New evidence becomes available almost daily in impeachment proceeding (updated)

A federal judge in Manhattan ruled Friday that Lev Parnas, the indicted associate of President Trump’s personal attorney Rudy Giuliani, can provide Congress with evidence in his criminal case that is of interest to impeachment investigators.

The Washington Post reports, Giuliani associate can give impeachment investigators phone data, documents seized by prosecutors, judge says:

U.S. District Judge J. Paul Oetken granted an application from an attorney for Lev Parnas seeking permission to give lawmakers access to phone data and documents seized by federal prosecutors after his October arrest. The House Intelligence Committee subpoenaed the materials as part of its impeachment inquiry, according to Parnas attorney Joseph Bondy.

The materials are expected to include documents taken from Parnas’s Florida home, along with a complete readout of his iPhone. Bondy has said there is relevant information contained in the materials, though he has not disclosed specifically what that might be.

“Review of these materials is essential to the Committee’s ability to corroborate the strength of Mr. Parnas’s potential [impeachment] testimony,” Bondy wrote to the court last week.

Prosecutors did not object to the items being given to Congress.

Parnas and his co-defendant, Igor Fruman, were business associates of Rudolph W. Giuliani, the president’s personal attorney, and were recruited by the former New York mayor to help him investigate Trump political rival Joe Biden.

Parnas and Fruman were arrested in October and charged with violating campaign finance law. Prosecutors allege they filtered foreign money through a bogus energy company they purported to operate and made donations to American politicians on behalf of foreign interests. Both men have pleaded not guilty.

Giuliani has said he sought Parnas’s help investigating Biden. Giuliani is not named in the indictment charging Parnas and Fruman, but people familiar with the matter have said he is under investigation by federal prosecutors in New York.

In a separate court proceeding last month, a court ordered the government to release almost 300 pages of emails to the Center for Public Integrity in response to a FOIA lawsuit. It released a first batch on Dec. 12, and then a second installment on Dec. 20, but those documents were heavily redacted by the Department of Justice.

Just Security blog says it now has reviewed the unredacted emails. Just Security did a comparison between the redacted and unredacted records, which shows the Department of Justice attempted to coverup incriminating and embarrassing information in the emails. That is obstruction of justice. Exclusive: Unredacted Ukraine Documents Reveal Extent of Pentagon’s Legal Concerns:

“Clear direction from POTUS to continue to hold.”

This is what Michael Duffey, associate director of national security programs at the Office of Management and Budget (OMB), told Elaine McCusker, the acting Pentagon comptroller, in an Aug. 30 email, which has only been made available in redacted form until now. It is one of many documents the Trump administration is trying to keep from the public, despite congressional oversight efforts and court orders in Freedom of Information Act (FOIA) litigation.

Earlier in the day on Aug. 30, President Donald Trump met with Defense Secretary Mark Esper and Secretary of State Mike Pompeo to discuss the president’s hold on $391 million in military assistance for Ukraine. Inside the Trump administration, panic was reaching fever pitch about the president’s funding hold, which had stretched on for two months. Days earlier, POLITICO had broken the story and questions were starting to pile up. U.S. defense contractors were worried about delayed contracts and officials in Kyiv and lawmakers on Capitol Hill wanted to know what on earth was going on. While Trump’s national security team thought withholding the money went against U.S. national security interests, Trump still wouldn’t budge.

Thanks to the testimony of several Trump administration officials, we now know what Trump was waiting on: a commitment from Ukraine to investigate Joe Biden.

But getting at that truth hasn’t been easy and the Trump administration continues to try to obscure it. It is blocking key officials from testifying and is keeping documentary evidence from lawmakers investigating the Ukraine story. For example, this note from Duffey to McCusker was never turned over to House investigators and the Trump administration is continuing to try to keep it secret.

[The Department of Justice] released a first batch on Dec. 12, and then a second installment on Dec. 20, including Duffey’s email, but that document, along with several others, were partially or completely blacked out.

Since then, Just Security has viewed unredacted copies of these emails, which begin in June and end in early October. Together, they tell the behind-the-scenes story of the defense and budget officials who had to carry out the president’s unexplained hold on military aid to Ukraine.

The documents reveal growing concern from Pentagon officials that the hold would violate the Impoundment Control Act, which requires the executive branch to spend money as appropriated by Congress, and that the necessary steps to avoid this result weren’t being taken. Those steps would include notifying Congress that the funding was being held or shifted elsewhere, a step that was never taken. The emails also show that no rationale was ever given for why the hold was put in place or why it was eventually lifted.

