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How the Schiff Report Deals with Disinformation

Over the past several years, journalists and researchers have struggled with the question of how to respond to disinformation without amplifying the very falsehoods they’re seeking to disprove. In his committee’s report on the impeachment investigation into President Trump, House Intelligence Committee Chairman Adam Schiff appears to have adopted one common strategy for dealing with disinformation: Deny it the attention it needs to grow.

The report released by the House Intelligence Committee on Dec. 5 is a thorough document: 300 pages long with over a thousand footnotes. It spells out in exacting, sometimes excruciating detail the story of the president’s efforts to extort the Ukrainian government for personal benefit, along with the Trump administration’s subsequent campaign to obstruct the congressional investigation into his behavior toward Ukraine. But there are some things the report doesn’t address. It’s silent on the subject of the “Black Ledger,” the document showing under-the-table payments from former Ukrainian President Viktor Yanukovitch to Trump campaign chairman Paul Manafort. It says nothing about the political consultant Alexandra Chalupa. And there are exactly zero mentions of the Steele dossier.

On the face of it, none of these omissions are particularly surprising; after all, none of those issues have much to do with evaluating Trump’s conduct. But the report’s silence on these matters is notable, because during the impeachment hearings, Republicans on the Intelligence Committee focused considerable attention on conspiracy theories concerning the Black Ledger, Chalupa, and Steele—among other things—in an effort to defend the president. Despite the prevalence of these theories in Republican talking points, the House Intelligence Committee report doesn’t spend much time rebutting them. Instead, the committee seems to have made a different call, minimally engaging the seamy, conspiratorial world of the president’s defense.

Writing in BuzzFeed News, reporter Ryan Broderick argued that that House Intelligence Committee hearings were really two hearings at once—one Democratic hearing focused on establishing the facts of the Ukraine scandal, and one Republican hearing “seek[ing] to create not just a counternarrative but a completely separate reality,” designed to produce “bite-size Facebook posts” and clips for Fox News. Broderick explains how that “separate reality” depended on asking the witnesses questions designed to give airtime to discredited theories prominent in the far-right press, like the idea that the Black Ledger was falsified and released in order to discredit Manafort and thus the Trump campaign. The most prominent of these theories—and perhaps the most absurd—involves the notion, referenced by Trump in his call with Ukrainian President Volodymyr Zelensky, that the Democratic National Committee server hacked by the Russian government in 2016 is a physical server that was removed to Ukraine in an effort to hide from the FBI the fact that Russia did not actually attack the DNC, because Crowdstrike—the cybersecurity company that initially investigated the hacking—is owned by a Ukrainian. None of these assertions is true.

The Republican staff report criticizing the impeachment inquiry steers clear of the more extreme theories. But the hearings themselves seeded these ideas into the mainstream of the Republican impeachment discussion. In writing their report, therefore, committee Democrats faced the question of whether to address these theories in order to debunk them or whether to focus instead on telling his own story—shoring up the strength of his own “separate reality,” to use Broderick’s language.

It might seem strange that the Democratic members of the Intelligence Committee wouldn’t take the opportunity to definitively rebut all these conspiracy theories. But doing so is a complicated proposition. One of us has written about the “cycle of distraction” created by House Intelligence Committee Ranking Member (then Chairman) Devin Nunes’s efforts to raise questions over alleged abuses of the FISA process in the context of the Russia investigation. What was true then is true now: Nunes and his colleagues’ arguments are more about generating distrust and confusion than they are about exonerating the president or proving wrongdoing by his enemies. Focusing on debunking a specific claim risks playing into this dynamic by giving the falsehood additional attention that prolongs its lifespan in the news cycle

What’s more, a debunking can also add to the confusion it seeks to clear: In order to explain why the Crowdstrike conspiracy theory is false, one needs to explain Crowdstrike, the Russian (not Ukrainian) national origin of the company’s founder, Dmitri Alperovitch. One also needs to explain the nature of a physical versus a cloud-based server. And by the end of this process, the conversation has moved far from the core story about the president’s abuses of power in Ukraine. For House Democrats, there’s a risk that the long-winded explanation necessary to debunk the nonsense could lead to members of the public to tune out impeachment because it’s “too complicated.”

There are other risks, too. Research suggests that the more a claim is repeated, the more likely people are to believe it, even in the context of a debunking—so stating, “The DNC server is not in Ukraine” could lead readers to have more, rather than fewer, doubts over whether the server actually is in Ukraine, much less whether there is a physical server at all. (This has proven difficult to navigate for media outlets struggling to report on the president’s falsehoods.) There’s also what social scientist danah boyd has termed the “boomerang effect,” in which a media outlet’s effort to debunk a false story prompts those who don’t trust the media to believe that the story must be true. In a 2018 report, Whitney Phillips, a researcher at Syracuse University, described concerns among journalists that reporting on disinformation and far-right extremism risks giving “oxygen” to harmful theories and ideas. Amplification of these ideas—even in debunking or criticizing them—risks “lending credence to false narratives” and “makes it very difficult, if not impossible, not to benefit those looking to manipulate” the public conversation. On the other hand, not amplifying this material means giving up an opportunity to correct the public record with no guarantee that the false narrative will disappear.

Phillips and boyd focus on the role of journalists and the media. But their reasoning can also be applied to the work product of the House Intelligence Committee, insofar as the committee’s report seeks to tell the story of the Ukraine scandal to the public. The committee’s work product isn’t a perfect demonstration of principles suggested by disinformation researchers—but it’s striking how closely Schiff’s apparent strategy tracks with the literature and how little time he spends untangling conspiracy theories.

The Schiff report shows remarkable discipline in marrying the short-hand used to describe conspiracies with modifiers that underscore their untruthfulness. Crowdstrike is “the so-called ‘Crowdstrike’ conspiracy theory.” The allegation of Ukrainian interference is the “debunked conspiracy theory that Ukraine interfered in the 2016 election to help Hillary Clinton” or “the conspiracy theory that Ukraine, rather than Russia, interfered in the 2016 U.S. election” or one of countless other similar refrains. It’s a little reminiscent of Trump’s insistence on referring to his 2016 adversary as “Crooked Hillary Clinton,” or his former FBI director as “Leakin’ Jim Comey.”

