Blog No. 236. Trump, Ukraine and Impeachment

Last week, the determination of Democrats in the House of Representatives to impeach President Trump was given new impetus. It came from the twin disclosures of a whistleblower’s complaint and of a quasi-transcript of a July 25 telephone conversation between Trump and the President of Ukraine, Volodymyr Zelensky. The whistleblower’s complaint was succinctly summarized in an opening paragraph:

In the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election. This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rivals. The President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.

The succeeding pages of the complaint abundantly supported that conclusion. The most compelling support came from the whistleblower’s summary of the July 25 telephone conversation based on reports from the whistleblower’s colleagues. According to the complaint, the President pressured Zelensky to:

• initiate or continue an investigation into the activities of former Vice President Joseph Biden and his son, Hunter Biden;
• assist in purportedly uncovering that allegations of Russian interference in the 2016 U.S. presidential election originated in Ukraine, with a specific request that the Ukrainian leader locate and turn over servers used by the Democratic National Committee (DNC) and examined by the U.S. cyber security firm Crowdstrike, which initially reported that Russian hackers had penetrated the DNC’s networks in 2016; and
• meet or speak with two people the President named explicitly as his personal envoys on these matters, Mr. Giuliani and Attorney General Barr, to whom the President referred multiple times in tandem.

Readers who have examined the quasi-transcript will have recognized that the whistleblower’s summary was remarkably accurate. What the complaint added was context and a coherent narrative, also based on information from colleagues as well as published reports. As a whole, the complaint gives a depressing portrait of the national interest betrayed for the sake of the President’s personal political gain.

The principal defense of the President and his supporters is that in the July 25 conversation there is no explicit quid pro quo. That is true only if one chooses to emphasize explicit, as the conversation was redolent with implicit quid pro quo. The President bluntly reminded Zelensky of America’s support, (“the United States has been very very good to Ukraine”), and pointedly observed that Ukraine had not been “reciprocal.” And how might Ukraine reciprocate? Trump asked a “favor” relating to a bizarre fable that Ukrainians had somehow been responsible for persuading the FBI to conclude erroneously that Russia had hacked the DNC computers in 2016:

I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it. There are a lot of things that went on, the whole situation. I think you’re surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.

The theory involving Crowdstrike, a computer service retained by the DNC, has been widely and conclusively debunked. On Sunday it was even disowned by Rudy Giuliani on ABC News, but it lives on in the Trumpian bosom.

Moments later, Trump turned to the second favor he would ask: investigation by Ukraine of Joe and Hunter Biden:

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 to me.

The assertions against the Bidens have also been widely debunked (See, e.g.,Washington Post, “Analysis/Fact-Checking Trump’s latest claims on Biden and Ukraine”). Moreover, they are matters that, if serious, Trump would have referred not to Zelensky but to Attorney General William Barr. Although Barr has previously shown himself to be quite sensitive to Trump’s legal perceptions, the Justice Department in this case issued a statement that “The president has not spoken with the attorney general about having Ukraine investigate anything relating to former Vice President Biden or his son.”

For his part, Zelensky was at pains to demonstrate repeatedly his eagerness to comply with his patron’s requests. If, as Zelensky would say later, he did not feel pressure, it was because at that point, little express pressure was necessary. It was apparent that Zelensky already had a good idea, from Giuliani’s contacts with a Zelensky associate, of what was expected of him:

Yes it is very important for me and everything that you just mentioned earlier. For me as a President, it is very important and we are open for any future -cooperation.…I will personally tell you that one of my assistants spoke with Mr. Giuliani just recently and we are hoping very much that Mr. Giuliani will be able to travel to Ukraine and we will meet once he comes to Ukraine. 

Zelensky’s willingness to accede to Trump’s improper requests does not in any way excuse or justify the requests having been made. Rather, it simply underscores the imbalance of power between the two presidents.

Not surprisingly perhaps, many Democrats have seen Trump’s maneuvering with Ukraine as offering a clearer and more compelling case for impeachment than the Mueller report. Nevertheless, there are endless complications to the underlying story and the impeachment process is likely to be a great deal messier than they anticipate, particularly if carried through to a trial in the Senate.

