President Donald Trump speaks to reporter on the South Lawn of the White House, October 25, 2019. (Tom Brenner/Reuters)The President’s best Ukraine defense has always been that any quid pro quo demand was not close to an impeachable offense.
Editor’s Note: This is the first of a two-column series this weekend, dealing with recent developments in the impeachment inquiry that House Democrats are conducting in connection with President Trump’s dealings with the government of Ukraine.
Quid pro quo . . . it’s the new “by the book.”
You remember “by the book,” right? No, not “buy the book,” which I’ve been trying to get people to do since Ball of Collusion was published a few weeks back. I’m talking about by the book. That was the memorable phrase Obama national-security adviser Susan Rice emphasized in her notorious CYA memo.
Remember? The memo took the form of an email. She wrote it while clearing out of her White House office while Donald Trump was being inaugurated. It purported to summarize a meeting more than two weeks earlier, when President Obama held an Oval Office pow-wow on next steps in the Trump-Russia investigation.
Fully aware that what they were orchestrating was highly irregular (the continuation of a probe targeting the new president even as he entered office), Rice took pains to note that Obama had insisted that everything be done “by the book.” It was a flashing neon sign that “the book” was being burned. There is no “book” — no set of legit procedures and norms — that endorses the exploitation of executive investigative powers in the service of partisan politics.
That’s why the Justice Department is pursuing criminal and inspector-general probes of the matter. While we wait on those, Democrats are not idling. With the Mueller collusion caper having flamed out, they have moved on to an “impeachment inquiry” in the House, focused on President Trump’s dealings with Ukraine. Much of the country opposes impeachment (especially in Trump-friendly districts Democrats need to win to keep control of the lower chamber), so Democrats have refused to conduct a vote to endorse their inquiry. That shows what thin gruel it is. Their theory, though, is analogous to Obama’s “by the book” practices: They allege that Trump exploited executive power for partisan political purposes.
This week, the impeachment effort got a boost from former ambassador William B. Taylor.
How much of a boost is hard to say. Thanks to the selective leaking out of Intelligence Committee chairman Adam Schiff’s secret hearings, we only have access to Taylor’s opening statement. Press reports indicate that he was interviewed for hours and pointedly questioned by Republicans, yet that transcript has been withheld from the public. Emblematic of Schiff’s farcical procedures, only Taylor’s carefully crafted narrative was released. Until we see how the story holds up under cross-examination, preferably in a public hearing, we can’t conclusively assess it.
That said, Taylor is a West Point grad and Vietnam vet with a long career of honorable service to the United States. Thus far, moreover, no one is suggesting that he is lying. The pro-Trump attack on his testimony has focused on (a) the lack of due process in the proceedings; (b) the fact that much of Taylor’s recitation is hearsay (albeit, from what I can glean, the kind of hearsay admissible in most proceedings); and (c) an ill-conceived “there’s no quid pro quo” contention that I’ll come to momentarily.
As I discussed with Rich Lowry on The McCarthy Report podcast, the ambassador is clearly grinding some axes.
Taylor is a longtime foreign-service officer. In our present theatrics, he is thus type-cast as a “deep state” denizen, who resents President Disruptor’s use of an “irregular” channel (headed by Rudy Giuliani, the president’s private lawyer) in managing Ukraine policy. Taylor also favors foreign aid, a Trump bugaboo; and he was very enthusiastic about Kyiv, which the president was not. No surprise, then, that Taylor was irked by the very thought of the president’s withholding defense aid while eastern Ukraine was under Russian siege — though Taylor is strangely mum on the fact that Trump has provided the lethal defense aid denied to Ukraine by Obama.
Even factoring in his biases, Taylor’s account has the ring of truth. It also seems to jive with the text messages and other evidence we’ve been allowed to learn about. Indeed, where Taylor’s account differed from the (to my mind) more suspect story told by Gordon Sondland (Trump’s ambassador to the EU), Sondland has since seemed to move in Taylor’s direction, not vice versa.
To cut to the chase, Taylor elucidates that there was a quid pro quo in the Trump administration’s conduct of relations with Kyiv. Ukraine’s president, Volodymyr Zelensky, wanted both an Oval Office meeting (promised by President Trump in a May 2019 letter) and approximately $400 million in defense aid appropriated by Congress (which had to be transferred by September 30, the end of the U.S. government fiscal year, or it would be lost). Before delivering on these, President Trump pressured Ukraine to assist in what the diplomats referred to as the “investigations.”
Participants in the negotiations understood “investigations” to include (a) the Justice Department’s ongoing investigation of the genesis of the Obama administration’s Trump-Russia probe; (b) a possible inquiry into then–Vice President Joe Biden’s role as Obama’s point-man for Ukraine relations (potentially relevant to the Justice Department investigation since the Obama administration allegedly leaned on Ukraine to investigate Paul Manafort, Trump’s one-time campaign chairman); and (c) a possible inquiry into potential corruption at Burisma, a Ukrainian energy company that retained Biden’s son, Hunter, on its board — paying him lavishly at the same time as Vice President Biden was extorting Ukraine’s government to fire a prosecutor who was trying to investigate Burisma.
