"The President Has Been Acting on Russia's Behalf": US Officials Are Shocked by Trump's Asset-Like Behavior

By Abigail Tracy, Vanity Fair

16 January 19

Amid interpreter-gate and fears of a NATO exit, House Democrats are once again considering a nuclear option to force transparency on the president.

n the aftermath of Donald Trump’s summit with Vladimir Putin in Helsinki last July, House Intelligence Committee member Eric Swalwell and Adam Schiff, then the ranking Democrat on the panel, introduced a measure to subpoena the only American witness to the more than two-hour-long private meeting between the two leaders—the interpreter. Every Republican on the committee voted “no,” and the motion failed.

But now, newly empowered and wielding subpoena power in the majority, House Democrats are once again considering extraordinary actions to force transparency on the president. “We thought that it was fishy back then,” Swalwell told me Monday evening. “And my fear is that, since July, over the last six months, there has only been more evidence that the president has been acting on Russia’s behalf and we don’t know what was exchanged in that meeting.” Chief among the questionable policy decisions the Trump administration has made in recent months is the withdrawal of U.S. troops from Syria, a Russian client state, and moves to ease sanctions on the business empire of Russian oligarch Oleg Deripaska—both actions that Swalwell believes may have been guided by a sinister purpose. “We have a president who is taking actions that are contra to what U.S. policy has always been, and I don’t believe that that is because of how the president feels,” he said. “I think he is a transaction-driven individual and this seems to align more with some arrangement that he has with the Russians.”

There is a growing urgency behind these efforts, following a Washington Post story that detailed the lengths Trump went to shield his interactions with Putin from his West Wing staff, as well as a New York Times report that Trump privately told officials he wanted to withdraw from NATO. The first Trump-Putin meeting, in Hamburg, Germany, in 2017, is of particular interest to lawmakers. The interpreter in that meeting said President Trump instructed him not to discuss details of the sit-down and confiscated his notes when several U.S. officials asked him what had transpired, according to the Post.

The only detail the interpreter reportedly shared with the officials—including Fiona Hill, the senior Russia adviser at the National Security Council, and John Heffern, then the acting assistant secretary for European and Eurasian Affairs at State—was that Trump told Putin, “I believe you,” when the Russian president denied interfering in the 2016 presidential election. The Hamburg meeting is just one of five off-record meetings between the two leaders that Democrats are eager to probe. Another is Helsinki, where Trump famously dismissed the conclusions of U.S. intelligence agencies that Russia had interfered in the election and affirmed, again, that he saw no reason to believe Putin wasn’t telling him the truth. Several U.S. officials told the Post that they were never able to get a substantive readout of the two leaders’ private conversation. (A White House spokesperson told the Post that former Secretary of State Rex Tillerson, who was in attendance at the Hamburg meeting, “gave a fulsome readout of the meeting immediately afterward to other U.S. officials in a private setting, as well as a readout to the press.”)

Despite the White House’s attempts to downplay the Post’s reporting, former U.S. officials I spoke with said the president’s behavior is anything but normal. “I have never, ever heard of that happening. It is shocking, actually,” a former high-ranking State Department official told me, outlining the deliberate and meticulous record-making process that typically takes place after such high-level meetings. This person recalled that even after former Secretary of State John Kerry held occasional one-on-one meetings with foreign leaders and officials, they would debrief the top diplomat as soon as possible and often have a debrief with the interpreter as well. Given the Russia cloud hanging over the White House, the president’s behavior is particularly befuddling. “If he were a normal person he would want that meeting to have been very carefully recorded by somebody else to demonstrate that he wasn’t doing anything weird,” this person told me.

A second former high-ranking State Department official expressed similar astonishment. “I have never heard of a president doing that. Presidents always have an official note taker. As do the people they meet with. [It is] critical to have that record, even when the two leaders meet ‘one-on-one,’” they told me. “I can’t think of any good reason not to have a note taker for a presidential meeting with a foreign official. And not to have notes of a meeting. They are often classified and often shared only with a small and select circle. But it is still crucial.”

Trump’s paranoia might have been explained, in part, by a series of high-profile and embarrassing classified leaks early in the administration. In one particularly notable example,The New York Times published an account of his May 2017 meeting with Russian officials in the Oval Office, during which Trump boasted that firing “nut job” James Comey had relieved “great pressure” on him. To the president’s mind, such betrayals came at a cost to his efforts to improve U.S.-Russian relations and ultimately to lift sanctions on Moscow. “He was always very protective of the Russian relationship. [He] seemed to feel like everyone around him was out to get Russia, which he didn’t agree with,” one former administration official told me. But the former official also noted Trump’s unusual sensitivity when it came to matters involving Putin. “Russia things did seem to leak more than anything else, but he also seemed more protective of them than most things.”

