29 November 2019

Clown World Or Real World? How To Tell The Difference?

Among conservatives and right-leaning media types, one of the most disheartening media shifts in recent memory has been the apparent "betrayal" of iconic news aggregator Matt Drudge, whose headlines have lately trended towards the "anti-Trump" view of the world.

The curiously, quaintly, and yet effectively retro-themed "Drudge Report" has long been considered a primary source for conservative-leaning news, as well as "real" news unfettered by horrendous liberal bias. Many on the right feel that Drudge has abandoned that stance in favor of a more leftist/progressive tilt towards the news.
No right-tilting media outlet wields more influence than the Drudge Report, the widely read news-aggregation site launched in 1996. But those who follow the site closely say a sudden anti-Trump pivot is unmistakeable.

“Lately he has been absolutely terrible toward President Trump,” said conservative podcaster Josh Bernstein in a Nov. 8 show, dubbing the site “the Sludge Report.”

Gateway Pundit’s Jim Hoft pleaded, “Dear Matt Drudge — Please come home,” while Fox’s Jesse Watters took notice of a series of anti-Trump headlines, saying, “it just seems like the website has recently played up Trump gaffes and downplayed his successes.”

And they’re not wrong, according to B.J. Rudell, associate director of the Center for Political Leadership, Innovation and Service at Duke University’s Sanford School of Public Policy, who pinpoints the U-turn to the first week of August.

27 November 2019

Facts About Election Meddling

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.



In the wake of Adam Schiff's abysmal Clown World Impeachment Inquiry, absurdly yet accurately termed a "Schiff Show" (with all the scatological implication one cares to layer on), it seems wise to examine the narratives swirling around in the legacy media about both Russian and Ukrainian election "meddling" -- foreign actors interfering in the 2016 Presidential Election. With so much hysteria, we are well advised to recall the facts and evidences that we have, both of what was actually done and what impact it can be fairly shown to have had.

Russian Meddling: The Cyberattack Narrative

According to the legacy media, Russia began a concerted effort to manipulate the 2016 election outcomes in 2015, when computer hackers employed by or sponsored by Russian intelligence agencies gained access into the computer network of the Democratic National Committee.

One of the earliest known direct efforts by the Russians to meddle in the election came in the summer of 2015, when hackers believed to be linked to Russian intelligence gained access to the network of the Democratic National Committee. For an extended period, the hackers collected email and chat messages from DNC staff.
Between summer 2015 and spring 2016, these hackers presumably harvested a trove of data--email messages, chats and other text messages, as well as other documents. The network penetration was discovered in April of 2016 by the DNC, who engaged network security firm CrowdStrike to analyze the penetration and effect threat mitigation and remediation.
The firm identified two separate hacker groups, both working for the Russian government, that had infiltrated the network, said Dmitri Alperovitch, CrowdStrike co-founder and chief technology officer. The firm had analyzed other breaches by both groups over the past two years.

One group, which CrowdStrike had dubbed Cozy Bear, had gained access last summer and was monitoring the DNC’s email and chat communications, Alperovitch said.

The other, which the firm had named Fancy Bear, broke into the network in late April and targeted the opposition research files. It was this breach that set off the alarm. The hackers stole two files, Henry said. And they had access to the computers of the entire research staff — an average of about several dozen on any given day.

The computers contained research going back years on Trump. “It’s a huge job” to dig into the dealings of somebody who has never run for office before, Dacey said.
Crowdstrike would later publish some of their findings in their company blog, after the story was released to the public in June of 2016.

Separately, Russia was alleged in June of 2017 by the NSA to have attempted hacks of voter software companies in the US, as well as local voter registration rolls, during the 2016 election cycle. The consistent official stance in regards to these hacking efforts is that no voter registrations were compromised nor actual votes or vote tallies altered during the election

In addition to these cyberattacks, Russia also is alleged to have engaged in an extended "disinformation" campaign, using social media as well as Russian owned media outlets such as Sputnik and RT. Much of this effort was mentioned in the Intelligence Community Assessment on election interference published by the US Intelligence agencies in January of 2017.

Russia Meddling: The Evidence

We should always acknowledge the obvious. Hacking is a crime, and hacking by a foreign government is espionage. Some would even say it is an act of war. Yet it is because of the seriousness of the offense that we must take care to scrutinize all the information available, rather than rely on superficial narratives. With that in mind, let us review the evidences of Russian hacking related to the 2016 election.

For the hack of the DNC, we only have the Crowdstrike report available as evidence of what was done, when, and by whom. Crowdstrike did have some of its work reviewed by a separate cybersecurity firm, ThreatConnect, which affirmed CrowdStrike's conclusions, but the data they reviewed was the forensic material collected by CrowdStrike. No independent investigation of the DNC infrastructure was ever performed by any company other than CrowdStrike. Even the FBI was not given access to the servers to conduct an independent investigation. The FBI's conclusions on the DNC server hack are thus the CrowdStrike conclusions, which were accepted unchallenged.

We should also note that CrowdStrike has also made some significant errors in the realm of forensic investigation and analysis. In December of 2016, CrowdStrike published a report of Russian-sponsored malware affecting Ukrainian field artillery systems to devastating effect, and identified the source of the malware as the same Fancy Bear hacker group involved in the DNC penetrations. However, this report was disputed by several of the principals named, not the least of which was the Ukrainian government itself, which insisted that the hack never even took place, and Crowdstrike was later obliged to amend and ultimately retract much of the report. As I wrote shortly after Crowdstrike made its retractions, this rather egregious error, which included a misattribution of hacking activity to the Fancy Bear group named in the DNC hack, calls into question the accuracy and reliability of the DNC report--a report for which we have no independent verification.