What is clear is that it all came down to the president and what he wanted; no one else appears to have supported his position. Although the pretext for the hold was that some sort of policy review was taking place, the emails make no mention of that actually happening. Instead, officials were anxiously waiting for the president to be convinced that the hold was a bad idea. And while the situation continued throughout the summer, senior defense officials were searching for legal guidance, worried they would be blamed should the hold be lifted too late to actually spend all of the money, which would violate the law.

The emails also reveal key decision points, moments when senior officials hoped the hold might be lifted. This includes Vice President Mike Pence’s September meeting with Ukrainian President Volodymyr Zelenskyy, which a senior defense official expected would resolve the funding issue, raising the question: Why? What was supposed to come out of that meeting that would pave the way for Trump to lift the hold? What was Pence expected to communicate?

But, the hold wasn’t immediately lifted after Pence’s meeting with Zelenskyy. Instead, the president finally released the money on Sept. 11, just as the whistleblower complaint was about to break into the open.

Just Security then provides a detailed timeline analysis working through the unredacted emails.

If Just Security has seen these unredacted emails, why hasn’t Congress? These emails need to be provided to Congress immediately.

It seems that every day there is new evidence, evidence which the Trump administration sought to suppress, dribbling out in public view as a result of court orders in FOIA actions. More information may be released soon as a result of the House of Representative’s legal actions. The impeachment proceedings are ongoing and may require more hearings, and more Articles of Impeachment.

All of this documentary evidence should be made available in the Senate impeachment trial. If fact witnesses and documentary evidence are not made available in the Senate impeachment trial, Congress is entitled to draw inferences of guilt against the president for his obstruction of Congress on Article II of the Articles of Impeachment. There would literally be no defense to Article II, the Senate must find Trump guilty.

To do otherwise would be Jury Nullification: a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law … and is not a legally sanctioned function of the jury. It is considered to be inconsistent with the jury’s duty to return a verdict based solely on the law and the facts of the case.

UPDATE: The New York Times reports that the Trump “Injustice” Department has denied its FOIA request for emails. White House Withholds 20 Emails Between Two Trump Aides on Ukraine Aid.

Aaron Blake of the Washington Post reports that the new report by Just Security indicates the Office of Management and Budget misled — at best — about the withholding of military aid to Ukraine. New coverup questions in Trump’s Ukraine scandal.

In an editorial opinion on Saturday, the New York Times writes The Evidence on Ukraine Is Only Getting Worse for Donald Trump:

Mr. McConnell’s stance looks even more wrong in light of new reports from The Times and the national security blog Just Security, which reveal that the administration was even sneakier, and that internal opposition to Mr. Trump was even stronger, than had been publicly known.

* * *

If it seems that Trump officials are trying to hide key communications about the aid freeze, that’s because they are. On Friday, the White House doubled down, refusing to turn over 20 emails between Mr. Duffey and Robert Blair, a top aide to Mr. Mulvaney, discussing the aid holdup. The Times had sought the emails through a Freedom of Information Act lawsuit.

* * *

If Mr. Trump has nothing to hide, if his own decision to withhold Ukraine aid was based on a similar concern for the national interest, and not made for personal gain, then he should be demanding that every administration official involved in the Ukraine machinations testify under oath, in a Senate trial. And Mitch McConnell should welcome them.

Their silence only strengthens the case that the president is abusing his power.

The Washington Post likewise editorialized, The Senate and the public need to hear from Mulvaney and Bolton:

More than ever, therefore, the Senate and the public need to hear from Mr. Mulvaney and Mr. Bolton, the latter of whom made an unsuccessful individual plea to release the Ukraine aid on Aug. 16, according to the Times. Their testimony, and that of Mr. Mulvaney’s top aide, Robert B. Blair, and Office of Management and Budget official Michael Duffey, has always been crucial, which is why House impeachment investigators initially sought it and — undoubtedly — why the White House refused to allow it.

* * *

[T]he question of whether the Senate should exercise its subpoena power to obtain relevant testimony is a separate issue, politically, legally and morally. A Senate leader sincerely interested in operating as head of an independent branch of government would have left no doubt that he intended to do so. Mr. McConnell has done the opposite, giving rise to Ms. Pelosi’s very legitimate concerns.