Expert witnesses are more than experts. Plus my 7 fundamental impeachment questions | A Pragmatist's Take | Douglas Moran | Palo Alto Online |

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By Douglas Moran

Expert witnesses are more than experts. Plus my 7 fundamental impeachment questions

Uploaded: Dec 7, 2019

Articles and books bemoaning the public's distrust of "experts" have been appearing for many years. One near constant is the author's refusal to acknowledge the extent to which that distrust has been earned and confirmed. Such betrayals of trust seem to be rarely punished, and too often rewarded.

I came to this young, with the 1971 publications of the ^Pentagon Papers^ which indicated that the "experts" advising and setting the US policy on the Vietnam War had less knowledge of Vietnam's history than was available to a high-school student in a rural county.

One of the ideals of universities and tenure for professors was that, by providing protection from retaliation, it would foster providing their expertise to facilitate public debate on issues. Yet universities routinely allow their professors to flaunt their credentials to shill for clients. I'll leave it to you to speculate as to the motivation, whether it be for a cut of the fees or to be more attractive to professors who seek to enrich themselves from such activities or ... While Medical Schools have long had problems with corrupt faculty, I realized how bad the situation was during the ^Microsoft browser monopoly trial (253 F.3d 34)^ (1998-1999). Presented as an expert witness, the head of MIT's Sloan School of Management gave testimony that was so transparently nonsense that the judge immediately caught it. And it made headlines. I had been planning to double my alumni contribution to MIT, but when they did nothing about this, I halved it and later ended it.

Which brings us to the example of Stanford Law Professor Pamela Karlan and her appearance as a purported "expert witness" in the impeachment inquiry before the House Judiciary Committee on December 4. She was identified as an expert on the US Constitution. But as I listened to a recording of her opening statement, my reaction was that it was pure partisanship.(foot#1) I heard no evidence of Constitutional expertise, unless you regard tidbits from an introductory textbook or simple web searches as such. And because she treated speculation, interpretation and multi-step hearsay as fact, I would not have guessed she had training as a lawyer.(foot#2)

For legal analyses of relevant portions of various prominent events, one of my favorite sources is the YouTube channel of Quebec lawyer ^Viva Frei^. Some of the videos are explanations of the law, or his understanding of US law, and some are analyses of the lawyers and witnesses and how effective they were (or weren't). I prefer his channel over similar ones because he is high-energy and more to the point.

In his video of Dec 5, "^'Constitutional Experts' Impeachment Testimony EXPLAINED | Rep. Gaetz Examination | Viva Frei Vlawg^" (14:56), he not only points out some of the good and bad of the questioning, but raises questions about whether Karlan's obvious partisanship didn't make her a bad choice for the Democrats. For me, it also raised questions about her judgment in accepting the role.

The comments on the Weekly's news article on Karlan's testimony "^Stanford law professor testifies to Trump's 'abuse of power' in House Judiciary^" (2019-12-05) tend to the current partisan talking (shouting?) points that dominate the media.

In the remainder of this blog, I want to get away from all that and present a structure for what I regard as the key questions that you should be listening for and evaluating. Before I get to questions about Trump's actions, I will set the context with questions about the Bidens' actions.

----Q1. Did Hunter Biden "sell" his father's office?----

Lobbyists for the corrupt Ukrainian company Burisma got meetings with high-level officials in the State Department after pointing out that the Vice President's son was on Burisma's board (you can web search for details).

The Obama Administration was worried about such incidents, as evidenced by the briefing that they gave to their nominee for Ambassador to Ukraine Marie Yovanovitch. The New York Times had also raised the issue.

Christopher Heinz severed his business relationship with Hunter Biden when Biden joined the Burisma board in 2014. Heinz is the stepson of John Kerry, who was then the Secretary of State. A spokesman for Heinz attributed this separation to Biden's "lack of judgment in this matter".

My assessment is that it is implausible that Hunter Biden wasn't told multiple times that he was selling high-level access to the US government, or at the very least, creating the appearance that he was.

