House Releases Transcripts from Jennifer Williams and Tim Morrison Depositions….


House Democrats on Saturday released the transcripts of closed-door testimony from Jennifer Williams and Tim Morrison (both pdf’s linked below).

House Link Williams – House Link Morrison

The first transcript is from career foreign service officer and Vice President Pence staffer Jennifer Williams.

The House did not need to subpoena Williams who was willing to deliver testimony to the impeachment committee with support from the Vice-President.

Ms. Williams was among the officials actually on the July 25th call between President Trump and Ukrainian President Volodymyr Zelensky. She is also one of the only witnesses who has testified with firsthand knowledge of the exchange.

Interestingly Ms. Williams, a senior staffer for Vice-President Pence, delivered testimony that later had to be modified.

Keeping in mind that Jennifer Williams was actually on the call with Trump and Zelensky, it is curious that Ms. Williams originally testified that President Trump brought up the company Burisma during the call… only later having to modify her testimony to state that it was Zelensky who brought up the company.  A curious mistake all things considered.

Ms. Williams delivered her testimony on November 7th. Ms. Williams corrected her testimony on November 11th. Ms. Williams is the Senior Advisor to Vice-President Pence.

 

CTH takes a lot of flak for pointing out inconvenient issues that make us all a little uncomfortable.  However, it would be intellectually dishonest not to be concerned about a senior staffer within the executive branch who makes a “mistake“, during a highly important deposition, that specifically undermines President Trump.

Surely one would accept that if Ms. Williams had the best interest of the executive in mind; and keeping in mind that she held her own reference notes from the phone call; and also keeping in mind Ms. Williams could easily refresh her memory from the released transcript of the phone call; well, under those circumstances such a significant mistake should be/would be very difficult to make. I digress…

Here’s the transcript:

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The second transcript is from National Security Council aide Tim Morrison’s deposition to the House impeachment committee. Mr. Morrison replaced Mrs. Fiona Hill in July as the National Security Council expert on Eastern Europe

During his testimony, Mr. Morrison told impeachment investigators about concerns that President Trump withheld U.S. aid to Ukraine. Mr. Timothy Morrison also testified that Fiona Hill said she had questions about Lt. Col. Vindman’s judgment and that some people suspected Vindman of being a leaker.

It is almost certain that Lt. Col. Vindman was the source (#1) for the CIA report produced by Eric Ciaramella as part of an aligned Pentagon and CIA operation to remove President Trump from office.

Here’s the Morrison transcript:

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UPDATE: Louisiana Governors Race – Election Results – Open Discussion Thread – Democrat Incumbent John Bel Edwards Wins Reelection…


Tonight is the last governors race of the year. Democrat Louisiana Governor John Bel Edwards is facing off against a Republican challenger Eddie Rispone, a Baton Rouge businessman who emerged as the winner in last month’s nonpartisan primary.

President Trump is very popular in Louisiana and has supported Mr. Rispone in his challenge.  It is expected to be a very close race, and the media is hoping for an opportunity to frame President Trump’s reelection outcome with a loss for Mr. Rispone.

If John Bel Edwards wins, the media will joyfully proclaim the victory as overwhelming evidence of President Trump’s weakness.  If Eddie Rispone wins the media will play it down and say it means nothing.

UPDATE:  Incumbent Governor John Bell Edwards Wins by 40,000 votes.

Louisiana Secretary of State – Election Results Here

It was Democrat votes from within Orleans Parish that overwhelmingly voted for Governor John Bel Edwards (almost 90%) and eliminated any possibility for Eddie Rispone.  Orleans voted +100,000 for JBE (see graph below):

New York Times – Election Results Here

After Rep. Elise Stefanik Highlights Ambassador Yovanovitch False Statement – Stefanik Becomes a Target…


On March 20th, 2017, New York Representative Elise Stefanik first made a name for herself when she questioned FBI Director James Comey about why he purposefully did not inform congressional oversight, Gang-of-Eight, about the FBI investigation of candidate Donald Trump in 2016.   Ms. Stefanik caught Comey off-guard and his only response, albeit stuttered, was: “because of the sensitivity of the matter?”  {LINK}

Fast forward to November 15th, 2019, yesterday, and Rep. Stefanik again showed her acumen when she asked Ambassador Yovanovitch to reconcile her opening statement about not ever discussing Hunter Biden or Burisma against evidence Ms. Yovanovitch previously admitting to an extensive briefing session specifically about Hunter Biden and Burisma.  Once again, Stefanik caught a political operative in their network of lies. {LINK}

Having watched events closely it is obvious Elise Stefanik is a smart young representative with serious skills to see through the chaff, countermeasures and false narratives advanced by political left.

Hence, as if on cue, the entire apparatus of the political left began attacking their #1 new enemy.  Today the unholy alliance of corrupt political operatives and the allied media went on the attack.

