The Pronk Pops Show 1360, November 15, 2019, Story 1: Former U.S. ambassador to Ukraine Marie Yovanovitch Testifies — No Impeachable Offense Evidence — 2016 Ukraine Government Interfered with 2016 U.S. Election Favoring Presidential Candidate Hillary Clinton — Ambassadors Serve At The Pleasure of The President — Move On — Videos — Story 2: Attorney General William Barr Addresses The Federal Society’s National Lawyer Convention — Videos

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Story 1: Former U.S. ambassador to Ukraine Marie Yovanovitch Testifies — No Impeachable Offense Evidence — 2016 Ukraine Government Interfere with 2016 U.S. Election Favoring Candidate Hillary Clinton — Ambassadors Serve At The Pleasure of The President — Move On — Videos

House Impeachment Inquiry – Yovanovitch Testimony

WATCH: Rep. Devin Nunes’ full opening statement in Amb. Yovanovitch hearing

WHAT IS GOING ON? Devin Nunes Questions Why Marie Yovanovitch Is Even Testifying

WATCH: Rep. Elise Stefanik questions Amb. Yovanovitch about Burisma

WATCH: Rep. John Ratcliffe’s full questioning of Amb. Yovanovitch | Trump impeachment hearings

WATCH: Rep. Brad Wenstrup’s full questioning of Amb. Yovanovitch | Trump impeachment hearings

Rep. Brad Wenstrup, R-Ohio, questioned Marie Yovanovitch, the former U.S. ambassador to Ukraine, in a public hearing as part of the impeachment inquiry into President Donald Trump. At the end of his questioning, Wenstrup said the president has the right to make their own foreign policy decisions. Yovanovitch responded, saying she didn’t dispute that the president has the right to withdraw an ambassador at any time, for any reason, “But what I do wonder is: Why it was necessary to smear my reputation?” “Well I wasn’t asking about that,” Wenstrup responded. The impeachment probe centers around a July phone call in which Trump asked the president of Ukraine to investigate former vice president and 2020 presidential candidate Joe Biden and his son, Hunter. Yovanovitch has testified that she was forced out of her position after Trump’s personal lawyer, Rudy Giuliani, engineered a smear campaign against her.

WATCH: Republican counsel’s full questioning of Amb. Yovanovitch | Trump impeachment hearings

WATCH: Rep. Jim Jordan’s full questioning of Amb. Yovanovitch | Trump impeachment hearings

WATCH: Amb. Yovanovitch’s full opening statement | Trump impeachment hearings

Highlights From Yovanovitch’s Impeachment Testimony | NBC News Now

Ousted ambassador to Ukraine Marie Yovanovitch is given standing ovation after impeachment hearing during which Schiff called out Trump for ‘witness intimidation’ after he tweeted during her testimony: ‘Everywhere Marie went turned bad’

  • Marie Yovanovitch, the former U.S. ambassador to Ukraine, testified Friday on Capitol Hill before the House Intelligence Committee in the second televised impeachment hearing 
  • Yovanovitch said she felt threatened, shocked and devastated by remarks Donald Trump made about her in his July 25 call with Ukrainian President Volodymyr Zelensky 
  • In the phone call, Trump called her a ‘bad ambassador’ who was going to ‘go through some things’ 
  • Trump tweeted his criticism of Yovanovitch during the hearing, writing: ‘Everywhere Marie Yovanovitch went turned bad’, which were then brought up by Chairman Adam Schiff in real time during the hearing 
  • House Intelligence Committee Chairman Adam Schiff accused President Trump of trying to intimidate Yovanovitch with his tweets 
  • ‘What we saw was witness intimidation in real time by the President of the United States,’ he said 
  • Trump denied that was his motive: ‘I have the right to speak. I have freedom of speech just as other people do’ 
  • Yovanovitch was removed from her post after Giuliani and his allies spread information, swatted down by a series of witnesses, that she was working against Trump 
  • Yovanovitch also slammed Rudy Giuliani for orchestrating a ‘smear campaign’ against her and said she found it difficult to understand why Trump was influenced by ‘foreign and private interests’   
  • In his opening remarks, Schiff praised her stance on fighting corruption and argued it was her dedication to that fight that ending up ‘pissing off’ the wrong people in the Trump administration
  • This comes after top diplomat in Ukraine Bill Taylor and George Kent, the Deputy Assistant Secretary of State for European and Eurasian Affairs, gave their testimony on Capitol Hill Wednesday 

Former Ambassador to Ukraine Marie Yovanovitch was given a standing ovation by members of the audience at the end of Friday’s hearing during which she said she felt threatened by remarks Donald Trump made about her in his July 25 call with his Ukrainian counterpart, while Rep. Adam Schiff charged the U.S. president with witness intimidation for tweeting criticism of her during her testimony.

Yovanovitch recalled in stark, personal terms how she felt when she was attacked by Trump associates and later disparaged by the president himself in his phone call with Volodymyr Zelensky.

‘I was shocked and devastated that I would feature in a phone call between two heads of state in such a manner where President Trump said that I was bad news to another world leader and that I would be going through some things,’ Yovanovitch said during her public testimony in Trump’s impeachment inquiry.

‘It sounded like a threat,’ she noted.

As Democrats were questioning her about a smear campaign against her, President Trump took to Twitter to wage a fresh round of insults against the former ambassador – a move House Intelligence Committee Committee Chairman Adam Schiff called ‘witness intimidation.’

‘Everywhere Marie Yovanovitch went turned bad,’ Trump wrote on the social media platform while Yovanovitch sat at the witness table on Capitol Hill. ‘It is a U.S. President’s absolute right to appoint ambassadors.’

Schiff accused the president of trying to intimidate Yovanovitch and other potential witnesses. House Democrats will hold a series of public hearings next week with more officials scheduled to discuss the impeachment inquiry.

‘What we saw was witness intimidation in real time by the President of the United States. Once again going after this dedicated and respected career public servant – in an effort to not only chill her but to chill others who may come forward. We take this kind of witness intimidation and obstruction of inquiry very seriously,’ Schiff told reporters outside the hearing room during a break in the proceedings.

He did not respond to a question as to whether witness intimidation is an impeachable offense.

The president denied intimidation was his motive.

‘I don’t think so at all,’ he told reporters at the White House.