----Q2. Did Joe Biden facilitate Hunter's selling of his office?----

Many presidents have been plagued by relatives trying to exploit their familial relationships, to the extent that a president should be empowered to have one relative confined for the duration of his tenure has been half-jokingly suggested multiple times.

Then there have been president's who have appointed relatives and associates to positions of power and refused to remove them despite overwhelming evidence of corruption. For example, Ulysses S. Grant would be regarded as a great President if not for this.

Hunter Biden's appointment to the Burisma board is somewhat tangled, but includes his accompanying his father on an official trip to Ukraine, giving at least the appearance of an endorsement by Vice President Biden. I have seen mentions, but no details, of similar circumstances in Romania, for which Joe Biden was also the designated lead for the Obama Administration.

However, it is the Chinese variant that most disturbs me and many of my friends who had security clearances. We would have had our clearances lifted for a minuscule fraction of Hunter's situation. And there were even jokes that if this had been an espionage novel, there would have been a lethal overdose (Hunter was an addict) or a tragic accident.
Details: Hunter accompanied Joe Biden on an official trip to China, after which the government-owned Bank of China created a $1B investment fund with Hunter on-board. Other Chinese government entities added at least another $500M to the fund. This gave China numerous ways to manipulate, compromise and corrupt Hunter, and through Hunter to manipulate and compromise his over-protective father, the Vice President. Somehow this hasn't gotten much discussion in the media.

My assessment is that Joe Biden facilitated Hunter, contrary to Joe's claim. If Joe didn't approve, why did he have Hunter accompany him on that official trip to China if not to signal his approval/desire/...? Consequently, I would judge Joe Biden to have been at least an accessory to the apparent selling of his office.

----Q3. Did Joe Biden quash the investigation of Burisma to protect Hunter?----

This is widely treated as a simple question, but its multiple parts need to be addressed independently.

Q3a. Would an investigation of Burisma turn up illegalities or improprieties by Hunter?
Possibly, but since the investigation hasn't happened, there are only conjectures. For example, was part of the money being paid to Hunter and his company ($1M) in fact being laundered, that is, passed back to corrupt Ukrainians?

Q3b. Did Joe Biden quash the investigation of Burisma?
Not directly. By his own statement, he did get the prosecutor fired, which resulted in the termination of the investigation. However, that this was Biden's intent/goal is only an inference.

There are three prominent explanations for why Biden might have wanted the prosecutor fired. First, the claim that prosecutor Shokin was corrupt. Second, the claim that Shokin was moving too slowly against corruption. Both these explanations are offered by Biden and his defenders, despite being largely incompatible. Add to this that I haven't seen the "for example" that regular readers of this blog know I love. Consequently, neither of these is even mildly credible to me.

The third has a level of detail that appeals to me. Unfortunately, most of the media is ignoring this explanation and thus not providing challenges to its accuracy and credibility. This explanation is that prosecutor Shokin was moving against Burisma, having raided the company and the oligarch to seize records and other evidence, and freezing the oligarch's assets. Shokin's successor terminated the investigation and unfroze the oligarch's assets, which the oligarch promptly removed from the reach of the Ukrainian government (to North Africa?). Since the result of the removal of Shokin was to quash the investigation, the inference is that that must have been Biden's intent, but again, this is only conjecture.

Q3c. Did Joe Biden actually get prosecutor Shokin fired?
The primary evidence I have seen for this is a video of Biden bragging that he threatened to withhold $1B in military aid unless Shokin was immediately fired. There are reasons to be skeptical of Biden's statement. First, he has long been known for going beyond embellishing accounts and for "remembering" events that never happened. Second, it is unclear how far back his currently visible decline in mental acuity goes. Third, there seems to be a substantial gap (3 months?) between when his threat was supposedly made and when Shokin was forced to resign. However, Shokin has said that the then-Ukrainian president said that it was pressure from the US that necessitated his removal. But this is hearsay.