Rising serpent@rising_serpent

Guess what was on the Democratic talking points memo today?

View image on TwitterView image on Twitter
237 people are talking about this
They even started posting fake pictures in an effort to make Stefanik look bad.

BOOMER💥CONFIDENTIAL HUMAN SOURCES [4K]@BOOMER4K

There is a fake picture of @EliseStefanik flipping the bird. This is the original without the photoshop.

View image on Twitter
142 people are talking about this

Rising serpent@rising_serpent

This is the original video of Rep Elise Stefanik that was altered by to make it seem that she was giving the middle finger (see next post).
George Conway retweeted it and called her trash.

Embedded video

998 people are talking about this

Svetlana Lokhova@RealSLokhova

Hilary Clinton campaign manager (and friend of Avenatti) started the attack on Congresswoman Stefanik. This is the first tweet. Then it gets worse. https://twitter.com/adamparkhomenko/status/1194640725297774599 

Adam Parkhomenko

@AdamParkhomenko

Elise Stefanik is a great reminder that it isn’t just trump. All republicans are awful.

504 people are talking about this

Svetlana Lokhova@RealSLokhova

Clinton hit on Stefanik and Nunes in action—see below. Parkhomenko was Hillary’s advisor. https://twitter.com/adamparkhomenko/status/1195399410160525312 

Adam Parkhomenko

@AdamParkhomenko

Is there anything sadder than Elise Stefanik wanting to be Devin Nunes? Like who looks at that bumbling kiss ass and thinks now that’s who I want to be like? https://twitter.com/EliseStefanik/status/1195396189824409600 

206 people are talking about this

It is always easy to see who the left really fears by the approach they take to smearing strong and articulate people.

Indeed Ms. Stefanik is a threat to the political left and has now become their enemy.

Svetlana Lokhova@RealSLokhova

George Conway and Schiff publicly attacked a talented and beautiful Congresswoman @EliseStefanik. This means she is over the target. Good on you, Congresswoman! Keep going!

View image on Twitter
1,467 people are talking about this

Elise Stefanik

@EliseStefanik

It’s VERY Clear. Far-left Dems & Never Trumpers CANNOT handle the Truth. That’s why they are launching disgusting smears & doctoring photos of me in a sick attempt to intimidate me. Thx for proving that our side is WINNING. Donate NOW to help me fight backhttps://secure.winred.com/EliseStefanik/donate 

Elise Stefanik for Congress

They will stop at NOTHING to impeach our President. Donate today to help us FIGHT BACK!

secure.winred.com

20.3K people are talking about this

 

A Seditious Conspiracy – Lt. Col. Vindman, CIA “Whistleblower” Source #1, Shaped False Summary of April Trump-Zelensky Phone Call…


Amid increased calls from House Republicans to force the testimony of the CIA “whistleblower”, today the Washington Post, the primary outlet for CIA misinformation and public relations, began shaping the “whistle-blower” as a hero.

Because the overall effort involves multiple parts of the deep state apparatus, to see through the construction it is important to note which media outlet holds equity for agency talking points within the coup.  The Washington Post is primary PR for the CIA and IC writ large. The New York Times is primary PR for the FBI; and CNN is primary PR for the State Dept.  This pattern has been consistent throughout.

Over time it has become clear the first confidential human source for the CIA Ukraine dossier, written by CIA analyst Eric Ciaramella and also known as the “Whistleblower report”, is Lieutenant Colonel Alexander Vindman a Ukraine expert inside the National Security Council on assignment from the Dept of Defense intelligence unit.

Within his deposition the ideology of Lt. Col Vindman is clear. Vindman’s mission focus was/is to shape U.S. policy toward Ukraine (and by extension NATO) regardless of the actual policy view of President Trump.  Within his deposition Vindman admitted to giving countermanding instructions to his Ukraine counterpart two weeks after understanding opposite policy objectives from his commander-in-chief.

During his deposition Lt Col Vindman also admitted -with considerable angst and attempts to deflect from his legal advisors provided by the Dept. of Defense- that he was intentionally usurping the chain of command in an effort to follow his own ideological agenda; and perhaps that of his DoD leadership.

By itself that level of admitted and direct insubordination should be alarming for many reasons; not the least of which is his lineage within the U.S. Military.  Indeed Vindman’s intent and purpose explains why he appeared for his deposition in full military uniform.

When we consider that Lt. Col. Vindman was carrying out what he believed to be his role; and when you overlay his military purpose; and when we accept Vindman was assisting CIA agent Eric Ciaramella in constructing his dossier to remove President Trump; and when we stand back and look at the aggregate interests involved; and when we consider there was ZERO push-back from the ranks of military leadership, specifically the Joint Chiefs of Staff; and when you accept Vindman was simply allowed to return to his post inside the White House – where he remains today; well, the alarming aspect increases in direct proportion to the definition of the word: “coup”.

