Impeachment

Did the President Commit Witness Tampering?

Some Thoughts on How the President's Stalwart Defenders Will Excuse This Latest Episode

|The Volokh Conspiracy |

[UPDATE 9-28 AT END OF POST]

Here is the federal witness-tampering statute (18 USC 1512(b)):

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, … with intent to —

(1)influence, delay, or prevent the testimony of any person in an official proceeding; [or]

(2)cause or induce any person to—

(A)withhold testimony, or withhold a record, document, or other object, from an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.

Here's what our president said yesterday, at an event for UN staffers and their families:

So the whistleblower came out and said nothing. Said: 'A couple of people told me he had a conversation with Ukraine.' We're at war. These people are sick. They're sick. And nobody's called it out like I do. I don't understand. People are afraid to call it out. They're afraid to say that the press is crooked. We have a crooked press. We have a dishonest media. So now they're devastated, but they'll always find something. I'm sure there'll be something they'll find in this report that will suit their lie.

But basically that person never saw the report, never saw the call. Never saw the call. Heard something, and decided that he or she or whoever the hell it is — sort of like, almost, a spy. I want to know who's the person that gave the whistleblower, who's the person that gave the whistleblower the information, because that's close to a spy. You know what we used to do in the old days when we were smart? Right? With spies and treason, right?"

I believe that his reference to "what we used to do in the old days … with spies and treason" refers to execution, which is indeed what we used to do with (convicted) spies (see, e.g., Julius and Ethel Rosenberg), though I do not believe we have executed anyone for spying since then (hence, the reference to the "old days").

This sure looks like a prima facie case of witness tampering to me.  There is an ongoing official proceeding; we know that the whistleblower him/herself is going to be called to testify, and one can certainly expect others who were present during the July 25th call, or who had notice of the July 25 call and who might, therefore, have "[given] the whistleblower the information," will be called to testify. The President of the United States—our chief law enforcement officer—has called these people "close to spies" and made reference to the punishment to which spies were subjected "in the old days when we were smart," and to "treason" (a federal crime that still carries the death penalty). The effect of these comments, surely, will be to make potential witnesses think twice about providing evidence against the president (and having their identities revealed to the public and to federal prosecutors who work for the President).

The hard questions, as always in a witness-tampering case, is: Did Trump act with the "intent" to "influence" or "prevent" the testimony of these individuals? Using the ordinary (and rebuttable) presumption that a person "intends" a consequence when (a) they foresee that it will happen as a result of their conduct and (b) desire it to happen," I think he did—though of course without more evidence (including Trump's testimony, under oath, about what he did or did not intend, and other actions that might suggest proper, or improper, motives) one cannot be certain of that conclusion.  [That's why it's just a prima facie case of witness tampering at this point].

I expect, given many of the comments on my earlier postings on the Ukraine matter, that some readers will, in the face of this, continue to hold to the position that Trump has done nothing wrong. Here's my best guess as to the arguments they will raise—and if I've missed any, please do set me straight in the comments.

  1. "It can't be 'witness tampering' under the federal criminal code, because DOJ takes the position that the president can't be charged with any (federal) crime."

False. First of all, the current DOJ position is that the President cannot be charged with a federal crime while in office; if Trump were no longer the president, he could be criminally charged in connection with the Ukraine affair (or anything else).  More importantly, even though a president can't be charged with a federal crime while in office (because, as head of the DOJ, he would in effect be acting as prosecutor and defendant in such an action), he can certainly commit a federal crime while in office.  That, of course, is the whole point of an impeachment proceeding; Presidents Nixon and Clinton were both charged with the crime of obstruction of justice, though the charge was contained not in a criminal indictment but in Articles of Impeachment.

2. It's not "witness tampering," because nobody's been charged with anything at this point, and therefore there aren't any witnesses who could have been "influence[d]" or "prevent[ed]" from testifying.

Wrong again. The statute refers to "testimony … in an official proceeding."  An impeachment inquiry is an "official proceeding" (as is, I believe, any Congressional hearing).

3. "He was just joking—chill out! He wasn't actually saying that the whistleblower should be executed!"

Well, that's a harder one to deal with, I admit, especially because the President's intent is an element of the crime.  I'm a little dubious, generally, about the "it's a joke" defense, having heard it before, when Trump invited the Russians to hack Clinton's server (which—coincidentally enough—began, according to various federal indictments and the Mueller Report, that very day).  And listening to the audiotape of his remarks, he certainly sounds like he's not joking.  But again—it's just a prima facie case we've got here; if Trump was joking, let him come forward, under oath, to say so.

4. "He couldn't have intended to intimidate any potential witnesses, because he was speaking at a private event, and therefore had no reason to think that the targets of the supposed intimidation would ever hear about it."

Again, this gets a "Maybe, but …" First off, this wasn't really a "private" event like a family dinner or a confidential briefing by a few top aides; it was an event staged for hundreds of US employees (and their families), and it seems a bit disingenuous to suggest that Trump expected that his comments would not be made public or otherwise communicated to the officials in the White House and the Intelligence Community who were being accused of spying and treason. Furthermore, because we don't know the identity of the individuals who were the target of Trump's ire, and we don't know (and perhaps Trump didn't know) for certain that none of them were in the room.  UN Ambassador Kelly Craft, for instance, was in the room, and, as a senior official with international responsibilities, might have been the source of some of the leaked information.  So this is hardly like an offhand comment to a couple of friends over dinner; as unfortunate and intemperate as such comments might be, they wouldn't, in that case, be directed specifically at the whistleblower or any of the whistleblower's sources.  Here, it's a little easier to presume—again, rebuttably—that Trump knew full well and intended that word of the threats would get to the "right" people.

As I said, perhaps some readers have other possible defenses they could proffer.  Please do—but I'd appreciate it if you could avoid discussion of the many irrelevant defenses that are simply variants of the "Fake News! Hillary's email server! The Steele Dossier! What Biden did was worse!" etc. arguments.

***********

UPDATE 9-29 [also posted as a comment]

Two themes emerged from the comments that I want to respond to.
1. Many commenters noted that Trump's comments were not directed at the whistleblower, but at the whistleblower's sources—the "leakers." And that's OK (even if his language was a little extreme) because the "leakers" have done a bad thing and its correct and proper for the President to call them out on it.
I'm surprised at the number of people who buy this. Here's the problem with it: Because we don't know who the whistleblower is or what job he/she has within the Intelligence Community, we have no reason to believe that the disclosure of information to him/her about the July 25 call was a "leak." Suppose the whistleblower is the Director of the CIA; or the Assistant Deputy National Security Advisor; or an Intelligence Analyst on the Ukraine desk at the NSA or DIA. It's not a "leak" for someone in the White House, say, who had participated in the call to talk to that person about what transpired; that is a perfectly ordinary part of everyday information-sharing within the Executive Branch. I would assume that whenever the President has a phone conversation with a foreign leader, a memo is prepared, copies are sent to all sorts of people (subject to the rules regarding classified or confidential information), and those people often talk to one another and to those who were present during the call to discuss and analyze the implications for US policy.
It's funny that DNI Maguire didn't complain about the "leakers" at all, but instead he said that the whistleblower, as far as he could tell, behaved properly and prepared and submitted the complaint by following proper procedures.
Trump wants us to call the whistleblower's sources "leakers" even though he doesn't know who the whistleblower was any more than we do, because that will distract us from the contents of the call. It's the oldest trick in the presidential book, and I'm not buying into it, and you shouldn't either.
2. "Trump was just being Trump, spouting off about something the way he does, and it shouldn't be taken seriously as "witness-tampering" or anything like that."
I'm not buying into this one, either. Trump has managed to use this as smokescreen—by saying a lot of crazy stuff, time after time after time, he can avoid taking any responsibility for any of it. I'm pretty sure this is a conscious, Bannon-inspired strategy.  But his words have real consequences; people act on what they think he wants them to do, because he is the president of the United States. He should not get a free pass because he talks like a dope most of the time.

NEXT: Remember That Cop Who Thought She Was Entering Her Own Apartment and Shot the Guy Who Really Lived There?

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  1. Worst post ever!

    1. Yes at least until tomorrow.

    2. Worst comment ever

    3. Just curious – do you sit by your computer with an RSS alert to notify you whenever I have posted something, so that you can be the first commenter and can do your “worst post ever” thing? That’s not real healthy. You must have something actually interesting and thoughtful to say – why not try putting that into a comment next time? Or would you rather I just put “Bob from Ohio thinks this post is the worst ever” at the end of each of my posts?

  2. Not the worst -but a close second worst

    Really huge reach to call this witness tampering.

    1. Threatening to have witnesses killed as soon as you can find them is a “huge reach?” Well, OK.

      Why do I get the feeling that your opinion on this would be radically different had a President Hillary done the exact same thing?

      1. “Threatening to have witnesses killed as soon as you can find them is a “huge reach?” Well, OK.”

        Based on his typical manner of speaking, most rational individuals would have a difficult time equating his comment as an actual threat.

        “Why do I get the feeling that your opinion on this would be radically different had a President Hillary done the exact same thing?”

        While I dont believe any of the conspiracy theories regarding how many clinton associates, acquanitances, etc are no longer around, there is more a basis that a similar comment from Hillary would represent a more substantial warning/threat.

        1. Your own irrational fears about Clinton Illuminati getting you is not a basis for saying that it presents “a more substantial warning/threat.”

          I would think the Chief Executive of the United States, with his oversight of the FBI and the Department of Justice, saying that he thinks your acts constituted a federal capital offense would be a pretty good deterrent.

          1. Wait, just to be clear here:
            You are saying this must be a real threat, because the President oversees law enforcement agencies like the FBI and the res of the DoJ – and therefore might use that oversight to assassinate the “whistleblower”…
            When the “whistleblower” has been described as an employee of the CIA, the very agency that has been used in the past to attempt or perform assassinations?

            1. I’m not saying murder. I’m saying prosecute, harass, affect his pension, or any number of things that would be awful for that person.

              If a mob boss shows up to my place of business and says “nice place here. Be awful if it burned down,” I’m not only worried about arson, but about any number of things the mob may do to me.

        2. I have to agree with Joe. Based on the President’s inability to tell the truth about basically anything and the ranting nonsensical diarrhea hurricane he subjects us to on a daily basis, no reasonable person should take what he says seriously.

          1. I’m with you emotionally, but worry that the attitude is dangerous in a reverse “crying wolf” sense, i.e., where not believing ends up with the villagers eaten, instead of the boy.

          2. That “no reasonable person should take what he says seriously” is, if true, probably grounds for an Amendment 25 removal.

      2. Trump isn’t “threatening to have witnesses killed as soon as he can find them”; execution doesn’t work that way. Executions require due process, trial, conviction, and mandatory appeal.

        As for Hillary, she did far worse: she actually used her office to have people killed, repeatedly. And she laughed about people getting killed.

        1. Whom did Hillary have killed repeatedly? Whom did she have killed just once? Whose murder did she have committed that she subsequently laughed about?

          1. In the Obama administration, Hillary oversaw targeted killings, resulting in the deaths of hundreds of innocent civilians.

            As for the laughing, here you go. Hillary Clinton is a murderous psychopath.

    2. Really huge reach to call this witness tampering because…

      And to show us this is a principled position, let us know your reaction to Bill Clinton’s meeting with Loretta Lynch.

      1. ” let us know your reaction to Bill Clinton’s meeting with Loretta Lynch.”

        that encounter more closely resembled tampering with the prosecution. In that case, the interested person (not a witness) initiated the encounter.

        1. That’s not an element, nor does it go to intent. So your distinction not material.

          1. neither is David Bremer’s reference to clinton/lynch tarmac meeting relevent since bill’s involvement to ensure / secure the non prosecution of a crime from the AG

      2. “let us know your reaction to Bill Clinton’s meeting with Loretta Lynch.”

        That would be like Paul Manafort meeting with Barr/Sessions, if there hadn’t been a special counsel, and then managing to avoid prosecution.

  3. By Post’s logic, William Weld should be investigated for threatening the life of the President. Of course, Post logic begins and ends with Orange Man Bad, and doesn’t actually employ mechanisms like consistency and rationality.

    1. Do you think the President should have said what he said, or not?

      1. Yes I do, as a matter of fact. We should execute spies guilty of treason (after a fair trial, of course.) The fact that we haven’t done so since the Rosenbergs time is decay rather than progress.

        I think leaking classified information usually falls well short of treason, and in this case Trump even stops short of calling the leakers “spies” – he says “close to being a spy.”

        So he’s not calling for the leakers to be executed, he’s just reminding us that they are criminals, and other criminals who play similar games but in bigger leagues used to get executed, and rightly so.

        1. In this context? You don’t think it was bad timing, at least?

          1. No.

            I’m highly skeptical of this “whistleblower”. In fact, it smells like a setup. Just like the Steele Dossier and the Kavinaugh attack.

            Let’s keep in mind what the Steele Dossier was. It was a thinly sourced, badly flawed, partisan-funded attack piece that was somehow used by a politically motivated FBI to obtain FISC warrants on US citizens. By neutral organizations, it should’ve been thrown out as garbage after investing a few claims. Instead, it was used as the basis for a 2 year witch hunt, which found nothing.

            The Kavinaugh attack was a supposed sexual assault by Kavinaugh, with no support beyond an allegation from decades ago, which magically comes out just before the nomination vote, as Democrats have been holding onto it…but it slips…just at the right time. So many details are missing and erroneous, but it’s seized upon as a way to stop a conservative nominee.

            This whistleblower report? It’s kinda amazing. It supposedly doesn’t look like a normal report, written by a single guy. Instead, it looks like it was written by a team of lawyers, full of footnotes, legal references, and more. And the Democrats immediately wanted the “report”…not the actual transcript. I’m betting the Democrats found someone within the intelligence agency, and had their team of lawyers work with him in writing the report, in just the right way, to put together enough patched together pieces of gossip to look convincing, while leaving out all the exculpatory details. And by doing a partisan hit piece through “whistleblower” channels, they could bring out politically inconvenient classified details. And of course, the Democrats knew it was coming, because they wrote it.

            I very much want to know who knew what and when on this report. It’s one thing for a normal whistleblower report against a true crime. It’s quite another thing to share classified information with a partisan lawyer team, in order to write “just the right” report in order to politically hit someone, and abuse the whistleblower system to get it out from being classified.

            1. Further reading on this and the whistleblower issues gets very interesting.

              The 2018 copy of the Whistleblower report form required direct firsthand knowledge of an event. Without first hand knowledge, it would be summarily rejected.

              But there was a revision copy for August of 2019. Suddenly, now second-hand knowledge can be transmitted for whistleblower forms. And right then, a major whistleblower report, that uses the second-hand claims. Why the sudden change? Smells odd…

              1. Yes it is all a conspiracy. The deep state tricked the President into asking Zelensky for a favor, and then convinced his staff to try and hide it. Guiliani is in on it too. The President is out to get him.

                1. The deep state cut and paste to suit it’s needs. Look at exactly what Trump “asked a favor” for. EXACTLY what immediately was after that.

                  1. Doctored tapes that Trump for some reason does not deny!

                    The fact that you need to rewrite reality this hard is not a great sign for either Trump or you.

                  2. Do you know how conversations work? Read the next set of notes from the President. He is asking Zelensky to do things.

                    1. I do know how they work. Do you? What EXACTLY did Trump ask for a favor for? What immediately came after?

                      You can’t answer, can you?

                    2. He wanted (embarrassingly) Zelensky to help him locate the DNC’s servers (because he’s a fucking idiot and doesn’t understand how servers work) and investigate Biden’s son.

                    3. So, let’s get this straight. Trump actually asked for a favor in figuring out who hacked the DNC servers in 2016…

                      Isn’t this exactly what was being called for earlier? Figuring out the interference with elections? Isn’t this of great importance to the Democrats? Or…not?

                    4. When you’re dangling millions, you get to discuss more than one favor.
                      Putting all your weight in the ‘he only said A favor!’ basket only underscores how little you have to work with.

                    5. Why would the fucking Ukrainians have any ideas about the hacked DNC sever? IT IS IN AMERICA. The President doesn’t realize that because he’s a loon. Neither the President nor Democrats need Zelensky’s help getting the DNC server. The FBI already has a copy of the server. This is embarrassing for our country.

              2. IMO, you are right over the target! The complaint does look like a lawyer’s work product. I did think the footnotes were strange. What “normal” person writes like that?

                    1. Or perhaps a team of lawyers.

                    2. No reason why the “analyst” might not be a lawyer.

                    3. AL is reaching for some kind of deep state writers room being the real author. A sign that even he sees how bad this looks, and is reaching for the tin foil to avoid having to deal with it.

            2. The whistleblower complaint was substantiated by the memo released by the President. Congress did ask for the actual transcript (that’s why the President was forced to release the memo). They also wanted the complaint, as they were entitled to it. The delay in giving it to them was also rather curious.

              I’m going to disregard your weird comments re: Steele dossier, Kavanaugh, and speculation on “partisan lawyer team”.

              1. My “weird” comments, regarding the oddly constructed complaint?

                Here’s a question for you. Read the full complaint. Then yourself ask who actually wrote it. What does it read like?

