First Impeachment: Abuse of Power

Analysis of Counterarguments to Article I

Contents

Article I

Official Statement
  • Trump abused the power of the Presidency by soliciting the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.
  • Specifically
    • He solicited Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.  The investigations were of:
      • a political opponent, former Vice President Joseph R. Biden, Jr, and
      • a discredited theory promoted by Russia alleging that Ukraine — rather than Russia — interfered in the 2016 United States Presidential election.
    • He also tried to pressure Ukraine by conditioning two official acts on Ukraine’s public announcement of the investigations:
      • the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended; and
      • a head of state meeting at the White House, which the President of Ukraine sought to demonstrate continued United States support for the Government of Ukraine in the face of Russian aggression.
Paraphrase
  • Trump tried to extort Ukraine into announcing investigations into:
    • the Bidens and
    • an unsubstantiated theory involving a DNC server
  • by
    • withholding military aid and
    • promising Zelensky a White House visit.
Schematic Formulations
  • Official
    • Trump solicited Ukraine to do I, pressuring Ukraine by conditioning A on I
  • Variants
    • Trump tried to extort Ukraine into doing I by withholding A
    • Trump tried to bribe Ukraine to do I by offering A
    • Trump tried to get Ukraine to do I by withholding A
    • Trump withheld A to get Ukraine to do I
  • Short Abbreviations
    • I = Announcing Investigations
    • A = Aid and Visit
  • Long Abbreviations
    • I = publicly announcing investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.  The investigations were of:
      • a political opponent, former Vice President Joseph R. Biden, Jr, and
      • a discredited theory promoted by Russia alleging that Ukraine — rather than Russia — interfered in the 2016 United States Presidential election.
    • A =
      • the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended; and
      • a head of state meeting at the White House, which the President of Ukraine sought to demonstrate continued United States support for the Government of Ukraine in the face of Russian aggression.

Analysis of Counterarguments to Article I

An impeachable act must violate the law. Trump broke no law.

Framers restricted impeachment to specific offenses against “already known and established law.”  (WH Trial Brief, page 1)

  • NYT Neal Katyal Trump Didn’t Need to Commit a Crime to Be Kicked Out of Office
    • Our founders wrote the impeachment clause to be broader than criminal activity. Many crimes are not impeachable (jaywalking, for example). Other activity isn’t necessarily criminal but is obviously a basis for impeachment (not defending the United States against a foreign attack).
    • The first Congress discussed as one of the obvious bases for impeachment the possibility that a president dismissed “meritorious officers.”
    • As Charles Black, the greatest scholar of impeachment, once reasoned, if the president announced a policy that he would give pardons to every police officer who killed someone in Washington, D.C., that wouldn’t be criminal but would be obviously impeachable.
  • To End a Presidency, Chapter Two, Laurence H. Tribe and Joshua Matz, 2018
    • A Criminal offense is not necessarily a basis for impeachment
      • In 1974 the House Judiciary Committee rejected an article of impeachment against Richard Nixon in 1974 for tax fraud.
    • An article of impeachment need not be a criminal offense
      • In 1989, the Senate convicted and removed Judge Alcee Hastings for conspiring to accept bribes—even though he had already been acquitted in a criminal trial of that same offense.
  • GAO found that the OMB violated the law by withholding military aid to Ukraine
    • gao.gov/assets/710/703909.pdf
    • Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA. 
Trump concerned about corruption and burden-sharing

Regarding Ukraine, Trump was concerned about corruption and whether other countries were contributing their share. (WH Trial Brief, page 90 ff)

