Norms Watch: Damage to Democracy and Rule of Law in October 2019

Editor’s Note: Welcome to the latest installment of Norms Watch, our series tracking both the flouting of democratic norms by the Trump administration and the erosion of those norms in reactions and responses by others. This is our collection of the most significant breaks with democratic traditions that occurred in October 2019.

President Donald Trump announces the withdrawal of U.S. troops from northeast Syria, prompting a Turkish-led invasion 

Following a call between Trump and Turkish President Recep Tayyip Erdogan of Turkey, the White House announced that U.S. troops in northeast Syria would be withdrawn and would not interfere in any way with an upcoming Turkish offensive against Syrian Kurdish forces in the region. The president’s surprise announcement stunned and dismayed supporters and opponents of the administration alike, and formed a rare moment of bipartisan consensus. The administration denied that it had acquiesced to the Turkish offensive. But, under heavy criticism, and after witnessing the quick degeneration of conditions on the ground and the endangerment of U.S. forces in the region, the administration attempted to get Turkey to halt its operations. Turkey and the United States agreed to a “ceasefire” ostensibly to allow Kurdish-led forces to withdraw, in exchange for the U.S. not imposing sanctions on Turkey. In reality the “ceasefire,” which was not uniformly respected, enabled Turkey to complete its objectives in northeast Syria, which could effectively amount to the annexation of the area and the displacement of the region’s Kurds, for little to no cost. 

The Turkish offensive pushed Syrian Kurdish forces, previously indispensable allies of the United States in its fight against ISIS, into an alliance with Syrian President Bashar al-Assad’s government. It also left them exposed to attacks from Turkish-led forces. Civilians caught up in the fighting have been allegedly subjected to war crimes, and are facing a humanitarian crisis. The Turkish operation has also led to a breakout of some captured ISIS militants held by Kurdish troops, and the prospect of a resurgence of ISIS in the Middle East and abroad, despite the success of a U.S.-led operation to kill ISIS leader Abu Bakr al-Baghdadi later in the month. Trump’s decision contributed to the erosion of U.S. influence in the region, as shown by the Turkish-Russian agreement to push Kurdish fighters out of the northeast of Syria and undertake joint patrols there. 

Foreign policy errors do not endanger democratic or institutional norms per se. But the president’s penchant for impulsive decisions that ignore the advice of his staff, and his seeming contempt for internal deliberative processes – a running theme of his presidency – does endanger these norms. 

Trump Followed His Gut on Syria. Calamity Came Fast by the New York Times’ David E. Sanger

The four biggest foes of America that gain from Trump’s Syria pullout by the Washington Post’s Rick Noack 

The U.S. Turned Syria’s North Into a Tinderbox. Then Trump Lit a Match by the New York Times’ Max Fisher 

ISIS Reaps Gains of U.S. Pullout From Syria by the New York Times’ David D. Kirkpatrick and Eric Schmitt

Turkey’s victory over Donald Trump by the New York Times’ Editorial Board

Trump’s bizarre letter to Erdogan 

The president sent an unusual letter to Erdogan ostensibly to encourage him not to launch the planned Turkish invasion of northeast Syria. Although he invited Erdogan to “make a great deal” with Kurdish-led forces, Trump encouraged Erdogan not “to be a tough guy” and “a fool” by “slaughtering thousands of people,” and that if Erdogan did do so, Trump would “destroy Turkey’s economy.” The Turkish government criticized the letter, viewing it as contrary to diplomatic and political customs. They also vowed never to forget the lack of respect shown to Turkey by the U.S. president in the letter, and to take “necessary steps” when the time to do so arrives. 

Erdogan condemns Trump letter: ‘We haven’t forgotten’ by POLITICO’s Abbey Marshall

Turkey’s Erdogan ‘threw Trump’s Syria letter in bin,’ by BBC News 

Evidence of a “quid pro quo” between the Trump administration and the Ukranian government 

Multiple government officials have told House investigators that they were told that almost $400 million in security assistance to Ukraine was conditioned on that country’s president making a public pledge to investigate former Vice President Joe Biden, Trump’s leading political opponent in the 2020 election. William B. Taylor Jr., the top U.S. diplomat in Ukraine, testified that there was such a “quid pro quo”. He also testified that standard diplomatic channels were circumvented to further the president’s pressure campaign on Ukraine. Taylor indicated that the administration set up “irregular, informal channels” whose activities contradicted official U.S. foreign policy objectives, and was led by Rudy Giuliani, the president’s so-called personal lawyer, and included special envoy to Ukraine Kurt Volker and U.S. Ambassador to the European Union Gordon Sondland. Lt. Col. Alexander S. Vindman of the National Security Council also told House investigators that a White House visit for the Ukrainian president was conditioned on Ukraine launching investigations into Joe and Hunter Biden, as well as looking into debunked conspiratorial allegations about the origins of the Russia investigation. 

