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Alexander Vindman’s testimony: And now Trump has his Nixonian missing tapes moment

[Alexander Vindman]

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this story… White House Ukraine Expert Sought to Correct Transcript of Trump Call]

And now this impeachment has its own Nixon missing tape minutes moment.

Alexander Vindman, who was on the July 25 phone call, sought to correct the record of the phone call twice but his suggested corrections never made it in to the version that Trump released and persists in mistakenly calling a “transcript.” The White House doesn’t tape calls, it uses voice recognition software to produce a rough record, which is then modified by officials from their notes.

Vindman’s proposed edits concerned an explicit mention by Trump of there being a Biden “tape” that Zelensky should look into, and mention by Zelensky of Burisma, on whose board Hunter Biden sat. Other Vindman edits made it in, but not those.

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That the White House placed the call summary on a secret server, despite the absence of a coherent rationale for doing so, already indicates an awareness within the White House that the call was damaging to Trump, but declining to include only certain of Vindman’s edits, besides further indicating that awareness, hints at a cover-up by White House officials.

Yesterday’s news cycle about Vindman’s testimony mostly concerned the schism within Republican circles between those intent on smearing him as a potential traitor and double agent (Laura Ingraham, John Yoo, Alan Dershowitz, et al.) and those wary of the optics of smearing a lifetime public servant with a Purple Heart (Lynne Cheney, John Thune).

That Vindman’s patriotism is a subject of debate is shameful but the more important upshot from yesterday is Vindman’s testimony about having attempted to correct the record and those efforts being ignored. When the public phase of the inquiry commences, Vindman will be a key witness.

Vindman’s prepared statement also contradicted Gordon Sondland on a key piece of Sondland’s testimony, i.e., whether anyone brought any concerns about Giuliani and Trump’s shadow foreign policy to Sondland’s attention.

Sondland claimed that “neither Ambassador Bolton, Dr. Hill, nor anyone else in the NSC staff ever expressed any concerns to me about our efforts … or any concerns that we were acting improperly,” and that if Bolton, Hill, “or any others harbored misgivings about the propriety of what we were doing, they never shared those misgivings with me, then or later.”

Already Bill Taylor and Fiona Hill have contradicted Sondland on that point and yesterday Vindman’s name was added to that list, strongly suggesting that Sondland may want to have his lawyer Google “perjury.”

Vindman: “I stated to Amb. Sondland that his statements were inappropriate, that the request to investigate Biden and his son had nothing to do with national security, and that such investigations were not something the NSC was going to get involved in or push.”

Regarding Trump’s defense, Kevin McCarthy, House Minority Leader, hasn’t the faintest clue…

“A due process starts at the beginning. It doesn’t affirm a miss, sham investigation all the way through. If you were in the legal term, it’d be the fruit from the poisonous tree. Even if you ask the American public from poll, even if you ask scholars — nothing in that phone call is impeachable. The president has a right — this was an open case. It wasn’t about something in the future. It was something that transpired.”

McCarthy is basically arguing that the House can’t cure the illegality of its impeachment inquiry by taking a vote on it — that because the initial inquiry was illegal, its illegality nullifies all evidence gathered during the period prior to the vote taking place.

The “fruit of the poisonous tree” idea is almost always misapplied, more often out of disingenuousness but sometimes merely from ignorance, but McCarthy is a million miles away here. Fruit of the Poisonous Tree is a legal principle whereby evidence gathered in the course of a fourth amendment-violating search can be rendered inadmissible at trial. So if police search your home without a warrant or a valid excuse (e.g., exigency) the gun they found can’t be introduced against you in your murder trial.

Trump’s fourth amendment rights have not been violated. None of his rights have been violated, despite his martyrish shrieks. The House is exercising legitimate powers to investigate, and need not declare a vote to commence an impeachment inquiry.

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