‘It’s a political process. It’s not a legal process. So if I have somebody saying — I’m allowed to speak up. If somebody says about me – we’re not allowed to have any kind of representation. We’re not allowed to have almost anything, and nobody’s seen anything like it. In the history of our country there has never been a disgrace like what’s going on right now. So you know what? I have the right to speak. I have freedom of speech just as other people do. But they’ve taken away Republicans’ rights,’ Trump noted.

Trump’s tweet gave the hearing a moment of high drama as Schiff interrupted questioning from the Democrats’ own counsel to ask Yovanovitch to respond to the tweet in real time.

Marie Yovanovitch, the former U.S. ambassador to Ukraine, is testifying Friday on Capitol Hill before the House Intelligence Committee in the second televised impeachment hearing

The five-hour questioning saw members of the audience jump up and give the ambassador a round of applause - an unusual display in a Congressional hearing

The five-hour questioning saw members of the audience jump up and give the ambassador a round of applause – an unusual display in a Congressional hearing

The longtime diplomat was removed from her post after Giuliani and his allies spread information, swatted down by a series of witnesses, that she was working against Trump, she claimed

The longtime diplomat was removed from her post after Giuliani and his allies spread information, swatted down by a series of witnesses, that she was working against Trump, she claimed

Rep. Carolyn Maloney, the acting chair of the House Oversight Committee, joined the audience in the standing ovation, as Republican members including Reps. Mark Meadows and Lee Zeldin got up to leave.

Meanwhile, Rep. Mike Conaway shouted objections over the clanking of Schiff’s and the round of applause.

‘You’ve disparaged those members on this side of the aisle, we should have a chance to respond,’ Rep. Conway objected

Trump’s tweets on Friday were a notable move from the president who bragged he didn’t watch Wednesday’s public hearing, which featured public testimony from the top U.S. diplomat in the Ukraine Bill Taylor and Deputy Assistant Secretary of State George Kent.

‘Everywhere Marie Yovanovitch went turned bad. She started off in Somalia, how did that go? Then fast forward to Ukraine, where the new Ukrainian President spoke unfavorably about her in my second phone call with him. It is a U.S. President’s absolute right to appoint ambassadors,’ he wrote. Mogadishu was one of Yovanovitch’s postings early in her career but she was a young State Department staffer at the time and not at ambassador level.

Trump then argued he’s done more for the Ukraine than Barack Obama.

‘They call it ‘serving at the pleasure of the President.’ The U.S. now has a very strong and powerful foreign policy, much different than proceeding administrations. It is called, quite simply, America First! With all of that, however, I have done FAR more for Ukraine than O,’ Trump wrote. 

Yovanovitch said the president was crediting her with too much power.

‘I don’t think I have such powers not in Mogadishu and Somalia and not in other places. I actually think that where I’ve served over the years I and others have demonstrably made things better,’ she said.

Schiff asked her if tweets like these from the president would intimidate other witnesses from testifying.

‘Ambassador, you’ve shown the courage to come forward today and testify. Notwithstanding the fact that you were urged by the White House or State Department not to, notwithstanding the fact that as you testified earlier the president implicitly threatened you in that call record, and now the president in real time is attacking you, what effect do you think that has on other witnesses willingness to come forward and expose wrongdoing in,’ Schiff asked her.

‘It’s very intimidating,’ she replied.

‘It’s designed to intimidate, is it not?,’ Schiff said.

‘I mean, I can’t speak to what the president is trying to do, but I think the effect is trying to be intimidating,’ she replied.

Schiff said Trump’s tweet on Yavonovitch was part of a ‘pattern’ of obstruction of justice, which is an impeachable offense.

In strong language, the chairman called it an ‘incriminating pattern of conduct’ on the president’s part.

‘This is not something that we view in isolation, this is part of a pattern of the president of the United States,’ he told reporters after the hearing was over.

‘And it’s also part of a pattern to obstruct the investigation. It was also a part, frankly, of the pattern to obstruct justice. So we need to view the President’s actions today, as part of a broader and incriminating pattern of conduct,’ he added.

 

President Trump tweeted during Friday's hearing bashing Yovanovitch, saying everywhere she 'went turned bad'. The tweet gave the hearing a moment of high drama as Schiff interrupted questioning from the Democrats' own counsel to ask Yovanovitch to respond to the tweet in real time

Republicans refused to address the president’s tweets in their post hearing press conference.

‘We’re not here to talk about tweets,’ Rep. Elise Stefanik said. ‘We’re here to talk about impeachment.’

‘I don’t know it was an attack on the witness,’ added in Rep. Mark Meadows, who is one of the president’s strongest allies on Capitol Hill. He called it a ‘characterization of her resume.’

Schiff, who has been trying to get other administration officials to testify – several of whom are obeying the president’s request to ignore their congressional subpoenas –  said witness intimidate is taken ‘very seriously.’

‘I want you to know, ambassador, that some of us here take witness intimidation very seriously,’ he said.

The White House shot down a charge from Democrats the president’s tweets were witness intimidation.

‘The tweet was not witness intimidation, it was simply the President’s opinion, which he is entitled to. This is not a trial, it is a partisan political process—or to put it more accurately, a totally illegitimate, charade stacked against the President. There is less due process in this hearing than any such event in the history of our country. It’s a true disgrace,’ White House press secretary Stephanie Grisham said in a statement.

Meanwhile, Yovanovitch said she first learned Trump mentioned her in his phone call with Zelensky when she read the transcript of the July 25 call in September, which is when the White House released it.

She choked up a bit when describing her reaction to the president’s words.

‘A person who saw me actually reading the transcript said that the color drained from my face,’ she said.

'A person who saw me actually reading the transcript said that the color drained from my face,' Yovanovitch said of learning President Trump badmouthed her in his July phone call with the Ukrainian president

Yovanovitch was given a standing ovation by members of the audience at the end of Friday's hearing by members of the audience

She expressed her disbelief she was a topic of conversation between the two world leaders.

‘I mean, shocked, appalled, devastated that the president of the United States would talk about any ambassador like that to a foreign head of state, and it was me,’ she said.

The call transcript, which kicked off the scandal that led to House Democrats opening up an impeachment inquiry, included a back-and-forth between Trump and Ukraine’s President Volodymyr Zelensky where the American president said Yovanovitch, ‘the woman, was bad news and the people she was dealing with in Ukraine were bad news.’ She had been recalled to the United States at that point.

