Thursday, November 21, 2019

Talking Points



This is a key talking point; I heard Jonathan Turley using a variation of it this morning on NPR:

Co-host Brian Kilmeade started off by claiming that the president was vindicated because he told European Union ambassador Gordon Sondland that he wasn’t seeking a quid pro quo from Ukraine.

Napolitano then went on explain how House Democrats will be able to infer that Sondland’s testimony implicating Secretary of State Mike Pompeo and chief of staff Mick Mulvaney are accurate if they refuse to testify — and then add that refusal to another article of impeachment for obstructing Congress.
The talking point is that, without an express statement "I'm bribing you," or "This is the quid pro quo," the elements of the crime are unproven.  (Which, no coincidentally, is never a defense allowed of poor people of color in the criminal dock.  This is an exclusively white-collar white defendant defense.  But I digress....).  Except, as Judge Napolitano points out here, there is an allowed inference that witnesses who refuse to testify do so because they are obstructing justice and their silence can be held against them.  Ironically, if Mulvaney and Pompeo and others testified but plead the 5th, their plea could not be inferred against them to decide they had something to hide.

“One would expect the president in September, after the whistleblower’s allegations came out, after the president was accused of a quid pro quo, to say ‘no quid pro quo,'” he explained. “It’s clear… that there was an understanding that the president wanted some things.”

This is how a prosecutor constructs a valid inference.  No one in a criminal conspiracy ever calls it a conspiracy, or marches into a bank and shouts "This is a robbery!" (despite the movies), and then defends themselves by saying they never said "This is a robbery!"  You can try, but the law does not require proof you said you were a bank robber; it only requires the act, from which the inference of intent can be validly drawn.

Napolitano also pointed to new evidence indicating that Ukrainian officials began asking questions about why their aid was being held up on the exact same day that Trump had his infamous phone call with Ukrainian President Volodymyr Zelensky.

“That’s an entirely different narrative than the one the president’s people have been giving us the past two months,” he said.

And it shifts as facts come out.  Indeed, I've seen a headline of an e-mail newly revealed, indicating Ukrainian officials were aware of the hold on the funding as early as July 25th.  And one of the most important facts from Sondland's testimony, a fact not in dispute, is that Trump wasn't interested in an investigation of Biden by Ukraine.  Trump only wanted a public statement from the President of Ukraine (and no other) that an investigation was being undertaken.  Trump wanted a video clip for a campaign ad, in other words.  He didn't go through regular channels of the FBI and the DOJ and the treaty between our countries that would legally and properly open an investigation into corruption that he now ways he was seeking.  He didn't give a wet snap for the investigation; he wanted the sound bite.  Jonathan Turley this morning tried to argue we cannot set a precedent of impeaching a President (actually he went nuclear, and said we can't convict and remove a President) for setting foreign policy.

But Trump wasn't trying to set foreign policy.  As Sondland, per Holmes, another witness, said to Holmes:  Trump doesn't give a shit about Ukraine.  All he cares about is dirt he can create to throw at Biden.  That's not U.S. foreign policy.  That's political conspiracy mongering.  But it's using the office and authority of the Presidency to get it.

And if that's not impeachable, then the President is indeed above the law; and beyond it, too.




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