Nowhere does the report give any conspiracy more than a few lines worth of explanation. For example, to offer readers context on what Trump meant when he told Zelensky, “I would like you to find out what happened with this whole situation with Ukraine, they say CrowdStrike,” the Schiff report explains:

President Trump was referencing the widely debunked conspiracy theory that the Ukrainian government—and not Russia—was behind the hack of Democratic National Committee (DNC) servers in 2016, and that the American cybersecurity firm CrowdStrike moved the DNC’s servers to Ukraine to prevent U.S. law enforcement from examining them. This theory is often referred to in shorthand as “CrowdStrike” and has been promoted by the Russian government.

Compared to the lengthy primers on the Crowdstrike theory that abound online, the report’s explanation is laconic. It makes no attempt to explore why anyone might believe that an American cybersecurity company colluded with the Ukrainian government to facilitate a hack of the Democratic party. This approach allows the Schiff report to sidestep the confusing inner workings—what former National Security Council staffer and impeachment witness Fiona Hill called “rabbit holes”—that characterize this conspiracy theory. The erroneous claim that Crowdstrike’s cofounder, Dmitri Alperovitch, is Ukrainian? Not in the report. The murmurings about why the FBI never examined the DNC’s physical servers? The committee doesn’t waste its breath on them.

This approach presents a challenge: How can you explain that a conspiracy is not true without engaging with the factual claims that underpin it? The Schiff report employs a variety of tactics that undermine the legitimacy of the Crowdstrike theory and its cousins while avoiding endless deep-dives into Alperovitch’s country of origin or the FBI’s investigative guidelines.

The report addresses the conspiracies by presenting readers with the top-line conclusions of sources that a neutral observer likely trusts. After the report first introduces the “debunked conspiracy theories alleg[ing] that the Ukrainian government—not Russia—was behind the hack of the Democratic National Committee (DNC) server, and that former Vice President Biden petitioned for the removal of Mr. Shokin” to protect Hunter Biden,” it cites the conclusions of a host of sources with bipartisan credentials to explain that “[t]hese conspiracies lacked any basis in fact”:

The Intelligence Community, the Senate Select Committee on Intelligence, both the Majority and Minority of the House Permanent Select Committee on Intelligence, and the investigation undertaken by Special Counsel Robert Mueller concluded that Russia was responsible for interfering in the 2016 election. President Trump’s former Homeland Security Advisor, Tom Bossert, said that the idea of Ukraine hacking the DNC server was “not only a conspiracy theory, it is completely debunked.

While the Schiff report thus foregrounds its central claim, that the theories are entirely false, it holds back from diving down the rabbit hole of why they lack any basis in fact—instead pointing to the credibility of the Senate report and Bossert, a Trump appointee, to underscore that they are false. Elsewhere in the report, Hill and State Department official George Kent play a similar role: The report notes Hill’s testimony that the Crowdstrike conspiracy is “a fictional narrative that is being perpetrated and propagated by the Russian security services” and emphasizes that Kent, who “had worked on Ukraine policy for many years” feels that “there was no substance” to the theory.

Likewise, the Schiff report underscores that certain ideas are unreliable by emphasizing how those ideas have been propagated by sources who are themselves unreliable. It notes that “Russia has pushed the false theory” of Ukrainian election interference “to distract from its own involvement.” And, aided by telephone metadata produced to the committee in the course of the investigation, it shows how bad information traveled between Ukrainians and associates of the president—which it uses to cast doubt on the credibility of a series of op-eds written by John Solomon in The Hill.

Solomon, the report says, published an op-ed “alleging that Vice President Biden had inappropriately petitioned for the removal of Mr. Shokin to protect his son, Hunter” and another op-ed which discusses Ukrainian officials who claim malfeasance on behalf of Biden and Yovanovitch and who purport to have evidence of “Ukrainian interference in the 2016 election in favor of Hillary Clinton.” But “Mr. Solomon,” the report explains, “was not working alone.”

Indeed, the report paints Solomon as a conduit of information from Giuliani and his colleagues in the propagation of disinformation, citing “[p]hone records obtained by the Committees [which] show frequent communication between key players during this phase of the scheme.” These records detail calls between Solomon; Giuliani; and Giuliani’s associate Lev Parnas, whom the report describes as “criminally indicted in the Southern District of New York” for funneling foreign money into political campaigns. The report ties Parnas to nearly every piece authored by Solomon referenced in the report and to many of Giuliani’s media appearances and tweets propagating conspiracy theories about Ukraine, explaining that Parnas frequently communicated with the Giuliani or Solomon before they propagated untruths: “The Committees uncovered evidence of close ties and frequent contacts between Mr. Solomon and Mr. Parnas … Phone records show that in the 48 hours before publication of The Hill opinion piece, Mr. Parnas spoke with Mr. Solomon at least six times.”

Throughout this entire section, the report spends relatively little time rebutting the substance of Solomon’s stories, focusing instead on tracing how the misinformation traveled between the men. Whether intentionally or not, this approach echoes Whitney Phillips’s description of disinformation as a problem best characterized as pollution—an environment poisoned by falsehoods that can only be understood by examining how toxins are injected into the system and how they travel. Parnas embodies information pollution. His name signals to readers that the idea they are about to read lacks a relationship to reality.

There’s a cost to this approach, of course. In streamlining the story and giving minimal attention to the substance of conspiracy theories themselves, the committee forfeits the ability to respond to Republican suggestions that Ukraine interfered in the 2016 election; that the Black Ledger was a setup; that questions about the reliability of the Steele dossier somehow bear on the case for the impeachment of the president. Readers of Schiff’s report looking for an explanation of precisely why Trump’s belief that “Ukraine has the server” has no basis in reality will come up empty. (There’s nothing in the report like BuzzFeed News’s guide to “12 Impeachment Conspiracies You’re Likely To Hear About At Thanksgiving.”) And relying on the bipartisan credibility of sources like Fiona Hill, George Kent and the Senate Intelligence Committee requires that readers trust those sources in the first place—an increasingly risky proposition in today’s polarized environment. There’s no way to inoculate against the “boomerang effect” that boyd describes.