Outside of the impeachment inquiry, acting White House Chief of Staff Mick Mulvaney essentially admitted in a press conference that military aid to Ukraine was held up pending a Ukranian investigation into those same debunked allegations about the 2016 election. Mulvaney went so far as to declare that, for the Trump administration, leveraging U.S. foreign policy to benefit the personal political goals of the president was standard practice. To those who view such actions as breaches of ethics, morals, and even the law, Mulvaney’s message was simple: “Get over it.” 

The testimony of Taylor and Vindman, as well as Mulvaney’s comments, despite his later attempted retractions, thoroughly undercut the president’s denials of a “quid pro quo” between himself and Ukraine, bolstered the credibility of the whistleblower complaint at the source of the controversy, and will surely fuel the impeachment inquiry. 

Mulvaney acknowledges Ukraine aid was withheld to boost political probe by POLITICO’s Quint Forgey

We Do That All the Time, Get Over It,’ Mulvaney Boasts About Ukraine Plot by New York Magazine’s Jonathan Chait

The 5 public confirmations of a quid pro quo between Trump and Ukraine by the Washington Post’s Aaron Blake

Trump Views U.S. Taxpayer Dollars As His Personal Checkbook by Just Security’s Kate Brannen

Impeachment inquiry shows Trump at the center of Ukraine efforts against rivals by the Washington Post’s Ashley Parker

Impeachment inquiry presses on, despite Republican efforts to stop it

The White House and its supporters made notable attempts to stymie the House’s impeachment inquiry this month. White House Counsel Pat Cippolone seemingly set the tone with a highly legally contentious letter declaring that that the White House would not cooperate with the impeachment inquiry. The administration also moved to block individual government officials, such as Sondland, from testifying, by asserting that informational bars such as executive privilege prevented those individuals from disclosing certain information to the House committees. Vice President Mike Pence, Rudy Giuliani, and Defense Secretary Mark Esper followed the White House line and refused to cooperate with the House’s impeachment inquiry. 

Still, several career government officials have defied the White House’s order and have complied with congressional subpoenas to testify at a steady rate. As evidence mounted against the president, his supporters took more drastic steps to stymie the inquiry. Around 30 House Republicans intruded into a secure hearing room in order to protest against the non-transparent nature of House Democrats’ impeachment inquiry, in a breach of security protocols and despite the fact that Republicans were nevertheless privy to those hearings. This action delayed the testimony of Pentagon official Laura Cooper. Witnesses testifying in Congress, including Taylor and Vindman, were subjected to smears led by the president himself, and an aide to House Intelligence Committee ranking member Devin Nunes allegedly leaked the identity of the whistleblower to right-wing media outlets. 

In a significant boost for the Democrats, a federal judge ordered the release of grand jury materials obtained during Special Counsel Robert Mueller’s Russia investigation to the House Judiciary Committee, although the D.C. federal appeals court has put a temporary hold on that order. The original judgment also dismissed a key procedural Republican argument against the impeachment inquiry, namely that it could take place without a House vote to authorize it. House Democrats passed such a vote anyway, aiming to address the procedural concerns raised and setting the parameters of the upcoming public phase of the inquiry. 

The White House Letter distorts both law and history on impeachment by Frank O. Bowman III for Just Security

Trump’s Impeachment Blockade Crumbles as Witnesses Agree to Talk by the New York Times’ Michael D. Shear and Nicholas Fandos

Why Officials Keep Testifying Despite White House Counsel’s Letter on Impeachment Inquiry by Michael Stern for Just Security 

Nunes Aide Is Leaking the Ukraine Whistleblower’s Name, Sources Say by the Daily Beast’s Spencer Ackerman, Sam Brode and Adam Rawnsley

The Rules of Impeachment by the New York Times’ Editorial Board

The President’s “personal lawyer” and two of his associates are placed under investigation

Two associates of Rudy Giuliani, Lev Parnas and Igor Fruman, who assisted Giuliani’s efforts to investigate Joe Biden in Ukraine, were arrested on suspicion of campaign finance violations. They allegedly channeled foreign funding into pro-Trump political groups, and paid Giuliani $500,000 for work he did for one of their companies. They agitated for the removal of former U.S. Ambassador to Ukraine Marie Yovanovitch in order to secure a commercial deal, and the Trump administration duly complied. The charges against them seem to allege that the investigations Giuliani spearheaded in Ukraine may have involved some illegality. Indeed, not only may federal prosecutors in New York be in the midst of a criminal investigation of Giuliani, but he may also be the subject of an FBI counterintelligence investigation. 