                1. A thorough whistleblower complaint? Several of the allegations since confirmed by the people involved?

                  1. Really? Why would the whistleblower bring in all these extraneous details from public sources, rather than just the actual complaint?

                    1. To substantiate his allegations.

                    2. In a separate thread you defend Shokin’s statements based on extraneous evidence. Why the double standard?

            3. This is FABULOUS!
              “This whistleblower report? It’s kinda amazing. It supposedly doesn’t look like a normal report, written by a single guy. Instead, it looks like it was written by a team of lawyers, full of footnotes, legal references, and more…. I’m betting the Democrats found someone within the intelligence agency, and had their team of lawyers work with him in writing the report, in just the right way, to put together enough patched together pieces of gossip to look convincing, while leaving out all the exculpatory details. And by doing a partisan hit piece through “whistleblower” channels, they could bring out politically inconvenient classified details. And of course, the Democrats knew it was coming, because they wrote it.”
              Amazing. From the fact that the Whistleblower’s complaint was well-written and full of legal references and footnotes, an ordinary person might conclude: Hmm, at least this person seems to be reasonably intelligent and reasonable careful about his/her work. But NO!! You’ve got it figured out: It was the Democrats!!
              Who hired a team of lawyers to prepare the complaint!!
              This is conspiracy thinking of the worst kind. Many, many people in the US intelligence community, I’m happy to say, can put well-written, well-structured work down on paper. It could’ve been a DNC lawyer SWAT team, and it could’ve been a alien super-being. But without some actual evidence of either, I’ll go with the first hypothesis.

              1. “On When They Started Working for Their Client (the Whistleblower):

                Bakaj: I think it’s important for everybody to understand that I have been this individual’s attorney from the very beginning. In fact, I have been involved in this matter from before the disclosure was made. That’s important, because it underscores the fact that this individual sought out the advice of counsel, to make sure that the disclosure is made lawfully, through established legal processes and regulations, and in compliance with the statute that everybody’s discussing. … We have followed the law from the beginning, and we intend to continue following the law.”

                So….the Whistleblower had a team of lawyers working for him or her. From before the actual disclosure was made. But it’s “crazy” to think the lawyers had a hand in writing the complaint.

                1. Armchair, which comment are you responding to?
                  What David Post reacted to was the charge that “the Democrats” orchestrated the whole thing, not the contention that the whistleblower consulted a lawyer (wisely, I would think) before acting.

                  1. Let’s start with this.
                    1. The whistleblower clearly hired and consulted with a lawyer(s) before making the complaint. That’s in the public record.
                    2. A logical next step, would be for the lawyers to discuss and potentially “look over” the complaint, before the whistleblower submitted it.
                    3. When discussing and “looking over” the complaint, edits, corrections, and suggestions could be made.
                    4. In addition, a certain amount of “support” by the lawyers could be made to the whistleblower, encouraging them to submit the report, and to include other items.

                    4. What was striking was how fast the complaint was requested, very specifically. Not the transcript, the complaint.
                    5. Also, you want to look at the lawyers, and their past associations. Now, an off-the-record phone call or meeting might be made.

                    1. Armchair, you are being far too subtle for me.
                      Are you contending that “the Democrats” are behind it all, because of the timing of these events?

      2. Should have said? This post is about whether he did something criminal, not whether he did something wise. Most things politicians say are stupid, but rarely are they criminal.

        1. Do you think what the President said was stupid?

          1. Yes, but not as stupid as what Sanders said about billionaires, or what Biden said about shotguns. How do you rate those statements?

            1. I don’t know what the quote or context was. I’m pretty confident I’ll find both stupid.

              1. Basically, Sanders thinks that nobody should be able to accumulate enough wealth so as to become a billionaire. “I don’t think billionaires should exist,” seems to be how he expressed it. Considering it’s Bernie that said it, there’s likely a bunch of stupid underlying his statement.

                Biden, apparently, heard someone claim that a shotgun is a better home defense weapon than is an AR or AK type rifle and said you should “[If] you want to keep someone away from your house, just fire the shotgun through the door.” There’s some clear misunderstanding there, and calling it stupid isn’t clearly wrong.

                Now in Trump’s case, you have a CIA person interacting with a bunch of adminstration people in the course of their duties which results in the CIA person reaching the conclusion that an ICIG WB complaint is in order. Nobody’s spying or leaking. Nodody’s breaking the law. According to DNI Maguire (who appears to be an honorable and non-corrupt straight-shooter), the WB did everything correctly and appropriately. I think it’s beyond stupid to suggest that the WB and the adminstration people interacted with (as a part of official duties) are close to being spies and implying that they should be identified and punished.

                1. Sure, those are also dumb things to say. Unless I’m missing something. I think billionaires should exist. I sense something is getting lost in translation re: Biden, and he should walk it back.

                  1. I can’t believe I’ve been conned into looking up stupid stuff Biden has said — so much stupid, so little time.

                    I’m guessing from the remarks that Biden’s made that someone has convinced him that a shotgun is a more useful home-defense weapon than a semi-auto “assualt” rifle or a handgun. There are probably good reasons for that suggestion though most shotguns will present problems of their own what with long barrels and more than a little recoil.

                    So, Biden has gone down this road at least twice. In remarks addressed to Field and Stream, as best as I can tell, Biden recommended having a 12ga double barrel and firing two shots through the door. Sounds like a good way to end up in jail for shooting trick-or-treaters off your porch — unless you’re in Louisiana and the victim is Japanese — then a jury probably won’t convict you. In another interview, which is readily available on youtube, he said that he had recommended to his wife to go out on the back porch and fire off both barrels if she were scared. That’s obviously stupid advice.

                    1. Neato attempt to change the subject.

  4. 1) We aren’t at war with the Ukraine. They are an ally.
    2) Information isn’t money. Robert Mueller said so.
    3) Joe Biden broke the law
    4) The President was literally fulfilling part of his job description
    5) The DNC knows they don’t really need a reason to impreach. You literally can just do it. They are trying to fabricate a reason that the public will buy. They have failed.
    6) Nobody is dumb enough to believe the news media anymore. Not enough people anyway. Not enough to matter now.

    1. Amazing how dumb people like you have to be to “not believe the news media.” I bet you’re getting all your juicy gossip from Alex Jones huh? Can’t beat that I bet.

      1. “In general, how much trust and confidence do you have in the mass media such as newspapers, TV and radio — when it comes to reporting the news fully, accurately and fairly — a great deal, a fair amount, not very much or none at all?
        Great deal Fair amount Not very much None at all No opinion
        13% 28% 30% 28% *

        Gallup Poll 2019 Sep 3-15” https://news.gallup.com/poll/1663/media-use-evaluation.aspx

        Are you calling 58% of the American people “dumb “?

        1. Gallup has been asking in their “Trust in Institutions” time series polling about trust in newspapers since 1973. They still only ask about newspapers to keep wording the same over the year, so one can compare over time.

          In 1973, there was 39% that had a “great deal/a lot” of trust in the papers. In 2019, it’s 23%.

          https://news.gallup.com/poll/1597/confidence-institutions.aspx

      2. I get my news from (i) reading original documents (e.g., the transcript of Trump’s phone call), (ii) reading scholarly publications (e.g., various scientific journals have published studies of whether 30 year old memories are reliable) and (iii) reading a variety of partisan sources, including the Conspiracy, most of which are full of tendentious reasoning and selective presentation of facts, but which sort of balance each other out. Issues where I can’t spare that level of attention I ignore, on the grounds that true knowledge is impossible without significant expenditure of effort.

      3. “I bet you’re getting all your juicy gossip from Alex Jones huh?”

        That would be a mistake. Alex Jones is no more credible than CNN for Fox News or the NYT.

      4. I believe the record shows that Bill Clinton was a liar, but in most aspects he was an effective president.

        It might be the only way to deal with the current news environment is to listen to all sides then apply critical judgement to separate facts from opinion as much as possible. You also need to think critically and identify things that can be independently validated.

        It is a lot like reading a high school text book. It is a lot of work.

        I think your strategy is probably more efficient – just go the ad hominem route.

        I blame public education. Are you by any chance a teacher?

      5. “I bet you’re getting all your juicy gossip from Alex Jones huh?”

        After 2+ years of “RUSSIA! RUSSIA! RUSSIA!”, the media has no more credibility than Alex Jones.

    2. 1) Take that up with the president
      2) dunno why that matters
      3) Explain how
      4) Leaning on other countries to investigate your opponent is not part of the President’s job description
      5) Don’t count your chickens – neither you nor I know how this is gonna play out
      6) Yes, the above is what you get when you only read Breitbart. When I see a story that seems too good to be true, I check Townhall or Breitbart to see what their take is; maybe if you do the same on the left you wouldn’t look quite so silly.

      1. ” Leaning on other countries to investigate your opponent is not part of the President’s job description…”

        I’m so old I remember when the Dems were defending the FBI investigating the administration’s political opponents.

        Of course, there’s no “political opponent” exception to the things a president is allowed to look into. When the other guy does it, it’s “digging up dirt on the opposition”. When your guy does it, it’s “investigating potential wrongdoing.”

        1. First, you’re eliding the foreign country aspect.

          Second, if you find a phone call of Obama asking the FBI for a favor, then we can talk.

          Since the President is conducting foreign affairs on behalf of the country, not himself, this kind of blatant electoral self-dealing is indeed outside of the Presidential purview. A clue on that is that he used his personal attorney and not, say, the State Department. Another clue is that after the call everyone below the President worked to bury the transcript in as deep a vault as they could find, against policy.

          1. “if you find a phone call of Obama asking the FBI for a favor”

            I believe that was done by his wingman at Justice.

            Of course, Hillary just had her husband ask for favors in the airport.

            1. You believe.

              No doubt.

              1. Did Holder not call himself Obama’s “wingman”?

                1. Totally evidence of quid pro quo. You’re doing great.

                  1. Well, there was the time that Obama illegally fired an Inspector General that was investigation his friend and major donor, and Holder squashed both the original investigation and refused to file charges, AND he refused to investigate or prosecute the firing of the IG.

                    1. Keep digging up old Obama conspiracies that failed back in the day. They’re sure to play now!

                    2. What’s wrong? Already running away from the facts and need to resort non sequitor attacks this soon?
                      Obama fired the IG that was investigating a major Obama donor and supporter. This is a fact.
                      Holder stopped the investigation into the donor and his friends. This is a fact.
                      Congress tried to get the IG’s work, and demanded the justification for the firing, and Holder refused. This is a fact.

                    3. Could you at least tell us the name of the donor so we can fact check your theory?

          2. “Since the President is conducting foreign affairs on behalf of the country, not himself, this kind of blatant electoral self-dealing is indeed outside of the Presidential purview.”

            The country has no interest in knowing if anything improper happened involving Biden?

            Unless evidence turns up that Trump suggested that the Ukrainians fabricate information, isn’t it only “blatant electoral self-dealing” if Biden would be harmed by an investigation? If, as has been suggested on the left, there’s noting to be found involving Biden, then how does the Ukrainian investigation help Trump?

            1. The country has no interest in knowing if anything improper happened involving Biden?

              Not so the government should be spending our money ginning up investigations instead of doing real foreign policy, no.

              1. “Not so the government should be spending our money ginning up investigations instead of doing real foreign policy, no.”

                I thought the complaint was that Trump was preventing our money from being spent. Again, if the Biden thing is BS, where’s the self-dealing?

                1. where’s the self-dealing?

                  Say the investigation drags on well into the campaign, up to election day and beyond, as it likely would.

                  Now Biden is spending time having to deal with it, has to answer questions, it’s in the news, Trump is tweeting constantly about Biden being a crook under investigation, Fox is stirring the pot, etc.

                  Or, more likely, Biden doesn’t get the nomination at all, because of the above, and Trump has knocked out the candidate most likely to beat him.

                  No harm done. Right?

                  Got any other oh-so-clever arguments?

                  1. “Now Biden is spending time having to deal with it, has to answer questions, it’s in the news, Trump is tweeting constantly about Biden being a crook under investigation, Fox is stirring the pot, etc.”
                    \
                    Damn. Sounds rough. Imagine being a President when the prior administration had its CIA et al lie to FISA courts to spy on you.

                    For years.

                    1. Your claims are total nonsense.

                  2. “Now Biden is spending time having to deal with it, has to answer questions, it’s in the news, Trump is tweeting constantly about Biden being a crook under investigation, Fox is stirring the pot, etc.”

                    Hmmm. I seem to remember a very similar scenario recently.

            2. “If, as has been suggested on the left, there’s noting to be found involving Biden, then how does the Ukrainian investigation help Trump?”

              Right? I mean, if you’re actually innocent, there’s no harm in the federal government using a foreign power to conduct an investigation. In fact, since Biden is innocent, there’s no harm if Attorney General Barr conducts the investigation himself. I wonder why the President thought to involve Guliani in the first place? And why don’t they investigate you as well, since it will be harmless?

              1. “In fact, since Biden is innocent, there’s no harm if Attorney General Barr conducts the investigation himself.”

                Something tells me people wouldn’t be any happier if Trump leaned on Barr to conduct the investigation.

                1. Well the President told the Ukrainian President that he wanted Barr involved, so we will hear some testimony directly from the AG as to what his role in this was.

            3. The country has no interest in knowing if anything improper happened involving Biden?

              If there were credible evidence of that, then the DOJ would be looking into it, and they’d be going through appropriate legal channels to get the information. As opposed to the president’s personal attorney, who admitted he was doing it on behalf of his client rather than the country.

              Unless evidence turns up that Trump suggested that the Ukrainians fabricate information

              You mean, besides the fact that he wouldn’t give them desperately needed aid until they came up with something that had already been discredited?

        2. Well, in this case, when the other guy does it it’s investigating the now-confirmed Russian interference in the 2016 election following normal investigative protocols, and when your guy does it, it’s the President surreptitiously using a foreign power and his personal counsel to churn up an investigation into a political opponent’s son.

          But sure, apples to apples. Whatever. Let’s be fucking nihilists.

    3. 2) Mueller did not say that.
      3) [Citation needed]
      4) Which part is that?
      5) I don’t think “the public” is defined as “people who masturbate to pictures of Donald Trump.” You might want to check out the recent polling on impeachment.
      6) Keep telling yourself that.

  5. Some Thoughts on How the President’s Stalwart Defenders Will Excuse This Latest Episode

    Probably. But implicit in this statement is the ongoing constant assault to get rid of him using criminal invilestigation, for polititical reasons.

    Now maybe Mr. Lock Her Up desrves it, but the lament is either side does it.

    1. How is lack of substantive (i.e. nonpolitical) motivations implicit in the statement? I don’t see it?

  6. Yes, next question. He did the same before.

    I mean, at this point the “did trump do x” where x is “bad thing” the answer is yes.

  7. The most obvious defense is that, since the contents of the call were classified, the people who leaked some of it to the whistleblower literally were violating the law.

    The President is the chief federal law enforcement officer.

    Is it “witness tampering” to note that there are penalties for breaking the law?

    1. That is creative.
      Though violating the law on what appears to be spurious classification, and being a spy/traitor, are to very different things.

      Not that there aren’t penalties for the first, but they aren’t quite as…final as those for the second. Nor are they pursued with quite as much zealotry.

      1. “Though violating the law on what appears to be spurious classification…”

        Who says it was a spurious classification? I’ve seen allegations that the transcript was stored in a server that was inappropriate for its level of classification. I haven’t seen allegations that the material shouldn’t have been classified.

        1. Thee is no classification statute, its Executive Order 13526 [by Obama if that matters] :

          “Sec. 1.1. Classification Standards.
          (a)   Information may be originally classified under the terms of this order only if all of the following conditions are met:
          (1)   an original classification authority is classifying the information; [Sec. 1.3 includes the President as such] ([] added)
          (2)   the information is owned by, produced by or for, or is under the control of the United States Government;
          (3)   the information falls within one or more of the categories of information listed in section 1.4 of this order; and
          (4)   the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”

          “Sec. 1.4. Classification Categories. 
          Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:
          ***
          (b)   foreign government information;
          ***
          (d)   foreign relations or foreign activities of the United States, including confidential sources;”

          Go ahead, argue that it is “spurious” under that language.

          You are a lawyer, look up some primary sources once in a while. If you get your info from “Lawfare” or another resistance site, you are going to be disappointed.

          I assume you know the classification procedure stated when some intelligence drone leaked Trump conversations with the leaders of Australia aad Mexico very early on. So I would say Trump has good reasons to classify and take other steps to prevent leaks.

          1. Above directed at Sarcasto.

          2. Perhaps you missed 28 C.F.R. § 17.22 (d) in your extensive research:

            (d) Information shall not be classified in order to conceal inefficiency, violations of law, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay release of information that does not require protection in the interest of national security. Information that has been declassified and released to the public under proper authority may not be reclassified.

        2. “The White House acknowledged Friday that Trump administration lawyers moved a record of President Donald Trump’s call with the Ukrainian president to a separate system for classified documents, CNN first reported.”