Zelensky agreed.

He asked Trump to provide ‘any additional information’ he might have about Yovanovitch ‘for the investigation to make sure that we administer justice in our country with regard to the Ambassador to the United States from Ukraine.’

In the call transcript, which isn’t verbatim, Zelensky butchers Yovanovitch’s name.

‘It was great that you were the first one who told me she was a bad ambassador because I agree with you 100 percent,’ Zelensky goes on. ‘Her attitude towards me was far from the best as she admired the previous president and she was on his side.’

Yovanovitch shot down Republican efforts to pull her into questions longtime Democratic consultant and Ukrainian-American activist Alexandra Chalupa

Yovanovitch shot down Republican efforts to pull her into questions longtime Democratic consultant and Ukrainian-American activist Alexandra Chalupa

‘She would not accept me as the new president well enough,’ Zelensky added.   

At that, Trump responded, ‘Well, she’s going to go through some things.’

Yovanovitch on Friday testified she thought Trump’s words were a threat against her.

‘She’s going to go through some things. It didn’t sound good. It sounded like a threat,’ she said.

‘Did you feel threatened?,’ Daniel Goldman, the Democrats’ Counsel on the Intelligence panel, asked her.

‘I did,’ she replied. ‘I didn’t know exactly. It’s not a very precise phrase, but I think – it didn’t feel like I was – I really don’t know how to answer the question any further except to say that it kind felt like a vague threat and so I wondered what had that meant. It was a concern to me.’

Yovanovitch, in her testimony, conceded the past few months have been a ‘difficult time.’

‘I mean, I’m a private person. I don’t want to put all that out there, but it’s been a very, very difficult time because the president does have the right to have his own or her own ambassador in every country in the world,’ she said.

She declined to talk about her family was affected.

‘I really don’t want to get into that. Thank you for asking,’ she told Democratic Rep. Terri Sewell.

She also told Sewell that ‘no,’ she was not a ‘Never Trumper’ when the congresswoman asked her about it.

Yovanovitch also described the advice EU Ambassador Gordon Sondland gave her when she was struggling to stay ambassador to the Ukraine.

‘Well, he suggested that I needed to go big or go home and he said that the best thing to do would be to, you know, send out a tweet, praise the president, that sort of thing,’ she said.

‘My reaction was that I’m sure he meant well, but it was not advice that I could really follow. It felt partisan. It felt political and that was not something that I thought was in keeping with my role as ambassador as a foreign service officer,’ she added.

Democratic Rep. Mike Quigley asked her of Sondland: ‘Did he give you suggestions what to say to the president of the United States? Or just say something nice about him?’

‘Just praise him,’ Yovanovitch replied.

Republicans used their question time to query Yovanovitch about her time in the Ukraine during the 2016 election and about allegations – pushed by President Trump and Giuliani – that the Ukraine interfered in that contest.

She pushed back against those questions and pointed out American intelligence agencies found it was Russia who sought to influence the 2016 presidential election.

Steve Castor, the Republican counsel who led the questioning, asked her if she heard of any ‘indication of Ukrainians trying to advocate against then-candidate Trump?’

‘Actually, there weren’t. We didn’t really see it that way,’ she replied.

Yovanovitch also shot down Republican efforts to pull her into questions longtime Democratic consultant and Ukrainian-American activist Alexandra Chalupa.

Republicans want Chalupa to testify in the impeachment inquiry.

Chalupa reportedly worked with a small group of Ukrainian bureaucrats who allegedly researched former Trump campaign chairman Paul Manafort’s Russia ties during the 2016 election.

Castor quizzed the former ambassador about Chalupa’s reported actions in the 2016 election.

‘Well, I was the ambassador in Ukraine starting in August of 2016. And what you’re describing, if true, as you said, what you’re describing took place in the United States. So if there were concerns about what Ms. Chalupa was doing, I think that would have been handled here,’ Yovanovitch replied.

She was also quizzed about Serhiy Leshchenko, a Ukrainian journalist that Giuliani accused of exposing Manafort’s work for the Ukraine. That work – for which Manafort did not register as a foreign agent – led to convictions against the former Trump campaign manager.

Leshchenko published the so-called ‘black ledgers’ that showed payments to Manafort and his firm.

Yovanovitch said she felt threatened, shocked and devastated by remarks Donald Trump made about her in his July 25 call with Ukrainian President Volodymyr Zelensky

Ranking committee member Rep. Devin Nunes, R-Calif, questions former U.S. Ambassador to Ukraine Marie Yovanovitch as she testifies before the House Intelligence Committee on Capitol Hill in Washington, Friday, Nov. 15, 2019, during the second public impeachment hearing of President Donald Trump

A tweet from President Donald Trump was displayed on a monitor during the second public impeachment hearing of President Donald Trump's efforts to tie U.S. aid for Ukraine to investigations of his political opponents

‘About Mr. Leschenko, he is an investigative journalist, as you said, and he got access to the black ledger and he published it, as I think journalists would do, and again, I’m not sure that – I don’t have any information to suggest that that was targeting President Trump,’ Yovanovitch said.

‘At the end of the day, President Trump won the election,’ she pointed out.

She was also asked about posts from former Ukrainian Minister for Internal Affairs Arsen Borysovych Avakov, who wrote criticisms of Trump on social media during the 2016 election.

‘Sometimes that happens in social media. Are you asking me whether it’s appropriate? Probably not,’ she said.

‘I can’t speak for what President Trump thought or what others thought. I would just say that those elements that you’ve recited don’t seem to me to be the Ukranian kind of a plan or a plot of the Ukranian government to work against President Trump or anyone else. I mean, they’re isolated incidents. We all know, I’m coming to find out myself, that public life can be — people are critical. That does not mean that someone is or a government is undermining either a campaign or interfering in elections. I would just remind again that our own U.S. Intelligence committee has conclusively determined that those who interfered in the election were in Russia,’ Yovanovitch said.

She also said she doesn’t think the president accepted any bribes or has been involved in any criminal activity.

Top U.S. diplomats accused Donald Trump lawyer Rudy Giuliani of running a 'smear' campaign to force out Yavonovitch, who was recalled from her post to Washington. She says no reason was ever provided for her ouster

Republicans attempted to start their questioning of Yovanovitch with a move that would allow the only Republican lawmaker on the Intelligence panel – Rep. Elise Stefanik – question the former ambassador.

