'Impeach' (photo: Anna Moneymaker/NYT)
04 November 19
The president agrees with his critics on what happened on the call. But they disagree on whether it was corrupt.
magician uses a puff of smoke to misdirect an audience’s focus while he
performs his trick by sleight of hand. When it comes to the impeachment
matter involving President Trump, the smoke takes the fomrm of the
summary of his July 25 telephone call with Ukrainian President Volodymyr Zelensky that the White House released in September.
Trump and his attorney Rudolph W. Giuliani constantly
focus on the record of the call as proof that Trump did nothing wrong.
Meanwhile, the House of Representatives has been conducting an
impeachment inquiry for the past month that was initially set off by a
complaint filed by a whistleblower alarmed about the call — in which
Trump pushed Ukraine to investigate alleged interference in the 2016
election and corruption charges related to the son of Democratic
presidential candidate Joe Biden.
Trump and his investigators, it appears, agree on the
basic facts of the matter: that Trump told Zelensky to investigate both
Burisma, a Ukrainian energy company on whose board Hunter Biden sat, and
whether the Democratic National Committee’s computer servers, hacked by
Russian operatives in 2016, somehow wound up in Ukraine.
But it’s an illusion, and like all sleight of hand, the magic vanishes once you figure out the trick’s secret.
Trump has insisted for weeks that the summary of his
call proves his innocence. “READ THE TRANSCRIPT!” he tweeted on
Thursday. The day before that, he declared that there was “NO Quid Pro Quo in the Transcript of the phone call.” That same day, he asked
whether a White House official who testified that he was alarmed about
the call “was on the same call that I was? Can’t be possible! Please ask
him to read the Transcript of the call. Witch Hunt!”
Trump himself released the summary of the call in
September with some glee, claiming it showed he participated in a
“perfect call.” At that time, Giuliani tweeted:
“The transcript really shows how dishonest news media is. Unlike Joe
Biden, no military aid was withheld, no threats, and absolutely no
pressure. Zelensky introduces me into the conversations, not POTUS
Trump.”
Trump’s critics, on the other hand, see the call as
incriminating, noting that the summary shows that immediately after
Zelensky requested military aid, Trump said, “I would like you to do us a
favor, though” and then brought up his investigation request. At its
worst, this call could reflect an abuse of power by Trump to request a
foreign government to investigate a political rival. The call could even
imply that this favor was a condition to receiving military aid that
had already been approved by Congress to fight Russian aggression in
Ukraine. If so, this conduct would undermine the foreign policy and
national security of the United States.
Why, then, does Trump keep focusing on “the transcript”?
Although he refers to the document he released as a
transcript, it is a summary, not a verbatim recitation of the
conversation — and we learned this week
that it appears to be missing some alarming details of Trump’s
conversation. The summary was circulated and then marked up by those
listening to the call. One person who listened to the call as it
occurred was the witness Trump was so fired up about this week, Lt. Col.
Alexander Vindman, a National Security Council staffer who focuses on
Ukraine. Vindman testified that when he saw the summary, he noted two
key omissions: one, a reference by Zelensky to Burisma, and two, a
reference by Trump to recordings of Joe Biden discussing Ukraine
corruption.
Vindman further testified that when he asked that the
summary be corrected, his request was denied. Leaving out this
information suggests that some member of the White House team understood
the troubling nature of those references and omitted them, even after
the omissions were raised.Trump also suggests that he must be innocent if he
engages in conduct in plain view. This strategy is sort of a reverse
theory of consciousness of guilt — a legal concept that holds that the
secretive nature of someone’s conduct suggests knowledge of guilt,
because it shows awareness that exposure of the conduct would be
incriminating. Trump, on the other hand, argues that what he’s doing
can’t be wrong because he does it so openly. By constantly pointing to
the very evidence the House wants to use to impeach him, Trump thinks
he’s undermining the argument that he knows he did something wrong and
had to hide it. Presto!
Finally, Trump argues that the summary is exonerating
because it contains no quid pro quo. Perhaps he believes that if he
repeats this point enough, people will believe him without reading the
summary for themselves — even though he constantly urges them to. Or
maybe he simply doesn’t understand what a quid pro quo really is.
Because, in fact, the summary shows that when Zelensky
raised the issue of military aid, Trump immediately asked for
investigations. This is precisely a quid pro quo, or “this for that,”
and it alone is sufficient to form the basis of a charge of bribery, one
of the specified grounds for impeachment in the Constitution. Asking
for a thing of value in exchange for performing an official act
constitutes bribery.
Legally speaking, a quid pro quo may be explicit or
implicit, and it’s almost always expressed in vague and plausibly
deniable terms. Even though Trump did not use the phrase “quid pro quo”
or specifically state that he would release the military aid only on the
condition that Ukraine perform the investigations he sought, one could
readily conclude from the summary of the call that he implied the aid
was conditional on the “favor.”
Besides that, no quid pro quo is necessary to
demonstrate abuse of power. Demanding an investigation into a U.S.
citizen for his own political advantage is an abuse of power on its own
even without any conditions attached. Trump’s request is akin to
soliciting a thing of value from a foreign national in relation to an
election, a crime under campaign finance laws. U.S. law prohibits
foreign influence in elections because we want American citizens
deciding the outcome of American elections, and we know that foreign
governments act not in the best interests of the United States but in
their own best interests. For a president to request that a foreign
government intervene in an election undermines those interests.
And the more Trump draws attention to the summary, the
more he takes the focus off all the other activity involved in this
scheme. Giuliani met with Ukrainian officials in Spain, France, Ukraine,
Poland and New York to discuss his request, as executive branch
officials withheld the military aid for months. State Department
officials have testified about Giuliani’s shadow diplomacy and efforts
to have the U.S. ambassador to Ukraine, a noted foe of corruption,
removed from her post.
The scheme to persuade Ukraine to investigate the
Bidens was far broader than just the one phone call — which is exactly
why Giuliani and Trump want the focus to remain on the call. Because
maybe if we keep looking at the summary, we won’t see how Trump saws our
nation in half.
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