          “Unlike some other calls with foreign leaders, the conversation with Zelensky was expected to be routine, the whistleblower said.

          Once the call concluded and copies were distributed to top officials in the White House, lawyers in the White House Counsel’s Office then directed that the document be moved to a code-word-protected secure computer network that is normally reserved for transcripts that contain national security secrets after officials raised concerns about Trump’s comments, according to the complaint.”

          1. Doesn’t make the classification “spurious”.

            You are goalpost moving.

            1. It was moved for what appears to be no good reason other than that it was too revealing about the President’s agenda.

              Classification to conceal from the public for political reasons is called out specifically as abuse of the classification system in the internal regs I’ve read.

              1. I thought all the conversation transcripts were moved after the Australia and Mexico conversation leaks. Whatever anyone thinks of this President or any other it is not a good idea for every conversation with a foreign leader to be leaked to the public for opposition political gain.

                1. Nope – this seems to have been revectored after Trump said what he said.

                  His staff knew they had to bury it. Telling.

                  1. What is your source for that?

                    1. The Wall Street Journal.

              2. Sarcastro’s passion is being overtaken by facts (it has been reported today that this wasn’t the only conversation stored on the more secure server. The process began after previous leaks.

                I am new at commenting here but a long time reader. So apologies if I violate some norm. I thought the Post piece (and Somin’s the day before were interesting. They were both tainted with Orange Man Bad yearnings but they were worth reading.

                A dialog(???) with Mr. Sarcastro(sic) seems similar to trying to convince Tomás de Torquemada that there is/was no God. Could involve pain.

                1. Indeed, the secure server seems to have been regularly used to memory-hole shameful Trump conversations. It’s not like all his conversations were classified like this. Instead, after the fact, select conversions were moved there. This does not appear like a regular policy, but like a coverup.

                  ‘Orange Man Bad yearnings’ you’ll fit right in. Though saying no one should engage me doesn’t seem to work well.

                  1. Also what NToJ said – the quick and total declassification shows how spurious the initial classification was.

                    1. Incorrect. It only shows that the President was committed to transparency.

                    2. the quick and total declassification shows how spurious the initial classification was

                      Since the conversation reveals both Trump and Zelensky making less than complimentary remarks about Merkel it’s plain to see why this would be classified at a high level.

                      The “quick and total declassification” came after the US had received consent from the Ukraine to make the record of the conversation public.

                    3. Lee, that’s not what classification is for.

                  2. “Indeed, the secure server seems to have been regularly used to memory-hole shameful Trump conversations. It’s not like all his conversations were classified like this. Instead, after the fact, select conversions were moved there. This does not appear like a regular policy, but like a coverup.”

                    You are making this up.

                    Besides that why do think any of the conversations should be made public? Obama’s were never made public except for the hot mic with Medvedev.

                    1. I don’t think any of the conversations should be made public unless they involve presidential malfeasance, which is why we have the whistle blower statute in the first place.

              3. Well, gosh, why should ongoing criminal investigations be kept under wraps until they actually yield results?

                It seems perfectly reasonable to keep a criminal investigation of Biden under wraps until/unless it actually yields results.

                1. There is no “criminal investigation of Biden.” It’s something that exists only in Trump’s head. That’s why it was Trump and Giuliani making these inquiries, rather than a U.S. Attorney’s office.

                  1. Yes, there is no criminal investigation of Biden. Trump asked the Ukraine to start a criminal investigation of Biden. It’s reasonable to keep that request under wraps, not because it’s embarrassing to Trump, but because that’s what you do before you file formal charges.

                    And Biden should be criminally investigated; he is a crook.

                    1. If the President believed Biden had broken American law, why not just ask his AG to initiate the investigation himself? If that investigation relied on Ukrainian intel, the FBI can request it. If the allegation is that Biden broke Ukrainian but not American laws, why the fuck is the President encouraging foreign governments to investigate Americans for breaking someone else’s laws?

                      Why would the President need Ukraine to investigate Biden? The President can investigate Biden (or anyone else) who is alleged to have broken the law. Missile funding has nothing to do with that.

                    2. If the President believed Biden had broken American law, why not just ask his AG to initiate the investigation himself?

                      He did. As the transcript says: “There is a lot of talk about Biden’s son […] so whatever you can do with the Attorney General would be great”.

                      But since this is voluntary on the part of the foreign government, it’s a diplomatic issue. Without a green light from Trump, Ukraine might well not provide information to the FBI for fear of embarrassing the Bidens.

                      As for who broke laws, it’s likely that both Joe Biden and Hunter Biden broke American law and should be prosecuted for it. For corruption, it doesn’t matter whether Biden’s actions were influenced, merely the existence of large unexplained payments to his son are sufficient.

                    3. “He did.”

                      Apparently not, since the AP today is reporting that Barr was surprised and angry to find his name attached to that call.

                      The Ukraine has ALREADY provided evidence to the US are: Hunter Biden. But sending Guiliani of all fucking people isn’t the right way to request info from the Ukraine, unless you didn’t want it reported on. (Although that was stupid too since Guiliani can’t keep his mouth shut.)

            2. Hahaha ok how about their subsequent declassification without redaction? What fucking argument is there left that the document contains national security secrets?

              Do you contend that the memo contains national security secrets? Because the President does not.

              1. Why do you think it has to contain “national security secrets” to be classified? It can be classified to avoid embarrassing a foreign leader for example. Section 1.4 (d) that Bob quoted.

                And Trump said that he checked with Zelensky before releasing the memorandum.

                1. I actually wholeheartedly agree with this. If the call just involved President Trump ranting about Crowdstrike (and not the “favor” request re: Biden’s son) it should still have stayed classified even though there are no national security secrets. In this case to avoid embarrassing a domestic leader, namely our President.

                  Anyway, it should have been apparent based on the transcript memo that there was nothing for Zelensky to be embarrassed about, a fact confirmed by his agreement to publish (just as the President’s declassification without redaction confirmed there were no national security issues at stake)?

                  1. Read the transcript again. The part about the favor is where Trump was asking about crowdstrike and if Ukraine could provide information on that.

                    1. One thing you should understand about how conversations work is that they involve two people talking to each other. So the President asks for a favor. The other person says you got it. The President continues “Good because I heard you had a prosecutor…” He then says “I would like [Guliani] to call you” and requests that the Ukrainian President “speak to him”. But there is one “other thing” regarding “Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you [President of Ukraine] can do with the Attorney General would be great.” Later, when the President says “get to the bottom of it” through calls that he wanted the foreign leader to have with “Mr. Guiliani” and “Attorney General Barr” and that President Trump was just “sure you [Ukrainian President] will figure out”.

                      I appreciate that it’s often impossible to tell what is going on in the President’s brain based on the things he said. But there’s certainly more than no evidence from the memo that in fact the “favor” extended from Crowdstrike (embarrassing) to checking out “Biden’s son”. “There’s a lot of talk about” him, you see.

                  2. NTOJ : it should have been apparent based on the transcript memo that there was nothing for Zelensky to be embarrassed about

                    TRANSCRIPT MEMO :

                    ZELENSKY : “Yes you are absolutely right. Not only 100%, but actually 100% and I can tell you the following; I did talk to Angela Merkel and I did meet with her. I also met and talked with Macron and I told them that they are not doing quite as much as they need to be doing on the issues with the sanctions. They are not enforcing the sanctions. They are not working as much as they should work for Ukraine. It turns out that even though logically, the European Union should be our biggest partner but technically the United States is a much bigger partner than the European Union and I’m very grateful to you for that because the United States is doing quite a lot for Ukraine. Much more than the European Union, especially when we are talking about sanctions against the Russian Federation”

                    1. It would be embarrassing for Zelensky if foreign leaders heard comments he made to those foreign leaders?

                    2. It might well be embarrassing if he had actually said something different to those foreign leaders to what he’s saying to Trump. Just as it is possible to assume that Trump is not always 100% truthful, it’s conceivable that other politicians may not always be 100% truthful too.

                      There is actually a reason why leaders have a little chit chat in front of the cameras, and then go off to a private room to have a longer deeper chit chat. It’s because they don’t want the world to know what they’re saying. This idea was not Trump invention.

                  3. Zelensky talked about having his own swamp to drain. Maybe his swamp creatures would be just as upset about this as Trump’s. Anyway Trump correctly understood that he should clear the release with Zelensky.

          2. It’s unclear who you are quoting here.

                1. You only believe The Federalist? Your ad hominem is weak.

          3. “The White House acknowledged Friday that Trump administration lawyers moved a record of President Donald Trump’s call with the Ukrainian president to a separate system for classified documents…”

            From your article: “White House officials say the transcript was already classified so it did nothing wrong by moving it to another system.”

            As I said, the reporting is that they stored routine classified information in a system designed for very sensitive classified information, not that they spuriously classified the information in the first place.

            1. A server controversy!

              The script writers are repeating story lines from past seasons of cancelled shows now.

            2. blanket classification is abuse of process.

              Plus, as NToJ noted, they declassified it and there was nothing secret on there.

            3. Most of the data stored on Top Secret systems in unclassified. A significant amount is Secret. A small amount is Top Secret.

              This is because creating secure systems is difficult, maintaining them is expensive and time consuming… and moving data between systems is a major pain the in ass.
              So, whenever you do business with data that goes onto a Top Secret system, you usually put ALL the related data onto the same system. That way, whenever you work with any part of it, you have access to all of it.

              In other words – it is VERY common to move lower classified data to higher classified systems.

              1. This is unraveling rather quickly. Former national security personnel are saying this is not common. Why do you think the admin moved it, in this case?

                1. I don’t know. I don’t claim to know anything about the specific systems used for these – I’ve never worked on them.

                  Here, all I’m doing is explaining that it is very common to have lower or unclassified material on higher classification systems. I work on such systems every day. If someone is claiming that that fact is not true, they are flat out lying.

                  1. I think it should be pretty apparent that it was moved to avoid the precise embarrassment we are dealing with right now. Let’s see what the admin did with the actual transcript.

                    1. And why should the President’s men have tried to hide it in the first place? The conversation was “perfect” said the President.

                  2. The WSJ just reported that the location to which the memo was moved was in fact reserved for biggest US secrets. If true, would you find the decision to move this phone call memo curious, at least?

                    1. No. If the President finds his conversations with foreign leaders being leaked to the press by those who the system allows to listen in or see transcripts, and if he’d prefer to stop the leaks, then it’s perfectly reasonable to restrict who listens to the calls and who gets to see the transcripts, by sticking the transcripts in a locked chest in Fort Knox if necessary.

                      The idea that Trump should do what is “normally” done within the system is a foolish one, if the system doesn’t treat Trump’s phone calls like other Presidents’ phone calls.

                      The same applies btw to unconventional personal diplomacy, including using people like Giuliani. If he doesn’t trust the State Department, below Pompeo, or the CIA, because he thinks they’re trying to undermine his policy, why would he use them ?

                      And why the hell would he trust them ?

                    2. I don’t know what the policies or practices of handling international diplomacy transcripts are. Neither do you.
                      And since the President can change those on a whim, it is very unlikely that anyone outside that staff knows what the rules are. It’d be interesting to see what the policies are. But until then, any of your speculation is just that.

                      By the way, “biggest US secrets” is meaningless bullshit. Probably the system is classified Top Secret. But it almost certainly does not contain actual “biggest” secrets like nuclear launch codes, weapon designs, bio/chem weapon research notes, intel sources, or anything like that.

                    3. @Lee,

                      I think the President’s current plan is to say he didn’t order the transcript moved. I don’t think he knew that what he was staying was a big deal. (Pence did.)

                      Anyway, the big issue will be why this phone call was treated differently than all the other phone calls, and only after legal review by adults.

                      I am not persuaded by your Guiliani argument. But even if it’s true, the President is a fucking idiot because the first thing Guiliani did was confess to his involvement on Twitter. At least internally he gets to wait out a whistleblower.

                    4. @Toranth,

                      Take it up with the WSJ.

    2. Wait, we know that the whistleblower wasn’t entitled to access classified information?

      1. Even if the “whistleblower” had a security classification to see TOP SECRET material, the way the system works is that you have to have a need to know to access it in the first place. This fellow didn’t as part of his job, because he heard everything 2nd or 3rd hand, therefore he wasn’t entitled to access this particular classified information.

        1. I think the memo/transcript was only classified “Secret” but your point remains.

          Even someone with clearance has to have a reason to see something a “need to know” as you say.

        2. Well, it is arguable that Congress authorizing whistleblowing makes it part of everyone’s legitimate job function.
          But even if the recipient didn’t have a valid need-to-know, I have doubts whether passing the information to them is a crime or just a non-criminal error that might result in internal discipline. The crimes as I understand it are defined as divulging classified information to someone who is not authorized by an appropriate government authority. Clearances are granted in that centralized way, but the need-to-know determination is explicitly delegated to the divulger. From Executive Order 12968:

          (h) “Need-to-know” means a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.

          If it isn’t performed by an authority then I don’t see how it can form that element of the crime.

          1. Leaking classified information to someone that does not have need to know is a security violation – a breach of your NDA that you signed to get your clearance in the first place. It isn’t considered all that different than leaking to an uncleared person.

            For a leaker, how it is handled depends entirely on the circumstances. Accidental leaks, especially when self-reported, are rarely punished – unless they happen multiple times.
            Accidental leaks that are NOT self-reported are more serious. If you didn’t report because you didn’t realize you’d leaked, it’s probably back to training for you, but nothing else (again, frequency). If you DID realize your leak, but concealed it, you are now in trouble. At the very least, your record will be marked with a security incident that will be used when your clearance is reviewed (every 3-5 years).

            Deliberate leaks get complicated. Sometimes, there is a justification. “The guy was not briefed on our program, but had been in the past, and we needed his help right then” means you’ll probably keep your job, but you may find yourself unable to get new clearances, or briefed into new compartments. For a contractor, your program will almost certainly take an award fee hit… which for large programs can mean the loss in over a million dollars to your employer. So, in general, this just doesn’t happen. I’ve heard of it, but never seen it, in more than 20 years in the classified world.
            Deliberate leaks for personal reasons usually result in the loss of clearance. This almost always means the loss of your job, as well.
            On electronic systems, it is not uncommon for the leaker to be charged for the costs of the investigation and sanitization of the impacted systems.

            For a recipient, if you become aware that you have been told classified information you are not approved for, you must report it to the appropriate security office. Failure to do so is generally treated the less seriously than not reporting a spill in the first place, but it still results in you being marked as responsible for a security incident.

            You are right, though, that punishment is usually harsher for the person leaking than the recipient. Also, always worse for contractors than govvies (despite the rules).

            1. Toranth, I agree with all that except maybe this part

              It isn’t considered all that different than leaking to an uncleared person.

              It depends who’s doing the considering. The security establishment may consider them not all that different, but I don’t believe the law does. Are you aware of any incidents where someone was convicted of a crime for leaking to a recipient with adequate clearance but not a need-to-know?

              1. The section of the US Code, and the phrasing in the NDA, both merely state that it is forbidden to communicate classified information to an “unauthorized person”.
                The only further definition of the term explains that it refers to “any person or agency not authorized to receive…”

                So it comes down to exactly what “authorized” means. I don’t know if the current practices I am familiar with are justified or not.

                1. If anyone is still paying attention …
                  From what little I can find on the subject that applies broadly to government officials and private citizens (i.e. not dependent on the UCMJ), you appear to be right, or at least not wrong. The government’s position is that a lack of either clearance or need-to-know makes a recipient unauthorized as relates to 18 USC §798 (resp. “not entitled to receive” in §793), and the courts have not refuted it. E.g. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.1980) footnote 10:

                  Section 793(e) contains another possible ambiguity. It punishes only those who have “unauthorized possession” of national defense information. The trial judge provided adequate content for this phrase by advising the jury that a person would have authorized possession if he had an appropriate security clearance and if he gained access to the document because it was necessary to the performance of his official duties.

        3. “This fellow didn’t as part of his job, because he heard everything 2nd or 3rd hand…”

          You don’t know whether he was entitled to receive the information (the substance–setting aside the memo itself, which the Whistle Blower didn’t disclose in any event) just because it was 2nd or 3rd hand. Everyone who wasn’t physically on the call could only receive the information 2nd or 3rd hand.

    3. “The most obvious defense is that, since the contents of the call were classified, the people who leaked some of it to the whistleblower literally were violating the law.”

      How do you know the recipient was not cleared to receive the information . . . or that providing the information to the recipient was not part of the provider’s job?

      Birthers struggle with evidence, judgment, and character.

    4. Brett – I concur

      Assuming argumento that the threat was real ( a somewhat dubious assumption), it was made to the person committing the crime. It was not directed to a witness.

    5. The trouble with your argument is that that isn’t what Trump did. What he did was accuse potential witnesses of (almost) espionage, which bears no resemblance to what happened.

      Maguire himself said the whistleblower acted properly, and did not suggest that there has been any lawbreaking in the whole episode.

      1. “The trouble with your argument is that that isn’t what Trump did. What he did was accuse potential witnesses of (almost) espionage, which bears no resemblance to what happened.”

        Everyone is a potential witness to a future crime.