Rep. Devin Nunes, the top Republican on the panel, tried to yield his time to Stefanik.

But Schiff pointed out the rules only allow the ranking member to yield time to the Republican counsel.

‘You are not recognized,’ he told Stefanik.

‘This is the fifth time you have interrupted,’ Stefanik complained to Schiff.

He ignored her and told Nunes to yield to his GOP Counsel or question Yovanovitch himself.

Nunes ultimately yielded to Castor.

But the top Republican used his time to argue the intelligence committee has become the impeachment committee.

‘I’m not exactly sure what the ambassador is doing here today. This is the House intelligence committee that’s now turned into the House impeachment committee. This seems more appropriate for the subcommittee on human resources at the foreign affairs committee. If there’s issues with employment, it seems like that would be a more appropriate setting instead of an impeachment hearing where the ambassador is not a material fact witness to any of the accusations that are being hurled at the president for this impeachment inquiry,’ he said.

Democrats went first in Friday’s hearing and used their time to question Yovanovitch to lay out a ‘smear’ campaign against her by Trump allies, particularly former New York City Mayor Rudy Giuliani, the president’s personal attorney.

She repeated what she had said in her closed door testimony to lawmakers last month – that she had been warned by Ukrainian officials that Giuliani was up to something with Yuriy Lutsenko, the former top prosecutor in the Ukraine.

Asked who else was involved in the ‘smear’ campaign, she said: ‘There were some members of the press and others in Mayor Giuliani’s circle.’

She also said Lutsenko and his predecessor Viktor Shokin were involved on the Ukrainian side.

Shokin is the prosecutor that then Vice President Joe Biden pressured Ukraine to fire because he wasn’t doing enough to root out corruption.

That action by Biden has become part of the 2020 presidential campaign.

Trump is being investigated for allegations he with held nearly $400 million in military assistance from the Ukraine unless officials agreed to investigate the Bidens and unproven allegations about the 2016 election.

The president has denied any wrong doing and the money eventually made it to the Ukraine.

Republican staff attorney Steve Castor, left, and Rep. Jim Jordan, R-Ohio, listen to former Ambassador to Ukraine Marie Yovanovitch testify

Republican staff attorney Steve Castor, left, and Rep. Jim Jordan, R-Ohio, listen to former Ambassador to Ukraine Marie Yovanovitch testify

Rep. Devin Nunes tried to yield his time to Rep Elise Stefanik (pictured), but Schiff pointed out the rules only allow the ranking member to yield time to the Republican counsel. 'You are not recognized,' he told Stefanik

Rep. Devin Nunes tried to yield his time to Rep Elise Stefanik (pictured), but Schiff pointed out the rules only allow the ranking member to yield time to the Republican counsel. ‘You are not recognized,’ he told Stefanik

Republican members of the House Intelligence Committee listen as former U.S. Ambassador to Ukraine Marie Yovanovitch testifies

Republican members of the House Intelligence Committee listen as former U.S. Ambassador to Ukraine Marie Yovanovitch testifies

Yovanovitch, 61, is one of the central figures in the Democrats investigation. Trump recalled her May of this year after what other diplomats called a coordinated smear campaign against her, which included articles in conservative friendly media and tweets from Republican allies.

Giuliani, in a statement on Friday, said he obtained his information about her from numerous sources.

‘The information I obtained about Yovanovitch was in the nature of evidence from a number of witnesses. All of them — some allies, some opponents — agreed on Ambassador Yovanovitch’s wrongdoing, from telling people that Trump will be impeached, to getting the George Soros case and others dismissed, to her embassy’s partisan involvement in the 2016 election,’ he said.

Yovanovitch, meanwhile, said she felt terrible when she was recalled and was told the president lost confidence in her ability to do the job.

‘Terrible honestly. I mean, after 33 years of service to our country it was terrible. It’s not the way I wanted my career to end,’ she said of her recall.

She also described her concern when talked about the ‘smear’ campaign against her that led up to that moment, which included tweets from Donald Trump Jr., Sean Hannity and others that cited John Solomon, who then wrote for The Hill newspaper. Solomon wrote several pieces that pushed for her removal and he was a regular on Fox News.

‘I was worried,’ she said of the campaign.

She also offered political cover to Biden in the coming presidential race when she said he was supporting U.S. and international policy when he came to the Ukraine as vice president to push for Shokin’s removal as prosecutor general.

‘Official U.S. policy and that was endorsed and was the policy of a number of other international stakeholders, other countries, other monetary institutions, financial institutions,’ she said of Biden’s request to the Ukrainians.

‘And in fact if he helped to remove a corrupt Ukrainian prosecutor general who was not prosecuting enough corruption, that would increase the chances that corrupt companies in Ukraine would be investigated, isn’t that right?,’ Goldman, the Democratic counsel, asked her.

‘One would think so,’ she said.

‘And that could include Burisma, right?,’ he asked.

‘Yes,’ she replied.

In her first two hours in the chair, the focus was on the smear campaign against Yovanovitch, who slammed Giuliani for orchestrating it and said she found it difficult to understand President Donald Trump was influenced by ‘foreign and private interests’ in regards to her removal.

In her opening statement, Yovanovitch outlined her long diplomatic career, defended her work in the Ukraine, pushed back against allegations against her, and emphasized the importance of fighting corruption in the Ukraine.

She denied any politics were at work in her service in the Ukraine, which occurred while both President Barack Obama and President Trump were in office.

Yovanovitch addressed the Trump administration’s concerns about the Bidens work in the Ukraine by saying she had never had any dealings on the matter. She noted she’s never met Hunter Biden nor had contact with him. She also said while she has met former Vice President Joe Biden he never discussed Burisma – the Ukrainian gas company where Hunter Biden used to set on its board – with her.

Trump, Giuliani and others have pressed the Ukraine to investigate Hunter Biden’s work in the Ukraine and what role Joe Biden played in the matter when he was vice president.