This approach also risks worsening the near-hermetic seal between the two realities that emerged at the impeachment hearings. Factually challenging a conspiracy theory requires engaging with the other side’s reality. But because the report opts to ignore and deny in lieu of debate, the scope of the document never extends beyond the reality accepted by House Democrats—which could encourage Republicans to burrow more deeply into their own version of events. It’s not the committee’s responsibility to bridge the epistemological divide across American society, but this approach doesn’t help mend the breach.

How can we know if this strategy is the right one? One way is to just look at the polling: Post-Schiff report, will there be a rise or a fall in the share of the population who believes that Ukraine, not Russia, interfered in the 2016 election? But this metric may be too ambitious. Perhaps the better way is to keep an eye out for a more modest achievement: If House Judiciary Committee Chairman Jerrold Nadler can lead the Committee’s hearings without once mentioning the Steele dossier, the Schiff report’s model of restraint will have paid off.

This post first appeared in Lawfare. Read the original article.

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The Battle of the Impeachment Reports: Do the Parties Disagree About the Facts?

To listen to the noise, rancor and confusion between the parties on display in the impeachment hearings, you might think there is a great deal of dispute about what happened in L’Affaire Ukrainienne. The president’s allies complain of unfair process and foregone conclusions. Democrats accuse their colleagues of pedaling conspiracy theories and ignore Republican complaints altogether.

Most of the yelling, however, has relatively little to do with disputes about the factual record—that is, the record of what the president actually did. Members of Congress can’t seem to agree on whether the president had corrupt intent, whether Ukraine interfered in the 2016 election, or whether Trump’s actions warrant impeachment. But much of the record is not in dispute.

By comparing the facts alleged in the so-called Schiff report approved by the House Intelligence Committee and the minority report prepared by Intelligence Committee Ranking Member Devin Nunes, Oversight Committee Ranking Member Jim Jordan and Foreign Affairs Ranking Member Michael McFaul, we get a window into some important questions: How much of the factual record is really disputed by the two sides? And how much do the Republicans concede in their defense of the president?

The answers, respectively, are not much and quite a lot. Beneath the noise lies a substantial amount of agreement about the actions the president took. And once the noise is stripped away, it may be easier for those who are undecided on impeachment to evaluate the president’s conduct. Below, I’ve lined up the key factual findings of the Schiff report—which appear below in bolded italics—and held them up against relevant discussions in the Republican report. It is important to note that I am not evaluating or confirming the veracity of any facts or interpretations below, but merely trying to identify where those alleged facts and interpretations are not in dispute. (See my colleagues’ article here on preventing the spread of disinformation.)

Donald J. Trump, the 45th President of the United States—acting personally and through his agents within and outside of the U.S. government—solicited the interference of a foreign government, Ukraine, in the 2020 U.S. presidential election. The President engaged in this course of conduct for the benefit of his reelection, to harm the election prospects of a political opponent, and to influence our nation’s upcoming presidential election to his advantage. In so doing, the President placed his personal political interests above the national interests of the United States, sought to undermine the integrity of the U.S. presidential election process, and endangered U.S. national security.

The Republican report insists that “the evidence does not support the accusation that President Trump pressured President Zelensky to initiate investigations for the purpose of benefiting the President in the 2020 election.” And it insists that the call summary does not reflect pressure: “President Zelensky has said publicly and repeatedly that he felt no pressure. President Trump has said publicly and repeatedly that he exerted no pressure.” The Republican document, however, does not dispute that Trump asked Zelensky for the investigations of the Crowdstrike matter and of Burisma—and that the Burisma investigation was effectively an investigation of Hunter Biden. Nor does it dispute or even mention that such investigations might have a natural tendency to help Trump electorally. Rather, the Republicans contend that there was “nothing wrong with asking serious questions about the presence of Vice President Biden’s son, Hunter Biden, on the board of directors of Burisma, a corrupt Ukrainian company, or about Ukraine’s attempts to influence the 2016 presidential election.”

Indeed, the document insists the president’s concerns were “valid.” The Republican report reads, “Although Democrats reflexively criticize President Trump for promoting ‘conspiracy theories’ about Hunter Biden’s role on Burisma’s board or Ukrainian attempts to influence the 2016 election, evidence suggests there are legitimate questions about both issues.” The Republicans describe “indisputable evidence that senior Ukrainian government officials opposed President Trump’s candidacy in the 2016 election.” In the Republican reading, “President Trump was not asking President Zelensky to investigate his political rival,” when he asked for his infamous “favor,” “but rather asking him to assist in ‘get[ting] to the bottom’ of potential Ukrainian involvement in the 2016 election.”

The Republican report does not dispute State Department official David Holmes’s account of U.S. Ambassador to the EU Gordon Sondland’s July 26 call with Trump is correct. It assumes that Sondland told Trump, as Holmes testified, that Zelensky “loves your ass,” and that Zelensky would do anything the president asked and would announce “the investigation.”

The Republican report contends, however, that this is “not definitive evidence that President Trump pressured President Zelensky to investigate his political rival.” The Republicans contend that according to Sondland, “it was not clear that President Trump meant an investigation into the Bidens.” The report does not engage with Sondland’s assertion that Trump “only cares about the big stuff”—stuff like, as Holmes recalls Sondland saying, “the Biden investigation that Mr. Giuliani was pitching.”

The points in dispute, in other words, involve not whether Trump sought investigations involving Biden and Burisma but only whether Trump’s requests amounted to pressure and whether Trump made them for his own electoral benefit.

In furtherance of this scheme, President Trump—directly and acting through his agents within and outside the U.S. government—sought to pressure and induce Ukraine’s newly-elected president, Volodymyr Zelensky, to publicly announce unfounded investigations that would benefit President Trump’s personal political interests and reelection effort. To advance his personal political objectives, President Trump encouraged the President of Ukraine to work with his personal attorney, Rudy Giuliani.        