Separately, however, a forensic analysis of some of the material gained from the DNC servers and released through WikiLeaks was performed in July of 2017 by the Veteran Intelligence Professionals For Sanity (VIPS), concluding that at least some of the material had been copied locally from the servers themselves--which would make the "hack" not a hack at all, but rather a leak of information by a person working in physical proximity to the servers. Without commenting on the credentials of the VIPS members, the one noteworthy attribute of their presentation which distinguished it from the Crowdstrike analysis was the inclusion of raw data and sources--things that people could, if so motivated, scrutinize independently to either rebut or affirm the VIPS conclusions.  To date, I am unaware of anyone presenting a rebuttal to the VIPS conclusions.

Even more curious is the summary of the DNC server hack presented by Robert Mueller in his second round of indictments during his Russian Collusion Probe. Mueller's team presented a version of the DNC intrusion that was conspicuously at odds with the Crowdstrike report, most notably in the role of the hacker persona Guccifer 2.0. Whereas Crowdstrike and their companion firm Threat Connect discounted the role of Guccifer 2.0, the Mueller indictments ascribed to him a far greater level of involvement. 

Thus we have a problematic assessment by Crowdstrike of the DNC server hack, an assessment for which Crowdstrike, by virtue of its erroneous assessment regarding Ukrainian field artillery software, is the main challenge for credibility claiming Russian-backed actors were responsible, and we have a competing assessment, still problematic but lacking any clear rebuttal or challenge, suggesting that there might not have been a hack at all, just a rather mundane whistleblower/leaker. We have indictments asserting a theory of the intrusion that contradicts the Crowdstrike analysis directly. 

As the Mueller indictments are unlikely to ever be adjudicated in a court of law, none of these materials will be given ultimate legal scrutiny, but, taken as a whole, it is impossible absent such adjudication to say with certainty if the DNC server was even hacked, much less that it was hacked by Russian actors. We cannot rule it out, but there is a very large question mark that must be appended to the assertion.

As regards the later hacking efforts against voter systems and voter databases, the only source document we have is a redacted NSA report saying it was done by Russian actors, but with sparse presentation of source materials, which only describe two Microsoft Word-based "spear phishing" pieces of malware which, when activated, reach out to an IP address within the US to download additional malicious payloads. That these bits of malware originated with Russian hackers is something for which we must simply take the NSA at their word--a proposition that is under any circumstances a questionable leap of faith, and given the numerous intelligence failings by the US intelligence community over the years, a leap that many would find too great.

As with the DNC hack, the Russian origin of the voter system hacks cannot be ruled out, but comes with a very large question mark appended.

Ukrainian Meddling: The Forgotten Narrative

Ukraine's presumed misdeeds with regards to the 2016 election are both more plain and more problematic than the cyberattacks attributed to Russia.

In January of 2017, Politico reported on various efforts by Ukrainian officials to weigh in on the 2016 election. That report detailed efforts by a DNC staffer, Alexandra Chalupa, to obtain material unfavorable to then candidate Donald Trump from the Ukrainian government. The report also highlighted publicity efforts by the Ukrainian Ambassador, Valeriy Chaly, which included writing an op-ed piece in The Hill in August of 2016.

Prior to the start of the Schiff Show, these bits of news reporting were conveniently forgotten by the legacy media. However, the facts have not been forgotten, and they are summarized excellently by investigative reporter John Solomon.

Election Meddling: The Problem

Aside from the problematic cyber intrusions allegedly performed by Russian actors, all of the "meddling" alleged in any reporting, be it the Intelligence Community Assessment, The Report On Russian Active Measures by the House Permanent Select Committee On Intelligence, the Mueller indictments, or any of the legacy media reporting on the topic, revolves around the publication of presumably propagandistic "disinformation" and "Fake News". The election meddling that is such a threat to the Republic, we are told, is at its essence a matter of people speaking out, speaking their mind in some cases, giving opinions, perhaps even making statements which are either misleading or completely false. Unfortunately for the narratives, there is a rather significant problem with that thesis: the First Amendment.

The right of free speech is pre-eminent among our inalienable rights. The right enshrined in the First Amendment is repeated in other declarations of rights, including the Universal Declaration of Human Rights and the Canadian Charter of Rights and Freedoms. In the case of the First Amendment, the right is categorical: there can be no law enacted, no regulation promulgated, which inhibits free speech.

Even if we assume that Russia utilizes RT and Sputnik as media mouthpieces for promoting the Kremlin position on various news items, even if we presume that Russia used these outlets to argue one side or another in the 2016 election, the question must be asked "how is that wrong?" In a free society, how is it wrong for anyone, even Vladimir Putin, to express his opinion? Even when the ICA first came out, it was readily apparent this was a central flaw of that assessment. The fact that Ukrainian commentary went unchallenged during the election compounds the question, for if the Ukrainian Ambassador can hold forth in The Hill, why can Russian individual not present their views on RT and Sputnik?

We must ask that question, because when it comes to media presentations, Russia has never been the lone actor. China has, by this standard, "meddled", and has even admitted as much. Moreover, these things for which Russia is excoriated and other nations are not are things even the United States has done, as was the case in the 2015 Israeli elections, where the Obama Administration deployed political ads in Israeli media against Prime Minister Benjamin Netanyahu.