A transcript of a phone call between US President Donald Trump and Ukrainian President Volodymyr Zelensky is shown during the House Permanent Select Committee on Intelligence impeachment inquiry

A transcript of a phone call between US President Donald Trump and Ukrainian President Volodymyr Zelensky is shown during the House Permanent Select Committee on Intelligence impeachment inquiry

House Intelligence Committee Chairman Adam Schiff, D-Calif., left, and ranking member Rep. Devin Nunes, R-Calif., give opening remarks at the start of the hearing. Nunes, the top Republican on the Intelligence Committee, used his opening statement to berate Democrats for focusing on the impeachment inquiry and not on passing legislation

House Intelligence Committee Chairman Adam Schiff, D-Calif., left, and ranking member Rep. Devin Nunes, R-Calif., give opening remarks at the start of the hearing. Nunes, the top Republican on the Intelligence Committee, used his opening statement to berate Democrats for focusing on the impeachment inquiry and not on passing legislation

‘I have never met Hunter Biden, nor have I had any direct or indirect conversations with him. And although I have met former vice president Biden several times over the course of our many years in government service, neither he nor the previous administration ever raised the issue of either Burisma or Hunter Biden with me,’ Yovanovitch said.

She said she met Giuliani three times and none of those interactions were related to the issues being discussed at Friday’s hearing. And then she said she didn’t understand why the former mayor pushed for her firing.

‘I do not understand Mr. Giuliani’s motives for attacking me, nor can I offer an opinion on whether he believed the allegations he spread about me. Clearly no one at the State Department did. What I can say is there Mr. Giuliani should have known these claims were suspect, coming as they reportedly did from individuals with questionable motives and with reason to believe that their political and financial ambitions would be stymied by our anti-corruption policy in Ukraine,’ she said.

She pushed back on allegations against her, saying she never told Ukrainian officials to ignore President Trump because he may be impeached nor did she work against his campaign in the 2016 election.

‘Also untrue are unsourced allegations that I told unidentified embassy employees or Ukrainian officials that President Trump’s orders should be ignored because he was going to be impeached or for any other reason,’ she said.

‘I did not, and I would not say such a thing. Such statements would be inconsistent with my training as a foreign service officer and my role as an ambassador. The Obama administration did not ask me to help the Clinton campaign or harm the Trump campaign. Nor would I have taken any such steps if they had,’ she said.

She also expressed her confusion President Trump listened and acted upon allegations against her.

‘I have always understood that I served at the pleasure of the president, I still find it difficult to comprehend that foreign and private interests were able to undermine U.S. interests in this way,’ she said.

‘As various witnesses have recounted, they shared baseless allegations with the president and convinced him to remove his ambassador despite the fact the State Department fully understood the allegations were false and the sources highly suspect. These events should concern everyone in this room. Ambassadors are the symbol of the United States abroad. They are the personal representative of the president. They should always act and speak with full authority to advocate for U.S. policies,’ she added.

‘It was not surprising that when our anti-corruption efforts got in the way of a desire for profit or power, Ukrainians who preferred to play by the old corrupt rules sought to remove me. What continues to amaze me is that they found Americans willing to partner with them and working together, they apparently succeeded in orchestrating the removal of a U.S. Ambassador. How could our system fail like this? How is it that foreign, corrupt interests could manipulate our government?,’ she noted.

She closed with a warning, complaining about the lack of leadership at the State Department and the ‘degradation’ of the Foreign Service.

‘At the closed deposition, I expressed grave concerns about the degradation of the foreign service over the past few years and the failure of State Department leadership to push back as foreign and corrupt interests apparently hijacked our Ukraine policy. I remain disappointed that the department’s leadership and others have declined to acknowledge that the attacks against me and others are dangerously wrong. This is about far, far more than me or a couple of individuals. As foreign service professionals are being denigrated and undermined, the institution is also being degraded. This will soon cause real harm if it hasn’t already,’ she said.

Yovanovitch’s testimony launched the second day of public hearings into the impeachment inquiry into President Trump.

Shortly before she entered the committee room, the White House released the transcript of President Donald Trump’s first call with Ukrainian President Volodymyr Zelensky – in April of this year – which showed no mention of the Bidens or the 2016 election.

In his opening statement, House Intelligence Committee Chairman Adam Schiff focused on Yovanovitch’s professional accomplishments and painted her as a victim of scheming by Rudy Giuliani, Trump’s personal attorney.

‘Ambassador Yovanovitch has been in the foreign service for 33 years and served much of that time in the former Soviet Union. Her parents have fled Stalin and later Hitler before settling in the United States. She is an exemplary officer who was widely praised and respected by her colleagues. She is known as an anti-corruption champion whose tour in Kiev was viewed as very successful,’ Schiff said.

Yovanovitch held back tears as she testified Friday about how she felt 'threatened' by President Trump

Yovanovitch held back tears as she testified Friday about how she felt ‘threatened’ by President Trump

Former U.S. ambassador to Ukraine Marie Yovanovitch arrived Friday to Capitol Hill in the second public impeachment hearing by the House Intelligence Committee

Former U.S. ambassador to Ukraine Marie Yovanovitch arrived Friday to Capitol Hill in the second public impeachment hearing by the House Intelligence Committee

Yovanovitch, 61, is one of the central figures in the Democrats investigation. Trump recalled her May of this year after what other diplomats called a coordinated smear campaign against her, which included articles in conservative friendly media and tweets from Republican allies

Yovanovitch, 61, is one of the central figures in the Democrats investigation. Trump recalled her May of this year after what other diplomats called a coordinated smear campaign against her, which included articles in conservative friendly media and tweets from Republican allies

Marie Yovanovitch is sworn into the Trump impeachment hearing

Schiff called her removal ‘a stunning turn of events for this highly regarded career diplomat who had done such a  remarkable job fighting corruption in Ukraine that a short time earlier she had been asked by the state department to extend her tour.’

He praised her stance on fighting corruption and argued it was her dedication to that fight that ending up ‘pissing off’ the wrong people in the Trump administration.

‘Ambassador Yovanovitch was tough on corruption. Too tough on corruption for some and her principled stance made her enemies as George Kent told this committee on Wednesday, ”you can’t promote principled anti-corruption action without pissing off corrupt people.” And Ambassador Yovanovitch did not just piss off corrupt Ukrainians, like the corrupt former prosecutor general Yuri Lutsenko but certain Americans like Rudy Giuliani, Donald Trump’s personal attorney, and two individuals now indicted who worked with him, Igor Fruman and Lev Parnas,’ Schiff said, naming two Giuliani business associates who have been charged with campaign finance violations related to their work in the Ukraine.

Schiff berated President Trump for not defending Yovanovitch when Giuliani and his allies turned against her.

‘That tells you a lot about the president’s priorities and intentions,’ he said.