----Q4. Should an investigation of the Bidens' and Ukraine be classified as "digging up dirt"?----

When a colloquialism such as "digging up dirt" is crucial to the description of events, it triggers suspicions that someone is trying to sneak something by me (itself a colloquialism). Often, they are trying to warp my understanding of what happened with an imprecise phrase that provides them with deniability for their disingenuous statements, that is, allowing them to claim that I am at fault for misinterpreting what they said. My sense of "dirt" is roughly embarrassing items that are irrelevant to the issues at hand. I am consigning a more detailed analysis/explanations to the footnotes.(foot#3)

If you assess the Bidens' behavior related to Ukraine to be decidedly above the level of mere "dirt", ask yourself how that should impact your consideration of claims by people who trivialize that behavior.

The next thresholds are whether it rises to a level that warrants/justifies an investigation, followed by a level that calls out for such an investigation.

----Q5. Did Trump actually set forth a quid pro quo in the July 25 phone call?----

The only person who was listening to the call and publicly testified is Lt. Col. Vindman, and he acknowledged that there was no quid pro quo. Witnesses who believed that there was a quid pro quo based it on speculation, inference or interpretation of what they heard from others, often after it had passed through the interpretation and spin of several people. From the fragments of their testimony that I watched, my sense was that their inferences might have arisen from pique over being bypassed or having their recommendations overridden (similar assessments have appeared in the media).

On the other hand, I haven't seen an explanation for the Trump Administration delaying the aid that I regard as having enough elements to be credible. But it is credible that the White House is so chaotic that it couldn't produce such an explanation.

The non-implementation of the supposed quid pro quo is not proof that there wasn't one because the revelation of the hold on the military aid could conceivably have torpedoed it. But you might choose to allow this as weak evidence that there wasn't a quid pro quo.

What that leaves me, and possibly you, with is the ^transcript of the July 25 phone call between President Trump and Ukrainian President Zelenskyy^. At the top of page 3 is the "I would like you to do us a favor" statement by Trump.
Crucial!: This is not about investigating the Bidens, but rather a confused statement about foreign interference in the 2016 Presidential election.
Note: There was Ukrainian as well as Russian interference, although the impeachment advocates are trying to suppress discussion of the Ukrainian aspect by falsely characterizing it as denying the Russian interference. The Ukrainians had understandable concerns that a Trump victory would tilt US policy in favor of Russia and away from Ukraine, and thus they supported Hillary Clinton. That Trump was aware of credible claims of Ukrainian interference is relevant here, but not the details.(foot#4)

It is on the next page (page 4) that Trump brings up the Bidens:
"The other thing. There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it ...It sounds horrible." (ellipsis in the transcript)
To me, this sounds off-handed, not something being pushed. It sounds like Trump's interest is in being able to say to "a lot of people" that he is doing something -- to get them off his back (colloquialism chosen for being imprecise). The double mention that Biden's comment had fomented this controversy reinforces my sense that this likely wasn't important to Trump. And the response by Zelenskyy is not that of someone of whom a demand is being made, for example, he isn't clarifying what is expected of him.
Note: Someone believing that they can infer what Zelenskyy inferred Trump was implying is not evidence, nor even credible speculation.

The transcript had been in the news for several days before I read it, and my reaction was that it was nothing like what the media was describing. Read it for your own reaction.

----Q6. What were Trump's possible motivations in encouraging investigation of the Bidens?----

This is more an exercise in reminding ourselves about how much we don't, and can't, know in this regard.

Q6a. Do Trump's motivations matter?
If you believe that the suspicions about the actions of the Bidens warrant investigating, you may decide that this fell within the actions President-who-is-Trump should have done and that the motivations of Trump-as-politician don't matter.

If you think that politicians shouldn't be allowed to investigate their challengers, would you actually condemn a District Attorney for investigating allegations that a challenger was involved in trying to rig the election? Similar for a mayor telling the police not to investigate potential crimes by a challenger. As others have pointed out, such a policy would open the gates to criminals simply declaring that they are running for District Attorney or similar office to shield themselves from investigations and subsequent prosecutions for their criminal activity.