Federal investigation of Rudy Giuliani includes counterintelligence probe by CNN’s Evan Perez, Sara Murray and Shimon Prokupecz

Justice Department distances itself from Giuliani by CNN’s Evan Perez

Private Photos of Indicted Donor Depict Ties to Trump, Giuliani by the Wall Street Journal’s Shelby Holliday

Trump invites China to investigate Biden 

The president began the month by doubling down on his calls for foreign nations to investigate his political opponents by publicly inviting China to investigate the Bidens. Michael Pillsbury, an informal White House China advisor, appeared to contradict himself on whether China did in fact follow through on the request by providing information about Hunter Biden’s business activities in the country. The Financial Times quoted him as saying that he “got quite a bit of background on Hunter Biden from the Chinese,” but he denied having spoken to the Financial Times. Pillsbury then pivoted to telling the Washington Post that everything he learnt about the Bidens was in the public domain. A different official, White House Trade adviser Peter Navarro, when pressed on the issue at a CNN panel, declined to answer whether the administration asked China for information on Hunter Biden. The Chinese government, for its part, publicly refused to oblige Trump’s request, stating that China had “no intention of intervening in the domestic affairs of the United States.” Nevertheless, if Pillsbury’s initial allegations were correct, they would refute those amongst the president’s supporters, such as Sen. Marco Rubio (R-Fl.), who cast the request as not genuine.

Trump Publicly Urges China to Investigate the Bidens by the New York Times’ Peter Baker and Eileen Sullivan

China rejects Trump’s call to investigate Biden and Son by POLITICO’s and the South China Morning Post’s Teddy Ng

Trump adviser gives conflicting accounts on whether Chinese offered information about Hunter Biden by the Washington Post’s David J. Lynch and Josh Dawsey 

Trump’s lawyers push expansive views of executive power 

A federal judge ruled that the president’s tax returns, held by the accounting firm Mazars, should be disclosed, but the 2nd Circuit Court of Appeals suspended the order pending a hearing of the case before it. Nevertheless, the District Court’s judgment offered a notable rebuke of the argument that a sitting president cannot be investigated for any reason. U.S. District Judge Victor Marrero refused to endorse the president’s “categorical and limitless assertion of presidential immunity from judicial process,” and viewed the president’s position as “repugnant” to the principle of the rule of law. Undeterred by this ruling, and in flagrant disregard for the principle of the rule of law, the president’s private attorney, William Consovoy, continued to argue at the hearing before the 2nd Circuit Court of Appeals that the president cannot be investigated or prosecuted during his presidency – even if he were to shoot someone on Fifth Avenue. 

New reports also emerged alleging that Trump engaged in fraud by making his New York properties appear more profitable to lenders and less profitable to state tax authorities.

Appeals Court Puts on Hold Order That Trump Release Tax Returns by the Wall Street Journal’s Corinne Ramey

Ruling on Trump’s Tax Returns: 5 Takeaways by the New York Times’ Benjamin Weiser and William K. Rashbaum

Never-Before-Seen Trump Tax Documents Show Major Inconsistencies by Propublica’s Heather Vogell

In court hearing, Trump lawyer argues a sitting president would be immune from prosecution even if he were to shoot someone by the Washington Post’s Ann E. Marimow and Jonathan O’Connell 

Trump doesn’t notify Democratic congressional leaders of the al-Baghdadi operation 

U.S. Special Operations Forces successfully carried out an operation to kill ISIS leader Abu Bakr al-Baghdadi. The president thanked a number of groups for the operation’s success, praising the operators who undertook the operation, and the U.S. intelligence officials and Kurdish allies who set it up. He even thanked the governments of Russia, Turkey, Syria and Iraq for their assistance. One thing he did not do was inform senior Democrats in Congress about the raid before it took place, as is customary for operations of this nature, though he did inform Republican leaders, as well as Russia for deconfliction purposes. When asked why he didn’t brief House Speaker Nancy Pelosi about the raid, Trump justified his decision as necessary to prevent damaging leaks, a justification that rings hollow in light of Pelosi’s years of experience handling sensitive information, including her time on the House Intelligence Committee. The president’s failure to notify Democratic leaders underscores a missed opportunity to unify all sides of the political spectrum around a clear foreign policy victory for the United States, and highlights hyper-partisanship in what should perhaps be the least partisan issue of all, the nation’s national security.