‘Some have argued that a president has the ability to nominate or remove any ambassador he wants. That they serve at the pleasure of the president. And that is true. The question before us is not whether Donald Trump could recall an American ambassador with a stellar reputation for fighting corruption in Ukraine, but why would he want to? Why did Rudy Giuliani want her gone? And why did Trump? And why would Donald Trump instruct the new team he put in place, the three amigos – Gordon Sondland, Rick Perry and Kurt Volker – to work with the same man, Rudy Giuliani, who played such a central role in the smear campaign against her,’ Schiff noted.

Rep. Mark Meadows tweeted 'all you need to know' about Friday's hearing

Rep. Mark Meadows tweeted ‘all you need to know’ about Friday’s hearing

The chairman argued Trump wanted Yovanovitch gone to help him win the 2020 election by convincing the Ukrainians to launch an investigation into Joe and Hunter Biden.

‘Getting rid of Ambassador Yovanovitch helped set the stage for an irregular channel that could pursue the two investigations that mattered so much to the president. The 2016 conspiracy theory and, most important, an investigation into the 2020 political opponent he apparently feared most, Joe Biden. And the president’s scheme might have worked but for the fact that the man who would succeed Ambassador Yovanovitch, whom we heard from on Wednesday, acting Ambassador Taylor, would eventually discover the effort to press Ukraine into conducting these investigations and would push back. But for the fact also that someone blew the whistle,’ he said.

Devin Nunes used his opening statement to berate Democrats for focusing on the impeachment inquiry and not on passing legislation.

He also complained about the Democrats not letting Republicans call the whistleblower in for testimony. The whistleblower revealed Trump’s July 25 call with Zelensky that started the formal impeachment inquiry.

‘It’s unfortunate that today and for most of next week we will continue engaging in the Democrats’ day-long TV spectacles instead of solving the problems we were all sent to Washington to address,’ Nunes said.

He capped off by reading the transcript of Trump’s first call with Zelensky in April.

The transcript showed a conversation about Zelensky’s upcoming inauguration, which Zelensky invited Trump to attend.

The president said he would look into and invited his Ukrainian counterpart to the White House.

‘When you are settled in and ready, I would like to invite you to the White House. We’ll have a lot of things to talk about’ Trump told him on the call.

A demonstrator holds signs outside Longworth House Office Building, Friday ahead of Yovanovitch's testimony to the House Intelligence Committee in the second public impeachment hearing of Trump's efforts to tie U.S. aid for Ukraine to investigations of his political opponent

A demonstrator holds signs outside Longworth House Office Building, Friday ahead of Yovanovitch’s testimony to the House Intelligence Committee in the second public impeachment hearing of Trump’s efforts to tie U.S. aid for Ukraine to investigations of his political opponent

Schiff (L) gives opening statements flanked by (L-R) ranking member of the House Intelligence Committee Rep. Devin Nunes(R-CA), Republican Counsel Stephen Castor, and Representative Jim Jordan

Schiff (L) gives opening statements flanked by (L-R) ranking member of the House Intelligence Committee Rep. Devin Nunes(R-CA), Republican Counsel Stephen Castor, and Representative Jim Jordan

Pedestrians stroll by as demonstrator hold a sign outside Longworth House Office Building, where former U.S. Ambassador to Ukraine Marie Yovanovitch is testifying

President Trump was watching Nunes read the transcript of the first call, according to the White House.

‘The President will be watching Congressman Nunes’ opening statement, but the rest of the day he will be working hard for the American people,’ White House press secretary Stephanie Grisham said in a statement.

Schiff praised Trump for releasing the transcript and asked for other material to be released – including documents from the State Department that are being with held at the administration’s request.

‘I’m grateful the president has released the call record,’ he said.

‘I would now ask the president to release the thousands of other records that he has instructed the State Department not to release, including Ambassador Taylor’s notes, cable, including George Kent’s memo, including documents from the office of management and budget about why the military aid was withheld,’ he said.

While Wednesday’s impeachment witnesses Bill Taylor and George Kent played to the head – the duo of long-time public servants talked at length about American foreign policy in Ukraine – Yovanovitch’s testimony is expected to tug at the heart.

Democrats see her as yet another in their line of credible witnesses – a longtime government official who has worked under presidents of both parties.

They paint her as the victim of the Trump administration – a career official who had her work derailed by the forces against her.

Republicans, however,  down play the actions against Yovanovitch, and argue the president has the right to fire whatever ambassador he wants.

‘Respectfully, this is all you need to know about Ambassador Yovanovitch’s testimony. She admits she can’t bring any firsthand knowledge to: – The 7/25 phone call – Discussions surrounding phone call – Discussions surrounding delay of aid And this is the Democrats second witness,’ GOP Congressman Mark Meadows tweeted during her testimony. He is not on the committee but is one of Trump’s staunchest allies on Capitol Hill.

Other diplomats, in their testimony, praised Yovanovitch’s professional work and called her the victim of a ‘smear’ campaign.

In October, Yovanovitch sat down with lawmakers from the three committees tasked with impeachment proceedings and told the story of her dismissal.

She brought that closed door testimony public on Friday.

Yovanovitch’s tenure in Ukraine came to a dramatic end.

First on April 24 and then into the early hours of April 25, Director General of the Foreign Service Carol Perez made two calls to Yovanovitch. In the first she advised Yovanovitch to board the ‘next plane home to Washington.’

And hour later Perez called again.

‘There were concerns up the street and she said I needed to get – come home immediately. Get on the next plane to the U.S., and I asked her why, and she said she wasn’t sure but there were concerns about my security. Asked her my first security because sometimes Washington knows more than we do about these things and she said, no, we hadn’t gotten that impression that it was a physical security issue, but they were concerned about my security and I needed to come home right away,’ Yovanovitch testified Friday.

‘I did specifically ask whether this had to do with the Mayor Giuliani allegations against me and so forth and she shade she didn’t know. It didn’t even actually appear that she seemed to be aware of that. No reason was offered,’ she added.

Marie Yovanovitch arrives at the Trump impeachment hearing

Photographers await the arrival of Marie Yovanovitch, former U.S. ambassador to Ukraine, to testify as part of the impeachment inquiry into President Donald Trump

‘Did you have any understanding why secretary Pompeo was no longer able to protect you?,’ Goldman asked.

‘No. It was just a statement made, that he was no longer able to protect me,’ she said.