        The worst that can objectively be said is that he stated what the penalty was in prior decades for certain types of crimes – as a hint to future criminals not to commit that type of crime.

      2. Well, if he didn’t commit espionage, he has nothing to fear from the legal system.

        And if he did, then he does.

    6. the people who leaked some of it to the whistleblower literally were violating the law.

      Odd that neither Maguire nor DOJ initiated an investigation when they learned about the matter. Could there be more to it than that?

      1. Well, the only name he mentioned in the bitchfest—sorry, complaint— was not on the call at all, so he couldn’t have provided any info.

      2. Yet. Haven’t initiated an investigation yet.

        1. Nor did they, it seems, even raise the issue. According to Maguire, the discussions before releasing the complaint were about executive privilege.

          I mean, you’d think somebody would have said something like, “You know, whoever you talked to here was breaking the law by giving you this information. Are you sure you want to reveal it?”

          And you’d think Maguire himself would have refused to release the complaint for that reason.

          1. The complaint itself has to be released, by law. It doesn’t really matter how the information was acquired.

            But, if confidential information was transferred illegally, well, that’s a completely different story, and a different investigation.

            1. But it isn’t an ICIG complaint under the terms of the law that would require the release – according to both the DoJ’s lawyers and the ICIG.
              The ICIG has defended his behavior by claiming that in the past, even though the AG determines it isn’t a complaint that falls under the law, the AG has allowed the ICIG to release it anyway.

              The law as written applies to IC activities that fall under the DNI. The President’s behavior in this, whether legal or not, is not under the authority of the DNI… so the law should not apply.

    7. Sigh… This was my immediate thought.

      Commenting/threatening someone with legal actions in response to their illegal acts or potentially illegal acts cannot be “witness tampering”. If it was….

      1. Investigator: “Confess, or you could be facing the death penalty”. Witness tampering
      2. Defense Attorney: “Are you sure? You’re aware of the penalties for perjury” Witness tampering.
      3. Prosecutor: “Testify, or else we’ll prosecute you for x.” Witness tampering

      1. So an FBI agent rapes a criminal and then threatens to prosecute the criminal if he tells anybody. Not witness tampering, in your view?

        Your examples are asinine. None of them involve attempted suppression of witness testimony. 1 and 3 involve promoting witness participation. 2 involves promoting true testimony.

        1. David’s proposed example of Trump “witness tampering” is asinine as well. You should see this. My examples demonstrate this. The “asinine examples” are simply the widest possible extent to twist a law into.

          Your example is not in response to an illegal act made by an individual. There is a disconnect.

          In addition, such blackmail, as in your example, typically only works with private communications. I doubt your FBI agent would have success with his threat if made in front of a room of a few hundred law abiding people.

          1. “ Your example is not in response to an illegal act made by an individual. There is a disconnect.”

            Note the use of “criminal”. Let’s put a fine point on it. The FBI agent and criminal were co-conspirators, but the criminal decided to abandon the conspiracy. To prevent the criminal from testifying, the FBI agent threatens to prosecute the criminal for unrelated crimes.

            Your last question is not related to anything I’m arguing. I have already said the President is not witness tampering. His aimless yammering to the public is not a threat. It’s just an old man losing his mind publicly.

            1. Your examples are stretching credibility.

              In your perceived example, FBI agent (call him Jack) and “Criminal (Call him Joe) are in a conspiracy together (say to rob a bank). Joe bails out, and Jack says “Don’t say nothing to nobody, or else I’ll prosecute you for that crime 5 years ago.”

              Once again, it only works in a private situation. Furthermore Jack won’t be in any position to prosecute, because he’ll be…under investigation. Lastly, this sort of situation you propose is almost never prosecuted for “witness tampering.” Every time you had a gang or conspiracy where a group performed a crime together, and made a deal with each other not to say anything to the cops with be “witness tampering.” Which again, is absurd.

              Let’s give you another example of absurd witness tampering in a law enforcement position. Tom is undercover with a gang. A member of the gang performs a minor crime and is picked up. Tom asks “Should I testify about it?” to his boss, Fred. His boss says “No, we need to keep you undercover to catch the big fish” Fred is now guilty of “witness tampering” according to your wide definition.

              1. Making deals is to SECURE testimony. Not suppress it. In your second example, the point of keeping the witness involved is to get more testimony. Asking someone to delay testimony is not the same as threatening someone to keep them from ever testifying.

                1. “Asking someone to delay testimony is not the same…keep them ever from testifying”

                  True. Delay is not the same as prevent. But…The law addresses both. Quite explicitly. So….you’re just generally wrong. Here’s the text.

                  “Here is the federal witness-tampering statute (18 USC 1512(b)):
                  (1)influence, delay, or prevent the testimony of any person in an official proceeding;”

                  1. (b) requires intimidation, threats, or corrupt persuasion. I have neither the time nor inclination to show you rivers of case law demonstrating that plea bargains or undercover recruitment are not implicated, whereas a rogue FBI agent (or President) threatening prosecution to suppress testimony, fits squarely under the statute.

                    1. Please do…show me “rivers” of case law that shows that undercover recruitment somehow isn’t witness tampering (according to your very broad definition, which is inaccurate).

                      Whereas an executive of a state publically saying they will try someone for their illegal acts is witness intimidation. Please show me that case law. I’ll wait for the non-existent “rivers” of case law. Which you can’t show.

                    2. I’ve already told you I’m not going to do it. Go to Westlaw, click the statute, then click Notes on Decision” or whatever it’s called. Control f “corrupt”. Good luck.

                    3. @Armchair,

                      Fuck it, I’ll do it. Application of the law to your super clever examples would render the statute unconstitutionally vague. The term “corrupt” has been interpreted to impose a scienter requirement. Implied in the statute is that the person tampering must have an “improper purpose.” See US v. Shotts, 145 F.3d 1289, 1300 (11th Cir. 1998); see also US v. Fasolino, 586 F.2d 939, 941 (2d Cir. 1978) (imposing same scienter requirement under 18 USC 1503 with same “corruptly” language). Note that there is a circuit split as to whether “improper purpose” alone is sufficient, or if “corruptly” under 1512 requires “something more inherently wrongful about the persuasion”. US v. Doss, 630 F.3d 1181, 1187 (9th Cir. 2011) (discussing split and citing US v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997).

                      US v. Doss has some good history on the statute. As originally enacted, it did not have “corruptly persuade” and several courts had interpreted it to not criminalize “non-misleading, non-threatening, non-intimidating attempts to have a person give false information to the government.” Id. citing US v. Khatami, 280 F.3d 907, 912 (9th Cir. 2002). The “corruptly persuade” was added to give the statute more teeth.

                    4. In any event, this got dealt with in Arthur Andersen LLP v. US, 544 US 696 (2005) in which SCOTUS determined that “corruptly” related to “wrongful, immoral, depraved, or evil” conduct. Under your examples, there’s not even an arguably corrupt purpose. However, a government official–involved in an illegal conspiracy with another–who threatens to have a co-conspirator prosecuted if he ever talks, has an improper purpose, namely to prevent someone from testifying truthfully.

                      I don’t know how too more clearly explain the scienter requirement to you than citation to SCOTUS’s decision in Arthur Andersen. This conversation will continue only after you’ve convinced me that you’ve read the entire Arthur Andersen case.

    8. According to the ICIG’s letter on the complaint, “{T]he Complainant has official and authorized access to the information and sources
      referenced in the Complainant’s Letter and Classified Appendix, and … the Complainant has subject matter expertise related to much of the material information provided.” So, where is the “leak” and how is it that giving classified information to the WB that the WB is cleared for and entitled access to IAW the person’s responsibilities illegal?

  8. I take it as a good sign at least that Post reads the comments, even if he lacks the guts to reply. Maybe some wisdom will penetrate.

    1. He actually does reply lately. Seems like an ok sport.

      1. I’ve not seen it, but I’ll keep an open mind.

        1. In his last post he edited in an update responding to comments and posted some responses in the comments as well.

    2. “I take it as a good sign at least that Post reads the comments, even if he lacks the guts to reply.”

      Do you fault Prof. Volokh for ‘lacking the guts to reply’ to comments?

      1. Volokh responds to comments now and again. Usually with a probing question or two.

        1. Yes but he doesn’t reply to Arthur. And some time in the twentieth century or thereabouts he banned one of Arthur’s sock puppets. So yeah gutless and censorious.

          1. ” And some time in the twentieth century or thereabouts he banned one of Arthur’s sock puppets.”

            Well, that was kind of underhanded. He could have kept the sock puppet and banned Arthur, but to keep Arthur and ban the sock puppet seems so clearly calculated to advance the cause of movement conservatism that it’s hard to believe it was done in good faith.

          2. “Yes but he doesn’t reply to Arthur.”

            We should all learn from that example.

          3. “Yes but he doesn’t reply to Arthur. And some time in the twentieth century or thereabouts he banned one of Arthur’s sock puppets. So yeah gutless and censorious.”

            Prof. Volokh banned Artie Ray Lee Wayne Jim-Bob Kirkland, but not for being a sockpuppet. Sockpuppetry involves deception; Artie Ray involved no deception. Everyone knew who Artie Ray was, which is why Prof. Volokh directed the e-mail communicating the ban to me. I was just making fun of movement conservatives (especially those in unconvincing libertarian drag) and using parody to illuminate weakness in their political positions. That is what bothered Prof. Volokh to the point of Artie’s expulsion.

            Artie Ray was banned for mocking by parody right-wingers and their positions. A distilled form of viewpoint-based censorship.

            Prof. Volokh also repeatedly removed my comments for using the term “c*p succ*r” and warned me to stop using that term.

            He also has warned me about the use of the term “slack-jaw,” ostensibly for violation of the Volokh Conspiracy’s civility standards.

            I’m starting to think that the Volokh Conspiracy imposes differing standards based on the political leanings of writers.

            This is what conservative heroism in the field of free expression looks like. Repeated viewpoint-based censorship, coupled with incessant, cherry-picked potshots at the liberal-libertarian mainstream.

            May the better ideas win.

            (That’s easy for me to say, though, because my ideas have been winning, against the preferences and efforts of conservatives, throughout the lifetime everyone reading this.)

            1. The thousand injuries of Fortunato I had borne as I best could,…

      2. In a possible violation of the unfairness norm, how much of this conversation rises to the level justifying participation by Post of Volokh?

        Oops a taint of sanctimony! I’m bailing.

        1. If I use the word “sl*ck-j*w” or the term “c*p succ*or,” it has been established, that would precipitate participation by this blog’s Board Of Censors.

          You can probably use those terms, though, without fear of reprisal.

    3. It’s not a failure of guts, believe me. I find that I am tempted to say intemperate things if I respond to comments in the heat of the moment, so my general practice is to leave a posting for a day or two, after which I come back and see what people have said, after which I think a little bit and see if I can add anything of value. In the case of these most recent posts, there have been a LOT of comments, as you know, and it’s not always easy to read through them all and come up with coherent things to say. If you (or anyone else) has a comment that you really think I need to respond to, send me the link to it and I’ll respond if at all possible.

      1. and one other thing: The problem with composing responses in long comment threads is that it’s not clear to me that the people whose comment I’m responding to (or anyone else) gets to see my response, which (because I’m coming in late) could be buried somewhere up at the top of the thread. As far as I can tell, commenters (including me, when I comment) do not get notifications that someone has responded to their comments. [Perhaps there’s a way to configure an RSS reader to do this,but I haven’t figured it out if there is] All of that reduces my incentive to put any time/effort/thought into composing responses to the comments, if they’re just going to vanish into thin air (like this one may do).

  9. “But again—it’s just a prima facie case we’ve got here; if Trump was joking, let him come forward, under oath, to say so.”

    In which case we would see an “Aw geez, my bad, it turns out he was joking…” post.

  10. 5. It can’t be ‘witness tampering’ because “what we used to do in the old days” was to prosecute people who broke the law. If threatening to prosecute someone for a crime counts as witness tampering, then every cop and every prosecutor in the US would be guilty. Since that is an insane outcome, then merely threatening to prosecute someone when you think they broke the law cannot be witness tampering.

    Whether your opinion about their breaking the law is right or not is irrelevant to the legal standard for witness tampering. Likewise, your motivation for threatening prosecution is irrelevant under a whole host of legal precedents that protect prosecutors.

    1. You think the President was threatening due process?

      1. To be clear, I don’t think this was witness tampering because I don’t think anyone believes the President these days. But the opposing arguments are tellingly bad.

        1. “To be clear, I don’t think this was witness tampering because I don’t think anyone believes the President these days.”

          It appears that the President was joking about trying the leaker for espionage. Talk about a nothingburger…

        2. This is probably the right answer. Trump’s best argument is probably that nobody took this serious because they knew that he was just a character playing to the crowd. It’s like threatening someone in a Wrestlemania promo.

        3. So Sarcastro is endorsing Post’s item number 3? Geez, if Post has lost Sarcastro, he really needs to find another line of work; political persuasion is clearly not his forte.

          1. Oh, I don’t think Trump was joking, it’s more a lack of filter thing. He’s shown not to back up his threats so often that everyone thinks he’ll forget as he careens through his rants.

            1. So we could both endorse a slight variant of Post’s number 3: Not “he was joking, lighten up,” but “he was babbling meaninglessly as usual, move along”? I’m good with that formulation, but Post wants to continue his temper tantrum: “It’s not meaningless babble, it’s a crime!”

              1. Yeah, I’ll agree with you. But as is usual for me I’m less interested in the OP than the comments, and boy is there a lot of misinformation in the comments.

                1. Y81, bringing people together.

              2. I reject the “meaningless babble” defense. We all give Trump that free ride, all the time – he talks nonsense, so don’t take anything he says seriously, ever. I reject it not because the premise (that he talks nonsense all the time) is incorrect, but because it is a license for Trump to say whatever pops into his head without suffering any consequences for it. What he says does have consequences, because he is not a reality TV show host anymore, but president of the US; when he says “the whistleblower and the whistleblower’s sources are spies and traitors,” he does, in fact, deter people from coming forward and speaking out, because he has the might of the US law enforcement apparatus (and, apparently, Ukraine’s as well) at his disposal. I honestly think this is part of a conscious, Bannon-inspired strategy – if you’re always saying crazy shit, it will let you say whatever you want because your defenders will always say “Oh that’s just Trump being Trump … don’t take it seriously.” It’s disgraceful, and I’m not going to give him a free pass because he says crazy shit all the time; indeed “saying crazy shit all the time” is on my personal Articles of Impeachment …

                1. It may be bad policy; we may wish it wasn’t true; we may want to do things to assure it can no longer be true.

                  But if it’s true, it works as a defense.

        4. But the opposing arguments are tellingly bad.

          But that’s because it’s a mistake to call them “opposing arguments.” None of them are being made in good faith. They’re bullshit in the Frankfurtian sense of the word.

      2. Do you have any actual evidence to rebut that defense?

        Your assumption that Trump must have been implying something extra-judicial, however plausible, does not meet the generally-accepted standard of evidence.

        1. You must be unfamiliar with criminal prosecutions.

        2. Doesn’t need to be extra-judicial. He’s got Barr ready and willing to whatever he asks.

    2. Absolutely right. He didn’t threaten to punish anyone for testifying. He threatened to punish anyone who committed treason. Otherwise, all one would need to do in order to reveal classified information with impunity would be to put that information in a complaint and then send that complaint to a congressperson and claim you were a whistleblower.

      1. How is voicing concern the President is using a foreign power to screw with his upcoming election treason?

        1. Easy, sarcastro. In Trump World treason is defined as disloyalty to Donald Trump.

        2. Put yourself in a Trump supporter’s shoes, and imagine (I know you’re Mr. empathy, so this shouldn’t be hard) that Obama’s administration was repeatedly brought to a screeching halt by leaks from erstwhile supposedly nonpartisan professionals.

          1. I’d be pissed, but I wouldn’t call them traitors. All sorts of other names, to be sure. But abusing traitor is more the right’s pursue these days. The left overuses racist, war criminal…we have ours as well.

            Anyhow, this isn’t a leak – it was the Trump Admin that released the tape. And even if it is insincere, that’s not treason.

          2. This attack on the “leakers” needs to be called out for the smokescreen that it is. I’m old enough to have this a million times – very unflattering information comes to light about the behavior of our Presidents, and they try to focus all of public attention on the bad behavior of the leakers rather than their own improprieties. Johnson, Nixon, Reagan, Clinton, … they all did it, and it is a transparent attempt to distract us from wrongdoing that is staring us in the face.
            THE WHISTLEBLOWER’S SOURCES WERE NOT TRAITORS, THEY WERE NOT SPIES, AND THEY MAY NOT HAVE EVEN BEEN “LEAKERS.” We don’t know who the whistleblower is – but if he/she is, as appears likely, a US government intelligence official with the appropriate security clearance whose duties include overseeing relations with the Ukrainians, he/she might have obtained all of this information in the ordinary course of conversations with people he/she is entitled to talk to, from other parts of the government, about government business. That is part of the way the government functions. It is NOT a “leak” – at least, nobody should presume that it is a “leak” – for someone present during that call to talk about it to other US government officials.