The observation I made at the publication of the ICA remains very much on point:
People may not like that Putin has sought a voice in American electoral politics, but it is disingenuous if not deceitful to pretend that anyone--even a despotic dictator such as Putin--seeking a voice is antithetical to America's "liberal democratic order," and it is dangerously naive to pretend that the intrusion of such foreign voices into the "liberal democratic order" is not very much the established political order of things.
Election Meddling: Focus On Facts

We may plausibly say that opinions of foreign actors regarding US elections should be discounted as irrelevant. We may even object when foreign actors present opinions they claim are representative of a portion of the US electorate--that foreign actors are not the best interlocutors of the opinions of the electorate. However, as we are still a free society, and still both blessed and challenged by the right--and the moral imperative--of free speech, we should tread lightly on how we criticize foreign commentary about our politics.

The fact that a commentator is not native to these shores is relevant in any political debate. The fact that a commentator is not native to these shores does not make the commentator either malicious or malevolent. We should consider that fact, but we should never be consumed by just that fact. The focus should always be on all the facts.

The facts supporting Russian complicity in the various cyber intrusions reported during the 2016 election are incomplete and not without challenge. The full facts leave more than a little room for doubt on the subject. It may be the Russians did engage in such activities, or it may be that they did not. When we focus on all the facts we cannot state either as an absolute certainty.

Perversely, the facts surrounding Russia media activities during the 2016 election may be the one body of facts that ultimately does not matter. Russia may very well have taken out Facebook ads in 2016, and may very well have arranged for an army of Twitter bots and trolls to put forth their particular propaganda. All this may be true. Yet we cannot call this "meddling" without looking askance at the propaganda put out by our own political parties, by our own fellow citizens. 

Speech is, ultimately, merely speech. It matters not who utters it--a free society demands that speech be kept free for all parties. Even the Russians. 


25 November 2019

An Election Heard 'Round The World?

On Sunday (November 24), Hong Kong held their elections for their legislative council.

Democracy won. In a landslide.

The triumph is not just that there was record turnout, with some reports putting voter participation at greater than 70%. The surge of previously non-particpating voters powered the election of councillors backed by the pro-democracy protest movement to as many as 90% of the contested seats, leading many to characterize the election as a rejection of Beijing's heavy handed and increasingly fascistic authoritarian rule.
“Almost three million voters sent the Carrie Lam administration an unmistakable message on Sunday, flooding to the ballot box in record numbers to vote against pro-establishment candidates and usher in what by all indications should be a staggering victory for the pro-democracy camp,” Public broadcaster RTHK reported. “While official results are yet to be announced, partial counts suggest that opposition candidates should win an overwhelming majority of the 452 District Council seats up for grabs, and may have a winning ratio of as high as nine-to-one.”
Hong Kong Still Part Of Mainland China

While political leaders here in the US tweeted out expressions of support and solidarity to the protest movement and the newly elected pro-democracy councillors, Beijing predictably reiterated that Hong Kong was "still" China proper, and still under Beijing sovereignty, not just suzerainty.
Beijing has reaffirmed its "firm support" for troubled Hong Kong leader Carrie Lam, despite a landslide win by opposition parties in local elections, as voters vented their frustration over her administration's handling of anti-government protests.

"Our position is crystal clear. The central government firmly supports the Chief Executive Carrie Lam in leading the Hong Kong government, supports the police in enforcing law and restoring order, and supports the judicial organs in punishing violent criminals.," said Geng Shuang, spokesperson at China's Foreign Ministry, at a regular press conference on Monday.

Geng echoed remarks made by his boss Foreign Minister Wang Yi earlier in Tokyo, claiming that Hong Kong matters were China's domestic affairs. He also restated Beijing's commitment to enforcing the "one country, two systems" framework, under which the city is meant to enjoy a high degree of autonomy that mainland Chinese cities are denied. "Hong Kong is China's Hong Kong," Geng said.

Earlier on Monday, Wang told reporters in Tokyo: "Any attempts to undermine the stability and prosperity of Hong Kong will end in failure." Prior to that, Japanese Prime Minister Shinzo Abe, at a meeting with Wang, had urged China to maintain a free and open Hong Kong.
Yet is that really the situation? Is Hong Kong truly Beijing's to command at this point?

Even the political punditry advises Beijing to "listen" to the Hong Kong electorate (ignoring for the moment the irony of a plea to an unapologetically fascist and increasingly legalist oligarchy to pay greater heed to the voices and concerns of the broader polity), highlighting that the dominant election themes had little to do with local issues and everything to do with the democracy movement itself.
Although the pro-China camp is bravely trying to suggest that the election should be seen as a reflection of mundane local matters, it is hard to ignore the reality that the victorious candidates campaigned on explicitly pro-democracy platforms, largely overlooking district issues.
The Hong Kong local government is now unabashedly, unashamedly, and unwaveringly pro-democracy. About the only reason they are not pro-independence and pro-freedom is the protest movement itself stopped short of demanding full independence or even full local automony. For Beijing to bend itself to pay heed to the rabble rousers from the protests is hardly the posture of full control over the city.

The Crackdown That Didn't Happen

But there is an even more compelling reason to question the firmness of Beijing's stance on the Hong Kong Elections. These elections occurred in large measure because President Xi Jinping of China never pulled the trigger on sending in troops to take control of the city by force, despite considerable saber rattling on the point.