She said she told Deputy Secretary of State John Sullivan, upon her return to the United States, that she was worried about how her removal would look to the Ukrainians.

‘I asked him how are you going to explain this to people in the State Department, the press, the public, Ukrainians because everybody is watching, and so if people see somebody who — and, of course, it had been very public, frankly, the attacks on me by Mayor Giuliani and others and Mr. Lutsenko in Ukraine. If people see I who have been, you know, promoting our policies on anti-corruption, if they can undermine me and get me pulled out of Ukraine, what does that mean for our policy? Do we still have that same policy? How are we going to affirmatively put that forward number one. Number two, when other countries, other actors and other countries see that private interests, foreign interests can come together and get a U.S. Ambassador removed, what’s going to stop them from doing that in the future in other countries,’ she said.

Yovanovitch was nominated by President Barack Obama to be Ambassador to Ukraine in May 2016 and unanimously confirmed by Senate in July 2016 by voice vote.

She served in that post until she was recalled in May by the Trump Administration.

 

https://www.dailymail.co.uk/news/article-7689897/Former-Ambassador-Ukraine-Marie-Yovanovitch-testifies-second-day-impeachment-hearings.html

Story 2: Attorney General William Barr Addresses The Federal Society’s National Lawyer Convention — Videos

Barr speaks at the Federalist Society’s National Lawyers Convention

Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society’s 2019 National Lawyers Convention
WashingtonDC

~

Friday, November 15, 2019

Remarks as Prepared for Delivery

Good Evening.  Thank you all for being here.  And thank you to Gene [Meyer] for your kind introduction.

It is an honor to be here this evening delivering the 19th Annual Barbara K. Olson Memorial Lecture.  I had the privilege of knowing Barbara and had deep affection for her.  I miss her brilliance and ebullient spirit.  It is a privilege for me to participate in this series, which honors her.

The theme for this year’s Annual Convention is “Originalism,” which is a fitting choice — though, dare I say, a somewhat “unoriginal” one for the Federalist Society.  I say that because the Federalist Society has played an historic role in taking originalism “mainstream.”  While other organizations have contributed to the cause, the Federalist Society has been in the vanguard.

A watershed for the cause was the decision of the American people to send Ronald Reagan to the White House, accompanied by his close advisor Ed Meese and a cadre of others who were firmly committed to an originalist approach to the law.  I was honored to work with Ed in the Reagan White House and be there several weeks ago when President Trump presented him with the Presidential Medal of Freedom.  As the President aptly noted, over the course of his career, Ed Meese has been among the Nation’s “most eloquent champions for following the Constitution as written.”

I am also proud to serve as the Attorney General under President Trump, who has taken up that torch in his judicial appointments.  That is true of his two outstanding appointments to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh; of the many superb court of appeals and district court judges he has appointed, many of whom are here this week; and of the many outstanding judicial nominees to come, many of whom are also here this week.

***********

I wanted to choose a topic for this afternoon’s lecture that had an originalist angle.  It will likely come as little surprise to this group that I have chosen to speak about the Constitution’s approach to executive power.

I deeply admire the American Presidency as a political and constitutional institution.  I believe it is, one of the great, and remarkable innovations in our Constitution, and has been one of the most successful features of the Constitution in protecting the liberties of the American people.  More than any other branch, it has fulfilled the expectations of the Framers.

Unfortunately, over the past several decades, we have seen steady encroachment on Presidential authority by the other branches of government.  This process I think has substantially weakened the functioning of the Executive Branch, to the detriment of the Nation.  This evening, I would like to expand a bit on these themes.

I.

First, let me say a little about what the Framers had in mind in establishing an independent Executive in Article II of the Constitution.

The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak.  This is misguided.  By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline.  Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat.  By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament.  Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.

During the Revolutionary era, American thinkers who considered inaugurating a republican form of government tended to think of the Executive component as essentially an errand boy of a Supreme legislative branch.  Often the Executive (sometimes constituted as a multi-member council) was conceived as a creature of the Legislature, dependent on and subservient to that body, whose sole function was carrying out the Legislative will.  Under the Articles of Confederation, for example, there was no Executive separate from Congress.

Things changed by the Constitutional Convention of 1787.  To my mind, the real “miracle” in Philadelphia that summer was the creation of a strong Executive, independent of, and coequal with, the other two branches of government.

The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation.  They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.  Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.  They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures.  Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness.  They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature.  Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power.  To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.  But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.  They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive.  For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties.

A related, and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster.  This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management.  These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.  Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.”  They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power.  Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision.  This is not “new,” and it is not a “theory.”  It is a description of what the Framers unquestionably did in Article II of the Constitution.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function?  The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power.  Alternatively, they could vest Executive power in a solitary individual.  The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.  Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment.

The implications of the Framers’ decision are obvious.  If Congress attempts to vest the power to execute the law in someone beyond the control of the President, it contravenes the Framers’ clear intent to vest that power in a single person, the President.  So much for this supposedly nefarious theory of the unitary executive.

II.

We all understand that the Framers expected that the three branches would be jostling and jousting with each other, as each threatened to encroach on the prerogatives of the others.  They thought this was not only natural, but salutary, and they provisioned each branch with the wherewithal to fight and to defend itself in these interbranch struggles for power.

So let me turn now to how the Executive is presently faring in these interbranch battles.  I am concerned that the deck has become stacked against the Executive.  Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate.  More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive.  The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess.  So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic.  It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that.  You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial.  Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary.  A watershed in this evolution was, of course, the Glorious Revolution in 1689.

But by 1787, we had the exact opposite model in the United States.  The Founders greatly admired how the British constitution had given rise to the principles of a balanced government.  But they felt that the British constitution had achieved only an imperfect form of this model.  They saw themselves as framing a more perfect version of separation of powers and a balanced constitution.

Part of their more perfect construction was a new kind of Executive.  They created an office that was already the ideal Whig Executive.  It already had built into it the limitations that Whig doctrine aspired to.  It did not have the power to tax and spend; it was constrained by habeas corpus and by due process in enforcing the law against members of the body politic; it was elected for a limited term of office; and it was elected by the nation as whole.  That is a remarkable democratic institution – the only figure elected by the Nation as a whole.  With the creation of the American Presidency, the Whig’s obsessive focus on the dangers of monarchical rule lost relevance.

