Sunday, November 24, 2019

Why and how Trump will win

Ryan Goodman runs the Just Security website.

Trump's current propaganda set-up is so formidable, he could convince 40 percent of the populace that the sun rises in the west -- while another ten percent would tell themselves that maybe it rises in the west from time to time. As for Kennedy: I don't know whether to say "God, that guy is stupid" or "God, that guy is deceptive."

Trump will win re-election handily. Frankly, I would not be surprised to see Schiff, Brennan, Comey and the Clintons in jail within two years.

The strategy. Seth Abramson offered an important thread outlining the strategy Trump will use to push back on the impeachment inquiry. I would like to translate his Twitterese into more conventional prose (lightly edited; I excised the ending, which goes off on various tangents). The words below the asterisks are his.

* * *

A top Trump ally revealed Trump's impeachment defense today -- and it's not what many expected. I break it down here using Ukraine-scandal reporting and my experience as a defense lawyer. I hope you'll read this and RETWEET -- as America needs to know what's coming.

First, a note about how to conceptualize crafting a defense in an unwinnable criminal investigation—as media tends to only value the analysis of former prosecutors and longtime prosecutors who have become the sort of high-priced defense attorneys who can choose their clients. I was a public defender for years—which means I didn't choose my cases. As every "high-volume criminal defense attorney" knows, the difference between our ability to spot a defense and the ability of former prosecutors or case-selective defense attorneys to do so is -- well -- vast.

Right now America is being told by legal analysts on TV—almost all of whom are well-intentioned but, by virtue of being former prosecutors or high-priced defense lawyers, never worked as high-volume defense lawyers who can't pick their cases—that Trump has *no* defense. False.

Trump has a very viable defense, and a large enough defense team that it was inevitable that someone on that team would discover it. Today, an interview by Fox News Channel with one of Trump's top surrogates, Sen. John Kennedy (R-LA), revealed what Trump's defense will be. The defense Kennedy revealed is the defense any public defender I've worked with would've eventually come up with in a case like this, so I'm hoping *some* media outlet may soon discuss it. I'll first summarize the defense, then unpack -- and conclusively rebut -- all aspects of it.

The defense: For Trump to be authorized to withhold aid from Ukraine, he doesn't need to be *correct* in his belief Ukraine aided Clinton, just show (1) there is *some* evidence of that; (2) it was never investigated; and (3) he consistently has been worried about this issue. He'll also argue (4): he doesn't have to personally have raised a specific issue involving Ukraine's alleged involvement in the 2016 election with Ukrainian officials in order to be able to say it motivated him; his agents can do so or he can have done so in prior statements.

This is a defense Democrats and media don't appear to expect, but it's the one that's coming. And it'll have maximum impact on America -- as it involves witnesses most Americans haven't heard of -- if it isn't conclusively debunked in the media before it arrives. Thus this thread.

To understand how the defense works, you must understand first the info Trump is hoping Democrats and media don't reveal to Americans pre-trial. Many desperate defenses -- the sort that arise in unwinnable cases that no one wanted to go to trial on—involve such "missing" info.

Here's a list of things Trump does *not* want you to know as he prepares a "surprise" defense for America:

1. Trump's presidential candidacy was openly endorsed by numerous world leaders during the 2016 presidential election. Trump eagerly received such endorsements. Trump's presidential candidacy was publicly and formally endorsed by the presidents of Hungary and the Czech Republic. It was endorsed implicitly -- via public statements -- by the presidents of Russia, North Korea, and Egypt. But that's not all -- not by a long shot. Trump's candidacy was also endorsed by numerous high-level politicians from conservative political parties all around the world, including France, the Netherlands, Israel and many other nations. Trump deemed all these endorsements to be wonderful and legal.

The reason this matters is that Trump's defense hinges on the idea that any public statement of support for Clinton by a Ukrainian official immediately legitimized him considering Ukraine to be a "corrupt" nation his administration would have to investigate. So Trump's defense will focus on statements by Ukrainian officials like Ukrainian ambassador Valeriy Chaly and Ukrainian parliamentarian Serhiy Leshchenko. Trump wants you to falsely believe he considers foreign endorsements of political candidates "corruption."

Side note: No foreign nation has ever had better reason to see its politicians come out in favor of a US politician's rival than Ukraine had in seeing a few of its politicians (a very, very few) express support for Clinton over Trump. And it's Trump's fault this happened. Ukraine is a European nation. It's the largest European nation entirely in Europe and the seventh-largest European nation by population. It is America's indispensable buffer zone between Russian military aggression and the West. It will end up in NATO and the EU.

Ukraine is AT WAR with Russia because Russia INVADED EUROPE.

To repeat: Russia INVADED EUROPE to MAKE WAR on one of America's most indispensable EUROPEAN ALLIES, a country that WILL soon gain admittance to NATO AND the European Union.

The Russian invasion was a WAR CRIME.

America has never before had a president who would fail to support a European ally invaded by an enemy of the United States.

Yet Trump not only opposed lethal defense aid to Ukraine during the 2016 campaign, but said Russia should face no punishment for invading Ukraine. And Trump announced -- as Ukrainians were fighting and dying in a war with Russia -- that Russia should probably be allowed to keep the part of Ukraine it had already invaded and stolen: an area of land making up more than 7% of all of Ukraine. And Trump acted on this belief.

Not only did Trump support Putin's claim to 7% of Ukraine and its right to invade Europe without consequence, his team worked secretly with Kremlin agents/pro-Kremlin Ukrainians to craft a "peace deal" in the Ukraine-Russia war that was full Ukrainian capitulation to Putin. In view of this, it's amazing that every Ukrainian politician didn't come out publicly in support of Clinton -- which Trump wouldn't have been able to complain about, as he was receiving foreign endorsements left and right. Instead, only a few Ukrainian politicians did.