I would encourage all readers to think long and hard those factual data-points.

CIA Agent Eric Ciaramella never delivered his dossier briefing to the upward chain-of-command within the CIA.  Instead Ciaramella subverted the formal process and transmitted his hearsay complaint, derived from material provided by Vindman, directly to principal officials who could assist in the removal of the President.  Again, often we get caught in the weeds, but think long-and-hard about this impeachment process as it is being discovered.

Yesterday President Trump released the call transcript from an April 21st conversation with Ukraine President Zelensky.  Reporters noted there was a disconnect between the call transcript and a separate summary of the call sent to reporters in April.

[…]  In response to questions from reporters, the White House said in a Friday statement that “the NSC’s Ukraine expert” prepared the April summary.

“The president continues to push for transparency in light of these baseless accusations and has taken the unprecedented steps to release the transcripts of both phone calls with President Zelensky so that every American can see he did nothing wrong. It is standard operating procedure for the National Security Council to provide readouts of the president’s phone calls with foreign leaders,” deputy White House press secretary Hogan Gidley said. “This one was prepared by the NSC’s Ukraine expert,” he added. (link)

That “NSC Ukraine expert” was Lt. Col. Alexander Vindman.

For emphasis let me repeat a current fact that is being entirely overlooked.  Despite his admitted usurpation of President Trump policy, Vindman was sent back to his post in the NSC with the full support of the United States Department of Defense.

The onus of action to remove Vindman from the NSC does not just lay simply at the feet of the White House and National Security advisor Robert O’Brien; and upon whose action the removal of Vindman could be positioned as political; the necessary, albeit difficult or perhaps challenging, obligation to remove Lt. Col Vindman also resides purposefully with the Dept. of Defense.

The Pentagon could easily withdraw Vindman from his position at the National Security Council; yet, it does not…. and it has not.   WHY?

There is a code within the military whereby you never put your leadership into a position of compromise; ie. “never compromise your leadership”.  In this example, President Trump cannot remove Vindman from the White House NSC advisory group due to political ramifications and appearances… The Joint Chiefs certainly recognize this issue; it is the very type of compromise they are trained to remove.  Yet they do nothing to remove the compromise.  They do nothing to assist.

Lt. Col. Alexander Vindman was the majority (#1) source for the material CIA operative Eric Ciaramella used in a collaborative effort to remove President Trump from office.  Let me make this implication crystal clear:

The United States Military is collaborating with the CIA to remove a U.S. President from office.

Do you see the issue now?

The Pentagon has done nothing, absolutely nothing, to countermand this implication/reality.  The Joint Chiefs of Staff have done nothing, absolutely nothing, to diminish the appearance of, nor deconstruct the agenda toward, the removal of President Trump.

Mr. President, do I have your attention?

On Tuesday, Nov. 19th, Lt. Col. Alexander Vindman is scheduled to appear in an intentionally shortened morning congressional session along with his ally Jennifer Williams, an aide to Vice President Mike Pence.

In the afternoon, Kurt D. Volker, the former United States special envoy to Ukraine, and Timothy Morrison, a Europe and Russia expert for the National Security Council will appear.

The timing, construct and purposeful design of Vindman’s appearance next week is being intentionally buried within the totality of the narrative that surrounds the impeachment effort.  Perhaps, just perhaps, someone reading this will start to put the purposefully obfuscated pieces of the coup puzzle together and act quickly….

~ REFERENCE MATERIAL ~

Beyond the debate about the optics of the “coup“, within the testimony of Lt. Col Vindman, the witness readily admits to understanding the officially established policy of the President of The United States (an agreement between President Trump and President Zelenskyy), and stunningly admits that two weeks later he was giving countermanding instructions to his Ukrainian counterpart to ignore President Trump’s policies.

The coup against President Donald Trump went from soft, to hard. Consider…

The testimony from Lt. Col. Vindman is available here. [SCRIBD pdf below]

Borrowing from Roscoe B Davis, here are some highlights:

Representative John Ratcliffe begins deconstructing Lt. Col Vindman, while his arrogant attorneys begin trying to interfere with the questioning.

This next section is very interesting, and very important.

Congressman John Ratcliffe begins questioning Vindman from the perspective of an Article 92 violation {READ IT}, coupled with an Article 88 violation {READ IT}. President Trump, is Lt. Col Vindman’s superior. President Trump sets the foreign policy.