That third one was an unusual investigation for the United States to seek (and plainly seemed strange to Taylor). There is no known Justice Department probe of Biden influence-peddling in potential violation of American law. Instead, the president is said to have pressured Ukraine to open an investigation of the Ukrainian company for violations of Ukrainian law. Generally, U.S. requests for investigative assistance involve the foreign power’s provision to the Justice Department of evidence relevant to violations of American law.
While not attacking Taylor’s credibility, the president’s backers are adamant that there was no quid pro quo. This refrain returns us to the argument I urged when this controversy emerged a few weeks back: It should have been taken as a given that there was a quid pro quo and that the president was squeezing Ukraine for accommodations, some of which were legitimate (even if unwise), and others harder to defend.
To repeat, quid pro quo just means “this for that.” It’s an exchange, and it is a feature of all commerce. The Latin term only sounds sinister because we most often hear it in connection with bribery and public-corruption prosecutions. But crooked transactions make up just a sliver of state, interstate, and international commerce; in such cases, the problem is not that there is an exchange, but that the exchange involves corruption — commonly, political influence being sold for favors, or used extortionately.
Foreign relations is categorically distinct from domestic law-enforcement. The imposition of quid pro quo demands and intense pressure (even to the point of what would be extortion in the domestic setting) are staples of negotiations between sovereigns. A quid pro quo is improper in foreign relations only when a government official is seeking something that is not arguably in the national interest, particularly if it involves self-dealing — e.g., using government power to further a personal or partisan political objective.
President Trump and his defenders have insisted that there was no quid pro quo. Since there is virtually always a quid pro quo, we must assume that, generally, they mean there was no improper quid pro quo. I say “generally” because some actually do posit a legal claim that there was no quid pro quo at all. Ukraine, these Trump supporters say, was unaware that defense aid was being withheld; such awareness, they reason, is the sine qua non of a “quo,” without which there can be no corrupt “quid.” This argument is factually infirm and, in any event, misconstrues impeachment. I will come to that momentarily.
First, though, the critical point: The winning argument on behalf of the president is that what happened here is not an impeachable offense. It is untenable to insist that there was no quid pro quo — just as it is outlandish for the president to claim that his July 25 conversation with President Zelensky was “perfect,” an impossible standard to meet in human endeavors. To stake out an untenable position is a self-defeating strategy in public controversies.
Taylor’s testimony illustrates what has long been patent: President Trump was not as high on Ukraine or foreign aid as his subordinates. He saw Ukraine as pervasively corrupt, as well as hostile to him in the 2016 campaign. He also saw it as another instance of America bearing the burden of free-riding Europe’s security problems, at the additional cost of what he dubiously believes would be better relations with Russia. The president was not anxious to part with $400 million, and was of a mind to make Ukraine earn it by doing things he wanted done: assistance in the afore-described investigations.
This came to a head, almost comically in Taylor’s telling, in September 2019. As Taylor understood it from speaking with Sondland and NSC official Tim Morrison, the president — echoed by Sondland — was insistent that there was no quid pro quo. But this was lip-service. Simultaneously, the Ukrainians were being told that unless Zelensky publicly committed to the investigations, neither the defense aid nor the promised White House visit would materialize.
In substance, this is no different than Obama’s “by the book” bunkum. A president’s talismanic utterance of “by the book” does not transform a highly irregular counterintelligence probe of political opponents into nothing-to-see-here. Similarly, mantra-like invocations of “no quid pro quo” do not eviscerate the demands on which a president tries to condition executive acts sought by a foreign government.
“But wait,” some of the president’s congressional supporters say, “there can’t have been a quid pro quo because Zelensky says he never felt pressured and the Ukrainians did not know the aid was being withheld until August 29” (i.e., over a month after the Trump-Zelensky call).
This misstates the facts. First, the president did not just withhold aid; he refused to schedule the coveted Oval Office visit he had promised Zelensky — and the Ukrainians were quite aware of and antsy about that. Second, one must suspend disbelief to think, just because the hold on the aid was not reported (by Politico) until August 29, that the Ukrainians did not notice the expected aid hadn’t been transferred while they were being pushed on the investigations. (Ukraine’s economy is only about the size of Arkansas’s; a $400 million shortfall would not go unnoticed.) Third, Taylor says the Ukrainians undoubtedly knew about the hold on the funding by August 29; it was not lifted until nearly two weeks later. In the interim, Sondland is said to have told the Ukrainians there would be a “stalemate” if they did not accede. I wouldn’t exactly say “stalemate” is Ukrainian for “quid pro quo,” but you get the point.
More significantly, the president’s advocates misperceive the nature of the House Democrats’ inquiry. This is not a bribery prosecution in a judicial court. This is impeachment, in which there is no burden to prove a quid pro quo beyond a reasonable doubt. The House is not required to establish a felony offense, such as extortion or bribery (an element of which is a corrupt quid pro quo). In theory, House Democrats could vote an article of impeachment alleging that the president abused power by leveraging his control of foreign relations for partisan political purposes — viz., to induce the Ukrainians to investigate a potential 2020 rival. Impeachment does not require proving a penal offense up to courtroom standards. It is a political act, not a legal one: the stripping of authority by the legislature, not the establishment of a crime in court.
The president’s defense here is not that there was no quid pro quo. It is that the quid pro quo does not come close to an impeachable offense. I will address why in part two of this series.