  • The claim that Trump was concerned about corruption in Ukraine is without basis. From the House Trial Brief page 26:
    • Before news of former Vice President Biden’s candidacy broke, President Trump showed no interest in corruption in Ukraine, and in prior years he approved military assistance to Ukraine without controversy. After his candidacy was announced, President Trump remained indifferent to anti-corruption measures beyond the two investigations he was demanding. 
    • When he first spoke with President Zelensky on April 21, President Trump ignored the recommendation of his national security advisors and did not mention corruption at all—even though the purpose of the call was to congratulate President Zelensky on a victory based on an anti-corruption platform. President Trump’s entire policy team agreed that President Zelensky was genuinely committed to reforms, yet President Trump refused a White House meeting that the team advised would support President Zelensky’s anti-corruption agenda. President Trump’s own Department of Defense, in consultation with the State Department, had certified in May 2019 that Ukraine satisfied all anticorruption standards needed to receive the Congressionally appropriated military aid, yet President Trump nevertheless withheld that vital assistance. He recalled without explanation Ambassador Yovanovitch, who was widely recognized as a champion in fighting corruption disparaged her while praising a corrupt Ukrainian prosecutor general, and oversaw efforts to cut foreign programs tasked with combating corruption in Ukraine and elsewhere.
    • Moreover, had President Trump truly sought to assist Ukraine’s anti-corruption efforts, he would have focused on ensuring that Ukraine actually conducted investigations of the purported issues he identified. But actual investigations were never the point. President Trump was interested only in the announcement of the investigations because that announcement would accomplish his real goal—bolstering his reelection efforts.
  • The claim that Trump was concerned about burden-sharing is without basis. From the House Trial Brief page 28:
    • From the time OMB announced the illegal hold until it was lifted, no credible reason was provided to Executive Branch agencies for the hold, despite repeated efforts by national security officials to obtain an explanation. It was not until September— approximately two months after President Trump had directed the hold and after the President had learned of the whistleblower complaint—that the hold, for the first time, was attributed to the President’s concern about other countries not contributing more to Ukraine. If the President was genuinely concerned about burden-sharing, it makes no sense that he kept his own Administration in the dark about the issue for months, never made any contemporaneous public statements about it, never ordered a review of burden-sharing, never ordered his officials to push Europe to increase their contributions, and then released the aid without any change in Europe’s contribution. The concern about burden-sharing is an after-the-fact rationalization designed to conceal President Trump’s abuse of power.
  • Trump tried to get Ukraine to announce investigations to benefit himself personally. From the House Trial Brief page 22:
    • Overwhelming evidence demonstrates that the announcement of investigations on which President Trump conditioned the official acts had no legitimate policy rationale, and instead were corruptly intended to assist his 2020 reelection campaign.
    • First, although there was no basis for the two conspiracy theories that President Trump advanced, public announcements that these theories were being investigated would be of immense political value to him—and him alone. The public announcement of an investigation of former Vice President Biden would yield enormous political benefits for President Trump, who viewed the former Vice President as a serious political rival in the 2020 U.S. Presidential election.
    • President Trump would similarly have viewed an investigation into Ukrainian interference in the 2016 election as helpful in undermining the conclusion that he had benefitted from Russian election interference in 2016, and that he was the preferred candidate of President Putin—both of which President Trump viewed as calling into question the legitimacy of his Presidency. 
    • Second, agents and associates of President Trump who helped carry out his agenda in Ukraine confirmed that his efforts to pressure President Zelensky into announcing the desired investigations were intended for his personal political benefit rather than for a legitimate policy purpose.
    • Third, the involvement of President Trump’s personal attorney, Mr. Giuliani—who has professional obligations to the President but not the Nation—underscores that President Trump sought the investigations for personal and political reasons rather than legitimate foreign policy reasons. Mr. Giuliani openly and repeatedly acknowledged that he was pursuing the Ukrainian investigations to advance the President’s interests, stating: “this isn’t foreign policy.”
    • Fourth, President Trump’s pursuit of the sham investigations marked a dramatic deviation from longstanding bipartisan American foreign policy goals in Ukraine. Legitimate investigations could have been recognized as an anti-corruption foreign policy goal, but there was no factual basis for an investigation into the Bidens or into supposed Ukrainian interference in the 2016 election
    • Fifth, American and Ukrainian officials alike saw President Trump’s scheme for what it was: improper and political. As we expect the testimony of Ambassador John Bolton would confirm, President Trump’s National Security Advisor stated that he wanted no “part of whatever drug deal” President Trump’s agents were pursuing in Ukraine. Dr. Hill testified that Ambassador Sondland was becoming involved in a “domestic political errand” in pressing Ukraine to announce the investigations.
No quid pro quo on the phone call

In the phone call Trump did not even mention the security assistance on the call, and he certainly did not make any connection between the assistance and any investigation. (WH Trial Brief, page 81)