Earlier on Monday, members of the House Foreign Affairs and Intelligence committees gathered on Capitol Hill to discuss whether Democrats should subpoena the interpreters involved. Congressman Eliot Engel, the chairman of the House Foreign Affairs committee, said during an interview with CNN that Democrats would “ultimately” pull the trigger, but that they’re not there quite yet. “No decision has been made on subpoenas or anything else, we are not going to do this cavalierly, we are going to put our heads together and get at the truth, and we are going to work together,” Engel said. “What we are not going to do is sit back and do nothing. We are going to try and get to the bottom of this.”

Republican pushback is all but certain. When Democrats first floated the possibility of calling Trump’s interpreters before Congress last summer, G.O.P. lawmakers roundly dismissed the idea. “We’re not going to go and start having interpreters in private meetings come out and testify,” Senator Lindsey Graham said at the time. On Sunday, House Minority Leader Kevin McCarthy reiterated that the president has a right to meet with foreign leaders in private. “He likes to create a personal relationship, build that relationship, even rebuild that relationship, like he does with other world leaders around,” he said.

That argument may not hold up in court. While the White House would likely claim executive privilege to block a Democratic fishing expedition, legal experts say the law is likely on the side of Congress. “Congress has very broad investigatory powers, and the fact that Trump went out of his way to take meeting[s] with foreign leaders in unconventional manners, and destroy the notes of those meetings rightfully gives members of Congress—among many others—serious pause,” said Josh Chafetz, a constitutional law professor at Cornell University. “I think there’s a very good case to be made that executive privilege (a) should be understood to be weaker against Congress than it is against the courts, and (b) should be understood to contract when the president is acting highly abnormally and has thrown aside the normal intra-executive safeguards of the presidency.”

Swalwell agreed. “I understand that presidents need to be able to communicate with world leaders in confidence,” he told me. “But we have an extraordinary incident here where not only did he meet one-on-one with Putin and he took actions that favored Putin over the next six months, but we have evidence now that he asked for the interpreter’s notes which to me is a consciousness of guilt that he would destroy any evidence of what occurred in the meeting.”

The mystery may never be resolved to Democrats’ satisfaction, because interpreters rarely take “fulsome” notes in the first place. “Their ‘notes’ aren’t really notes,” cautioned the second former State Department official. “As I’ve seen them, they often just jot down a few reminders. Because they are focused on exact words and quick interpretation,” they explained. Official note takers, if they are present, try to capture the political and diplomatic substance of the issues discussed. But “interpreters aren’t substantive experts and so just deal with interpretation.”

There is the possibility that House Democrats could subpoena Tillerson or other administration officials to help fill in the gaps. But Swalwell said there are no plans to bring the former top diplomat before Congress, at least not as of now. “I don’t want to speak for Engel or Schiff. I want to support what they do and recommend just based on my own experience and expertise but it does seem that there are more relevant witnesses than just the interpreter,” he said. “But again, I will leave it to them to decide who they are and when they would come.”

Census Question: The Trump Administration’s Racism Was Just Blocked by Its Incompetence

By Ian Millhiser, ThinkProgress

16 January 19

The bad news is that the rule of law doesn't necessarily apply in the Supreme Court.

n what was almost certainly an effort to discourage participation from immigrant communities, Commerce Secretary Wilbur Ross announced last year that he would add a question to the 2020 Census questionnaire asking if each person in the United States is a citizen — a question that the Census has not asked since the Jim Crow era.

On Tuesday, a federal district court held that this citizenship question must be removed from the Census form. The case is New York v. United States Department of Commerce.

The Trump administration was discouraged from including this question by an array of census experts from both political parties — including top officials from the Reagan and Bush I administrations — who concluded that it “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents.”

The administration’s own Census Bureau warned that adding such a question “is very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available from administrative sources.”

Secretary Ross ignored this advice and included the question anyway. And as Judge Jesse Furman lays out in a 277-page opinion striking down the citizenship question, the Trump administration then went to embarrassing lengths to find someone — anyone — who would defend their attempt to rig the Census.

At one point, for example, a Trump administration official emailed the American Enterprise Institute (AEI), a conservative think tank, asking if someone at AEI “can speak to the pros of adding such a question.” The same day, a senior AEI employee responded that “none of my colleagues at AEI would speak favorably about the proposal.”