It was barely two months ago, at the beginning of September, that Xinhua "warned" Hong Kong and the pro-democracy supporters that "the end" was coming, hinting that Xi was reaching the end of his patience and that troops could be expected at any time. Xi himself hinted as much when, a few days later, he used distinctly Mao-like language in a televised speech in the run up to China's October 1 National Day holiday.
But if a televised speech by Xi on Tuesday is any guide, their struggle to achieve those goals will be much harder. In that speech, Xi listed Hong Kong, along with Macau and Taiwan, as one of the challenges threatening the rule of the Communist Party. Excerpts of the speech dominated China Central Television’s nightly prime-time news slots. Xi gave the speech to a group of young and middle-aged senior officials enrolled in a training course at the central party school. He called for “constant struggles” against myriad challenges and risks in the areas of economics, politics, culture, society, ecology, national defence and the armed forces, diplomacy, party building and, notably, Hong Kong, Macau and Taiwan.
Hong Kong's response to Xi's speech was to call on US President Donald Trump to "liberate" the city. Protesters on the streets carried banners which called on President Trump by name to "save Hong Kong" and "Make Hong Kong Great again". 

To say the citizens of Hong Kong were not moved by Xi's warnings is an understatement.

We should remember that, as China's National Day holiday approached, the protests themselves grew increasingly violent, with the Hong Kong police themselves resorting to tear gas and water cannon to disperse the seemingly endless protests. At times the protests themselves resembled nothing so much as an "Asian intifada", with unarmed protesters hurling rocks, bricks, and whatever else could be found at the riot police.

We should remember that on the eve of National Day, Beijing quietly doubled the normal contingent of PLA soldiers present in Hong Kong, leading many to speculate (myself included), that a Tienanmen-style crackdown was at long last about to happen.  Except the crackdown never came.

Protesters Never Backed Down

There will be endless speculation on why President Xi did not order martial law and suppression of the protests by force, but Xi may simply have recognized that force would not resolve the issue.

During protests on the October 1 Nationald Day holiday itself, the police began using live ammunition against the protesters. The protests did not diminish.

When Hong Kong Chief Executive Carrie Lam attempted to enforce an "anti-mask" order designed to inhibit the protesters habit of wearing masks to conceal their faces from the ubiquitous Chinese surveillance apparatus, the protests merely escalated in intensity and levels of violence.

Every escalation by the Hong Kong police, every arrest, was only met with more protests. Intimidation was met with determination.

Intimidation was met with grim determination. As one observer noted, writing for The Atlantic, the protesters had few, if any, illusions about the improbability of success.
Aren’t you afraid? I asked, gingerly. “We are afraid,” they quickly admitted. They even giggled, but it got serious quickly. This is our last chance, they said very matter-of-factly. If we stand down, nothing will stand between us and mainland China, they said. They talked about Xinjiang, and what China had done to the Uighur minority. I’ve heard about the fate of the Uighurs from so many protesters over the months. China may have wanted to make an example out of the region, but the lesson Hong Kongers took was in the other direction—resist with all your might, because if you lose once, there will be a catastrophe for your people, and the world will ignore it.

The two women weren’t sure whether they would win. That’s also something I’ve heard often—these protesters aren’t the most optimistic group. No rose-colored glasses here. “But we cannot give up,” one insisted, “because if we do, there will be no future for us anyway. We might as well go down fighting.”
It is not hard to conclude that substituting riot police with soldiers in the face of that measure of determination would have not changed anything except the number of casualties. Perhaps Xi recognized that, and preferred not to have violent repression played out on Facebook and livestreamed video for the world to see; those certainly would not have been images to help China advance on the international stage.

Has The Moment For Crackdown Passed?

With elections roundly endorsing the protests and the sparse agenda of the democracy movement, and with those elections hailed around the world, has Xi allowed the window in which he could have seized control of Hong Kong militarily to close? Certainly a crackdown now would be seen as a repudiation of the elections, not just of the protest movement itself. Such a move now could easily result in more than just condemnatory tweets and other forms of virtue-signalling. Sanctions from other nations would almost surely follow, just as sanctions came against Russia when it annexed Crimea. 
Already, the United States House of Representatives has adopted a bill that, if also passed by the Senate, would mandate an annual review by the State Department to determine whether Hong Kong remained sufficiently autonomous to justify its special trading status under US law. As China’s central government tramples on Hong Kong’s rights, more Western democracies – including those that have hesitated to support US President Donald Trump’s efforts to contain China – are likely to support comprehensive economic sanctions.
While Russia was able to shrug off the worst of them and essentially wait them out, Xi, being in the middle of a low-level trade war with the US, might not have felt quite so sanguine about the prospect.

Whatever the reason for forbearance before, democratic elections amplify the reasoning many times over. A crackdown may still happen, but the risks to Beijing have increased tremendously.

It must also be acknowledged that any repression or reprisal against Hong Kong's democracy movement carries a potentially ruinous cost: the loss of Hong Kong as a financial hub and source of foreign capital.
The U.S. bill is widely seen by Hong Kong protesters as a form of economic pressure for the Hong Kong government and Chinese regime, which relies on the financial hub as a source of foreign reserves and investment capital.
Perhaps the price tag for repression was at long last more than President Xi was prepared to pay.

The Question Still Unanswered

The greatest question in all of this remains unresolved. How shall China successfully continue its "one country, two systems" policy? How can a democratic Hong Kong, rooted in the traditions of the British legal system and Western appreciations of civil liberties, exist peacefully within an increasingly repressive and fascistic Beijing autocracy?