A crucial figure in the drama is almost certain to be Rudy Giuliani. He was identified as a central figure in the whistleblower’s complaint and Elaina Plott, writing in the Atlantic, reported that “a former senior White House official told me this “entire thing,” referring to the Ukraine scandal, was “Rudy putting shit in Trump’s head.” Giuliani continues to appear on network and cable television shows attempting to promote various narratives, defending Trump and attacking Joe and Hunter Biden, George Soros and the DNC. None of Giuliani’s appearances have been particularly credible, and as reported in Politico (‘I wish he would shut the heck up’: Republicans sour on Giuliani), numerous Republicans on Capitol Hill have been blunt in expressing their discomfort with his presentations. On the other hand, Hugh Hewitt may have had a point on Meet the Press when he said of Giuliani “[W]hile he indeed is an object of controversy and scorn often inside the Beltway, he cuts through everything outside of the Beltway. So when you go to Warren, Ohio, people hear him, and they respect him, and they listen to him.”

On Monday, the House Intelligence Committee subpoenaed Giuliani. When asked on Sunday about his willingness to testify, Giuliani had previously offered conflicting responses. At one point, he indicated that because he was acting as an attorney for Trump he could only appear with Trump’s consent, but that is not accurate. Apart from the fact that it is unclear if Giuliani was acting in a legal capacity in his various exploits, the attorney-client privilege would protect only his communications with Trump, and not his communications with third parties such as the assorted Ukrainians with whom he met.

On ABC on Sunday, Giuliani told George Stephanopoulos that he would not cooperate with the House Intelligence Committee under Adam Schiff on the ground that Schiff has prejudged the case; he later said that he would “consider” cooperating with Schiff’s committee. Neither Stephanopoulos nor Giuliani defined “cooperating,” but if Giuliani refuses to comply with a subpoena, his distrust of Schiff, even if well-grounded, would be no defense.

With respect to impeachment, the House has now determined to proceed with “Impeachment Inquiries,” but it is not yet clear what the scope of the inquiries will be, how they will be conducted, and how swiftly they will be completed. At the same time, the lingering question of whether impeachment is a wise strategy remains in doubt. Two recent columns in the New York Times were representative of differing perspectives. David Brooks wrote:

Donald Trump committed an impeachable offense on that call with the Ukrainian president. But that doesn’t mean Democrats are right to start an impeachment process. Remember, impeachment is a political process, not a legal one. There is no obligation to prosecute. Congress is supposed to do what is in the best interest of the country. And this process could be very bad for America.

Brooks argued that impeachment would be ineffective because the Republican-controlled Senate would not convict, and he saw no reward at the ballot box. In Brooks’s view, the process would alienate much of the public, who would see it as an elitist maneuver and a distraction from issues in which they are more interested. Further, he claimed, it might give the Trumpist core a reason for continued battle that an electoral defeat would not.

In the past, I have expressed views similar to Brooks’s, but that train appears to have left the station, and it is difficult to see how it might be stopped. The question now is what sort of journey it will be—how the Democrats will manage the trip and what surprises may spring up along the way.

A contrasting point of view was offered by Joe Lockhart in “Why I Was Wrong To Oppose Impeachment.” Lockhart, a former press secretary to Bill Clinton, had previously argued that Trump’s future should be left to the electorate, but he changed his mind in light of the whistleblower’s complaint and the Trump-Zelensky call. He explained:

I believed then and I believe now that the most appropriate place to litigate the malfeasance and incompetence of this administration is at the ballot box in 2020. But that simply cannot happen if the president is allowed to use the awesome power of American military and economic aid to solicit foreign interference in the election. We can’t allow the president to pervert the next election with foreign interference, especially after what happened in 2016.

I believe that Lockhart overstates the effectiveness of proceeding with impeachment as a defense to foreign interference. He does not predict a removal of Trump by impeachment, and unless the process is carried to that conclusion, it may not prevent, or even discourage, Trump from seeking foreign assistance. Indeed, it might even spur him on if he sees it necessary to his survival.

