars subpoena. Again, we will be able to resolve, should you be optimistic or should you fear the worst about the Supreme Court, we’ve talked about this in previous episodes, if the Supreme Court grants cert in the Mazars case then they’re all in for Trump.
Thomas: Hmm.
Andrew: There is no reason, the law is crystal clear in that case, that there’s just no basis for the argument being made to the contrary. Trump’s lawyers are not even advan- it was a 2-1 dissent before the panel of the D.C. Circuit with Trump appointee and federalist society hack Neomi Rao in dissent, Neomi Rao’s dissent is so bad that Trump himself, through his lawyers, has explicitly disavowed it in the initial letter suggesting that the Supreme Court should grant cert. The arguments are terrible there. If they take it up then, you know, we can feel like okay, there’s not enough to constrain John Roberts here and we’re in the darkest possible timeline. But I think it’s possible that they don’t. I will add I think that lawyers on the House Intelligence Committee probably also see some room for optimism because that Committee just filed a brand new lawsuit today against Bill Barr and Wilbur Ross in connection with the Commerce Department’s lack of candor regarding the census question. So that’s not directly related to the impeachment inquiry, and in fact their lawsuit explicitly doesn’t mention impeachment, it mentions House Oversight, so it belongs under the subset of the Mazars cases and not the McGahn cases. But look, you wouldn’t do that if you thought the Supreme Court was just going to rubber stamp everything and delay until after the 2020 election. So there’s some ground for hope, I know you’re famously the pessimist and there are lots of grounds for being pessimistic, but I think there are some grounds for being optimistic. There you go.
Thomas: I mean I’m mainly pessimistic about how fast you’re able to do lightening rounds and I think my pessimism is shown to be correct, but that’s okay, pretty good, pretty good. Alright well it is time to thank our new patrons for First Timer Friday over at patreon.com/law. By the way a reminder from the beginning of the episode, Andrew has released an entire bonus episode for you guys! It’s totally, it’s a black ops, not going on the main feed it’s only on the patron feed. It’s top secret, but also go check it out because it’s great. You can find that on patreon.com/law, time to thank our newbies over there.
[Patron Shout Outs]
Thomas: Alright now it’s time for Thomas Takes the Bar Exam! That’s T3BE, I think I got the last question right, seemed a little too easy so we’ll see how this new source works. Here we go!
[Segment Intro]
Andrew: Alright Thomas, a landlord and a tenant orally agreed to a commercial tenancy for the term of six months beginning on July 1st. Rent was to be paid by the first day of each month, and the tenant paid the first month’s rent at the time of the agreement. When the tenant arrived at the leased premises on July 1st, the tenant learned that the previous tenant had not vacated the premises at the end of her lease term on May 31st and did not intend to vacate.
Thomas: Oh.
Andrew: The tenant then successfully sued the previous tenant for possession. The tenant did not inform the landlord of the eviction action until after the tenant received possession. The tenant then sued the landlord, claiming damage for that portion of the lease period during which the tenant was not in possession. If the court finds for the landlord, what will be the most likely explanation?
Thomas: Ooh.
Andrew: By the way, I just wanna say as a sidebar, we didn’t have a lot of these “if the result is counterintuitive-
Thomas: We had a few, yeah.
Andrew: Yeah, but I like that formulation of the question and there are a bunch like that in the bar exam, so here we go! A) By suing the previous tenant for possession, the tenant elected that remedy in lieu of a suit against the landlord.
Thomas: Hmm. Interesting.
Andrew: B) The landlord had delivered the legal right of possession to the tenant. C) The tenant failed to timely vacate as required to sue for constructive eviction, or D) The tenant had not notified the landlord before bringing the eviction action.
Thomas: Alright my first complaint is couldn’t we have gotten some names here? Tenant one, tenant two! It just says the tenant but there are two tenants and I hope that it’s clear which one we’re talking about, but give me some creative names like, you know, Sam hates the law! Whatever, do the cheesy villain names or whatever. Mary-
Andrew: Boris and Natasha! [Laughs]
Thomas: [Laughs] Okay, so if I understand this right we have a classic two dates to the prom situation. [Laughs] Sitcom situation!
Andrew: [Laughs] I really want the Zack Morris in this.