            1. If the “whistleblower” was both cleared for and had need to know for this conversation, there would have been no need for that person to rely on second- or third-hand descriptions of the call.

              If the “whistleblower” was either not cleared for, or did not have need to know for that conversation, then being told about it and not reporting that to the appropriate security office was a security incident and a violation of their NDA.

              While “leaker” may not be an appropriate term to you, there really isn’t another word to describe someone that mishandles classified information in such a way that results in it being spread.

          3. There is no leak, there is no violation of law wrt access to classified information. It’s neither leaking or spying or violating the law to share classified information with someone who is cleared for access and whose job entails access to that very information. Read the ICIG’s letter.

        3. Come on, Sarcastr0. At least try to make your strawmen a little bit plausible. Voicing concern is not a crime. Leaking government secrets is.

          Note that for the argument above, whether or not the leak was justified as a matter of social/national policy is not relevant. Whether a leak of classified documents actually occurred is not even relevant. It is sufficient to defeat the ‘witness tampering’ charge if Trump merely believed that such a thing had occurred.

          At risk of reminding you of your elementary school civics, the President is head of the Executive Branch. The Executive Branch prosecutes crimes. Part of prosecution includes the accusation. The accusation always and inevitably occurs before the Judicial Branch renders a verdict on the truth of the accusation. You may consider an accusation improper, inappropriate or bad policy. None of those turn an accusation into the crime of witness tampering.

          1. The Trump admin is the one that released the transcript, remember?

            And if it was merely secret, there’s not dedicated ‘read you in’ ‘read you out’ need to know protocol, just a general admonition not to get too curious.

            Read the statute before you posit that witness tampering can only occur during a trial.

          2. It is sufficient to defeat the ‘witness tampering’ charge if Trump merely believed that such a thing had occurred.

            Did Trump believe that the hypothetical leak constituted espionage, or “almost” espionage?

    3. ” It can’t be ‘witness tampering’ because “what we used to do in the old days” was to prosecute people who broke the law. ”

      Thank goodness people this credulous, mendacious, and dumb are clustered on the conservative side of the culture war.

  11. Since Trump is the head of the Executive, which is charged with accusing & prosecuting alleged criminals- if this is “witness tampering” then it is also witness tampering whenever a governor, mayor, or district attorney goes in front of a TV camera & threatens to prosecute someone to “the fullest extent” of the law.

    I strongly suspect anyone who heard this recognized that Trump was giving his opinion rather than threatening someone, which is what I believe “corrupt influence” requires.

    Threatening to enforce the law can’t possibly be construed as “corrupt”….except by lawyers who seem to delight in finding the most perverse interpretations of otherwise plain speech.

    1. It is the intent to cause the witness to delay or withhold testimony that makes the difference. If a governor, mayor, or district attorney threatens a witness in a proceeding involving that governor, mayor, or district attorney then they greatly increase the likelihood that a jury will find they have the necessary corrupt intent and aren’t just doing their job in a disinterested way.

    2. if this is “witness tampering” then it is also witness tampering whenever a governor, mayor, or district attorney goes in front of a TV camera & threatens to prosecute someone to “the fullest extent” of the law.

      Um, only if one of those officeholders threatens to prosecute people for being witnesses.

  12. In the old days when one didn’t grasp the intended meaning of a comment one would ask for clarification. But that was the old days when we had journalists, but these days we don’t ask for clarification, we go straight to impeachment.
    How is this country ever going to track back and find the rule of law that made this country stand above others

    1. It isn’t going to get back.Countries never do. The best you can do is recognize what is happening and try to deal with it as best you can.

  13. Read the Federal Jury Instructions on this statute.

  14. Reason/VC really needs to reel in the TDS lately. You’re becoming extremely un-Libertarian.

    1. Did you just equate supporting Trump with being libertarian?

      1. I was about to retort with “did you just make a strawman” but that’s not even worth pointing out.

        No, I equated being objectively counterfactual because it’s Trump with not being libertarian. Commitment to principles requires commitment to fact and the writers are far too trigger happy for impeachment given the facts available. Spreading chaos in government with reckless disregard and the hope of shrinking or eliminating its core function is anarchist, not libertarian. Impeachment is not a political process and it is disgusting how much of a hard on people have to try and catch Trump in a procedural crime based on how he reacts to blatantly false allegations.

        1. So it’s more you equate believing things you disagree with as being not libertarian.

        2. How he reacts to “blatantly false accusations”? Which allegations might those be? The one that accuses him of using presidential power to get a foreign government to start a criminal investigation of a political opponent? That one?

      2. No, he didn’t.

        Learn to read and understand basic English.

  15. It’s not witness tampering under the statute, because Trump and the Republicans don’t want to see these people withhold the truth of the matter. Instead, instead would want to put them on the witness stand and uncover their shoddy treacherous nonsense.

    As with Trump’s statements, the “old days” criminal penalties are likewise designed to deter falsehoods, deceit and treachery against the U.S.

    From yesterday’s WaPo

    “The whistleblower complaint doesn’t do Democrats any favors

    . . . Democrats now have a difficult choice to make. The wisest course of action would probably be to drop the complaint as a significant piece of evidence, since it raises almost nothing new. That would be politically embarrassing since they have made so much of it, but they could claim that the whistleblower’s job has been done since it unearthed the alleged wrongdoing and placed it in the public domain.

    The alternative course sets the Democrats on a dangerous path. If the whistleblower’s complaint is probative of impeachment, then the whistleblower must testify to find out who gave the person the information that is described. That cannot be done without Republicans present and likely means the whistleblower’s identity must be disclosed. It is one thing to keep that person’s identity secret when the matter is largely handled internally; it is quite another when it is being used to try to remove the democratically elected leader of our nation. The accused must have a chance to confront and cross-examine the witnesses against him, and that right applies as much to Trump as it does to anyone accused of wrongdoing. . . .

    . . . information the person recounts, including the “facts” that started the complainant’s concerns, come from “U.S. officials.” Expect Republicans to try to uncover who these people are . . . “

    1. As with Trump’s statements, the “old days” criminal penalties are likewise designed to deter falsehoods, deceit and treachery against the U.S.

      What the crap is this. Lets being back more executions for domestic spies because they made people more truthful?

      And Henry Olsen isn’t exactly the sort who excels at giving advice to Dems.

    2. The complaint can be used during the investigation and if it leads to other evidence used at trial the informant’s identity might never need to be revealed.

  16. I think this is the most impeachable thing Trump has done so far. We fought a revolution, we ordained and established a constitution, we fought world wars, exactly to keep ourselves out of a world where bosses consider not being on their personal side to be treason against the country and threaten those who speak out against them, with execution for espionage and treason.

    That’s what it’s all about. If you don’t have that, then it really doesn’t matter whether you have to read Miranda rights or which bathroom transgenders get to use. There’s no reason to bother to maintain a pretense of courts and justice. We might as well all pack up and going home, it flew before we get executed for treason ourselves.

    1. We might as well all pack up and go home, or flee Before we get executed for treason ourselves.

      1. Any thoughts on the changes to the whistleblower rules that allowed non-first hand info to be used in the complaints?

        The change occurred in August 2019. Seems a bit convenient, no?

        1. Yeah, I have a thought: Sean Davis is a lying hack. (And a lazy one, at that. He didn’t even come up with this on his own; he stole it from someone on twitter.) No such change ever took place. There was never any such “rule.”

    2. You’re equating an off-hand remark with an actual threat of execution? Are you serious?

  17. This just all confirms my old Trump As Rorschach Thesis. People see monsters in the shadow of Trump; people see the country’s salvation in the shadow of Trump. People largely see what they want to see in that inkblot.

  18. The President is crooked. 1/3 of the country is OK with that, because he’s in the right party. 1/3 of the country is highly not-OK with that, because he’s in the wrong party. The other 1/3 just wants to reach the point where we can elect someone else, and hope that the next guy isn’t crooked, or is at least good enough at lying to pretend not to be.

    1. Or maybe his supporters don’t think he is crooked and maybe they are right.

      1. So we know which third you belong to.

        1. I know some Trump supporters who don’t think he’s crooked and so I agree with SKofNj’s comment. Which third do I belong to? (Hint, I am neither a Trump supporter nor a Republican).

          Never misunderestimate the stupidity of political partiasans.

      2. “Or maybe his supporters don’t think he is crooked and maybe they are right.”

        Let’s check the evidence.

        Trump’s supporters chose quick pocket money — a job at the parts store, maybe — over education. They have stuck with dying industries and declining communities against all evidence, embodying the wrong end of bright flight. They had children before ready to lead or fund a family, then sent those poor children to backwater religious schools. They suppress science to flatter superstition and warp history to vindicate dogma. They prefer Wheaton and Liberty to Harvard and Yale, Regent and Ouachita Baptist to Berkeley and Michigan. They prefer Mississippi and Alabama to New York and California, Lubbock and Birmingham to San Francisco and Philadelphia. They resent people who are educated, successful, reasoning, literate, tolerant, and modern. They are diffusely intolerant because they are fearful and searching for someone or something to whom they might feel superior.

        They see Donald Trump as a solution, much as they see street pills, televangelists, tobacco, lottery tickets, bigotry, faith healers, off-brand energy drinks, disability claims, and cheap sixers as solutions.

        Trump fans don’t think Trump is crooked and maybe they are right? Trump fans have never accomplished or stuck with much that is worthwhile; I see no reason to expect them to change now.

    2. Yeah, well I’m in the third who is not okay with it, but my objection is based on him being objectively unfit for the office, his inhumanity and amorality, and him being a cheap-ass conman in an expensive, yet somehow ill-fitting, suit. And i continue to be mystified by the undying theory that there is no legitimate criticism of Donald Effing Trump except those criticisms born of pique and hurt feelings.

      1. Well said, Otis.

        To some of the regulars here there really is nothing Trump can do that they would not defend, by screaming “Clinton, Holder, Lynch!!” if they can’t come up with anything better.

      2. Yes, he’s unfit, but just under half the eligible voters who turned out wanted it that way, and they get to have it. Assuming we can manage to survive as a nation long enough, he can be an ex-President. President Wilson was unfit for half a term, too, and the nation survived.

  19. This is unprofessional. David Post can no longer be taken seriously.

  20. I want to know who’s the person that gave the whistleblower, who’s the person that gave the whistleblower the information

    But giving such information to the whistleblower is not testimony. Was the whistleblower an official proceeding?

    Furthermore, the subject of the intended disclosure was arguably subject to a legitimate claim of executive privilege, which Congress does not have authority to order the President to disclose. When a President orders someone, on grounds of executive privilege, not to answer certain questions posed to him by a congressional committee is that also witness tampering under this statute if the person will be fired if he disobeys the president? If a court decides later that there was no executive privilege does that make the President guilty of witness tampering?

  21. Is it really witness tampering when the person isn’t a witness?

    Or am I incredibly mistaken about the nature of hearsay testimony?

    1. First, hearsay is allowed in Congressional hearings.

      Second, testimony about the contents and methods used to gather the info in the whistleblower document wouldn’t be hearsay, and would be relevant to credibility.

      1. Perjury is also possible. Opinions presented as facts are also possible.

      2. The substantive assertion in the complaint is what other people said. Of course Congress will allow anything that fits the majority’s narrative. When one of the actual witnesses corroborates the complaint, then fine. Otherwise we have nothing but unsubstantiated allegations.

      3. Sarcastro missing the point again. Which is – obviously :

        Post’s post is idiotic, because it describes Trump’s “threatening’ the folk who told the the tale to the whistleblower, as witness tampering. But these folk are not witnesses (they’re leakers.) The people whose “say” is “heard” and then reported by another are not witnesses. The witness is the whistleblower and there’s no “threat” against him.

        How admissable, and in what proceedings, hearsay evidence may be is totally irrelevant to who the witness is.

        Incidentally, this little spatlet draws out another interesting point about the “whistleblower”‘s bona fides.

        He has only second hand knowledge of wrongdoing – by someone not in the DNI’s Empire. That he blows the whistle on.

        But he has first hand knowledge of wrongdoing (leaking to him) by folk who are in the DNI’s Empire. That he doesn’t blow the whistle on.

        1. There is nothing you won’t excuse Trump for.

          I also disagree with Post. But read the OP. Likely witnesses still count. Hard to argue these sources aren’t likely witnesses.

          the “whistleblower”‘s bona fides.
          Yeah, you can’t fight on the facts very well at all, so might as well try and deny them. It’s on the transcript, and the WH has admitted to most of the rest, dude.

        2. Lee Moore: I will leave it to others to decide which of us is saying idiotic things.
          Trump didn’t threaten “witnesses,” you explain, he threatened “leakers,” who were guilty of “wrongdoing.”
          And you know that how, exactly? Please explain. What if the whistleblower turns out (as appears likely) to be someone in an intelligence agency – the CIA, say, or the NSA – with appropriate security clearance whose job involves monitoring intelligence-related events in Ukraine – a CIA analyst on the Ukraine desk, say. People who were present during the call are permitted to speak to such a person, aren’t they, about a phone call between our president and the president of Ukraine, no? That’s not a “leak,” that’s the sharing of information between agencies that goes on a million times a day. Why are you (and Trump) calling that a leak? [Answer: because the information was unbelievably embarrassing to Trump, and the White House was trying to lock it down, without success]

          1. Even if you are right in your guess that the whistleblowers sources were entitled to tell the whistleblower about the contents of the call, they are still not witnesses. The witness is the whistleblower, and he is witnessing what he heard.

            As to whether the “leakers” are leakers, if they’re kosherly advising the whisteblower of stuff he’s entitled to know, and needs to know, they weren’t very good at it, since we can see from the “transcript” that there are errors in his tale. Like the absence of the promised promise.

        3. I suggest that folks who are certain the whistleblower was not a first-hand witness (who lied about not being there), show credulity. The motivation to claim only second-hand knowledge is pretty obvious. It greatly complicates retaliation.

          I think it could go either way, but if new information continues to corroborate the whistleblower report, then the likelihood that he lied, and was instead an actual witness, goes up.

          1. I’m not sure you get any points for lying in your whistleblower complaint – your whistleblower status is what’s supposed to protect you – and I think you’re kinda expected to tell the truth in your complaint. You know, lack of candor and all that.

            But if you’re warning us to watch out – the whistleblower may not be 100% honest – thanks for the tip.

            1. Lee, it’s paradoxical. Usually, to be caught in a lie undermines credibility. In this case, being caught in that particular lie would boost credibility. It would get rid of the stain of hearsay, and make the whistleblower instead an eyewitness. Either way, what will count in the end is whether investigation corroborates the report. There is already enough corroboration to justify full investigation of every specific alleged.

  22. The answer to the question is “this statute doesn’t apply to the executive branch.” The state doesn’t commit witness tampering when it communicates to witnesses as part of its law enforcement process.

    To argue otherwise is absurd. The alternative is every prosecutor would commit the crime of witness tampering every time they offer a plea agreement.

    Another defense would be that such speech is protected under the 1st Amendment as this was not a true threat (which would not be protected speech).

    Mr. Post might be persuaded to accept that even President Trump enjoys First Amendment protection.

    1. First, I don’t think this was witness tampering, by a mile. It’s not even close. It’s just the President saying loud nonsense as usual. I agree this was not a true threat.

      But your rule makes no sense. If an FBI agent rapes a prostitute and threatens to have her arrested for prostitution if she ever tells anybody about the fact that he raped her, there is no witness tampering because the FBI is part of the executive branch? That can’t be right.

      1. Agreed.

        Though prosecutorial immunity does seem to let the prosecutor get away with stuff that would be witness tampering if it was someone else doing it.

        “Give evidence against Bugsy – and here’s how we’d like you to put it – and we’ll tell the Judge it wasn’t your fault.”

        1. Indeed. Witness preparing. Or coaching. Both “influence” testimony.

      2. Your example is not part of the law enforcement process.

        1. “In the old days, you know what we did with prostitutes? We prosecuted them. You should think about that before you tell anyone that I raped you.”

          No evidence of witness tampering?

  23. The real flaw in this argument is that it just proves too much. In what circumstances wouldn’t a witness “think twice” about providing evidence against the most powerful person in the world?

    1. The relevant circumstances would be either when that person is honest and regards the power involved as a trust to be used for the public good, not a personal possession to be used for personal gain, or when there is a balance of power that provides real and reliable checks on that powerful person’s ability to use the power vindictively.

      Otherwise totally agree, only in such circumstances would a witness not be in fear.

  24. witness? what witness? Is there one? I have not seen one.

    The “witness” if there is one will have to come forward: The 6th amendment guarantees someone the right to face their accuser.

    What has been brought forth so far is not admissible in a court. Its only admissible in a political circus, which is what we have now.

    1. ” The 6th amendment guarantees someone the right to face their accuser. ”

      No, it doesn’t, unless they’ve been charged with a criminal act.

      1. no criminal act – wait, so Trump did not do anything criminal? I am so confused.