Q: Why should such a policy protect candidates from investigations, but not officeholders? After all, wouldn't it be better for the electorate to learn of the questionable activities of the candidates before they are elected, rather than having to go through the disruptive process of removing them from office?

However, the use of investigation as harassment should not be tolerated. The intense Republican harassment of President Clinton probably harmed the US national security (Iraq, al Qaeda ...). The non-stop Republican investigations of Obama disrupted the functioning of Congress to the extent that it spawned overuse of Executive Orders. And the Democrats seeming notion that virtually anything Trump does or says is grounds for impeachment has probably weakened his administration's ability to deal effectively with the long-standing China trade problems and with North Korea, Iran and various other important international issues.

Q6b. Did Trump perceive Biden to be enough of a threat to warrant these actions?
One of the persistent observations from those who delve deep into the polling data -- definitely not me -- is that much of Biden's support is unenthusiastic and tenuous. The advantage of greater name recognition is ephemeral. The belief that he is more likely to beat Trump is actually a negative belief about the other candidates, and something that one or more of them could overcome. Biden's fundraising problems and candidates continuing to enter the race further point to Biden's perceived weakness.
On the other hand, you shouldn't assume that what you are hearing about Biden's prospects is the same as Trump's assessment.

----Q7. Did Trump's delay in military aid to Ukraine damage Ukraine's defense or hurt US national security interests (a tentative impeachment claim)?----

First, recognize that during the Obama Administration, the Biden-led Ukraine policy was to provide only non-lethal aid to Ukraine despite the recommendations of the national security agencies and requests from Ukraine for weapons to beat back the Russians. The Trump Administration reversed this policy and provided a range of weapons, notably the ^(FGM-148) Javelin^ anti-tank missile. Ignoring the obvious contradiction is simply automatic, mindless partisanship by the Democrats.

The ^transcript of the July 25 phone call between President Trump and Ukrainian President Zelenskyy^ has Zelenskyy saying "We are ready to continue to cooperate for the next steps specifically we are almost ready to buy more Javelins from the United States for defense purposes." (bottom of page 2). If the translation and notes are correct, the presence of "almost ready" is revealing, although I have seen no discussion of this in the media. First, it indicates that Zelenskyy was unaware of the hold on the aid: If he had been and wanted to gently introduce the topic, he would have omitted the "almost" and said "we are ready to buy". Similarly, the inclusion of "almost" indicates that there was no urgent need.

Aside: If the impeachment advocates actually believe there was a "quid pro quo" by Trump and it is ground for impeachment, why doesn't an almost identical "quid pro quo" by then Vice President Biden disqualify him from becoming President (assuming you believe Biden's claim)? Apparently, "Rules for thee, but not for me."

My assessment: There is no credible evidence presented to support this charge. The logical fallacy of the charge seems to be that of "If it possibly could have happened, then it must have."


My intent with this break-down and summary is to help you escape the clutter of trivialities and irrelevancies that clutter most of the media.

If you have what you believe to be fundamental questions that would help regular citizens think through this controversy, please share. However, please don't try to pollute the comments with the too common, inane, partisan talking (shouting?) points of the day. Recognize that my intended readership is well past tuning those out.

1. Pamela Karlan opening statement:
Video: ^WATCH: Pamela S. Karlan's full opening statement| Trump impeachment hearings^ (9:02) - PBS NewsHour.
Video with auto-generated transcript: ^Pamela Karlan delivers opening statement at impeachment hearing^ - ABC News.