The Daily 202: Does Trump trust Putin more than Pelosi? Baghdadi death shows politicization of national security, by the Washington Post’s James Hohmann

Trump kept top Democrats in the dark about al-Baghdadi raid by NBC News’ Allan Smith

Trump’s Communications Malpractice Mars His Victory Lap on al-Baghdadi by Just Security’s Luke Hartig 

The Justice Department opens a criminal investigation into the origins of the Russia investigation

The previously administrative review of the Russia investigation, overseen by Attorney General William Barr, reportedly became a criminal investigation this month. This change in status grants the prosecutor in charge of this investigation, U.S. Attorney John Durham, the power to file criminal charges, compel testimony and documents via subpoena, and convene a grand jury. It may reflect a belief within the Justice Department, and held by Trump allies, that there was criminal wrongdoing involved in the intelligence-gathering effort that gave rise to the Russia investigation. However it is unclear at this stage what exact potential criminal conduct might have been uncovered. 

What is clear is that the president, his attorney general, and his supporters have consistently denounced the Russia investigation as a “hoax,” and have already made overtures to foreign governments to assist them in proving this. As a result of this announcement, the president’s critics fear that this probe may, at the very least, amount to an effort to discredit the Russia investigation, and it may indicate that the president has directed the Justice Department to go after Trump’s perceived political opponents. It is too early to tell whether that is indeed the case, but the rule of law in the United States would be severely undermined if the President is indeed directing the Justice Department to prosecute his opponents.

Justice Dept. Is Said to Open Criminal Inquiry Into Its Own Russia Investigation by the New York Times’ Katie Benner and Adam Goldman

Barr’s Review of Russia Probe Now a Criminal Investigation by the Wall Street Journal’s Sadie Gurman, Giovanni Legorano and Rachel Pannett 

Justice Dept. investigation of Russia probe is criminal in nature, person familiar with case says by the Washington Post’s Matt Zapotosky 

The White House announces, and then retracts, its intention to host the 2020 G7 summit at Trump Doral 

Trump’s use of his position as president to enrich himself, often in seeming contravention of the U.S. Constitution’s emoluments clause, has been a constant feature of his presidency. But this month saw what may be the most egregious example of that conduct yet, with the announcement that the 2020 G7 summit would be held at the president’s resort in Florida. The resort is in financial difficulty, like other Trump properties the president has directed business towards, and stood to benefit greatly from the influx of world leaders, diplomats and journalists that the G7 brings, not to mention the tax dollars that would have been spent on hosting the event. White House Chief of Staff Mulvaney rejected claims that the decision amounted to a conflict of interest, stating that Trump Doral was “the best physical facility for this meeting,” and that the president would not profit “in any way, shape or form” from the decision. But, in the face of heavy criticism, most tellingly in the form of a rare unified expression of disapproval from congressional Republicans, the president announced on Twitter that the summit would no longer be held at his resort. Publicly though, he blamed “the Hostile Media & their Democrat Partners” for forcing him to change the venue, and made unfounded claims that he was receiving differential treatment as compared to his predecessors regarding the U.S. Constitution’s emoluments clause.

Trump has awarded next year’s G-7 summit of world leaders to his Miami-area resort, the White House said, by the Washington Post’s Toluse Olorunnipa, David A. Fahrenthold and Jonathan O’Connell 

The G7 Summit, Brought to You by the Trump Organization by the New York Times’ Editorial Board 

Why Trump Dropped His Idea to Hold the G7 at His Own Hotel by the New York Times’ Maggie Haberman, Eric Lipton and Katie Rogers 

Image: President Trump Makes Statement On The Raid That Killed ISIS Leader Abu Bakr al-Baghdadi in the Diplomatic Reception Room of the White House on October 27, 2019 in Washington, DC. (Photo by Tasos Katopodis/Getty Images)

 

About the Author(s)

Edwin Djabatey

Legal Fellow at Just Security