This allegation substantially overlaps with the first, and the facts are disputed in roughly similar fashion. The Republican document does not dispute that Trump empowered an alternative policymaking apparatus towards Ukraine. It merely asserts that it was within his reasonable authority to do so. “To the extent that some unelected bureaucrats believed President Trump had established an ‘irregular’ foreign policy apparatus, it was because they were not a part of that apparatus. There is nothing illicit about three senior U.S. officials—each with official interests relating to Ukraine—shepherding the U.S.-Ukraine relationship and reporting their actions to State Department and NSC leadership.” The document also insists that, “There is nothing inherently improper with Mayor Giuliani’s involvement as well because the Ukrainians knew that he was a conduit to convince President Trump that President Zelensky was serious about reform.”

The Republican report also concedes that, “Evidence suggests that Mayor Giuliani’s negative assessment of President Zelensky may have reinforced President Trump’s existing skepticism about Ukraine.” The Republicans, however, say repeatedly that, “the Ukrainians did not see [Giuliani] as speaking on behalf of the President,” merely as acting as a conduit for information. Their emphasis on this point seems to suggest there might be issues of propriety if Giuliani were, in fact, speaking for Trump or representing U.S. government action.

In other words, there is no dispute as to whether Trump empowered an alternative policymaking apparatus with respect to Ukraine that included his personal lawyer. There is a dispute about whether Giuliani was acting on behalf of the president, and, in doing so, leveraging Trump’s official position for the benefit of his 2020 campaign. But there also appears to be little daylight between the two sides regarding Giuliani’s influence over the president’s perception of Ukraine and whether the former mayor’s actions, if executed at the wishes of the president, would be problematic.                                    

As part of this scheme, President Trump, acting in his official capacity and using his position of public trust, personally and directly requested from the President of Ukraine that the government of Ukraine publicly announce investigations into (1) the President’s political opponent, former Vice President Joseph R. Biden, Jr. and his son, Hunter Biden, and (2) a baseless theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 U.S. election. These investigations were intended to harm a potential political opponent of President Trump and benefit the President’s domestic political standing.                        

There is no dispute that the July 25 call between Trump and Zelensky took place and that these requests were made. As described above, the Republicans dispute whether these requests were intended to harm Biden and benefit the president’s political standing, and they dispute whether the call memo reflects pressure. But there is no factual dispute about what was said—only an interpretive disagreement over how to understand the conversation.

President Trump ordered the suspension of $391 million in vital military assistance urgently needed by Ukraine, a strategic partner, to resist Russian aggression. Because the aid was appropriated by Congress, on a bipartisan basis, and signed into law by the President, its expenditure was required by law. Acting directly and through his subordinates within the U.S. government, the President withheld from Ukraine this military assistance without any legitimate foreign policy, national security, or anti-corruption justification. The President did so despite the longstanding bipartisan support of Congress, uniform support across federal departments and agencies for the provision to Ukraine of the military assistance, and his obligations under the Impoundment Control Act.

The Republican report concedes that “U.S. security assistance was temporarily paused,” and asserts that “President Trump was skeptical of Ukrainian corruption and his Administration sought proof that newly-elected President Zelensky was a true reformer.” Importantly, the Republican report does not dispute that the order to place a hold on the aid came from Trump himself. In fact, the Republican defense of the pause in aid—that it was to allow Trump to alleviate his anti-corruption concerns about the new Ukrainian president—tends to reinforce the claim that the orders to freeze and later unfreeze the aid came directly from the president.

The Republican report does insist, however, that the U.S. government did not convey the pause to the Ukrainians because U.S. officials believed the pause would get worked out and were concerned that, if publicized, the hold might be mischaracterized as a shift in U.S. policy towards Ukraine. The document reiterates that U.S. officials said that the Ukrainian government in Kyiv never knew the aid was delayed until the Ukrainians read about it in the U.S. media in late August. While the Republican report allows that, as Defense Department official Laura Cooper testified, some Ukrainian officials in Washington were aware of the hold by July 25, they contend that “the evidence does not show that the senior leadership of Ukrainian government in Kyiv was aware of the pause until late August.”

The Republican report does not address legal questions about the pause under the Impoundment Control Act.

In short, there is no real dispute that Trump himself ordered the hold on the aid.

President Trump used the power of the Office of the President and exercised his authority over the Executive Branch, including his control of the instruments of the federal government, to apply increasing pressure on the President of Ukraine and the Ukrainian government to announce the politically-motivated investigations desired by President Trump. Specifically, to advance and promote his scheme, the President withheld official acts of value to Ukraine and conditioned their fulfillment on actions by Ukraine that would benefit his personal political interests:

  1. President Trump—acting through agents within and outside the U.S. government—conditioned a head of state meeting at the White House, which the President of Ukraine desperately sought to demonstrate continued United States support for Ukraine in the face of Russian aggression, on Ukraine publicly announcing the investigations that President Trump believed would aid his reelection campaign.             
  2. To increase leverage over the President of Ukraine, President Trump, acting through his agents and subordinates, conditioned release of the vital military assistance he had suspended to Ukraine on the President of Ukraine’s public announcement of the investigations that President Trump sought.                                                               
  3. President Trump’s closest subordinates and advisors within the Executive Branch, including Acting Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, Secretary of Energy J. Richard Perry, and other senior White House and Executive Branch officials had knowledge of, in some cases facilitated and furthered the President’s scheme, and withheld information about the scheme from the Congress and the American public.                   

The Republicans seem to confirm both that Trump was unwilling to provide Zelensky with a White House meeting and, again, that he directed the freeze of the military aid. They do dispute Trump’s intent: “Understood in this proper context, the President’s initial hesitation to meet with President Zelensky or to provide U.S. taxpayer-funded security assistance to Ukraine without thoughtful review is entirely prudent.”  