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct. [Article 88, UCMJ]

Two weeks after President Trump has established an agreement with Ukraine President Zelenskyy, and established the policy direction therein, Lt. Col. Vindman is now giving contrary instructions to the Ukranian government. Vindman’s lawyer recognizes where the questioning is going and goes absolutely bananas:

Here’s the Full Transcript:

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A reminder from the CIA “whistleblower” attorney. January 30th, 2017, ten days after President Trump’s inauguration: the “coup has started”

AG Bill Barr Speaks About The Damage to Our Nation From The “Resistance”…


A rather lengthy speech by U.S. Attorney General Bill Barr to the Federalist Society is getting some increased attention today for the specific focus on how the executive branch has been weakened over the past several decades.

More specifically, AG Barr discusses how, in the Trump-era, the resistance movement has abdicated their legislative power and responsibility in favor of a politically motivated intent to harm the constitutional executive power.  [Video and Transcript below]

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[Transcript] – 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.

♦ 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.

♦ 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.

• 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.

• 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.

♦ 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.

[END]

Jim Jordan and Elise Stefanik Lead a Republican Press Conference….


Representatives Jim Jordan (OH) and Elise Stefanik (NY) delivered some of the most powerful congressional questioning today during day-two of the House impeachment hearings.  At the conclusion of the hearing the two leaders were joined by Republican members for a press briefing.  WATCH:

It is clear why Jim Jordan was added to the GOP team for the impeachment hearings. Additionally, Ms. Stefanik is not only a sharp representative, her disposition has made her the greatest threat to the Pelosi, Schiff and Lawfare impeachment effort.

Jim Jordan:

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Elise Stefanik

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TheLastRefuge@TheLastRefuge2

Ms. Yovanovitch opening statement is in direct contradiction to her testimony under oath. https://www.documentcloud.org/documents/6550395-Yovanovitch-Opening-Statement.html 

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Lying to Congress – Marie Yovanovitch Was Prepped by Obama Administration About Issues With Hunter Biden and Burisma…


Representative Elise Stefanik brought to light interesting information today surrounding how the Obama administration was concerned about issues surrounding Vice-President Joe Biden’s son, Hunter Biden, and his connection to a corrupt Ukraine company Burisma.  This revelation directly contradicted the Yovanovitch opening statement.

During questioning Ambassador Marie Yovanovitch admitted the Obama White House spent time briefing her on how to respond to congress if questions about Hunter Biden and Burisma were raised.  This testimony highlights the concerns by the Obama administration about a clear issue with the Biden family and corrupt Ukraine interests.

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This admission by former Ambassador Yovanovitch directly contradicted her testimony that was made only minutes before the admission.  From her opening statement:

[Yovanovitch Opening Statement November 15th, Page #8]

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@TrumpWarRoom

Contrary to her opening statement, former Ambassador Marie Yovanovitch later admitted under questioning that Obama-Biden officials prepared her to answer questions about Hunter Biden’s role on the board of Ukrainian gas company Burisma during her 2016 confirmation hearing.

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Roger Stone Convicted on All Seven Counts – Sentencing in February, Faces 20 Years in Federal Prison…


Following a week-long trial a federal jury in Washington, D.C., has convicted Roger Stone, 67, on five felony counts of lying to investigators, one of obstructing a congressional probe and one of witness tampering. Sentencing will be February 6th, 2020.  [Article]

Judge Berman Jackson has kept the gag order on Roger Stone barring him from discussing his conviction until he is remanded to federal prison next year.

(IG Report Outlining Andrew McCabe Conduct – pdf)

Speaker Pelosi Selected “Bribery” For Impeachment Narrative After Focus Group Polling in Key States…


The preferred impeachment narrative amid Democrat party leadership surrounds creating articles of impeachment that are based on constitutional principles, not hard-line partisan politics.  However, with the latest shift by Speaker Pelosi to focus on the word “bribery” it is now discovered the reason for the impeachment change was a political focus-group:

(Washington Post Article Link)

By focus-group testing the impeachment design the Democrats are admitting the entirety of their construct is based on political motives and intents.

Focus-group polling and testing was the preeminent approach for Hillary Clinton in the 2016 election campaign.  Candidate Clinton used the focus groups to test each of the talking points used by her campaign.  It would appear that same approach is now being applied to Speaker Pelosi’s impeachment effort.

House Intelligence Committee Impeachment Hearing – Day Two – 9:00am ET Livestream


Today at 9:00am ET, the House Permanent Select Committee on Intelligence will hold the second day of open hearings for the impeachment of President Donald Trump. Todays testimony will come from former U.S. Ambassador to Ukraine, Marie Yovanovitch.

Marie Yovanovitch is a woman of dubious character who was removed from the administration prior to the July phone call between U.S. President Trump and Ukraine President Zelenskyy. Ms. Yovanovitch has coordinated both her deposition and public hearing comments with the Democrat staff of the committee.

Fox News Livestream Link – PBS Livestream Link – HPSCI Livestream Link

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