        1. Well it’s an impeachment proceeding so the 6th doesn’t apply.

          1. But a threat needs to be specific. So if Trump does not know who the witness is, how can there even be a threat?

            1. For impeachment, there doesn’t need to be a threat (or crime) at all. As you said, it’s political.

            2. “But a threat needs to be specific”

              Oh?. Pop over to the airport, and announce to the security staff that you plan to blow up a plane, without specifying in any way WHICH ONE you might be targeting. They’ll let you go, right?

              “So if Trump does not know who the witness is, how can there even be a threat?”

              You’re working under the theory that anonymous people can’t be threatened?

        2. You’re right. You are so confused.

        3. “I am so confused.”

          True. Here’s the text of the 6th amendment. How many times does the word “impeachment” appear?

          “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

          Answer: None. The sixth amendment applies to criminal trials, not impeachment (nor anything else that is not a criminal trial. So if someone writes an anonymous letter to your boss claiming you’re a lazy SOB who can’t do your job, you don’t have the right to tell your boss to name your accuser and let you confront him)

          “so Trump did not do anything criminal?”

          Not what was claimed. Try to stay on track. Being factually guilty and being charged are not necessarily related. Some people are guilty but go uncharged, and some people are charged but are not actually guilty. Sixth amendment rights apply to people who have been charged with criminal acts in a court of proper jurisdiction.

  25. I’m curious which methods people support for removing Trump –

    As best I can recall, there were

    Hamilton electors
    “Mostly peaceful” protests
    Russian collusion
    25th Amendment
    Obstruction of Justice
    Emoluments Clause
    Kenyan birth (sorry, wrong President)
    Persecuting innocent Joe Biden, the courageous foe of corruption

    1. Military coup, as urged by “Foreign Policy” the month he took office.

    2. “I’m curious which methods people support for removing Trump –”

      You left out “election”. Worried we aren’t going to make it that far?

      1. I notice that plenty of people on this particular blog claim to be able to predict the future.

        Is this a legal blog, or the blog of Predicto the Magnificent?

        Let me gaze into the crystal ball…hmm, I see that the future contains some weird shit. If I’m wrong sue me.

        1. I predict that your responses to questions won’t actually be responsive.

          1. I don’t have to answer your retarded questions.

                1. “So’s your mom.”

                  Not if you count the work of digging her up first, you sick bastard.

                  (I also predict that your responses will be increasingly childish)

                  1. I would never said that I still made her come, which is more than your dad ever did. What kind of predictable joke would that be?

  26. Re: “when Trump invited the Russians to hack Clinton’s server”

    Hmm? I thought what he did was to invite the Russians to find her emails, not to hack her server. The server had probably even been taken down by that time.

    1. ” I thought what he did was to invite the Russians to find her emails, not to hack her server.”

      Emails can be found in either email clients, or email servers. Inviting them to hack her email client(s) is NOT better than inviting them to hack her email server(s)

  27. In the Ukraine call transcript, Trump mentioned CrowdStrike.

    Can anyone fact check this for me?

    “The second issue the media does not want anyone to think about is CrowdStrike.

    What is CrowdStrike, you ask? That is the cybersecurity firm that is the sole source of the claim that the Russians hacked the DNC’s emails — which launched the conspiracy theories that tied our country in knots for the past three years. . .

    The subsequent three years of breathless Russia coverage was based entirely on the word of one cybersecurity firm, CrowdStrike, that the DNC’s emails had been hacked by Russia.

    Recall that the DNC wouldn’t allow the FBI or any other U.S. government official anywhere near its computers. That’s precisely why so many cybersecurity experts doubted that it was the Russians: The FBI was never allowed to perform its own investigation.”

    https://dailycaller.com/2019/09/25/coulter-trump-mount-rushmore/

    1. You mean more personal political axes to grind? One based on an old right win tin foil talking point that didn’t go anywhere?

      1. Huh? I’m asking about topics from the Ukraine phone call, a phone call that might result in the third impeachment in this country’s history. Murmuring about tin foil hats is not responsive to my question.

        Anyway, in case anyone is interested, here’s all I’ve found in response to my question: The Washington Post reported that “the FBI felt it was not necessary to enter the DNC’s premises and take custody of the affected servers, as agents were able to obtain complete copies of forensic images made by CrowdStrike,” according to anonymous sources “familiar with the investigation.” If true, then this explains how the FBI could have investigated the issue based on those images. But, this also confirms that the entire investigation and its conclusions rely entirely, for one thing, on images provided by CrowdStrike. I have no reason to doubt CrowdStrike, they are supposedly a good firm. But I’m certain that the American people deserve more evidence and a better explanation than “just trust this company and some anonymous WaPo sources” on a monumental issue like this, and it’s not unreasonable to complain that the DNC can just refuse to cooperate with the FBI. Certainly they don’t need to worry about pre-dawn guns-drawn SWAT raids like Trump associates do.

        1. More context: “The Obama-era intelligence community relied on three redacted reports marked as drafts from the private firm CrowdStrike to reach its conclusion that Russian agents hacked the servers of the Democratic National Committee, according to a U.S. government filing.

          The U.S. government further admitted that it does not possess the un-redacted CrowdStrike reports about what allegedly happened to the DNC servers and that it relied upon DNC lawyers to generally characterize what was in the redacted sections.

          These stunning admissions were contained in a U.S. government court response to a motion filed by attorneys for former Trump confidante Roger Stone, seeking to compel the government to release un-redacted CrowdStrike reports about the alleged hacks — reports the government says it doesn’t possess. . .

          It was previously reported that Perkins Coie, the law firm that represented the DNC and Clinton’s campaign, helped draft CrowdStrike to aid with the DNC’s allegedly hacked server.

          On behalf of the DNC and Clinton’s campaign, Perkins Coie also paid the controversial Fusion GPS firm to produce the infamous, largely-discredited anti-Trump dossier compiled by former British spy Christopher Steele.”

          1. Googling your text, it appears to come from a site called ‘RealClearInvestigations.’ Vett your sources, dude.

            Stunning admission indeed.

            There’s nothing here but speculation based on air and hope.

            1. There’s nothing wrong with RCP/RCI, dude. You are always so flailing and non-substantive.

              https://www.realclearinvestigations.com/articles/2019/07/05/crowdstrikeout_muellers_own_report_undercuts_its_core_russia-meddling_claims.html

              Anyway, you do realize that you can view the public court filing just as well as anyone? I’d post the link but this comment system only allows one link per comment.

              1. It is embarrassing that the President keeps obsessing about Crowdstrike. The reason he brought it up is because he thinks a Russian-born American citizen–Dmitri Alperovitch–is Ukrainian. And (because he’s a fucking idiot) the President thinks that since Ukrainians all know each other–even though Dmitri is not Ukranian–why not ask the Ukranian president about it?

                The DNC “server” is in America. The NYT has a picture of it. (This isn’t entirely accurate, since that isn’t how servers work anymore, but we shouldn’t expect the President to understand how servers work, anyway.)

                1. Sure, granted. All that aside, if you read the RCI analysis (somewhat of a long read), it is compelling. The Mueller report’s “central allegation” remains unsubstantiated.

                  1. The RCI analysis has so many misstatements that it would be impossible for me to respond to them all. As an example, it repeatedly conflates certain sets of emails that Wikileaks had (Hillary emails) with later acquired emails from other sources (DNC leaks), and treats that as a timeline error. If there is a particular allegation you find “compelling” I’ll discuss it with you.

                    1. There is no conflation in the RCI analysis. Read it again. There is only one set of emails in question, the DNC leaks, and WikiLeaks and the other party were using the phrase “Hillary emails” to refer to those emails in the intercepted Twitter messages. Anyway, I wouldn’t call that compelling on its own except to show the limits of the investigation and the evidence about these particular matters.

                    2. @M L,

                      I read it again. Go to heading “A Questionable Timeline”. Notice it is discussing “Democratic Party emails”. The guardian article re: June 12 interview is talking about Clinton’s SOS emails. Guccifer 2.0 stole DNC emails. Clinton’s SOS emails were not DNC emails. Again, the guardian article they link makes that distinction apparent:

                      “Julian Assange, the founder of WikiLeaks, has said his organisation is preparing to publish more emails Hillary Clinton sent and received while US secretary of state.“

                    3. NToJ

                      The question RCI posed still stands: “what was Assange talking about on June 12?”

                      You are apparently offering a theory that Assange must have been referring to some other set of emails from some other source — not from the Russians pursuant to the Twitter messages where first contact was made on June 14.

                      Ok, maybe so. The problem with that, though, is that no such other set of emails was ever released. And, there’s no evidence that he was referring to different emails, other than this apparent significant inconsistency in the facts presented by Mueller.

                      It is true, as you note, that the Guardian wrote that Assange was referring to “emails Hillary Clinton sent and received while US secretary of state.” But it appears this was a mistake by the Guardian. The actual quote by Assange came from an interview with ITV, and according to the NYT and every other source I can find, what Assange actually said was “emails related to Hillary Clinton.” Note that that Wikileaks had released Clinton SOS emails that were obtained legally by FOIA previously that year — this may explain why Guardian perhaps went ahead and made a careless assumption that Assange was referring to “more” emails in that specific category. But it appears Assange didn’t actually say that, but instead referred to emails “related” to Hillary Clinton, ie impacting her side of the campaign. This is consistent with how, according to the Mueller report, WikiLeaks and its source referred to the DNC emails as “Hillary emails” and same here, https://wikileaks.org/dnc-emails/ : “part one of our new Hillary Leaks series.”

                    4. I want you to follow your link. It says “starting on July 22nd” they started releasing DNC emails. July 22nd is after June 12th. It’s also a month after Assange reaches out to Guccifer 2.0. Notice the link discusses Democratic Party emails. The emails Assange was talking about on June 12th were not Democratic Party emails.

                      You’ve answered your own question and the one posed by RCI. What was Assange talking about on June 12th? “Clinton SOS emails that were obtained legally by FOIA previously that year…”

                      You have inadvertently helped expose why the RCI’s timetable concern is not serious.

                    5. Don’t make category errors. The only “Hillary emails” that could be received through FOIA are her SOS emails. The DNC emails are not subject to FOIA. That the Mueller report refers to them both as “Hillary emails” is of no moment; the question here is what Assange was talking about on June 12th. You have your explanation.

                      Aaron Mate’s report is now old. He issued another one in August with no mention of this purported timeline problem. Do you have any other sources discussing it? Note that RCI issued two clarifications but has yet to correct the record on this argument.

                    6. You’re very confused.

                      In a TV interview on June 12 Assange announced that he would soon be releasing emails “related to” Hillary Clinton.

                      Now, you are trying to tell me that Assange here referred to emails that had already been released the previous March.

                      Obviously, Assange didn’t say that, in the near future, he would be re-releasing the same emails he already released.

                      So, the question remains.

                    7. Imagine if Julian Assange and top level Russian cyber warfare officials communicated sensitive information over Twitter. LOL

                    8. I feel stupid for indulging this. DCLeaks opened four days before the interview. The timeline problem has never been real.

                    9. I don’t know what “DCLeaks opened four days before the interview” means but from your comment I take it you understand the point now. Mueller report says Jun 14 was the “first contact” between these parties. The account leaves a hole, an inconsistency, whatever you want to call it, something that doesn’t add up.

                      You can say it’s weak, or that it’s not a “real” problem, whatever.

                2. t is embarrassing that the President keeps obsessing about Crowdstrike. The reason he brought it up is because he thinks a Russian-born American citizen–Dmitri Alperovitch–is Ukrainian.

                  No, he doesn’t. That gives him too much credit. Other crazy online conspiracy theorists think that. Trump is just repeating what they told him; he doesn’t have any thoughts, even crazy ones, on the subject.

                  1. Whats in Trump’s head?

                    “A putter, a cheeseburger, someone else’s credit card, and a porn video.”

                    1. You forgot Hope Hicks. Much of Pres. Trump’s current circumstance may derive from inability to cope with being perhaps the only male in that administration who was not part of the Hope Hicks boytoy carousel.

                      Oh, and Kayleigh McEnany. She was always plan B, at best, but Hope has moved on, so . . .

                  2. Why do you not use your telepathy powers for the sake of humanity, DN? Think of all the good you could do with your magical abilities!

          2. And your whattaboutism is becoming a near terminal addiction, it seems.

            1. No whataboutery here. I’m going on a related tangent. I posted about the OP’s direct topic above.

              1. So you’re not defending Trump by going to tangents, you’re just going on tangents for other no doubt good reasons that you’re not going to bother with posting.

                The reason I’m being such a bulldog on this is that I suspect it’s going to be the GOP’s main tactic since the substantive issue is so ugly for them to defend.

        2. “Murmuring about tin foil hats is not responsive to my question.”

          It is, however, something you should expect when you lead off by launching into your “it’s all a big conspiracy” shtick.

          1. The Russia hysteria was a conspiracy theory, yes. I don’t buy it though.

            1. They’re all out to get you, you know. The Russians, the Deep State, everyone.

              1. Hey, heard about the Flat Earth?

    2. Anytime the Daily Caller says “the media does not want to talk about this!” the media has already talked about it lots. Go google “Crowdstrike allegation in Ukraine call” and you will see:

      Vox (Trump’s weird reference to “CrowdStrike” during the Ukraine call, briefly explained)
      Washington Post (In call to Ukraine’s president, Trump revived a favorite conspiracy theory about the DNC hack)
      NYT (How CrowdStrike Became Part of Trump’s Ukraine Call)
      Forbes (What We Know About CrowdStrike, The Cybersecurity Firm Trump Mentioned In Ukraine Call, And Its Billionaire CEO)
      Fortune (What Is CrowdStrike, the Company Trump Mentioned During His Ukraine Call?)

      Crowdstrike is a conspiracy theory that the DNC never handed its “server” over to the FBI. But the FBI has a copy of the DNC server. That’s what it used (in part–not “SOLELY” as Coulter claims) to conclude that Russia interfered in the 2016 elections.

      1. To be clear, I wasn’t trying to vet the claim about what the media “wants” to talk about. But this common circumstance where all of the mainstream outlets offer in unison their lengthy and slanted “explainers” does nothing to show what they “want.”

        What other evidence (not originating from CrowdStrike) was used to conclude that Russia hacked the DNC server?

        1. It would be insane for a domestic investigation of foreign interference or hacking to use exclusively domestic evidence. You wouldn’t rely exclusively on victim-side evidence, and reliance on the DNC servers themselves would be stupid since the DNC could modify them. I can’t give you all the evidence because, as you might expect, the FBI isn’t in the business of releasing all of the evidence available for ongoing investigations. But, to begin with, they started their investigation not on the basis of Crowdstrike’s authenticated copy of the DNC servers, but based on an unidentified foreign government report stating that George Papadopoulos referenced an earlier offer from Russian officials to help Trump’s campaign.

          The question I’ve got for you is what you think the evidence should be? Do you think the DNC released its own emails? Do you think they found out that New Zealand stole the emails but decided to doctor the forensic evidence to implicate Russia? And that the entire intelligence apparatus of the US missed this? That the Internet Research Agency is not a thing? Does it not have ties to Russia? The Podesta hacks? Other evidence not originating from Crowdstrike came from SecureWorks, the Dutch intelligence agency AIVD, and the existence of DNC emails on Russian military intelligence networks (by American, British, and Dutch intelligence agencies). Since the US intelligence agencies aren’t entitled to surveillance against US citizens, we had to rely on our allies’ intelligence agencies, including UK, Germany, Estonia, Poland, and Australia. You can read about there here.

          1. Do you think the DNC released its own emails? Do you think they found out that New Zealand stole the emails but decided to doctor the forensic evidence to implicate Russia?

            You know what they think: that Seth Rich stole the DNC emails, and that the Ukrainians and the Democrats framed Russia.

          2. NToJ

            You make some good points. Perhaps, it is unreasonable to expect that the evidence would be made public by the FBI. The more I think about it, I go back to what the late Krauthammer wrote about this same issue of the DNC hacks more than two years ago, “There is no end to this hall of mirrors. My rule, therefore, is: Stay away.”

            Rather agnostic.
            However I believe I am accurate in stating that the only evidence publicly known to be relied on as to the specific conclusion by Mueller on the DNC hack, is the CrowdStrike reports. And as you state, it would be “insane” to rely only on that, since it came from a private contractor working at the behest of the DNC and so shares that particular criticism with the dossier. (The the US court filing I mentioned earlier verifies this: “[The DNC] hired the cybersecurity company CrowdStrike toidentify the extent of the intrusions and mitigate the threat. . . At the direction of the DNC and DCCC’s legal counsel, CrowdStrike prepared three draft reports. Copies of these reports were subsequently produced voluntarily to the government by counsel . .”)

            The fact is, it is unreasonable to expect that the hacker should be identified, because a successful hacker isn’t going to leave blatant bread crumbs behind tracing back to their identity. From the link, former FBI Special Agent Colleen Rowley, “It may be an example of this and other existing gaps that are inherent with the use of circumstantial information. . . it would be inherently difficult, if not impossible, to connect specific individuals to the computer transfer operations in question.”

