Impeachment Trial: House Impeachment Managers Cast Aspersions, Get Slam-Dunked by a Former Law Clerk to Clarence Thomas

A member of the President’s legal team systematically destroyed a number of claims made by the House impeachment managers on Tuesday. Patrick Philbin, Deputy Counsel to the President and Deputy Assistant to the President in the Office of White House Counsel and a former clerk for my favorite US Supreme Court Justice, Clarence Thomas, took the Democrats to school once again!

Throughout the Senate trial, Democrats have tried to “dirty up” their allegations with innuendos and by making accusations of improper behavior and conduct that was not in the articles of impeachment. They have done this because the only evidence they have presented is circumstantial, hearsay, and/or the personal opinions of witnesses. For example, the Democrats attempted to cast aspersions that there was “some sort of cover-up” in moving the July 25th phone call transcript to a classified server (which plays into their overall allegations of a cover-up). The second play was to cast aspersions on the DoJ’s process for reviewing the urgency of the original whistleblower complaint that started this whole impeachment farce. And the implications made by Philbin about that the handling of the complaint are amazing!

Here are Philbin’s remarks in response to a couple of those specious claims:

Philbin: I want to respond to a couple of points that the House managers have brought up that are really and completely extraneous to this proceeding. They involve matters that are not charged in the articles of impeachment. They do not relate directly to the President and his actions. But, they are accusations that were brought up somewhat recklessly in any event, and we can’t close without some response to them. The first has to do with the idea that somehow the White House and the White House lawyers were involved in some sort of coverup related to the transcript of the July 25th call because it was stored on a highly classified system. So let me start with that.

The House managers made this accusation that there was something nefarious going on. But let’s see what the witnesses actually had to say. LTC Alexander Vindman – remember he was the person listening in on the call and who raised the concern – the only person who raised a concern with NSC lawyers that he thought there was something improper, something wrong with the call, even though he later conceded under cross-examination it was really a policy concern, but he thought there was something wrong. And he had to say, “So I do not think there was malicious intent or anything of that nature to cover anything up.” He’s the one who went and talked to the lawyers; he’s the one whose complaint spurred the idea that wait – there might be something that’s really sensitive here. We should make sure that this is not going to leak. He thought there was nothing covering it up.

His boss, Senior Director Tim Morrison, had similar testimony. (Philbin then showed a video in which Republican counsel Steve Castor asked Morrison, “so there was no malicious intent in moving the transcript to the compartmented server,” to which Morrison replied, “Correct.”) And the idea that there was some kind of coverup was further destroyed by the simple fact that everyone who had, as part of their jobs needed access to that transcript, still had access to it, including LTC Vindman. So the person who raises a complaint still has access to the transcript the entire time, and this is the way Mr. Morrison’s testimony explained that. (Showed another video where both Vindman and Morrison acknowledged that those needing access to the transcript had that access)

Now Mr. Morrison testified that he recommended restricting access to the transcript – not because he had any concerns there was anything improper or illegal – but he was concerned about a potential leak. As he put it, how that “would play out in Washington’s polarized environment” and would “affect the bipartisan support our Ukrainian partners currently experienced in Congress.” And he was right to be concerned potentially about leaks because the Trump Administration has faced national security leaks at an alarming rate. LTC Vindman himself said that concerns about leaks seem justified and “it was not unusual that something would be put in a more restricted circulation.”

Now, what else is in the record evidence? Mr. Morrison explained his understanding of how the transcript ended up on that server. (Morrison stated in a video that the transcript had been moved at the direction of NSC legal counsel John Eisenberg, and that there was no malicious intent to move the transcript to the classified server.)

Everyone who knew something about it and testified agreed there was no malicious intent. The transcript was still available to everyone who needed it as part of their job, and it certainly wasn’t covered up or deep-sixed in some way. The President declassified it and made it public. So why we are in here talking about a cover-up when it was a transcript that was preserved and made public is somewhat absurd.

Now the other point I’d like to turn to – another accusation from the House managers – is that the whistleblower complaint – when the whistleblower complaint was not forwarded to Congress –  they said that lawyers at the Dept of Justice this time – they accused the Office of Legal Counsel of providing a bogus opinion for why the Director of National Intelligence did not have to advance the whistleblower’s complaint to Congress. And Manager Jeffries said that OLC opined “without any reasonable basis that the acting DNI did not have to turn over the complaint to Congress.” And the way he portrayed this – and there’s a statute that says if the Inspector General of the Intelligence Community finds the matter of urgent concern, it must be forwarded to Congress. And Manager Jeffries portrayed this as if the only thing to decide was were these claims urgent. He said, “What could be more urgent than a sitting president trying to cheat in an American election by soliciting foreign interference.”

That’s not the only question. The statute doesn’t just say, “if it’s urgent you have to forward it.” It talks about urgent concern as a defined term. Now if the House managers want to come and cast aspersions that the political and career officials at the Office of Legal Counsel – which we all know is a very respected officed in the Department of Justice and provides opinions for the executive branch on what governing law is – they should come backed up with analysis. So let’s look at what the law actually says.