The second point Trump will emphasize:

2. Trump will say that not only did Ukrainians (in tiny numbers) publicly attack him and support Clinton's candidacy -- frankly, it was more them rightfully attacking his *Ukraine policy* than endorsing Clinton -- he'll say they helped her.

Specifically, Trump will call left-wing/semi-reluctant U.S. witnesses like Alexandra Chalupa and willing/"faux whistleblower" Ukrainian witnesses like Andrii Telizhenko to claim that in 2016 the Ukrainian embassy was passing information to the DNC through Chalupa. One reason any high-volume criminal defense attorney would choose the defense Trump is going to go with is because there are many accurate pieces of information within it and anything "false" is merely something left out (as opposed to a lie actively delivered).

For instance, Chalupa was a well-paid DNC consultant who was, in 2016, secretly passing information from Ukrainian nationals at the Ukrainian embassy to officials at the DNC. But -- well, there are a *lot* of buts here that Trump's defense will of course leave out.

Chalupa's work was focused on Manafort -- not Trump -- and she'd been investigating him pro bono since before Trump announced his run. The DNC never asked her to get info and never used in its materials any info she got them. But there's more wrong with Trump's defense. It's unclear that any info the Ukrainian embassy gave to Chalupa it wasn't also giving to reporters and/or making available in other ways. And Chalupa's aim was to get Congressional hearings on Manafort, not Trump.

But there's more wrong with Trump's defense. Chalupa stopped working for the DNC in June 2016, before Trump was the Republican nominee. During the general election, her focus was on getting info about Manafort to the press, not the DNC. But there's even more wrong with Trump's "Chalupa defense" than this.

Manafort's activities in Ukraine, per Trump, had nothing to do with him -- so why would he care if Chalupa uncovered them? (And BTW, Manafort did, as Chalupa claimed, turn out to be a criminal.) And Trump fired Manafort and moved on -- so what's the big deal here?

Side note. The big deal is what I've been discussing for nearly two years: The January '18 NBC report that reveals Trump has told friends that Manafort could bring him down—meaning there was criminal conduct involved in Trump's relationship with Manafort that he wants hidden.

So to the extent Trump is "angry" he "lost" Manafort as campaign chief -- except he didn't, as he kept secretly speaking to him for 9 to 18 months, per major-media reports -- is because it led to Manafort being convicted and Trump needing to eventually pardon him to keep him happy.

So Trump will have difficulty explaining why an attack on Manafort's pre-campaign Ukraine activities is an attack on Trump, as the answer to this -- a question I and others are feverishly working on now -- is likely that Trump knows more than he says about Manafort's activites. Indeed, it'd be better to say Ukraine and Chalupa aided Trump by excising from him a criminal actor with a shady past that could only explode in his face as more info about Russian attacks on America became known. Thank god they got their info to Trump by August of 2016!

But more than all this, isn't Ukraine entitled to investigate (domestically) an American who committed crimes in Ukraine? And can't they do that on any schedule they like? On what basis can Trump claim the proper functioning of Ukrainian law enforcement is targeted at him?

And beyond this -- the real kicker -- Don Jr. did far worse things in bringing information from the Kremlin to Trump's campaign*, as did more than a dozen Trump aides, and Trump said there was nothing wrong with it. So he can't pretend he finds such actions corrupt now!

This brings us to the third part of Trump's defense, because every good "desperate" defense has multiple fallback positions:

3. Trump will say that even if Ukrainians could endorse Clinton, and even if they could send info to the DNC, they can't manufacture* evidence. That's right: part of Trump's defense will involve claims (previously ferried by Nunes, Giuliani, Kennedy, and others) that the "black ledger" that proved Manafort was a criminal was... wait for it... forged by the Ukrainians to help Clinton win the White House!

Trump's theory is that if he can show (spoiler: he can't!) that either the Poroshenko administration or NABU (Ukraine's independent anti-corruption unit) released forged evidence to target Manafort, that was, implicitly, an attempt to aid Clinton and hurt him.

The issues in this second-to-last fallback position in Trump's defense are...many. First, Manafort has already been successfully prosecuted/imprisoned. Second, there's no credible evidence of forgery. Third, Russia did far worse to help Trump and he welcomed it.

Trump learned Russia was waging cyberwar on America and stealing US docs and Trump publicly and privately sought access those docs and told ABC him doing so was OK. How could it be (had it happened, which it didn't) "corrupt" if Ukraine did something similar?

Trump's defense will raise old grievances against Ukraine that he'll say were sufficient in number, seriousness, and proof that he always thought Ukraine needed investigating, was justifiably upset, and therefore withheld aid in a valiant attempt to force a new probe.

Which brings us to the fourth element -- and final fallback position -- of Trump's defense.

4. Trump actually only spoke about the "Crowdstrike" and "Burisma" conspiracy theories with Zelensky -- and this could be a problem for his defense that he has only a few options to solve. Any complaints Trump had about Chalupa or the "black ledger" were ferried by surrogates -- not Trump -- so he'd need to call witnesses who'd say he *privately* was angry about (and publicly referring to) Chalupa and the "black ledger" when he complained about Ukraine.

Alternatively, Trump could -- this'd be the real Hail Mary -- try to claim the "Crowdstrike" (Ukraine hacked the DNC server, not Russia) and "Burisma" (Biden bribed Poroshenko to protect Hunter) conspiracy theories are true...though there's no evidence of that at all.
Comments:
So far I haven't seen anyone make the connection that Sen. Kennedy spent the Fourth of July in 2018 in Moscow.
 
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