            So as to your questions. I don’t know what the evidence should be. Nor what the evidence is, except for what has been made public. I don’t know who stole the emails. In my view there is not a strong reason to believe any particular conclusion based only on the specific evidence made public. Of course, to the extent that we might trust the government officials involved, they might be afforded the benefit of the doubt.

            1. “ However I believe I am accurate in stating that the only evidence publicly known to be relied on as to the specific conclusion by Mueller on the DNC hack, is the CrowdStrike reports.”

              Well you’re wrong. The Mueller report provides other evidence, as have dozens of other publicly available sources. I understand many people on the internet SAY Crowstrike is the sole source, but the Russian interference has been independently corroborated by several American and foreign intelligence agencies.

              1. Mitch McConnell called they evidence “indisputable”.

                1. Mitch McConnell and others are potentially privy to evidence that is not public, and one might reasonably trust Mitch McConnell or others at their word.

                  I suppose I should have said that the only evidence publicly released which is known to have been relied on by Mueller is the CrowdStrike reports.

                  James Comey made a point to emphasize in testimony to Congress that CrowdStrike is a “a highly respected private company” and “a high-class entity” even while acknowledging that the FBI would “always prefer to have access hands-on ourselves, if that’s possible.”

                  1. That’s not true. The Mueller report cites other evidence as well. I’ve already mentioned it above. I think you’ve been sold on something that isn’t true. Just because some blog says “only Crowdstrike!” Doesn’t make it so.

                    1. Can you link to the single best piece of evidence in your view?

                    2. Probably emails between IRA employees intercepted by some intelligence agencies. We don’t know who intercepted them because most of the sections on the IRA have large redactions due to “Harm to Ongoing Matter” but read ~ p. 19 of the Mueller Report and you’ll find plenty of evidence of IRA interference.

                      The redactions themselves should give you a good understanding of just how much evidence is relied on. Footnote 29 has “Investigative Technique”. The travel of IRA employees to the US (p. 20) is not something that would have been on the Crowdstrike server. Nor would the institutional structure of the IRA, or its connection to the Russian government.

                      I mentioned SecureWorks as a separate source of evidence (not mentioned in the Mueller Report). There’s also a January 6, 2017 report from the NSC that covers it in more depth that the Mueller Report (which was focused primarily on administration connections with Russians).

                    3. I have no doubt that the Internet Research Agency posted memes on Facebook. We’ve all seen the laughable Trump and Bernie memes written by someone whose native language is not English.

                      I don’t know what that has to do with email hacking, though.

          3. “But, to begin with, they started their investigation not on the basis of Crowdstrike’s authenticated copy of the DNC servers, but based on an unidentified foreign government report stating that George Papadopoulos referenced an earlier offer from Russian officials to help Trump’s campaign.”

            This is a completely different issue. Yes I know that the Papadopolous mystery as well as the dossier were relied heavily (exclusively?) upon by the FISA warrant.

  28. The blog post suffers from too much logic and not enough history. The history is that Trump clearly views these stories (whistleblower allegations this time, Mueller investigation last time, Steele dossier, etc.) as political in nature, and responds in kind. The blog post has the same persuasiveness as the Mueller Report’s similar musings about whether Trump obstructed justice by railing against Mueller and his investigation. If you find that part of the Mueller Report convincing, this post will probably strike you as making a plausible argument; if not, then probably not.

    For myself, I am in the ‘not’ camp — I think Trump sees this whistleblower as another agent of the anti-Trump Deep State (same as Comey, Brennan, etc.) engaged in a partisan attack, just as he saw the Mueller investigation as a baseless political set-up by his enemies. In both, he responds vehemently, and I think in his view, in kind. If you accept that frame, there can’t be an tampering (because by definition the intent element is missing).

    1. ” I think Trump sees this whistleblower as another agent of the anti-Trump Deep State”

      If Trump thinks the government is out to get him, that’s Amendment 25 calling.

      1. I work in the IC.

        The day after the election, there were IC employees writing on multi-agency systems, swearing to sabotage Trump’s orders and encouraging others to #Resist. Reality Winner was one of the stupider ones, but she was hardly alone.

        An FBI IG report revealed that dozens of senior FBI officials were leaking to reporters about Trump, some of them even taking bribes to do so… but not one was charged. We have Comey, who illegally obtained FISA warrants to harass the Trump campaign, then stole classified documents and leaked private meetings to the press explicitly to sabotage Trump. And yet, the DoJ ‘declined’ to prosecute.

        Then there is all the leaks and slow-rolling, or even flat out refusals to obey coming from agencies like the EPA or NWS.

        Trump has plenty of reason to see that there are embedded bureaucrats who dedicate themselves to sabotaging and hurting him… because they’ve done it, and he’s seen it.

        1. Dear Penthouse, I never thought this would happen to me, but…

        2. Who do you think would believe this?

          1. People with brains or experience in the IC, so it isn’t surprising that you and little Otis don’t.

            1. People with brains or experience in the IC, so it isn’t surprising that you and little Otis don’t.

              Well, the parts that are verifiable are wrong, so why would we believe the rest?

              “An FBI IG report revealed that dozens of senior FBI officials were leaking to reporters about Trump, some of them even taking bribes to do so… but not one was charged.”

              The report was about leaks related to the Clinton investigation. It found that FBI officials had telephone conversations with reporters, not that they leaked. And the purported “bribes” were “social interactions,” such as going to dinner.

              We have Comey, who illegally obtained FISA warrants to harass the Trump campaign,

              Manages to get the facts and law wrong. (What does “illegally obtained warrants” even mean?)

              then stole classified documents

              That’s… not what was they found, which is probably why Barr didn’t think there was anything to prosecute.

              1. Really, DN? What do you call a conversation with a reporter which reveals information the speaker is not authorized to reveal? Especially when the speaker takes high value “gifts” in exchange? Such as jewelry, tickets to sporting and entertainment events, or meals – all of which are in excess of the strictly defined legal limits?
                Here, let me save you the strain on your brain: It’s called “leaking” and “bribery”.

                As for an “illegally obtained warrant” it means you obtained through an illegal act – such as fraud. We have an entire IG investigation into that coming out soon, and parts of it have already been leaked – showing that Comey obtained at least one FISA warrant through fraud.

                And as for Comey’s theft, he took something that belonged to the government without permission and denied he had it until law enforcement showed up at his house demanding them back. That’s stealing. The IG report explained why Comey was not allowed to take the government documents – it isn’t really a matter for disagreement.
                We don’t know why Barr chose not to prosecute, despite the IG recommending that he do so. It was probably politics – the same reason that Hillary Clinton was not prosecuted after Trump got his supporters into office – because it would be bad politics.

            2. “People with brains or experience in the IC”

              Good thing you didn’t insist on brains AND experience in the IC…

              1. That would eliminate far too many of the commenters, rather than just the select subset of idiots.

                1. No, the problem is that the category “brains and experience in the IC” is a null set. Excluding them has no effect.

  29. I’m a little dubious, generally, about the “it’s a joke” defense, having heard it before, when Trump invited the Russians to hack Clinton’s server (which—coincidentally enough—began, according to various federal indictments and the Mueller Report, that very day).

    You’re dubious why? Because you think that, far from Trump being Putin’s stooge, it’s actually Putin who is Trump’s stooge, doing whatever Trump tells him to?

    1. He should be dubious about his own recollection. The Clinton server e-mails where on the computer in the Clintons’ home; those are the e-mails Trump was speaking to, nor were those ever put on Wikileaks. The DNC e-mails hacked via the spearfishing attack on Podesta were an entirely different story. TDS really does seem to distort minds.

      1. The Mueller Report documented that in fact GRU officers targeted Hillary Clinton’s personal computers as well, within approximately five hours of the President’s comments at the Florida news conference.

        1. Wow, that’s impressive!

          Trump’s speech “asking the Russian to hack Clinton’s server” took place on July 26th, 2016.
          Clinton’s illegal email server was taken into government possession in August, 2015.

          I didn’t know the GRU had time machines, nor that Mueller was able to use his own to detect the neferious Russian chronohackers!

          1. Read slowly. Personal computer. Read here.

            1. Link fixed. I apologize. Try this. If that doesn’t work just google it.

            2. Fuck it I can’t make links work from home. I’ll just quote the report:

              “Within approximately five hours of Trump’s statement, GRU officers targeted for the first time Clinton’s personal office…”

              You can google it.

              1. Ah, I see.

                You’re responding to a comment about Hillary’s personally owned email server by mentioning an entirely different set of computer(s) that have absolutely nothing to do with that topic.

                You can be forgiven, though, since Post did the same deceptive bait-and-switch.

                1. I suspect Post got confused (no reason to assume he was intentionally lying—his point was just as strong on the actual facts) I was pointing out the incident he was pretty obviously trying to reference.

                  Actually that’s not quite right, either. Post’s original “Clinton’s server” is ambiguous. It was juris who assumed Post was talking about the email server emails. The President couldn’t have been talking about those because the emails were NOT recovered by the government (hence, “missing”). The President invited “Russia” to find them. And hours later the GRU went looking.

                  Are you still sure about your interpretation?

                  1. What other “Clinton’s server” is there that either Trump or Post mentioned? It is hardly ambiguous.

                    Oh, and by the way – when the data collection team took the server, they also took her Blackberrys, her staffer’s laptops, and any other machine that was suspected of having connected to that server. This was mentioned in reporting at the time – this is standard practice in ANY data spill cleanup.

                    1. HER FUCKING HOME COMPUTER YOU GOD DAMN IDIOT, AFTER THE SEIZURE. Or did you think Hillary Clinton just had no personal computer ever again? And I’m not talking hypothetically. Humans, in Russia, did try to hack her PERSONAL COMPUTER hours after the President’s comments in Florida.

                      When he said “find the emails” he could not have been talking about what was seized and in the possession of his own administration at the time. That’s why they were “missing”. This website does not have html code that permits crayon scribbles. I can’t fucking help you anymore.

                    2. Do you know what a server is? From what you and Post have been writing, it looks like neither of you actually do.

                      Here’s a hint – someone’s home computer is not a “server”.

                      By the way, back to the timeline: at the time of Trump’s speech in 2016, there was nothing “in the possession of his own administration”.
                      If you can’t find your crayons, maybe you should stop eating them?

                    3. Why don’t you just ask Post what he meant by “Clinton’s server”? If he meant her PC, he’s not wrong about the timeline. You aren’t denying that the GRU went after her personal computer, are you?

                2. “You’re responding to a comment about Hillary’s personally owned email server by mentioning an entirely different set of computer(s) that have absolutely nothing to do with that topic.”

                  This is nonsense.
                  If you want to recover emails, there are two places emails can be found… on email servers, or on email clients.

          2. Clinton’s illegal email server was taken into government possession in August, 2015.

            The email server was not “illegal.”

            1. Would you prefer “unlawful”?

              1. I think we would all prefer you just stop saying things that are untrue.

        2. Aside from what Toranth mentioned, i.e. the temporal anomaly, it was dogmatically argued that Clinton’s server was never breached by foreign intelligence. If you have any interest in burnishing your credibility, an acknowledgement of your error would prove handy. Or are you going to double down?

          1. Do you understand the difference between a foreign entity targeting a computer and successfully breaching it?

          2. ” Or are you going to double down?”

            The server that was shut down before Trump asked the foreigners to breach it was never breached by the foreigners? Why, that changes everything, except no it doesn’t actually change anything at all.

      2. The President was referencing “missing” emails that were not recovered from the email server. You’re mixed up here.

  30. You can’t take any “treason” or ‘traitor” comment that any politician or pundit makes seriously. They are always always completely divorced from the legal reality. Trump appears to have expanded the concept to actions that are not sufficiently in his favor. (See his claim that not clapping for him at the State of the Union is treasonous.)

    But, the constant invocation of treason and its implied penalty does serve as a useful reminder: politics at its base is simply a violent game between rival gangs.

  31. Although it is currently a disused diagnosis, Trump’s best defense is probably dementia praecox. In other words, no one really takes most of what he says seriously.

    That said, what I find more interesting are the legal consequences of some of his statements regarding regarding people who are or may be under investigation by the DOJ. Take Andrew McCabe for example. As the nation’s chief magistrate, are Trump’s demands that McCabe be investigated, and his excoriating McCabe as a liar, a cheat, a traitor, a sleazebag, etc. call into question DOJ’s ability to conduct a fair and impartial investigation of him.

    1. When Bush and his senior staff referred to people in Guantanamo Bay’s detainment facilities as “terrorists”, “murderers” (and in one case ‘a traitor’), did it call into question the ability of the government to give them a fair trial?

      Remember – the President controller the military, and its tribunals, for more closely than he does the DoJ. So if the answer is no to those trials, then why would the answer be yes to these cases?

      From a different angle, what about the President throws a very public event in support of an military member accused of crimes, and referring to him publicly as a “fine young man” who has “served with honor and distinction”? Does that call into question the military’s ability to conduct a fair trial?

      1. ” did it call into question the ability of the government to give them a fair trial?”

        Time passing with no fair trials certainly calls that into question.

        1. 7 currently ongoing cases, 9 convictions, 2 acquittals, and 3 cases dropped by the government is “no fair trials”?

          Are you arguing that none of those trials were fair? If so, why?

          1. I’m arguing that any of the people still being held pending trial have not yet gotten their fair trial. If “fair” trials are also “speedy” trials, then they never will.

            1. Ah, so again, we’re off to an entirely different topic instead of the “undue influence” or “witness tampering” one.

              If there’s another post about the Guantanamo Bay detainees and the trials for them, then that would be the place for your comment.

  32. So much delicious popcorn being served in here. Trump’s defenders would have made perfect Bolsheviks. Start with the conclusion—Comrade Stalin is always right and his accusers are enemies of the people—then assemble or invent whatever evidence is required to deny confounding reality. Pass the salt!

  33. “As I said, perhaps some readers have other possible defenses they could proffer. Please do—but I’d appreciate it if you could avoid discussion of the many irrelevant defenses that are simply variants of the “Fake News! Hillary’s email server! The Steele Dossier! What Biden did was worse!” etc. arguments.”

    How about, “look at the pattern of Congressional action and inaction to see what kind of behavior they consider impeachable?”

    If we look, it seems that it’s mainly federal judges, caught by their colleagues with their hands in the till (or up some woman’s dress), who get impeached.

    As far as executive branch employees, we’ve literally seen them (on a bipartisan basis) get away with such things as spying on the American people and lying to Congress about it, preparing memos to shield torturers from prosecution, and many other examples. No impeachment for them!

    We’ve seen a President impeached for impeding a judicial inquiry into his own misconduct – the type of inquiry he supported when the investigation was of someone besides himself – but not only did they fall short of 2/3, they couldn’t even get a majority of Senators.

    So if, at this late date, one party or another discovers that certain behavior is shocking and the perps must be held to account, it’s natural to ask, why the sudden interest in impeachable misconduct? Does this herald a new era of accountability for offenders of all political stripes, or is it simply a partisan maneuver, and will accountability be forgotten again after the current scandal du jour is over?

    1. The other explanation is that what this President has been caught doing really is worse. “Every President is Nixon!” isn’t persuasive.

        1. I see, I was sort of following up on comments I made on another thread about Clapper and other executive branch employees, all but Clinton under the Presidential level.

          No, I didn’t mean every President was Nixon. Maybe Clapper is.

  34. The most obvious additional defense is that you can’t witness-tamper a non witness.

    The whistleblower heard various leakers say this and that. Trump “theatened” the leakers. The whistleblower is the witness, the leakers are not.

    Just because evidence is “hearsay” those whose “say” is “heard” and then reported by another at second hand have not magically become witnesses. The witness is the guy who reports what he heard.

    1. “The most obvious additional defense is that you can’t witness-tamper a non witness.”

      Thing is, witnesses are witnesses, whether they’ve been identified or not, whether they’ve come forward to take part in a judicial proceeding or not. Yes, they can be tampered with before being identified, and before they come forward to take part in a judicial process.

  35. I dislike Trump the person and Trump the politician; so please don’t confuse what I say with any sort of defense of the man.

    I’m just curious if there isn’t another possible interpretation of Trump’s words other than the choices presented.

    What if the intention was to call attention to the (presumed) fact that an act that could have be interpreted as treason – treason being something which is considered so serious that it allows the most severe of punishments; has now devolved to a legally protected practice.

    That is: what if the purpose of the reference to the punishment for treason in the past, and reference to the non-punishment, the legal protection, today for (what Trump believes is) treason, is merely intended to highlight the change in attitude towards an act which Trump (I believe, may falsely) believe is treason?

    If Trump believes that the whistle-blower committed treason; then pointing out the difference between the treatment of that act today and the treatment of that act in the past, is a legitimate way to note an enormous change in the treatment of treason … marked by punishing the act by death in the past, and providing legal protection for the same act today.

    [Executing spies was probably never a good idea, and I know of no evidence it ever deterred anyone from spying. Interestingly, there is powerful evidence that Ethel Rosenberg never spied; but that evidence could not be offered as a defense at the time of her trial – it was top secret, since it would have given away the fact that the U.S. had broken the Russian code. The two U.S. government agents who were responsible for nailing Julius Rosenberg as a spy, had the evidence that proved Ethel Rosenberg was not a spy, but could not divulge it. That once top secret evidence is now in the public domain.]