More importantly for Beijing, if it is unwilling to repress Hong Kong, how will it justify repressing Tibet, Xinjiang, and other parts of the country? Having allowed Hong Kong to thumb its collective nose at Beijing's authority, how will it prevent other cities from attempting to do likewise? The PLA has some 2 million men in its ranks--hardly enough to pacify a population of a billion and a half.

In Hong Kong, democracy and autocracy clashed--with democracy emerging the clear winner. The choice of the people has been cast for freedom rather than slavery. If Hong Kong leads other cities in China to choose likewise, there is no way for Beijing to sustain its authority.

In 1989, a restive East German population pushed through the Berlin Wall without opposition from either the East German government or the Soviet hegemon in Moscow. Two years later the Soviet Union disappeared forever.

In 2019, a restive Hong Kong population pushed back against a totalitarian Beijing, with what ultimately proved to be only a token opposition (against what presumably could have been mounted). Will history rhyme, and usher in the collapse of the Beijing oligarchy within the next few years? 

To suggest that is the inevitable outcome of all that has transpired in Hong Kong is to extrapolate far beyond the bounds of all available evidence. Yet if it should pass that Beijing declines and disintegrates in the coming years, there is no doubt that the beginning of that decline was this year's democracy movement in Hong Kong. 

It is a hope, perhaps a dream, but in Hong Kong we may have witnessed elections that will be heard around the world.

24 November 2019

Impeachment Is A Double-Edged Sword

An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.

After two weeks of public hearings on whether or not to impeach President Donald Trump, the Democrats are facing an uncomfortable truth about impeachment--like all political weapons, it is a double edged sword that cuts sharply in both directions, all the time.

In considering impeachment, we must remember that, first, ever, and always, a political response to a miscreant chief executive. As Alexander Hamilton stated in Federalist #65:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Thus, even though the Constitution establishes the causes for impeachment to be "Treason, Bribery, or other high Crimes and Misdemeanors", and so calls our attention to the prospect of a President or other high government official violating the law, impeachment itself is not a criminal proceeding, nor is tied to the judicial branch. Rather, impeachment exists in the Constitution as a corrective measure for when a sitting President greatly oversteps and abuses his authority as the nation's Chief Executive.

The challenge for the Democrats, led by Congressman Adam Schiff, has always been to make the case that President Trump has overstepped and abused his authority as the nation's Chief Executive. That is not a challenge that Adam Schiff can be said to have met to any noteworthy degree.

High Crimes And Misdemeanors

Perhaps no other phrase in the Constitution save the curious construction of the Second Amendment has been scrutinized, interpreted, and arguably misinterpreted as the phrasing from Article 2 Section 4, "High Crimes and Misdemeanors." Unlike treason, which is defined within the Constitution itself, and bribery, which is identified in the Federal Code (18 USC 201), "high Crimes and Misdemeanors" is not something which is explicitly defined within the boundaries of statutory US law.

If we follow Gerald Ford's cynical construction of the impeachment power, "high Crimes and Misdemeanors" is a catch-all phrase designed to give the House essentially carte blanche to impeach a President. Yet that is not quite accurate. As Alan Dershowitz has noted:
Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment

The meaning of “high Crimes and Misdemeanors” was, so to speak, its own distinct thing. It was not a combination of “crimes” and “misdemeanors” as understood in today’s criminal-law sense. It was instead a unique legal term with its own meaning. The framers of the Constitution understood and used the phrase in that specialized sense, consciously adopting a known English-practice term of art in preference to other proposed formulations of the impeachment standard. And the ratification debates uniformly reflect that same broad understanding.
Exactly what meaning attaches to the phrase we can begin to see from Hamilton's Federalist 65, when he describes the impeachable offense as being "the abuse or violation of some public trust". Stripped away of the florescence of 18th century political language, an high Crime and Misdemeanor is any conduct which may plausibly be described as an abuse of power. 

As a matter of simple practicality, the easiest abuses of power to establish are those that involve some level of legal misconduct, and the Constitution invites this approach by establishing the first two criteria for impeachment as actual statutory crimes. 

Previous Presidential impeachment efforts have followed this violation of law model. Andrew Johnson's articles of impeachment centered on supposed violations of the Tenure in Office Act. Bill Clinton's articles of impeachment centered around charges of perjury (Chapter 79 of the US Code). Richard Nixon's articles of impeachment, which were never voted on by the full House of Representatives, not only alleged perjury and making false statements to investigators, but also witness tampering (18 USC 1512).

Nixon's articles of impeachment are instructive for Democrats contemplating possible articles of impeachment against Donald Trump because they included such charges as "endeavouring to misuse the Central Intelligence Agency, an agency of the United States", something which is clearly wrong, certainly unethical, but might not be easily reduced to a particular statutory offense.

High Crimes Are Violations Of Ethics

Consistent with the Hamiltonian definition of an impeachable offense are the findings of the committee staff for Nixon's 1974 impeachment inquiry, which elaborated on the Hamiltonian standard as follows:
(1) exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government; (2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and (3) employing the power of the office for an improper purpose or for personal gain.
Clearly, impeachment is not limited to criminal misconduct, nor is all criminal misconduct intrinsically impeachable. Rather impeachment is meant to be used for misconduct, whether criminal or simply unethical, which is both severe and inextricably tied to the office and not just the office holder. 