Judge Furman’s opinion presents Ross and his team as grossly incompetent. They seemed oblivious to their legal obligations, often appeared unaware of what their own advisers were telling them, and even appear to have outright lied about why they included the citizenship question.

Furman’s decision will almost certainly be reviewed by the Supreme Court, where the plaintiffs in this lawsuit still face an uphill battle. Three of the Court’s Republicans already tried to shut down Furman’s inquiry into the Census.

But Furman’s opinion is detailed, cautiously reasoned, and full of details that expose the political appointees who supported the citizenship question as rank incompetents. There is no guarantee that Furman’s opinion will survive contact with the Supreme Court — but Furman did his utmost to preemptively shame any judge who may try to reverse him.

Arbitrary and capricious

When federal agencies set policy, they must comply with a federal statute known as the Administrative Procedure Act (APA) — a law prohibiting agencies from taking “arbitrary” or “capricious” action. The APA does not simply require agencies to follow the law, but requires them to conduct a rigorous process that considers sound evidence and that is transparent about the agencies’ objectives.

As the Supreme Court held in Allentown Mack Sales & Service, Inc. v. NLRB, “not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.”

Furman’s opinion explains that the Trump administration outright violated two federal laws when it added the citizenship question, and that the process it used to approve this question was a procedural trainwreck.

A provision of the Census Act, for example, requires the Census to “‘acquire and use information’ derived from administrative records ‘instead of conducting direct inquiries’ to the ‘maximum extent possible.’” Thus, the Census may not seek information through a questionnaire if it could obtain that information through government records. Yet when Census officials told Ross that existing government records would do a better job of identifying who is a citizen than a citizenship question on the Census, they were ignored.

Similarly, another provision of federal law requires “that the Secretary report to the  relevant congressional committees, at least three years before the ‘census date’ for a given census, all ‘subjects proposed to be included, and the types of information to be compiled.’” Yet Ross did not give Congress the required three years notice that he intended to include a citizenship question.

Judge Furman’s opinion also reveals a slipshod process at the Department of Commerce, where senior officials often acted as if damaging evidence simply did not exist. To give one example:

Secretary Ross’s explanations for his decision [to add the citizenship question] were unsupported by, or even counter to, the evidence before the agency. For instance, he sought to justify his decision on the ground that “no one provided evidence that reinstating a citizenship question on the decennial census would materially decrease response rates.” But that assertion is simply untrue. The Administrative Record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households.

Among other things, “the Census Bureau calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.”

On top of these errors, Judge Furman’s opinion also includes an entire section that — while shying away from using such charged language — walks right up to the edge of accusing Secretary Ross of lying.

Ross claimed that the real reason for adding the citizenship question is because the Justice Department requested it to help with Voting Rights Act enforcement. As Furman writes, however, “the evidence is clear that Secretary Ross’s rationale was pretextual — that is, that the real reason for his decision was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Among other things, according to Furman, the evidence shows that “Secretary Ross had made the decision to add the citizenship question well before DOJ requested its addition in December 2017.”

The dog that didn’t bark

It’s also worth noting what Furman did not hold in his opinion. Some of the plaintiffs in this case argued that the citizenship question was unconstitutional because the decision to add it was motivated by racist or other impermissible intentions. To this claim, Furman writes that “although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination.”

Furman adds that he is unable to find that Ross acted with invidious intent because an October order from the Supreme Court prevented plaintiffs from deposing Ross. Without that deposition, it is difficult to probe what was in Ross’ heart when he added the citizenship question.

Yet while this holding leaves the plaintiffs without one ground for their victory, Furman’s caution may serve them well in the long run. Republicans on the Supreme Court are extraordinarily hostile to claims that a public official acted with racist intent. Indeed, three members of the Court — Justice Clarence Thomas, Justice Samuel Alito, and Neil Gorsuch — all tried to halt this trial before Furman could reach a decision.

But the Supreme Court’s Republicans tend to be much more sympathetic to claims that a federal agency violated the Administrative Procedure Act. By shying away from the hot-button constitutional issue, in other words, Furman made it more likely that his decision will survive additional review.

Furman’s order will appeal first to the United States Court of Appeals for the Second Circuit. Given the national importance of the decennial census, however, it is all but certain that this case will ultimately be reviewed by the Supreme Court. The question is whether all five of the Supreme Court’s Republicans will be willing to look the other way at the haphazard process the Trump administration used to approve the citizenship question.