In support of the president’s “no quid pro quo” mantra, the Republican report states that, “Ambassador Sondland was the only witness to allege a quid pro quo with respect to a White House meeting.” The Republicans concede, however, that according to Sondland’s testimony, “a meeting was conditioned on a public statement about anti-corruption” and that Sondland raised  “investigations” at the July 10 White House meeting between U.S. and Ukrainian officials. The fact that Special Envoy to Ukraine Kurt Volker and Sondland pressured Ukraine for some kind of public statement tied to corruption does not appear to be in dispute. The Republicans do not seem to dispute that both the meeting and security assistance were conditioned on certain actions. However, they contend, “Ultimately, President Zelensky took decisive action demonstrating his commitment to promoting reform, combating corruption, and replacing Poroshenko-era holdovers with new leadership in his Administration.” After Zelesnky took those steps, says the Republican reports, Trump released the aid and met with Zelensky in New York.

There also is no dispute that Mulvaney, Pompeo and Perry facilitated or had knowledge of the president’s actions.And there is agreement that the security assistance was of paramount importance to Zelensky, especially once he realized after Politico’s Aug. 28 story that the aid was on hold. The minority’s document quotes vice presidential aide Jennifer Williams in her description of Mike Pence’s meeting with Zelensky on Sept. 1. “Once the cameras left the room,” Williams said, “the very first question that President Zelensky had was about the status of security assistance.”

The bottom line is that the Republican report disputes that there was a quid pro quo but does not dispute that Trump withheld both the meeting and the security assistance in exchange for something from President Zelensky.

In directing and orchestrating this scheme to advance his personal political interests, President Trump did not implement, promote, or advance U.S. anti-corruption policies. In fact, the President sought to pressure and induce the government of Ukraine to announce politically-motivated investigations lacking legitimate predication that the U.S. government otherwise discourages and opposes as a matter of policy in that country and around the world. In so doing, the President undermined U.S. policy supporting anti-corruption reform and the rule of law in Ukraine, and undermined U.S. national security.

To the extent that this finding involves allegations of pressure on Ukraine, it is addressed above. Specifically, the Republican report concedes that Trump was directing the so-called “Three Amigos” (although the document does not use this appellation) and Giuliani to a certain extent in their Ukraine-related activities, but the Republicans assert that this conduct was proper given the president’s authority over foreign policy. And they assert that there was no pressure put on Ukraine—just reasonable requests.

To the extent the finding alleges that Trump was not pursuing anti-corruption objectives, the point is disputed in the Republican report, which contends that the president was motivated by “a deep-seated, genuine, and reasonable skepticism of Ukraine due to its history of pervasive corruption.”

By withholding vital military assistance and diplomatic support from a strategic foreign partner government engaged in an ongoing military conflict illegally instigated by Russia, President Trump compromised national security to advance his personal political interests.

The Republicans disagree with this finding, asserting that the lethal defense aid authorized by the Trump administration demonstrates the president’s “steadfast” support of Ukraine in its fight against Russian aggression. They do acknowledge, however, that the withheld aid was of vital importance to Zelensky and his administration.

Faced with the revelation of his actions, President Trump publicly and repeatedly persisted in urging foreign governments, including Ukraine and China, to investigate his political opponent. This continued solicitation of foreign interference in a U.S. election presents a clear and present danger that the President will continue to use the power of his office for his personal political gain.

In the minority’s report, there is no mention of president’s Oct. 3 statement, in which he said the following in response to a question about what he hoped Zelensky would do about the Bidens:

Well, I would think that, if they were honest about it, they’d start a major investigation into the Bidens.  It’s a very simple answer. They should investigate the Bidens… And, by the way, likewise, China should start an investigation into the Bidens, because what happened in China is just about as bad as what happened with—with Ukraine. So, I would say that President Zelensky—if it were me, I would recommend that they start an investigation into the Bidens.

Using the power of the Office of the President, and exercising his authority over the Executive Branch, President Trump ordered and implemented a campaign to conceal his conduct from the public and frustrate and obstruct the House of Representatives’ impeachment inquiry by:                                                                 

  1. refusing to produce to the impeachment inquiry’s investigating Committees information and records in the possession of the White House, in defiance of a lawful subpoena;                                            
  2. directing Executive Branch agencies to defy lawful subpoenas and withhold the production of all documents and records from the investigating Committees;                                           
  3. directing current and former Executive Branch officials not to cooperate with the Committees, including in defiance of lawful subpoenas for testimony; and                                   
  4. intimidating, threatening, and tampering with prospective and actual witnesses in the impeachment inquiry in an effort to prevent, delay, or influence the testimony of those witnesses.                                                            

In so doing, and despite the fact that the Constitution vests in the House of Representatives the “sole Power of Impeachment,” the President sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own misconduct, and the right to deny any and all information to the Congress in the conduct of its constitutional responsibilities.

On the obstruction issue, there appears to be complete disagreement between the Democrats and Republicans, but the disagreement is largely optical. The minority report insists that all of what the Democrats describe as obstruction is “a legitimate response to an unfair, abusive, and partisan process, and does not constitute obstruction of a legitimate impeachment inquiry.” The Republican report, however, does not address or dispute the factual claims the Democrats make as to the president’s conduct.

***

In short, the disagreement between the parties are not primarily factual but interpretive. The record is, with a few important gaps, relatively clear. The question that divides the Republicans from the majority is only how offended to be by the president’s behavior and how credulous to be of his asserted interest in combating corruption in Ukraine.

This post first appeared in Lawfare. Read the original article.

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The NBA and China’s Predatory Liberalism

Editor’s Note: Beijing’s attempt to intimidate the NBA, and the NBA’s rather craven response, is only the latest example of firms and country’s bowing to Chinese pressure on human rights issues. Victor Cha, my Georgetown colleague, details how China uses economic coercion to try to silence critical international voices. Cha argues that the NBA, and the world, should take a firmer stance, working together to resist Chinese pressure.

Daniel Byman

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Two arguments have been made by those who say the NBA was right to shut down Houston Rockets general manager Daryl Morey after he tweeted in support of the protestors in Hong Kong on Oct. 4. One of these is based on “sports purism”—that is, the notion that sports and politics should be keep separate and that the NBA should focus on basketball and cultivating goodwill in China, not politics. The other argument in support of censoring NBA statements about Hong Kong is economics. As a $4 billion business in China, which adds about $133 million in value to every team owner’s franchise and more than $1.5 billion (over five years) in streaming revenue to the league, the NBA has way too much to lose in a market where basketball has become the number one sport among an emerging Chinese consumer middle class that is larger than the entire U.S. population.