The criteria are broad and therefore difficult to assess uniformly, as a 2015 Congressional Research Service Report, "Impeachment and Removal", noted. One proposed article of impeachment against Richard Nixon was voted down in committee because it was believed the misconduct in question was more of a private and personal nature, and not intrinsic to the office of President of the United States. By the same token, the articles of impeachment against Bill Clinton for perjury were voted on the theory that 
The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties. The report rejected the notion that conduct such as perjury was “more detrimental when committed by judges and therefore only impeachable when committed by judges.” The report pointed to the impeachment of Judge Claiborne, who was impeached and convicted for falsifying his income tax returns—an act which “betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary.” While it is “devastating” for the judiciary when judges are perceived as dishonest, the report argued, perjury by the President was “just as devastating to our system of government.”
However, in every instance, an impeachable offense carries a clear ethical dimension, regardless of whether it is also a statutory criminal offense. 

Given the broad definition of "high Crimes and Misdemeanors", Gerald Ford could certainly be forgiven for his cynical assessment of the term, although as I have argued previously "the unspoken addendum to Gerald Ford's assessment must be an acknowledgment that the majority of the House which votes impeachment must accept and be prepared to face the wrath of the voters." If Congress is to argue an abuse of the office, the argument must eventually be accepted by the electorate at large.

When The Sword Cuts The Other Way

As this post's title states, impeachment is a double edged sword, and it is double edged because of the broad nature of the term "high Crimes and Misdemeanors". What constitutes a gross ethical lapse by a President of the United States? 

The Constitution does not define particular powers of the President, other than to execute the laws of the United States, serve as Commander-In-Chief of the armed forces, appointed federal judges, and negotiate treaties with other nations, the last two being in conjunction with the United States Senate. This is a far cry from the particular laundry list of congressional powers outlined in Article 1 Section 8. All other powers and prerogatives of the President come as an outgrowth from the office's status as the nation's chief executive: all cabinet departments are answerable to the President, as are all federal agencies and all ambassadors and diplomats.

With a broad governing mandate, it follows that the ethics of the office are similarly broad. Some aspects are reducible to statutory language (such as the prohibitions on gifts and emoluments, as well as the obvious offenses such as perjury), but others considerably less so. This is one of the challenges facing House Democrats wanting to impeach Donald Trump--establishing the gross ethical violation in the eyes of the electorate.

The core allegation of the Democrats has actually not changed much, even as they shifted from "quid pro quo" to "bribery". The essential charge has always been that President Trump corruptly and coercively pressured the Ukrainian government to provide political "dirt" on Joe Biden and his son, Hunter Biden. As I have noted from the outset, if this charge can be proven it is unquestionably a misuse of the power of the Presidency and, arguably, impeachable.

However, the Democrats have still not tackled a very big elephant in the room regarding the charge--the undeniable conflict of interest that existed by Hunter Biden serving on the board of Ukrainian natural gas company Burisma while Joe Biden was Vice President. Just as the ethical charge against President Trump is damning if true, the ethical lapse inherent in the conflict of interest is equally damning to the Bidens  if true, and any factual material attesting to that ethical lapse, or of ethical lapses arising from that conflict of interest, cannot be dismissed as mere political "dirt". The criteria is not whether Donald Trump benefits politically from any such information, but whether any such information is dispositive in a potential legal proceeding against the Bidens.

It is on that point that the news cycle has not been kind to the Democrats. As they have pushed ahead arguing impeachment, news reports regarding Hunter Biden's conduct both in the Ukraine and elsewhere have been emerging with some regularity, all of which is charitably described as "ethically problematic":
Even more damaging to the Democrats' case have been the revelations from their own witnesses that not only are there plausible ethical questions surrounding the Bidens and Burisma, these ethical problems were apparent even to the Obama Administration. If there is one consistent thread through all the witness testimony it has been that singular point.

The impeachment inquiry has produced a steady "drip, drip, drip" of tantalizing and potentially damning revelations--but about the Bidens, not about Donald Trump. The number of such revelations has even reached a critical tipping poing where Senators Chuck Grassley and Ron Johnson are asking the US Treasury for any information it might have about Hunter Biden's dealings, and are broadly pursuing information regarding any contacts between Obama Administration officials, the Ukrainian government, and the Democratic National Committee back in 2016. These are investigations that are being pursued outside of the auspices of an impeachment inquiry, and therefore will not necessarily go away once the impeachment process is done. 

That the impeachment inquiry has resulted in an undesirable level of scrutiny of Joe Biden's two terms as Vice President is nothing if not ironic. Yet the reality remains that Congressman Adam Schiff arguably has made a better case for investigating Hunter Biden than he has for impeaching Donald Trump.

This was always the major vulnerability in the Democrats' strategy on impeachment. An abuse of power charge of any sort against any President is only going to be sustainable if the person or persons believed to have been abused are themselves not fit targets for legal scrutiny. Regardless of what Donald Trump's main motivation might have been in asking for an investigation by Ukraine into the 2016 election and into Burisma and Hunter Biden, so long as there is even one legitimate law enforcement reason to conduct such investigations, the abuse of power charge is never going to last--and there are multiple legitimate law enforcement reasons to investigate the Bidens, just from the published news accounts. Potentially, Donald Trump need not even have a formal impeachment trial in the Senate--the investigations by various committees will provide him with all the platform he needs.

News accounts are not necessarily legally valid evidence, and any one individual news item is certainly not absolute conclusive proof of wrongdoing by either Joe or Hunter Biden. Yet the threshold is not establishing the ultimate guilt or innocence of the Biden clan, merely that reasons exist for an investigation to be undertaken. That threshold has been met, multiple times.