This fundamental shift in view was reflected in the Convention debates over the new frame of government.  Their concerns were very different from those that weighed on 17th century English Whigs.  It was not Executive power that was of so much concern to them; it was danger of the legislative branch, which they viewed as the most dangerous branch to liberty.  As Madison warned, the “legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”  And indeed, they viewed the Presidency as a check on the Legislative branch.

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers.  The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution.  Constitution generally assigns broad powers to each of the branches in defined areas.  Thus, the Legislative power granted in the Constitution is granted to the Congress.  At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power.  The Executive does not get to interfere with the broader Legislative power assigned to the Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.  Let me first say something about the Legislature.

A.

As I have said, the Framers fully expected intense pulling and hauling between the Congress and the President.  Unfortunately, just in the past few years, we have seen these conflicts take on an entirely new character.

Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration.  Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power.  It obviously connotes that the government is not legitimate.  This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic.  What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process.  The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office.  As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation.   How many times was cloture invoked on nominees during President Obama’s first term?  17 times.  The Second President Bush’s first term?  Four times.  It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.  They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.  This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.  More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.  And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.  I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.  But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such.

The costs of this constant harassment are real.  For example, we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function.  Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection.  There is no FOIA for Congress or the Courts.  Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.  That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.

In recent years, we have seen substantial encroachment by Congress in the area of executive privilege.  The Executive Branch and the Supreme Court have long recognized that the need for confidentiality in Executive Branch decision-making necessarily means that some communications must remain off limits to Congress and the public.   There was a time when Congress respected this important principle as well.  But today, Congress is increasingly quick to dismiss good-faith attempts to protect Executive Branch equities, labeling such efforts “obstruction of Congress” and holding Cabinet Secretaries in contempt.

One of the ironies of today is that those who oppose this President constantly accuse this Administration of “shredding” constitutional norms and waging a war on the rule of law.  When I ask my friends on the other side, what exactly are you referring to?  I get vacuous stares, followed by sputtering about the Travel Ban or some such thing.  While the President has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him.  What I am talking about today are fundamental constitutional precepts.  The fact is that this Administration’s policy initiatives and proposed rules, including the Travel Ban, have transgressed neither constitutional, nor traditional, norms, and have been amply supported by the law and patiently litigated through the Court system to vindication.

Indeed, measures undertaken by this Administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law.

The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.  This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day.  It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic.

In any age, the so-called progressives treat politics as their religion.  Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection.  Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end.  They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications.  They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.

Conservatives, on the other hand, do not seek an earthly paradise.  We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing.  This means that we naturally test the propriety and wisdom of action under a “rule of law” standard.  The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?

For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means.  And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy far, especially when doing so under the weight of a hyper-partisan media.

B.

Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically.  I am speaking of the Judicial Branch.

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency.  The Courts have done this in essentially two ways:  First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry.  Second, the Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power.

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches.  As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”  By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation.

The “constitutional means” to “resist encroachment” that Madison described take various forms.  As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other.  Conspicuously absent from the list is running to the courts to resolve their disputes.

That omission makes sense.  When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal.  And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people.  And they will not even try to make the hard choices needed to forge compromise.  The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts.

In any event, the prospect that courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise.  How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his executive function?  Nothing in the Constitution provides a manageable standard for resolving such a question.  It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.”

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves.  One way courts have effectively done this is by expanding both the scope and the intensity of judicial review.

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making.  They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process.  They require what we used to call prudential judgment.  They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future.  Such decisions frequently call into play the “precautionary principle.”  This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry.

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials.  This outlook now seems to have gone by the boards.  Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs.

The Travel Ban case is a good example.  There the President made a decision under an explicit legislative grant of authority, as well has his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes.  The common denominator of the initial countries selected was that they were unquestionable hubs of terrorism activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry.  Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims.  This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second guessed since the beginning of the Trump Administration.

The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review.  The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action.  To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant.  And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship.

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials.  With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive.  They apply only to executive action.  Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision.  And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction.  First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone.  Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government.  By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government.  Both were vacated by the Ninth Circuit.

It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts.  No other President has been subjected to such sustained efforts to debilitate his policy agenda.

The legal flaws underlying nationwide injunctions are myriad.  Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions.

Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process.  There is no better example than the courts’ handling of the rescission of DACA.  As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration.  The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote.  Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA.

Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise.  In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide.  Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means.  A humanitarian crisis at the southern border ensued.  And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission.  The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful.  That is not how our democratic system is supposed to work.

To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict – decisions that lie at the very core of the President’s discretion as Commander in Chief.

This usurpation climaxed with the Court’s 2008 decision in Boumediene.  There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review.  For the first time, the Court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them.

In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies.  This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the President in our system.

As the Preamble suggests, governments are established for two different security reasons – to secure domestic tranquility and to provide for defense against external dangers.  These are two very different realms of government action.

In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people.  Thus, the Constitution in this arena deliberately sacrifices efficiency; invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and dilutes the government’s power by dividing it and turning it on itself as a check, at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter.

None of these considerations are applicable when the government is defending the country against armed attacks from foreign enemies.  In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat.  Here, the Constitution is not concerned with handicapping the government to preserve other values.  The Constitution does not confer “rights” on foreign enemies. Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane.

The impact of Boumediene has been extremely consequential.  For the first time in American history our armed forces is incapable of taking prisoners.  We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone or any other weapon.  But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation.

The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded.

III.

In this partisan age, we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure. As we look back over the sweep of American history, it has been the American Presidency that has best fulfilled the vision of the Founders.  It has brought to our Republic a dynamism and effectiveness that other democracies have lacked.

At every critical juncture where the country has faced a great challenge –

– whether it be in our earliest years as the weak, nascent country combating regional rebellions, and maneuvering for survival in a world of far stronger nations;

– whether it be during our period of continental expansion, with the Louisiana Purchase, and the acquisition of Mexican territory;

– whether it be the Civil War, the epic test of the Nation;

– World War II and the struggle against Fascism;

– the Cold War and the challenge of Communism;

– the struggle against racial discrimination;

– and most recently, the fight against Islamist Fascism and international terrorism.

One would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount the challenge and brought us success.

In so many areas, it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles.  Not the least of these is the Framers’ vision of a strong, independent Executive, chosen by the country as a whole.

https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture

 

 

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