    1. What if the intention was to call attention to the (presumed) fact that an act that could have be interpreted as treason – treason being something which is considered so serious that it allows the most severe of punishments; has now devolved to a legally protected practice.

      It is possible that people committed crimes related to these events. It is not possible that anyone sane and knowledgeable could interpret them as treason. Treason is a defined term in the constitution.

  36. I was in need of an urgent loan for my business and to settle a debt i owed a business partner in Europe, i tried to apply for a loan but was constantly declined because of my credit record until i came across WESTERN LOAN FINANCE, they offered me the business loan i needed. The loan approval was very quick, with minimum documentations and the loan was credit to my account within 2 business days. contact WESTERN LOAN FINANCE for more info.

    1. I once met a girl named Nikki…

      1. You and Prince both.

        1. What a coincidence, you made the same joke I did!

  37. This article is absurd. Trump doesn’t have the authority to execute anybody, hence he can’t threaten people with execution.

    If someone was executed for espionage, it would be after being found guilty by a jury of their peers; anybody found guilty of espionage by a jury of their peers should bloody well face the legally prescribed consequences, and pointing that out is not a threat, it’s a statement of fact.

    1. “This article is absurd. Trump doesn’t have the authority to execute anybody, hence he can’t threaten people with execution.”

      This statement is incorrect. Ask Osama bin Laden if the U.S. President can order somebody executed.

      1. US presidents can order the military to kill enemy combatants on foreign soil. That’s not an “execution”. It’s not what Trump “threatened”. And it doesn’t apply to a WH whistleblower, who is going to be a US citizen on US soil. Hence, no threat.

  38. Hunter biden was getting obscene amounts of money
    1) for a job he had no skills
    2) when he couldnt pass a standard employee background check

    1. Yeah. Donald Trump, same thing.

    2. Welcome to how it works for the wealthy and connected in America.

      Your evidence if criminality is so weak you’ve been reduced to attacking capitalism.

      1. Come on now. Capitalism isn’t exactly the same thing as legal soft corruption, cronyism and influence peddling.

    3. I for one am also curious about this.

      I wouldn’t be surprised if the FBI was curious too, looked into it, and the public never heard a word because it was in the good old days when they still didn’t publicize investigations that went nowhere.

  39. You people are barely literate, emotional, stupid. And then you whine that David Post isn’t responding.

  40. I would like to see David Post respond to Brett Bellmore.

  41. Some of you yahoos need to remain in reserve. We’re barely into the Ukraine phase of this investigation, the Putin portion just got underway yesterday, and the Saudi Arabia section is waiting.

    And that’s just the international part, which seems destined to be followed by domestic non-tranquility as more whistleblowers and documents emerge.

    If all of the clingers squander their credibility on Ukraine, who will be available to defend Pres. Trump when the next chapters of his time in the barrel develop?

    1. You mean we should hold back some resources for the next manufactured controversy used as an illegitimate attack against a duly elected President?

    2. We’re finally going to investigate Hillary’s and Obama’s ties to Saudi Arabia? And foreign and domestic billionaires? Great!

      1. I’m starting to think the culture war has not been won by better Americans so much as it has been forfeited by the clingers.

  42. The author is clearly suffering from Trump Derangement Syndrome. Probably should upgrade anal vibrator to help treat symptoms of butt hurt carrying over from 2016. This is a great example of mass delusion and “Orange Man Bad” propaganda. Going to put this one in the files.

    1. I am particularly impressed by the way you analyze and pick apart my arguments – nice work!
      Why do you think the world needs to know that you think the O.P. was just “Orange Man Bad” propaganda, when you don’t give any explanation of why you think that or where I got it wrong in the O.P.? Do we really need to hear from you if you have nothing of substance to add to the discussion?

      1. Even if Trump had literally said “I think you’re a spy and you’ll be executed”, it would be neither a threat nor witness tampering, because an execution is a legal form of punishment delivered after trial and due process; it’s, by definition, not a killing that the president can order. You might have an argument if the president had said “the CIA should take you out in your sleep”, but he didn’t.

        1. If a federal agent threatens to have you charged if you have not committed a crime, that’s fucking tampering. It can be tampering even if you have committed a crime.

          1. Trump didn’t threaten to have anybody charged.

            And we have grand juries to guard against baseless prosecutions.

            Try again.

            1. WHERE DID I SAY PRESIDENT TRUMP THREATENED TO HAVE ANYBODY CHARGED?

        2. I disagree. Take this hypothetical, just to illustrate the flaws in your argument. Let’s say there’s an ongoing investigation of Governor XYZ, based on information that he may have been taking bribes. You’re a state contractor, and you think you’ve been shaken down, and you voluntarily came forward and spoke to the prosecutors. Gov. XYZ publicly states: anyone who spoke or speaks in the future to the prosecutor in this matter has committed treason.
          I am also a state contractor, as it happens. The threat, by the chief law enforcement officer, to charge me with treason were I to come forward with additional evidence (even if I’ll never be convicted, because what I did is not treasonous) is, by my lights, witness-tampering – IF done with the intent to stop me or others from talking to the prosecutors.

      2. Trying to offer logic and consistency to an “Orange Man Good” fan seems to be largely a wasted effort.

      3. Professor Post,
        Off Topic, (but, you being from Philly area) my friend’s son is being recruited by LaSalle for soccer. Any thoughts on their program? (keeper)
        Thanks.
        On Topic, this is an interesting discussion, with more to come, to be sure.
        Also, thanks.

        1. Always happy to talk soccer! But I don’t know anything, I’m afraid, about the LaSalle program….

          1. Ok -thanks anyway!

  43. Two themes emerged from the comments that I want to respond to. [I’m going to post a copy of the following as an “update” to the post as well as leaving it here – only because I’m not sure which way is most likely to get people who’ve been in the comment thread to see what I’ve written]
    1. Trump’s comments were not directed at the whistleblower, but at the whistleblower’s sources – the “leakers.” And that’s OK (even if his language was a little extreme) because the “leakers” have done a bad thing and its correct and proper for the President to call them out on it.
    I’m surprised at the number of people who buy this. Here’s the problem with it: Because we don’t know who the whistleblower is or what job he/she has within the Intelligence Community, we have no reason to believe that the disclosure of information to him/her about the July 25 call was a “leak.” Suppose the whistleblower is the Director of the CIA; or the Assistant Deputy National Security Advisor; or an Intelligence Analyst on the Ukraine desk at the NSA or DIA. It’s not a “leak” for someone in the White House, say, who had participated in the call to talk to that person about what transpired; that is a perfectly ordinary part of everyday information-sharing within the Executive Branch. I would assume that whenever the President has a phone conversation with a foreign leader, a memo is prepared, copies are sent to all sorts of people (subject to the rules regarding classified or confidential information), and those people often talk to one another and to those who were present during the call to discuss and analyze the implications for US policy.
    Trump wants us to call the whistleblower’s sources “leakers” even though he doesn’t know who the whistleblower was any more than we do, because that will distract us from the contents of the call. It’s the oldest trick in the presidential book, and I’m not buying into it, and you shouldn’t either.
    2. “Trump was just being Trump, spouting off about something the way he does, and it shouldn’t be taken seriously as “witness-tampering” or anything like that.
    I’m not buying into this one, either. Trump has managed to use this as smokescreen – by saying a lot of crazy stuff, time after time after time, he can avoid taking any responsibility for any of it. But his words have real consequences; people act on what they think he wants them to do, because he is the president of the United States. He should not get a free pass because he talks like a dope most of the time.

    1. Re: your #1. If the “whistleblower” was not both cleared for and had need to know for those conversations, than the “whistleblower’s” sources violated their NDA and created a security incident by leaking the information to someone unauthorized to receive it. That’s a crime. It isn’t treason, and calling it “spying” is probably wrong… but it is either a “leak” or a “spill”.

      1. If the whistleblower was the director of the CIA… god damnit never mind.

      2. “if”

        Yeah, if. But if not…

    2. You’re still missing the point. A threat, by definition, is a declaration of intent to harm someone. A statement like “they used to execute people for that” cannot be a threat because “execution” is a legal punishment administered after due process.

      The only “theme” that has emerged here is that the I. Herman Stern Professor of Law at the Beasley School of Law at Temple University is intellectually a little challenged, a reflection on both his university and his profession.

      1. “A statement like “they used to execute people for that” cannot be a threat because “execution” is a legal punishment administered after due process.”

        Skipping right to the punishment BEFORE the due process, however, is not good and proper.

  44. There is an obvious reason why this is not witness tampering. Assuming you take this seriously and not a joke, what Trump is describing is execution after prosecution for a federal crime. (You know, like the Rosenbergs mentioned in the post.) Which would involve passing this through the DOJ, a grand jury, an Article III judge and a jury.
    Threatening to prosecute someone to the full extent of the law is not witness tampering.

    1. It can be. If I’m a hacker who unveils that President Obama murdered children in the White House basement, and I’m also a tax cheat, it would be tampering for President Obama to threaten me with conviction for being a tax cheat to discourage my testimony re: murdered children.

      1. The last part of your post is the thing, though. The president would have to do it to discourage the testimony. Not simply to prosecute what he believes is a criminal.

        1. The President hasn’t prosecuted anybody. A threat to prosecute can be the intimidation. Again, I don’t think the President was threatening to prosecute, because he isn’t a morally serious person. But I can imagine a serious threat to prosecute that is witness tampering.

          1. And where was Trump “threatening to prosecute”? Where does Trump even have the authority to prosecute anybody?

            Trump didn’t threaten anybody. He made an offhand remark. What is “morally serious” is that people like you and Post want to create the kind of police state where that can get you thrown in jail. You are deplorable.

            1. “Where does Trump even have the authority to prosecute anybody?”

              Trump can direct the Attorney General and the DOJ to initiate prosecution against someone, or investigate the possibility of prosecuting them.

              Of course, under the Fifth Amendment, a grand jury gets to have say in the matter. But nowadays that is mostly a formality.

          2. You can imagine a lot of things.

            But in order for a threat to prosecute to be considered witness tampering, it has to be directed at a potential witness, and be tied to discouraging or altering his testimony. Otherwise, it is just prosecution or threat to prosecute — which happens every day.

            Let’s say someone hacks into the White House computer. That is a federal crime under the Computer Fraud and Abuse Act. 18 USC 1030. The can result in up to ten years in prison.

            Now lets say that hacking leads to some damaging evidence against someone in the White House. The hacker says he will testify about what he found,maybe to a Congressional committee or a grand jury somewhere.

            It would be witness intimidation to use the threat of prosecution to shut up the hacker-witness.

            It is NOT witness intimidation to say, hacking is an awful crime, and Mr. Hacker should be prosecuted to the full extent of the law. And if you are a buffoon like a certain someone, to wax nostalgic about the good old days when criminals like this faced hanging.

            Testifying as a witness is not an immunity to all federal crimes, including how you got your knowledge in the first place. You can still be prosecuted for committing crimes to get that knowledge, even if you will also testify somewhere about what you learned.

            (Same thing applies to journalism. Journalists have a First Amendment right to publish what they want, up to very wide limits. But that is not a license to commit crimes to get information. If a journalist breaks into someone’s house or office to spy on them, they can be prosecuted for that. Not for publishing the information they find.)

            1. “But in order for a threat to prosecute to be considered witness tampering, it has to be directed at a potential witness, and be tied to discouraging or altering his testimony.”

              I completely agree.

              “It would be witness intimidation to use the threat of prosecution to shut up the hacker-witness.”

              Yes, that’s what my hypothetical is about. That’s why I said “to discourage my testimony re: murdered children…”

              Please note that I have said repeatedly that I don’t think the President was engaged in witness tampering. Over and over again. He’s a loud moron, his rambling statements about what might happen to spies (which the leaker most certainly is not, by all accounts) is not a true threat. It’s just aimless ranting by some sad person losing their mind publicly.

      2. NtoJ: So….is Andrew Weissman guilty of witness tampering? He threatened multiple witnesses, did he not? Tell me how that is not witness tampering, using your reasoning.

        1. Unless you’re accusing Andrew Weissman of a separate crime, no. It’s not witness tampering to threaten prosecution. It is witness tampering if you threaten prosecution for an improper purpose, namely to prevent the witness from testifying against you.

          1. NtoJ….I would refer you to the Enron debacle. There are affidavits stating that Weissman engaged in witness tampering. To be fair to Mr. Weissman, the veracity of the affidavits have never been tested in court. But he has been credibly accused.

            1. I don’t know enough about it then, but will say that if Andrew Weissman threatened prosecution to prevent witnesses from testifying about his misconduct, that would arguably fall under the witness tampering statute.

    2. BoredLawyer writes: “Threatening to prosecute someone to the full extent of the law is not witness tampering.”
      Wrong. It most assuredly can be. Example: In 2018 you are investigated for bank fraud. The government uncovers some evidence of your wrongdoing, but declines to charge you; the prosecutor is not confident he can prove the crime beyond a reasonable doubt. In 2019 you are a potential alibi witness for a defendant charged in a high-profile murder case, brought by this same prosecutor. The prosecutor says to you: If you testify, I’ll resurrect that bank fraud charge against you.
      That is – without a doubt – witness-tampering.

  45. Mr. Post, let me ask you this question.

    Let’s stipulate that everything you say is correct, and your interpretation is correct. I accept what you say at face vale.

    Why would this not be a straightforward use of the POTUS’ article 2 powers, the ability to conduct foreign policy?

    Seems to me the POTUS (and Executive Branch) get a lot of leeway in the conduct of foreign policy. Are we really saying that quid pro quo doesn’t exist in the carrying out of foreign policy objectives? We have had POTUS’ making all kinds of arrangements, deals, threats since the founding of the Republic.

    How is this situation any different? I am not being facetious. But you asked for an argument, and mine would be this is perfectly normal conduct in the pursuit of foreign policy objectives. This is right in the wheelhouse of Article II powers.

    I have not seen a response from you regarding the point Brett Bellmore made. I very much would like to see one.

    Also, I appreciate your engagement with Readership. One of the things I really like about Volokh is that I learn all kinds of stuff on really interesting legal questions. I am not a lawyer, but man, the questions you guys (and gals) deal with are amazingly complex.

    1. Trying to get yourself re-elected isn’t a foreign policy objective.

      1. Sarcastro….I did not read anything about POTUS Trump’s re-election anywhere in the call notes. I did read how he asked that things from the 2016 election get looked into.

        Instead of dopey non-sequitur, make a reasoned response. I’ve read your postings. You’re no dummy. I rarely agree with you, but I respect your intellect. Tell me how this is different, and not a straightforward exercise of his article 2 foreign policy powers.

        Professor Post challenged Readership to provide a rationale on why the call was not witness tampering. I have answered his challenge. Let’s see if he answers.

        1. Professor Post hasn’t even made a case why the statement should be considered a threat. Professor Post is a political partisan engaging in politically motivated reasoning. Given his legal pedigree, that shouldn’t surprise us. It’s mostly a reflection on the sorry state of the legal profession in the US.

          1. Well, Professor Post is arguing that POTUS Trump has committed witness tampering. My response to the Professor is the call is a really a foreign policy matter. A straightforward exercise of Article 2 powers. I’ve yet to hear how this is different.

            1. It is different because of the strong suggestion that President Trump was not executing the “foreign policy of the US” – he was pursuing his own private personal political objectives (winning re-election). And asking a foreign government to assist him in reaching this objective.
              The notion that any time a president talks to a foreign leader he is, by definition, acting within his Article II powers is false. Surely you would agree that if a president were to ask a foreign leader to imprison, or kill. a political opponent – or just to detain him at the border for a couple of weeks – that he would not be acting pursuant to his Article II powers, no?

              1. Professor Post….I want to thank you for engaging with Readership (and me).

                POTUS Trump was certainly discussing a variety of foreign policy matters on the call. That is beyond dispute. The transcript is quite clear. The request to look into the 2016 election stuff was one aspect of the call. The same is true of the reference to the Biden’s and corruption. You intuit intent where you do not have evidence.

                I disagree on your second point. If Jefferson Davis had fled to Mexico, why wouldn’t Abraham Lincoln ask the President of Mexico to detain, imprison or kill Jefferson Davis? A perfectly valid exercise of Article 2 powers: Yo Mexico, turn him over to us, dead or alive.

                So….I think we are left with this. You posit POTUS Trump committed witness tampering. My response: Really? This is nothing more than a valid exercise of Article 2 powers in the lawful conduct of foreign policy.

                Again….Thanks for responding, Professor. You made me think through the issue. Glad we had this exchange.

  46. The problem with ad hominem arguments is that they admit of no rebuttal. They are also irrelevant, and rather silly. It’s reminiscent of the way 9-year-olds argue on the playground, when confronted with a charge that they did something wrong: “Yeah, but … but … but you’re a jerk!”
    You might think calling me a political partisan is relevant to the question of Trump’s malfeasance, but it isn’t.

  47. Professor Post, see supra; any insight into LaSalle’s D1 soccer program?
    Thanks.

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