  • The evidence is clear that President Trump conditioned release of the vital military assistance on Ukraine’s announcement of the sham investigations. During a telephone conversation between the two Presidents on July 25, immediately after President Zelensky raised the issue of U.S. military support for Ukraine, President Trump replied: “I would like you to do us a favor though.”  President Trump then explained that the “favor” he wanted President Zelensky to perform was to begin the investigations, and President Zelensky confirmed his understanding that the investigations should be done “openly.” (House Trial Brief, page 20)
  • Quid Pro Quo
    • Explicit: “If you want the money, you need to do me a favor.”
    • Implicit: “I do you big favors.  But I get nothing in return.  I’d like you to do me a favor.”
  • How Trump tells people to do bad things, Aaron Blake 
    • When Trump wants FBI Director James B. Comey to back off Michael Flynn, he doesn’t say it in so many words. He says, “I hope you can let this go,” according to Comey.
    • Mueller reasoned that Trump’s meaning was pretty clear:
      • “A second question is whether the President’s statements, which were not phrased as a direct order to Comey, could impede or interfere with the FBI’s investigation of Flynn. While the President said he “hoped” Comey could “let Flynn go,” rather than affirmatively directing him to do so, the circumstances of the conversation show that the President was asking Comey to close the FBI’s investigation into Flynn.”
  • Factcheck.org Security Assistance and the July 25 Phone Call
    • Purpura’s larger point was that “the transcript shows that the president did not condition either security assistance or a meeting on anything.” But as we’ve written before, focusing solely on the July 25 phone call ignores other evidence from the impeachment inquiry suggesting that the White House tied an announcement by Ukraine of investigations into Democrats to a White House meeting for Zelensky and the security aid.
  • Excerpts from The Room Where It Happened, by John Bolton
    • This was likely the first time [June 25] I heard security assistance to Ukraine called into question, but the real issue was how Trump found out about it, and who came up with the idea to use it as leverage against Zelensky and his new government. (page 464)
    • Esper, Pompeo, and I continued exchanging thoughts about how to persuade Trump to release the security assistance before September 30. We could have confronted Trump directly, trying to refute the Giuliani theories and arguing that it was impermissible to leverage US government authorities for personal political gain. We could have, and we almost certainly would have failed, and perhaps have also created one or more vacancies among Trump’s senior advisors. (page 469)
    • With time drawing short, I suggested to Pompeo and Esper that I again see how Trump was leaning, and the three of us then coordinate our schedules to talk to Trump together, with which they agreed. The next morning, August 20, I took Trump’s temperature on the Ukraine security assistance, and he said he wasn’t in favor of sending them anything until all the Russia-investigation materials related to Clinton and Biden had been turned over. (page 471)
    • In the meantime, the press was beginning to sniff out the connection between withholding military assistance for Ukraine and Trump’s obsession with the 2016 and 2020 elections in the persons of Hillary Clinton and Joe Biden. Bipartisan Hill opposition to withholding the aid continued to rise. It was not until the end of September, however, that the media began to appreciate what had been happening since well before the July 25 call. Over the weekend, Zelensky’s prisoner swap with Russia proceeded, a positive event in its own right, and which Trump had seemingly indicated might be enough to get him to release the security assistance. Pompeo and I discussed this on the morning of September 9, and Esper and I spoke about it by phone later that day, in both cases continuing to press for legislative relief to buy more time. On Wednesday afternoon, Trump decided to release the Ukraine money. By then, I was a private citizen. (page 480)
Ukraine says no quid pro quo

President Zelenskyy, his Foreign Minister, and other Ukrainian officials have repeatedly said there was no quid pro quo and no pressure placed on them by anyone. (WH Trial Brief, page 8)

  • WaPo Philip Bump Assessing the Trump team’s 6-point impeachment defense
    • David Holmes, a political staffer at the embassy in Ukraine, explained why he felt that Ukraine would not only have felt pressure but also pressure not to concede that they were being pressured. He was speaking about how Ukraine would have tried to navigate the hold on aid, but the point is broader.
    • “Whether the hold, the security assistance hold, continued or not, Ukrainians understood that that’s something the president wanted, and they still wanted important things from the president,” Holmes said. “So I think that continues to this day. I think they’re being very careful. They still need us now going forward.”
Ukraine didn’t even know

President Zelenskyy, his senior advisers, and House Democrats’ own witnesses have all confirmed that Ukraine’s senior leaders did not even know the aid was paused until after a Politico article was published on August 28, 2019—over a month after the July 25 call and barely two weeks before the aid was released on September 11. (WH Trial Brief, page 8)

  • WaPo Philip Bump Assessing the Trump team’s 6-point impeachment defense
    • Emails sent on July 25 itself to staffers at the Defense Department indicated that the Ukrainian Embassy was aware of the hold, which had been announced within the administration a week earlier. A former senior Ukrainian official, working in Zelensky’s administration at that point, indicated that she was aware of the hold by late July. Catherine Croft, a State Department official, testified that she was surprised at how quickly her Ukrainian colleagues learned about the hold soon after it was known in the administration, though she didn’t know when precisely that occurred, as Purpura pointed out.
No first-hand witnesses