As the Democrats proceed with their next phase of impeachment inquiry, one has to wonder how much more collateral damage will they do to their fellow Democrats, even as they fail to damage President Trump in the slightest.

22 November 2019

A Tale Of Two Worlds: Clown World vs Real World

It was the best of times, it was the worst of times.
Charles Dickens, A Tale Of Two Cities

If one is reading news reports of how witness testimony during the impeachment hearings currently underway "destroys" the Democrats case for impeachment, one might laugh and think this is the best of times.

If one is following other portions of the legacy media, which is reporting how that same testimony "proves" Trump's corruption, one could be forgiven for thinking this is the worst of times.

If one is reading all of the news, and is therefore seeing that this or that witness is both destroying the Democrats' case for impeachment and proving Trump's corruption, one could be forgiven for a bit of head scratching and wondering what to make of the breathless reporting and pearl clutching attendant upon both narratives.


Clown World, meet Real World.


In Clown World, Impeachment Is A Moral Imperative


After now two weeks of public hearings, the legacy media is filled with articles detailing how "damning" the witnesses arrayed before Congressman Adam Schiff and the House Permanent Select Committee on Intelligence have been. 


Consider some of the recent headlines:

The USA Today piece details a purported deconstruction by Fiona Hill of the "Republican theory" that Ukraine interfered in the 2016 election.
Hill rebutted the Republican theory that Ukraine meddled in the 2016 U.S. election and answered questions about the pressure campaign President Donald Trump is accused of levying against the nation. 
Politico reiterates how Dr. Fiona Hill presumably dismantles the Republican narrative of  Ukraine interference in the 2016 election:
“I refuse to be part of an effort to legitimize an alternate narrative that the Ukrainian government is a U.S. adversary, and that Ukraine — not Russia — attacked us in 2016,” Hill told the House Intelligence Committee in its seventh public impeachment hearing.

“These fictions are harmful even if they are deployed for purely domestic political purposes,” added Hill, a longtime Russia hawk.
The Vox article presents the November 20 testimony of Ambassador Gordon Sondland as shredding any pretense that President Trump was concerned at all with corruption in famously corrupt Ukraine.
Sondland’s revelation rips away the last of the pretense that Trump cared about corruption in Ukraine. He wanted a televised announcement of an investigation into Hunter Biden that he could use to cast a pall on the Biden campaign, just as the email morass damaged Hillary Clinton in 2016. All he ever asked for was a sort of political show trial that would allow him to run the same playbook he ran against “Crooked Hillary.”
To be sure, there have been many statements made by these witnesses that are quite unfavorable to President Trump, such as Ambassador Sondland's opening remark about "quid pro quo":
I know that members of this Committee have frequently framed these complicated issues in the form of a simple question: Was there a “quid pro quo?” As I testified previously, with regard to the requested White House call and White House meeting, the answer is yes.
Indeed, if one listens to the whole of Ambassador Sondland's opening remarks, he makes many statements which are decidedly unfavorable to President Trump. Statements such as this:
In response to our persistent efforts to change his views, President Trump directed us to “talk with Rudy.” We understood that “talk with Rudy” meant talk with Mr. Rudy Giuliani, the President’s personal lawyer.

Let me say again: We weren’t happy with the President’s directive to talk with Rudy. We did not want to involve Mr. Giuliani. I believed then, as I do now, that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for Ukraine matters.


Nonetheless, based on the President’s direction, we were faced with a choice: We could abandon the efforts to schedule the White House phone call and White House visit between Presidents Trump and Zelensky, which was unquestionably in our foreign policy interest -- or we could do as President Trump had directed and “talk with Rudy.” We chose the latter course, not because we liked it, but because it was the only constructive path open to us.
Or this: 
Everyone was in the loop. It was no secret. Everyone was informed via email on July 19, days before the Presidential call. As I communicated to the team, I told President Zelensky in advance that assurances to “run a fully transparent investigation” and “turn over every stone” were necessary in his call with President Trump. 



In Real World, Impeachment Is Unproven

Like all news and commentary, however, the reporting on Fiona Hill's testimony must be reconciled to all of her testimony, and to all the responses and comments by committee members related to that testimony. 
Fiona Hill's statement about the "false narrative" was directly challenged by Congressman Devon Nunes in his opening remarks, where, among other items, he reminded the committee of DNC staffer Alexandra Chalupa's communications with Ukraine in 2016 on behalf of Hillary Clinton's campaign:
And they got caught covering up for Alexandra Chalupa—a Democratic National Committee operative who colluded with Ukrainian officials to smear the Trump campaign—by improperly redacting her name from deposition transcripts and refusing to let Americans hear her testimony as a witness in these proceedings.
Congressman Nunes finished his remarks by handing to Dr. Hill a copy of the 2018 report by the Republicans on the Intelligence Committee detailing what they considered to be evidences of Russian interference in the 2016 election, a direct and fairly sweeping rebuke of Dr. Hill's assertions.

 


In the case of the Politico reporting, they and Dr. Hill are further contradicted by none other than Politico itself, from back in 2017:
Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found.
Fiona Hill's testimony is, at least as regards her opening remarks, factually challenged. The demonstrable factual defects in her testimony prevent it from being the incredibly damaging testimony the legacy media reports it to be.