Both arguments are wrong. For the NBA and the world, playing China’s game is a losing proposition. Caving to China may save some dollars in the short term, but it sacrifices even greater autonomy in the long term. China defies the liberalist expectation that interdependence creates cooperation and harmony. Instead, China practices “predatory liberalism”—it leverages the vulnerabilities of market interdependence to exert power over others in pursuit of political goals, and the NBA is not the first of China’s targets. China is not the only authoritarian country in the international system to wield economic power, but China’s size and its critical position in global supply chains make the exercise of predatory liberalism particularly pernicious. Indeed, there is a long list of victims of China’s economic coercion.

For example, after the Norway Nobel Committee awarded the Nobel Peace Prize in October 2010 to Chinese dissident Liu Xiaobo, China initiated a draconian sanctions campaign against the small Scandinavian country to reverse the decision, banning the import of all Norwegian salmon to the country—not salmon from other exporters like Scotland, just salmon from Norway. China continued this practice despite the action being an obvious violation of World Trade Organization rules and drove down Norway’s market share of salmon in China from more than 90 percent in 2010 to less than 30 percent in 2013.

China’s predatory behavior was also on full display in 2017 when South Korea agreed to the emplacement of a U.S. missile defense battery in the city of Seongju. While meant to defend against North Korean ballistic missiles, the Terminal High Altitude Area Defense System, or THAAD, was opposed by China as encroaching on its security interests, and Beijing launched a concerted economic campaign against South Korea to reverse the action. The campaign targeted the South Korean conglomerate Lotte Group, which owned the land that housed the U.S. missile defense system. Within the first quarter of 2017, Lotte’s supermarket businesses in China suffered from a boycott and “safety violations” that forced the company to close half of its 112 stores in China. Overall, Lotte lost about $1.7 billion in China in 18 months before leaving the country entirely. Beijing also cracked down on tourism to South Korea. A ban on tour groups started in March 2017 and continued through the Pyeongchang Olympics that winter, resulting in a 48 percent drop in Chinese visitors to South Korea in 2017 (from 8 million to 4.2 million year on year) and a $15 billion financial loss for South Korea’s tourism industry.

In April 2012, the Philippine Navy confronted Chinese fishing vessels operating in the disputed Scarborough Shoal and well within Manila’s 200-nautical-mile Exclusive Economic Zone (EEZ). China responded by blocking the entry of Philippine bananas into the country, claiming they were infested by pests, and then additionally held up shipments of coconuts, mangoes, pineapples and papayas from the country. In the end, after two months of pressure, Manila agreed to a mutual withdrawal of vessels from Scarborough Shoal. China, however, kept its boats there and then added ships to prevent Philippine vessels from accessing the area.

China’s reaction to the Oct. 4 tweet by Morey in support of Hong Kong was therefore predictable. The Chinese government reportedly demanded Morey’s immediate firing, Houston Rockets paraphernalia was removed from sale on some Chinese e-commerce sites, and all of the Rockets’s exhibition games were banned from Chinese TV. NBA Commissioner Adam Silver estimated the cost to the league of Chinese punitive actions over this single tweet to be “substantial,” running in the tens if not hundreds of millions of dollars.

China’s predatory actions against the NBA make a mockery of the time-honored notion that sport should be separated from politics. Beijing has demonstrated through its predatory liberalism that no sport, let alone country or individual, is beyond the wrath of a Chinese clampdown. With every party that succumbs to China’s predatory liberalism, Beijing will become more emboldened to deploy predatory liberalism to bully individuals and companies that are critical of its suppression of political freedoms in places like Hong Kong, Xinjiang, Tibet and Taiwan. If China can stifle an individual’s empathetic tweet about Hong Kong, what’s next? Will the NBA gag players or managers from expressing outrage if China rolls tanks over the protestors in Hong Kong? If China decrees it, will the NBA not send teams to play exhibitions in Taiwan? If China decrees it, will the NBA stop fans from wearing “Google Uighurs” T-shirts to a Knicks game at Madison Square Garden but allow them to wear “Resist” or “Black Lives Matter” adorned garments? Rather than trying to suppress any future dissent with an implicit gag order, the NBA can set three standards for governments, companies and individuals to stand up to Chinese coercive economic bullying.

First, the NBA can make China responsible for its choices. Whenever China practices predatory trade coercion against those dependent on its market, it assumes that the Chinese people can weather the disruption of this tie while the target cannot. Here, the strategy for the NBA and for other victims is to be confident in their products. China may continue to ban broadcasts of Rockets games, but how long before Chinese people express frustration? It’s not like there is an alternative to NBA stars like Lebron James or Steph Curry for youth on a Chinese basketball team to worship. China’s punishment may be costly in the short term, but in the long run, the demand signal from Chinese consumers will remain strong. And if the Beijing authorities are seen to be standing in the way, the Chinese Communist Party may be doing more harm than good to its own domestic standing. Moreover, the attention brought to the Chinese over the NBA ban could make the Chinese people aware of alternative narratives of the events in Hong Kong beyond the official media’s framing of the protests as criminal, thuggish and unjustified behavior.

Second, the NBA shouldn’t apologize for being American. Morey’s tweet about Hong Kong was not anti-Chinese; it was pro-American. That is, the Rockets team administrator was not seeking to subvert the Chinese government. He was simply doing what Americans do. Americans speak out when no one else will. It’s not a choice but an obligation. That is why Congress wrote a bill, The Hong Kong Human Rights and Democracy Act of 2019, the week prior to Morey’s tweet, expressing support for the autonomy of the Hong Kong people, the exact same sentiment as Morey’s.

The NBA is the embodiment of American soft power, and its players are cultural ambassadors in their own right. Moreover, the NBA has arguably been the most politically tolerant of American sports; it has fired an owner for racist comments and pulled the 2017 All-Star Game out of a city with discriminatory policies. It should own this identity in the face of challenges rather than sacrificing it for the almighty dollar. This is not to say that the NBA should take on political causes abroad, but if its players and coaches feel compelled to make statements of their own personal accord in the face of unconscionable injustice, they should not be shut down.