Thomas: Typical Zack Morris situation! But not really. So a landlord is running out of building or something, they agree to a lease and then I guess unbeknownst to the landlord but knownst to us the [Laughs] to quote Spaceballs, there was somebody still living there, the last tenant just didn’t leave and I guess the landlord maybe didn’t even know that I think? Apparently we don’t know whether or not the landlord knew, but whatever. I’m not sure that’ll factor in. So the new tenant, instead of suing the landlord seems to have sued the previous tenant which is interesting. If I was a landlord I would be in favor of this, it’s like yeah, you guys fight it out! [Laughs] I’m just sitting here collecting rent from one of you and just figure out who lives there! So that’s nice. But anyway, the tenant one? Or that’ll be the reverse order. New Tenant sues Old Tenant and successfully sues for possession it says, so I guess that means the Court orders Old Tenant to GTFO as they say in legalese. Now it says the tenant did not inform the landlord of the eviction action until after the tenant received possession. So that’s one of those little fact tidbits in there, I don’t know if that’ll factor in but it could. So then the tenant is like, well there was a time during this lease that I paid for the place but I wasn’t able to be there because of this Old Tenant, so I’m gonna sue the landlord and get that money back. Then like you said it asks if the court finds for the landlord what’s the most likely explanation? Okay. So I think I understand it, I don’t know that I know the law [Laughs] But at least I understand the facts! So A says by suing the previous tenant for possession, the tenant elected that remedy in lieu of a suit against the landlord. Now that sounds plausible. That’s certainly a plausible sounding answer. I’ll put a pin in that one, leave it there, still plausible. B, the landlord had delivered the legal right of possession to the tenant. That’s, uh [Groans] I would say that could be, could be an answer but I find that less plausible. If it’s like, you know, that sounds a little hand-wavy, like I sell you a car, the car’s infested with termites or something [Laughs] Carmites!
Andrew: [Laughs]
Thomas: And then I’m like “well I sold you the legal right of having this car! There’s just all the termites in it” or something. The carmites, it sounds kind of like that where okay I gave you the right to live in this house but I didn’t tell you the house was filled with cyanide gas! Or something, you know. It feels a little – it could be, but it feels a little not right to me so I’m leaning away from B. C, the tenant failed to timely vacate … what? The tenant failed to timely vacate, and I assume it’s talking about New Tenant, I assume, as required to sue for constructive eviction. Uch. If that’s the answer then I just have no chance because that’s – that seems to be assuming the tenant would have to leave and then sue for constructive evic- what?! I don’t even understand that. The tenant failed to timely vacate as required to sue for constructive eviction. I cannot make heads or tails of that answer, I’m gonna not go with that and hope that it’s gobbledy-cook. I can only assume that maybe it’s on the theory that maybe you can get your rent back if you just leave and sue for whatever this constructive eviction is? But I dunno, that doesn’t seem right at all to me. And D, the tenant had not notified the landlord before bringing the eviction action. So that would be that little fact tidbit it talked about, said the tenant did not inform the landlord of the eviction action until after the tenant received possession. So I don’t know that that would matter, I guess if I’m trying to make a strong case for D I would say the tenant would have had to tell the landlord hey, I’m doing this eviction action so therefore give me back my rent money? Maybe? I’m not really sure why that would matter. Yeah, I don’t… [Sighs] I guess I could imagine that mattering but I’m leaning hard away from C and D, I’m looking between A and B. So A was you basically get to sue one person for this, either the tenant for possession or the landlord for money. That sounds plausible to me, I think part of suing the previous tenant is maybe you try to get some money? I dunno, it still feels like you’re out of the money, but I don’t know. Still plausible to me. And B, the landlord had delivered the legal right of possession. Gosh! I don’t really like that one! I might just be stuck with A again, I feel like it was A last time and it was like the most clear, obvious answer if I’m remembering right. I think I’m gonna go with it! I think that you don’t get to double dip maybe? Maybe it’ll be along those lines, like you don’t get to sue two people for the same thing kind of. A is the only action that I can – sorry, the only answer that makes any sense to me so I’m going with A, final answer.
Andrew: Alright well if you wanna play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE, include your answer, your reasons therefore and we will pick a winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright thanks so much for listening, thanks so much Andrew for the break down and enjoy a happy Thanksgiving everybody, and consider sending your relatives who are maybe skeptical of the whole impeachment thing our episode and hopefully we did a good job of maybe possibly being able to convince – not an Uncle Frank who, we’ve lost Uncle Frank we’ve all agreed. RIP Uncle Frank, he’s full MAGA, you’re not convincing Uncle Frank, but we shifted over to that Uncle Clarence who might be maybe a bit more of a moderate that we can reach so that’s our goal. Share it out and happy Thanksgiving everybody!
Andrew: Enjoy your holidays.
[Show Outro]