In similar fashion, the Vox article must inevitably be reconciled to the actual testimony given by Ambassador Sondland. It must be reconciled not just to Sondland's opening statement, but all of his answers to questions by both Democrats and Republicans, which includes this exchange with Republican Congresswoman Elise Stefanik:



A highlight of this part of his testimony is Ambassador Sondland recounting a statement from President Trump that he wanted Ukrainian President Zelensky to "do the right thing" regarding Ukrainian corruption.


Republican Congressman Michael Turner's questioning of Ambassador Sondland also runs quite counter to the Vox narrative:





Under questioning, Sondland flatly contradicts the Vox reporting:
Turner: “What about the aid? He says that they weren’t tied, that the aid was not tied.”

Sondland: “And I didn’t say they were conclusively tied either. I said I was presuming it.”


Turner: “Okay. So, the president never told you they were tied.”


Sondland: “That’s correct.”


Turner: “So, your testimony, his testimony is consistent in that the president did not tie aid to investigations?”


Sondland: “That’s correct.”
Sondland makes the point repeatedly that the linkage reported by Vox and other media outlets did not exist, or at least that he could not testify they existed. 
Turner: “So, no one told you. Not just the president? Giuliani didn’t tell you. Mulvaney didn’t tell you. Nobody. Pompeo didn’t tell you. Nobody else on this planet told you that Donald Trump was tying aid to these investigations? Is that correct?”

Sondland: “I think I already testified to that.”


Turner: “No answer the question: Is it correct? No one on this planet told you that Donald Trump was tying this aid to the investigation? Because if your answer is yes then the chairman’s wrong and the headline on CNN is wrong. No one on this planet told you that President Trump was tying aid to investigations? Yes or no?”


Sondland: “Yes.”


Turner: “So, you really have no testimony that ties President Trump to a scheme to withhold aid from Ukraine in exchange for these investigations?”


Sondland: “Other than my own presumption.”
So it goes with all the testimonies--inconvenient facts and admissions spill out that undercut the impeachment narrative. While there are witnesses in abundance to testify against President Trump and to condemn his conduct, the witnesses also fail to make an unequivocal case against President Trump. There is plenty of evidence to indicate that many within the government disapprove of how Trump handled the July 25 phone call, but there is no clear evidence, no un-contradicted testimony, that establishes either a clear crime or any abuse of Presidential authority.

In The Real World, All Facts Matter

While the media enjoys spinning narrative, ordinary people must deal in facts. There is one singular fact surrounding the impeachment inquiry that neither side has been willing to fully acknowledge or consider: The Ukrainians did investigate Burisma. Not only was Burisma investigated, but the company's owner, Nikolai Zlochevsky, has been indicted. Even more awkward, Hunter Biden's consulting company through which he was paid during his Burisma directorship is alleged by the Ukrainians to have received money laundered from criminal activities by Zlochevsky.
Dubinsky made the claim in a Wednesday press conference, citing materials from an investigation into Zlochevsky and Burisma.

"Zlochevsky was charged with this new accusation by the Office of the Prosecutor General but the press ignored it," said the MP. "It was issued on November 14."

"The son of Vice-President Joe Biden was receiving payment for his services, with money raised through criminal means and money laundering," he then said, adding "Biden received money that did not come from the company’s successful operation but rather from money stolen from citizens."
Ironically, the Ukrainian investigation predates President Zelensky's election in April. The very thing that Donald Trump requested in the July 25 phone call was already underway, and had been publicly announced in Kyiv in February. Perhaps the reason Zelensky undertook no great action to accede to President Trump's July 25 "ask" was that there was no need for action--on the Bidens and Burisma, what Trump had requested was already being done.

Zlochevsky's indictment is a serious challenge to the narratives of the legacy media. It is a grim reminder that Burisma is a corrupt company run by a corrupt oligarch. It is a company that needed to be investigated, whether or not Donald Trump requested it.

It's A Mess

What is left is simply a hot mess. Some people are put out that President Trump dared ask a foreign government for an investigation of a US citizen. Others are put out that he did not follow the recommendations of the policy "experts" within the government. Still others are outraged that Democrats would consider this an impeachable offense.

When these hearings began, I posited the question of whether or not Adam Schiff would be able to make a case for impeachment. At this juncture, it is fairly certain he has not done so. Not only has he failed to address the many inconsistencies and contradictions within his witness testimonies, he has even failed to acknowledged the Ukrainians' own legal actions, which establish a basis in fact both for an investigation of the 2016 election and an investigation into Burisma and Hunter Biden.

Even more damning is that he has completely failed to persuade independent voters. In the two weeks there have been hearings, support for impeachment among independent voters has dropped by 10%. To make the case for impeachment Schiff needed the numbers to move in the opposite direction, especially among independent voters--these are the voters who are not deeply committed pro- or anti-Trump, and are therefore the ones most amenable to persuasion.

Yet the lack of persuasion on impeachment has not yielded a dramatic uptick in job approval for President Trump. Voters might not be impressed by Schiff's impeachment claims but neither are they any more persuaded on how well Trump has carried out the duties of President.

What to make of it all? Simply that impeachment has been from the outset a contrivance, a non-event intended to excite voters and give the media fresh clickbait. This was less about governing the Republic than it was about driving ratings and revenue for the legacy media. A simple examination of Google Trends shows how well this worked out for the media:

For the legacy media, impeachment has been the very best of times. The infotainment industry never had it so good. 

For everyone else, impeachment is merely another sign of the times, and another sobering reminder of the growing divide between Clown World and the Real World.