Finally, NBA players should be motivated to speak out not because of politics, but because of their humanity. The danger going forward is that there will be an implicit gag order on players who might offend the Chinese government. While there may be legal protections that prohibit the NBA from punishing players who speak out, sports agents already have advised clients like Lebron James not to comment on the political situation in China. Another NBA superstar, James Harden, who visits China once or twice a year, said, “I’m staying out of it [Hong Kong].” When NBA All Stars like Klay Thompson, Gordon Hayward, Rajon Rondo, CJ McCollum, Michael Carter-Williams, George Hill, Dwight Howard and Kyle Lowry top a list of 55 players with multimillion-dollar shoe deals in China, they have an incentive to bite their tongues on Hong Kong.

But presumably when players in the United States kneel during the national anthem or support the Black Lives Matter movement, they do so not to be expressly political, but because they believe in the inherent dignity afforded to every individual regardless of skin color or persuasion. NBA players should feel unapologetic in supporting the protestors in Hong Kong not as fellow political activists, but as fellow human beings. This is a lesson that does not seem to be lost on those international NBA players who have lived in distressed societies, like Enes Kanter of the Boston Celtics, who, after pointing out injustices and personal persecution in his country, tweeted, “FREEDOM IS NOT FREE.” Other players and their profit-seeking agents might also learn from the example of NBA star Kyrie Irving, who offered a thoughtful rationale when asked about fans wearing “Stand with Hong Kong” T-shirts to a Brooklyn Nets game:

[The black community is] fighting for everyday freedoms. So when I think about Hong Kong and China, the people are in an uproar, and for us as Americans to comment on it … you’re connected nonetheless, especially when it impacts freedoms or world peace. So for me as an individual, I stand up for those four pillars, and when they’re being conflicted, I can understand why protestors come to the games. (emphasis added)

China’s predatory liberalism is an affront to the liberal international order, and the NBA, whether intended or not, is now a part of this struggle. Its actions going forward will set precedents, hopefully positive, for governments, companies, and individuals both inside and outside of China.

This post first appeared in Lawfare. Read the original article.

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Bribery, Abuse of Power and Obstruction: Judiciary Committee Lawyers Lay Path for Impeachment

“A President who perverts his role as chief diplomat to serve private rather than public ends has unquestionably engaged in ‘high crimes and misdemeanors’—especially if he invited, rather than opposed, foreign interference in our politics,” the Judiciary Committee report reads.

         

This post first appeared in Law.com. Read the original article.

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What Congress Should Consider in Drafting Articles of Impeachment

As the House Judiciary Committee begins to draft proposed articles of impeachment against President Trump, the committee should be mindful of the significance of its work. As prosecutors quickly learn, charging documents serve not only to inform the accused of the charges against him, but also to frame the evidence and persuade the factfinder of the need to hold him accountable. With those goals in mind, here is a prosecutor’s guide to drafting charges against Trump.

What’s the Purpose?

Prosecutors are trained to begin with the end in mind, and to consider at the outset the purpose of a criminal prosecution—to protect public safety, to deter the charged individual and other members of society from engaging in similar conduct, to rehabilitate the offender or to punish him.

Here, the goal of impeachment is not to punish Trump for past misdeeds or to reverse the outcome of a prior election, but to protect the country’s future—especially with the 2020 election looming. The public needs to be protected from a president who continues to invite foreign interference into U.S. elections. Indeed, Trump’s July 25 telephone call to Ukrainian President Volodymyr Zelensky came just one day after Special Counsel Robert Mueller testified before Congress about the Trump campaign’s conduct in welcoming election assistance from Russia in the 2016 election. When a president works to rig elections, Americans can’t count on the electoral process to remove him.

Impeachment is also necessary to deter Trump and others from engaging in similar abuses of power in the future. Deterrence is needed in at least three categories: inviting election interference, risking national security by withholding military aid and obstructing Congress by refusing to comply with subpoenas. Impeaching Trump for this conduct sends a message that such behavior will not be tolerated in the future. Likewise, failing to impeach Trump for these actions sets a precedent that will permit all future presidents to engage in similar behavior with impunity.

How Many Counts?

In every case, prosecutors wrestle with how many counts to include. Over-inclusion and under-inclusion both have risks. The risk of over-inclusion is confusion of the issues and dilution of the more powerful evidence. When I attended training for new federal prosecutors, we were taught that the U.S. government rarely loses cases because the jury does not believe its case; instead, losses come when the jury does not understand the government’s  case. Including too many counts is risky because this requires too many facts and too many legal issues for people to comprehend.

In addition, the inclusion of a weak count can tank the whole case. Three good counts in an indictment can be poisoned by a fourth weak count because it allows the defense to focus attention there, raising skepticism about the entire case. Why give critics a talking point when even one count of conviction will do?

On the other hand, the risk of under-inclusion is that the factfinder is unaware of the full scope of bad conduct, and, consequently, may be willing to give a pass for the misconduct of which they are aware. Had they known about the additional criminal conduct, however, they may have decided that the totality of misconduct was just too much to overlook.

How Broadly Should the Articles be Framed?

One issue House members face is whether to limit the articles to Trump’s dealings with Ukraine or to instead include other conduct, such as matters investigated by Mueller and apparent violations of the emoluments clauses of the Constitution. Reporting indicates that House Democrats are divided on this issue.

The Mueller report makes a compelling case that Trump obstructed justice in ten different ways—for example, the conclusion that the president directed White House Counsel Don McGahn to create a false document to conceal Trump’s order to fire Mueller. House Judiciary Committee Chairman Jerrold Nadler’s opening remarks at the Dec. 4 hearing suggested that the committee is at least considering including obstructive conduct from the Mueller investigation.

In addition, lawsuits have been filed accusing Trump of violating the Constitution’s emoluments clauses, which prohibit gifts or payments from foreign governments and payment other than his salary. Trump’s profits from his hotels patronized by foreign delegations could arguably violate the constitutional restriction on foreign payments. Using Trump’s hotel in Scotland for accommodations for U.S. service members, and using Mar-A-Lago as the “Winter White House” might violate the provision against payments other than the president’s salary.