We have a slide of that. Here is the definition of “Urgent Concern: a serious or flagrant problem, abuse, violation of law … relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information ….” So, the Office of Legal Counsel was counsel was consulted by the general counsel at the DNI’s office, and they looked at this definition, and they did an analysis, and they determined that the alleged misconduct is “not an ‘urgent concern’ within the meaning of the statue because it does not concern ‘the funding, administration, or operation of an intelligence activity’ under the authority of the DNI.” Because they’re not just talking about, do we think it’s urgent, do we think it’s important, no. They are analyzing the law, and they looked at the terms of the statute. Remember, what we’re talking about here is a head-of-state communication between the President of the United States and another head-of-state. This isn’t some CIA operation overseas; this isn’t the NSA doing something. This isn’t any intelligence activity going on within the intelligence community under the supervision of the DNI. It’s the head of the executive branch exercising his constitutional authority in engaging in relations with a foreign head of state.

So, in reaching that conclusion, the Office of Legal Counsel looked at the statute, case law, legislative history … and it concluded, “That phrase includes matters relating to the intelligence activities subject to the DNI’s supervision,, but it does not include allegations of wrongdoing arising outside of any intelligence activity or outside the intelligence community itself.” And that makes sense. This statute was meant to provide for an ability of the Inspector General of the Intelligence Community, overseeing the activities of the intelligence community, to receive reports about what was going on in intelligence agencies – if there was fraud, waste, abuse, something unlawful in those activities. It was not meant to create an Inspector General of the presidency, an Inspector General of the Oval Office, to purport to determine whether the President, exercising his constitutional authorities had done something that should be reported. This law is narrow, and does not cover every violation of law, OLC explained, or other abuse that comes to the attention to a member of the intelligence community. Just because you’re in the intelligence community and happen to see something else doesn’t make this law apply. And this law does not make the Inspector General for the intelligence community responsible for investigating or reporting on allegations that do not involve intelligence activities or the intelligence community.

Now nonetheless, the President of course released the July 25th call transcript, and it was also not the end of the matter that the whistleblower complaints and the DNI and IC IG’s letters were not sent directly to Congress because, as OLC explained, that if the complaint does not involve an urgent concern … if there’s anything else in there that you want to have checked out, the appropriate action is to refer the matter to the Department of Justice. And that’s what the DNI’s office did. They sent the IC IG’s letter with the complaint to the Department of Justice, and the DoJ looked at it. And this was all made public some time ago.

The DoJ examined the exact allegations of the whistleblower, and the exact framing and concern raised by the Inspector General, which had to do with a potential … perhaps … a campaign finance law violation. DoJ looked at it, looked at the statutes, analyzed it, and determined there was no violation, and it closed the matter, and it announced that months ago.

When something gets sent over to DoJ to examine, you can’t call that a cover-up. Everything here was done correctly. The lawyers analyzed the law, the complaint was sent to the appropriate person for review … it was not within the statute that required transmission to Congress. And everything was handled entirely properly.

So again, it’s actually extraneous to the matters before you. There’s nothing about these two points in the articles of impeachment, but it merits a response when reckless allegations are made against those at the White House and the Department of Justice.

End of Patrick Filbin’s presentation.

Wow! We learned a few things here that have been obfuscated by the Democrats and the media since this whole impeachment charade started. Here is a short summary:

  • Despite the Democrats’ claims, there was no cover-up or malicious intent associated with moving the call transcript to a classified server, as testimony from two of their own witnesses evinced
  • The call transcript wasn’t withheld from anyone who had the need to see it, the President declassified it almost immediately, and for the Democrats to claim a cover-up is absurd (to use Philbin’s word for it)
  • Hakim Jeffries (D-NY) claimed that DoJ OLC made a decision without any legal basis to not turn over the whistleblowers complaint to Congress. Philbin demolished that claim by going through the statute and explaining first that the complaint wasn’t even covered under the intelligence community’s whistleblower statute, and second that DNI sent the complaint and the IC IG’s concerns to DoJ where it was determined that there was no violation of law and closed the case.

Although Philbin didn’t pursue it, dispensing with that last false allegation is YUUUGE! The entire matter should have ended there, with DoJ’s dismissal of the complaint. There should have been on impeachment inquiry launched by the Democrats because there was no basis for it, and Congress should not have received the complaint according to “case law, legislative history, and precedent.” Yet, we have subsequently learned that the whistleblower went to Congress – apparently on his own – to coordinate directly with – if not Adam Schiff directly – at the very least one or more of his staffers.

Taking it one step further, the whistleblower did not even qualify as a whistleblower under the intelligence community’s own statutes – as many, such as Greg Jarrett and Mark Levin, have been shouting for months. This whole impeachment charade is a political lynching of the President by partisan Democrats and should have been shut down long ago. This should have been obvious to the Republican senators listening to Patrick Philbin’s testimony! Will they do the right thing and expeditiously move to acquit on Friday?

The end.