On the other hand, Lockhart is correct in pointing out the urgent need for Democrats to focus on our continuing vulnerability to foreign interference in 2020, and a presidential response that has been grossly negligent at best and at worst corrupt. This fact was underscored on Friday in a report by the Washington Post:

President Trump told two senior Russian officials in a 2017 Oval Office meeting that he was unconcerned about Moscow’s interference in the 2016 U.S. presidential election because the United States did the same in other countries, an assertion that prompted alarmed White House officials to limit access to the remarks to an unusually small number of people, according to three former officials with knowledge of the matter.

The Post included a photograph of that jolly meeting with Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the U.S. Sergey Kislyak at the White House on May 10, 2017. Notably, the photograph was supplied by the Russian Foreign Ministry as American photographers had not been invited to record the event.

Trump has given us every reason to believe that his views are unchanged, and they represent a clear and present danger to our national security. Unfortunately, Senator Amy Klobuchar has been the only candidate to address this issue in the Democratic debates, but perhaps that will change.

Lockhart offered some interesting advice as to how the impeachment proceeding should be conducted. He began by suggesting that Speaker Nancy Pelosi appoint a Select Committee to avoid the “circus of the House Judiciary Committee,” and also that Rep. Adam Schiff be appointed as Chair of the Committee. The suggestion of a Select Committee might have merit, but that is unlikely to happen. It appears that much of the process, at least in the early stages, will be conducted by the House Intelligence Committee under Schiff’s Chairmanship, but it is not clear that the Intelligence Committee will be any less of a circus than the Judiciary Committee.

Schiff himself will need to find and exercise considerable self-restraint. Lockhart saluted Schiff’s skill as an interrogator and communicator, but Schiff has become a partisan lightning rod and unless he moderates his style, he will make a bitter partisan fight even worse. (His handling of the hearing with the Acting Director of National Intelligence, Joseph Maguire, was not encouraging: he began with an undignified and pointless “parody” of President Trump (a man who is his own parody) and he proceeded to badger the Acting DNI, a man of obvious integrity who clearly had attempted to follow a prudent and lawful course in a situation of unprecedented difficulty.)

Schiff can muffle his partisan aura to some degree by following Lockhart’s advice on the examination of witnesses: “The bulk of the questioning should be done by professional counsel.” That is good advice even apart from issues of partisanship. While some committee members are competent examiners, many are not, and even those who are skilled cannot function effectively when confined to five minute sound bites. Lockhart cited the recent example of the hearing in which Corey Lewandowski was first questioned by committee members and then, far more effectively, by staff counsel. The only improvement would be to have the questioning by staff counsel first and then followed by opportunities for committee members to have face-time for their constituents.

Finally, the House must take great pains to protect not only the whistleblower, but those of his colleagues who furnished the information that became the basis for his complaint. On September 28, the whistleblower’s counsel sent to the Acting DNI a letter expressing concern for the safety of their client and their client’s colleagues:

The events of the past week have heightened our concerns that our client’s identity will be disclosed publicly and that, as a result, our client will be put in harm’s way. On September 26, 2019, the President of the United States said the following:

I want to know who’s the person that gave the Whistleblower, who’s the person that gave the Whistleblower the information, because that’s close to a spy. You know what we used to do in the old days when we were smart? Right? With spies and treason, right? We used to handle them a little differently than we do now. [Emphasis in original]

The fact that the President’s statement was directed to “the person that gave the Whistleblower the information” does nothing to assuage our concerns for our client’s safety. Moreover, certain individuals have issued a $50,000 “bounty” for “any information” relating to our client’s identity. Unfortunately, we expect this situation to worsen, and to become even more dangerous for our client and any other whistleblowers, as Congress seeks to investigate this matter.

Given the tenor of the times, and the effect that Trump’s rhetoric has appeared to have on some of his more unhinged supporters, the concern of the whistleblower’s counsel, is abundantly warranted. Surely Congress must take all necessary steps to prevent retaliation, physical or otherwise, to those whose allegiance to the country and to the truth is stronger than their loyalty to the current occupant of the White House. It has no higher duty.