But just because a crime was committed does not mean that a prosecutor must charge it. Instead, prosecutors use their discretion and decide whether a substantial public interest would be served by bringing the charge.

In the impeachment context, before the Ukraine story broke, the majority of voters seemed unpersuaded that Trump’s conduct as described in the Mueller report constituted impeachable conduct. Likewise, the emoluments allegations had not moved the needle on impeachment before the Ukraine scandal became public. Including articles of impeachment about this conduct is likely to only confuse the issues and detract from the serious misconduct that can be alleged regarding Ukraine. Keeping the articles limited to conduct relating to Ukraine would make for a more understandable and compelling case without the risk of diluting the strong counts with weak ones.

The risk of being under-inclusive are mitigated here, because the nature of impeachment proceedings make them different from criminal charges in one important respect. In a criminal trial, juries usually know nothing about the defendant before them. If charges about particular misconduct are not included in an indictment, then the jury will never know about it. In an impeachment proceeding, on the other hand, the jury is the U.S. Senate, to whom the president’s past behavior is well known. While senators will base their decision at trial on the articles of impeachment that are before them, it is impossible to un-ring the bell with regard to information known to them about Trump’s conduct toward Russia, obstruction of justice, emoluments, and all manner of other bad conduct in office. For that reason, the risk of under-inclusion is lessened in impeachment proceedings, a fact that favors a less-is-more approach.

Criminal Statutes or Abuse of Power?

As several law professors stated in their testimony before Congress, impeachment articles need not allege violations of criminal statutes to amount to “Treason, bribery or other high crimes and misdemeanors,” the constitutional standard for impeachment. For that reason, the articles may include criminal conduct, but need not.

Drafters of the impeachment articles seem likely to include bribery because it is specified in the Constitution as a basis for impeachment. Bribery, defined as soliciting a favor or benefit in exchange for influencing an official act, seems to fit Trump’s conduct: He asked for announcements of investigations in exchange for military aid and a White House visit.

But rather than trying to satisfy technical statutory requirements such as “quid pro quo,” and allowing Republicans to quibble over legal definitions and factual conclusions as to whether one thing was conditioned on the other, House members would be wise to frame the articles more broadly in terms of abuse of office—which is at the heart of impeachable conduct. The law professors testified that the greatest fears of the framers were foreign influence, subverting elections and abuse of power to promote personal interests. Here, drafters could make a compelling case that Trump’s conduct has made all of those fears come true.

What to Charge?

When considering the goals of protecting the public and deterring corrupt behavior, three appropriate articles of impeachment emerge: (1) inviting foreign influence in U.S. elections; (2) risking harm to national security by withholding military aid for personal reasons; and (3) obstructing Congress in its oversight function.

Testifying before Congress, Noah Feldman argued that inviting election interference alone is an impeachable offense on the grounds that foreign influence would corrupt our election process and allow adversaries to control the leadership of our country. Rigging an election is particularly harmful because elections then become inadequate as a way to remove a corrupt president from office. Here, Trump allegedly invited interference into the presidential election when he asked Zelensky to publicly announce investigations into Trump’s political rivals. It is enough that Trump sought interference in the fair administration of elections by inviting a foreign government to become involved in the U.S. presidential election, even if it is not tied to withholding military aid and a White House visit. This conduct alone should be the basis of an article of impeachment.

In addition to election interference, drafters should also frame the articles in terms of harm to national security. By withholding the release of nearly $400 million in military aid to Ukraine, the president arguably violated the Impoundment Control Act of 1974, a post-Watergate law that prohibits the executive branch from withholding spending authorized by Congress. While President Trump has authority to determine foreign policy, he has yet to articulate a sound policy reason for withholding the aid, and testimony from government officials suggests there was none. President Trump has argued that he had general concerns about corruption in Ukraine, but those arguments are belied by the testimony of State Department official David Holmes, who reported that U.S. Ambassador to the European Union Gordon Sondland said that Trump does not “give a sh-t about Ukraine,” and cares only about “big stuff that benefits the president,” such as the Biden investigation. In freezing the aid, it is a fair inference that the president corruptly put his own political interest ahead of the interests of the country. Congress authorized the military aid to help Ukraine defend itself following Russia’s 2014 invasion of Crimea, which Russia still occupies. Helping Ukraine is essential to protecting Europe from Russian aggression, and is part of long-term U.S. foreign policy. Failing to contain a U.S. adversary harms U.S. national security by allowing the Russian threat to grow. Withholding aid that was promised also harms U.S. credibility as a reliable partner with our allies around the world, and undermines American efforts to promote democracy by fighting corruption. Even if the delay of military aid were not tied to the demand for investigations, this conduct, standing alone, is impeachable.

Finally, the articles of impeachment should also include contempt of Congress. Early on, Trump vowed that he would be “fighting all the subpoenas.” He has refused to comply with subpoenas for witnesses and documents, and has used the courts to stall—perhaps hoping that if he can push the day of reckoning to a time that is very close to the November election, he can run out the clock. This is an astonishing display of contempt for a co-equal branch of government.

When Trump’s supporters complain of a lack of evidence for impeachment, they should be reminded that the cause is an obstructive president. In some proceedings, when one party prevents the other from obtaining evidence, the court permits an adverse inference that the evidence would have been damaging to the uncooperative party. Trump’s recalcitrance interferes with the House’s ability to conduct its oversight function and violates the president’s oath of office to support and defend the Constitution and to take care that the laws be faithfully executed. His contempt for the authority of Congress offends our tripartite structure of government. To deter such behavior in the future, this obstruction should be a basis for a third article of impeachment. 

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If the purposes of impeachment—protecting the public and deterring this president and future presidents from engaging in similar conduct—are kept in mind, the articles practically write themselves. Impeachment is not about reversing the results of an election. It is about removing from office a president whose conduct poses a threat to American democracy and proclaiming that certain types of misconduct by a president will not be tolerated in this country.

This post first appeared in Lawfare. Read the original article.