“Not a single witness provided any first-hand evidence that the President ever linked a presidential meeting to announcing investigations.” (WH Trial Brief, page 97)

  • The White House blocked key witnesses who interacted directly with Mr. Trump from testifying to the House and refused to turn over internal documents. (NYT)
  • The House subpoenaed officials (Mulvaney, Blair, Duffey) who would have provided firsthand testimony regarding the President’s withholding official acts in exchange for Ukraine’s assistance  But they refused to testify at the President’s direction. (House Trial Brief, page 23)
  • John Bolton would have also provided firsthand testimony but was not called by the Senate.
  • Secondhand testimony is admissible in court if firsthand accounts are not available.
    • Hearsay Rule (britannica.com/topic/evidence-law/Swearing#ref397453)
      • The Hearsay Rule limits testimony based on what a witness has heard others say.
      • Over the years, exceptions to the prohibition of hearsay testimony had to be permitted, however, and these have become so numerous that the opinion has sometimes been expressed that no exhaustive list of such exceptions could even be compiled. The judge must decide in each case whether testimony based upon hearsay is admissible under an exception to the rule. The most commonly cited exceptions to the rule of hearsay relate to statements made by dead or absent persons, statements in public documents, and to confessions and admissions by parties.
No harm, no foul

The military aid flowed on September 11, 2019, and a presidential meeting was first scheduled for September 1 and then took place on September 25, 2019, all without the Ukrainian government having done anything about investigations. (WH Trial Brief, page 9)

  • The fact that Zelensky got what he wanted without announcing investigations means only that Trump’s attempted extortion was not successful.  Article I alleges only attempted extortion.
  • WaPo Philip Bump Assessing the Trump team’s 6-point impeachment defense
    • That aid was only released after attention had been drawn to its being withheld publicly. House Democrats had launched an investigation into the hold. The Washington Post editorial board had explicitly connected the hold to the desired investigations. Trump had already been briefed on a complaint from an anonymous whistleblower in which that connection was mentioned as part of a broad campaign to pressure Ukraine. Trump had faced questions from both Sondland and political allies, like Sen. Ron Johnson (R-Wis.), about why the aid was being held and if it was being held to pressure Ukraine. The tables, in other words, had turned: now Trump faced significant pressure to release the aid.
    • Stack those factors against the administration’s stated rationale for the hold. That rationale centers on Trump’s purported concerns about Ukrainian corruption, concerns that weren’t manifested within the administration through any obvious process of evaluation and which for vague reasons were coincidentally alleviated just as all of this external pressure had come into play.
    • Another salient factor? On Sept. 11, Zelensky was still planning to participate in an interview with CNN in which he’d informed Trump’s team he would announce the investigations. That interview was only canceled once the Ukraine question broke into public view.
    • The claim that Zelensky got his desired meeting in late September is a simply ridiculous claim. What Zelensky wanted was a one-on-one demonstration that Ukraine is a close ally of the United States by having Zelensky and Trump sit down in the Oval Office. He wanted that photo of Trump and himself shaking hands, something he could present to the world — and Russia — as a statement of the big stick he was able to carry.
    • On Sept. 25, that’s not what he got. He got a bilateral meeting on the sidelines of the U.N. General Assembly. That same day, Trump also sat down with leaders from Japan and El Salvador. The day prior, he’d similarly met with leaders from India, the United Kingdom and Iraq. Claiming that the Sept. 25 meeting was what Zelensky sought is like claiming that dancing with a partner once at a party is equivalent to getting engaged.
    • From the time that Zelensky won his election in April of last year through the end of last year, about a dozen other foreign leaders got precisely the sort of meeting Zelensky sought; among them was Russia’s foreign minister.
Permissible request

Asking another country to examine potential interference in a past U.S. election is always permissible.  (WH Trial Brief, page 81)

  • Principles are true other things being equal.
    • Killing is wrong, other things, other things being equal. Killing in self-defense is permissible.
    • It’s permissible to ask another person for money, other things being equal. But not at the point of a gun.
  • It’s permissible for a president to ask another country to investigate possible interference in a past US election, other things being equal.  But not if there’s no credible evidence and the purpose is to impugn a political rival.
  • It’s false that asking another country to examine potential interference in a past U.S. election is always permissible.
Legitimate concerns

President Trump had legitimate concerns about corruption and burden-sharing with our allies—two consistent themes in his foreign policy. When his concerns had been addressed, the aid was released on September 11 without any action concerning investigations. (WH Trial Brief, page 10)