2. Pamela Karlan failing as an expert witness:
The role of an expert witness is to aid the court, or equivalent, by gathering, analyzing and presenting evidence in the area of their expertise, and keeping their personal agendas and biases out of it (unless they want repeat business). From Pamela Karlan's opening statement:
- "The very idea that a President might seek the aid of a foreign government in his re-election campaign ...",
- "Tells me that when President Trump invited -- indeed demanded -- foreign involvement in our upcoming election ..."
- "The evidence reveals a President who used the powers of his office to demand that a foreign government participate."
Notice that these are Democratic Party talking points. They involve highly debatable trains of arguments. They crucially depend on subject matter far outside Karlan's expertise, for example,
- President Trump's pattern of communication with other world leaders through an interpreter,
- methods of corruption and money laundering using go-betweens such as consultants,
- politics and recent history of Ukraine, and
- the logistical status of Ukraine's military.
Furthermore, in the ^Viva Frei video^ cited in the main body, ^Karlan claimed elsewhere such disgust with Trump that she crossed the street to avoid walking in front of a Trump hotel (@7:44)^.Although this was (inexplicably) not brought up in the cross-examination, the subsequent segment in the video shows cross-examiner Gaetz botching questions intended to further show Karlan's bias.
To Karlan's credit, she at least made an effort to acquaint herself with the underlying "facts". Unfortunately, she did so by spending tens of hours reading the House Intelligence Committee's 300-page report.She should have done what the other two Constitutional experts called by the Democrats did: They announced that they were treating the report's claims as facts and as their starting point for their opinions.
"Garbage in; garbage out" (GIGO) was inevitable.

3. Digging up dirt:
I checked a range of dictionaries, both prescriptive -- how you should use words -- and descriptive -- how words are actually being used. Most gave "dirt" the meaning of information that was at a level of being embarrassing, with some extending it up to being damaging, with "damaging" being left open to interpretation.
I was somewhat surprised that none of these definitions included important intuitions of mine.
(1)The word choice of "dirt" is important. Dirt is a temporary blemish on your appearance, but is easily brushed off or otherwise cleaned up. In contrast, "throwing mud" implies something that sticks, and "sliming" has other connotations.
(2)It is "dirt" if it has little or no relevance to the pending decision on that person, but is likely to have a significant impact on that decision. For example, if a successful person had been a poor student decades before. For example, a successful person had had an early business failure due to a poor business plan or poor execution. However, it is not "dirt" if his business was shut down because of fraudulent or dangerous business practices. Question: If his failing business had burned down and there were suspicions that it was insurance fraud arson, what circumstance would have you judge whether this was "dirt"?
(3)This phrase involves a search that hopes to find something negative. For example, this does not include looking for incidents that establish a pattern of relevant behavior, such as the police/prosecutor looking for additional burglaries that may have been committed by their suspect. That is legitimate investigative practice.
(4)This phrase implies desperation by the person/group doing so, often because they don't believe that their legitimate arguments will prevail.
(5)This phrase carries an expectation or implication -- but not a presupposition -- that there is "dirt" to be found.

4. Ukrainian interference in 2016:
Paul Manafort was a political consultant who worked both on Republican campaigns, including Donald Trump's, and for foreign governments, including the pro-Russian Ukrainian government of Viktor Yanukovych. A subsequent government supplied information about Manafort's previous corrupt practices which led to his very public ouster from the Trump campaign (there were no charges of corrupt practices by him related to the Trump campaign).
Democratic National Committee (DNC) contractor and staffer Alexandra Chalupa -- of Ukrainian ancestry -- made multiple visits to the Ukrainian embassy in Washington DC and to a member of the National Security Council in the Obama White House. That person is the same as the one identified as "the whistleblower" on the Trump-Zelenskyy phone call of July 25. His identity is widely known, but I am self-censoring.There are lots of claims and counter-claims about her activities for the DNC in the 2016 election.
There are various other claims of Ukrainian interference in the election, but I have not seen the support required to give them any credence.

An ^abbreviated index by topic and chronologically^ is available.

----Boilerplate on Commenting----
The ^Guidelines^ for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

I am particularly strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", do not be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.
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If you behave like a ^Troll^, do not waste your time protesting when you get treated like one.