  • There was no basis for concerns about corruption and burden-sharing regarding Ukraine
  • Trump’s own Department of Defense, in consultation with the State Department, had certified in May 2019 that Ukraine satisfied all anticorruption standards needed to receive the Congressionally appropriated military aid. (House Trial Brief, Page 22)
  • Factcheck.org Trump Repeats False Ukraine Claims
    • Trump continued to push the false narrative that European countries aren’t sharing the financial burden in terms of aid to Ukraine, saying that’s the main reason he withheld U.S. security aid. In fact, according to several sources, the European Union’s aid to Ukraine far surpasses that from the United States.
  • Factcheck.org Trump Repeats False Ukraine Claims
    • Trump repeated the baseless theory that the Democratic National Committee gave its computer server to a “Ukrainian company.” In fact, the DNC hired U.S.-based company CrowdStrike to investigate the cyberattack on its network during the 2016 elections, and CrowdStrike said it has “never taken physical possession of any DNC servers.”
  • 60 Minutes Why President Trump asked Ukraine to look into a DNC “server” and CrowdStrike
    • The consensus view of the CIA, NSA, FBI and a Senate investigation is that Russians interfered in the 2016 election. But those findings don’t line up with the ever-evolving story President Trump has been telling about Ukraine.
  • WaPo Bottomless Pinocchios
    • Trump falsely accuses Biden of firing the top Ukrainian prosecutor in 2016 in order to protect his son Hunter, who at the time was on the board of Burisma Holdings, a natural gas company. But Biden, acting in coordination with the International Monetary Fund and European allies, sought the removal of Victor Shokin precisely because he was not investigating corruption, including a dormant case involving Ukrainian oligarch, Mykola Zlochevsky, who owned Burisma. The U.S. plan to push for Shokin’s dismissal, using a $1 billion loan guarantee as leverage, didn’t initially come from Biden, but rather filtered up from officials at the State Department. Shokin was eventually removed by parliament. The prosecutor general of Ukraine in early 2019, Yuriy Lutsenko, was quoted as saying “he had no evidence of wrongdoing by U.S. Democratic presidential candidate Joe Biden or his son.
  • WaPo Philip Bump Assessing the Trump team’s 6-point impeachment defense
    • That aid was only released after attention had been drawn to its being withheld publicly. House Democrats had launched an investigation into the hold. The Washington Post editorial board had explicitly connected the hold to the desired investigations. Trump had already been briefed on a complaint from an anonymous whistleblower in which that connection was mentioned as part of a broad campaign to pressure Ukraine. Trump had faced questions from both Sondland and political allies, like Sen. Ron Johnson (R-Wis.), about why the aid was being held and if it was being held to pressure Ukraine. The tables, in other words, had turned: now Trump faced significant pressure to release the aid.
Doesn’t rise to the level

Trump’s action does not rise to the level of an impeachable offense.

  • Trump’s action was attempted bribery, an impeachable offense per the Constitution.
    •  “Treason, Bribery, or other high Crimes and Misdemeanors”
  • Trump tried to bribe Ukraine to announce investigations by releasing military aid and a White House visit.
  • WaPo Rubin That’s the silliest defense of Trump, well, since the last one
    • Republicans have argued that Trump’s action does not rise to the level of an impeachable offense.
    • But if extorting an ally fighting off the Russians to pressure a foreign leader to interfere in our election is not impeachable, I am not sure what the framers had in mind.
      • Using state power for personal ends? Check!
      • Taking power to elect our leaders away from voters and giving it to foreign powers? Check!
      • Illegally withholding appropriated funds as part of an election scheme? Check!
    • Moreover, there is no limiting principle to contain what is obviously a perversion of our democracy.
      • Ask Russia to Photoshop some pictures of a rival in exchange for lifting sanctions?
      • Ask a governor to endorse and raise money for the president — or risk losing highway funds?
      • These abuses are really no different from what Trump tried.
  • Argument by Analogy
    • You’re the governor of a state hit by a hurricane.  You meet with the president who tells you:
      • “I’m about to release the disaster aid Congress has authorized for your state.  But I’d like you to do me a favor, though.  Just have your Attorney General launch an investigation into the Biden family finances.”
    • The argument:
      • The president’s behavior in the analogy is an impeachable abuse of power.
      • There’s no relevant difference between that behavior and Trump’s.
      • Therefore, Trump’s attempted extortion is an impeachable abuse of power.

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