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An Open Letter To Congressman Tom Reed About Impeachment: Pt. 2-Destroying Republican Complaints Against Impeachment

Submitted by Robin Messing on Wed, 12/11/2019 - 6:00pm

This is the second part of a two part letter to Congressman Tom Reed explaining why he should impeach Donald Trump. It covers Donald Trump's attempt to coerce Ukraine into muddling the 2020 election. Topics not included in the House's Articles of Impeachment but which should be considered when evaluating Donald Trump's fitness to continue holding office were covered in Part 1. 

 

Republicans have made excuse after excuse to avoid seriously considering, much less concluding, that Donald Trump should be impeached. Here are their greatest hits along with evidence that their complaints were made in bad faith.

No First-Hand Witness Complaint

 

The Republicans complained after George Kent and William Taylor testified on the first day of hearings that they only provided second and thirdhand information. Neither one had been on the crucial July 25 phone call between Presidents Trump and Zelensky. They had to rely on what others had told them and this, the Republicans claimed, was hearsay evidence that would not be allowed in court.

This complaint ignored the fact that this was just the opening testimony. It set the stage for what is to follow--Gordon Sondland and Alexander Vindman who would soon provide firsthand testimony about critical events.

But more importantly, the White House has blocked most of those who have firsthand knowledge from appearing before the hearings. Mick Mulvaney was one of those blocked. He said there was indeed a quid pro quo involving President Trump's demand that Ukraine announce an investigation into the whereabouts of a Democratic server that had been analyzed by Cloudstrike. This was the DNC server that had been hacked by the Russians and that, according to some right wing conspiracy theories, had been whisked off to Ukraine to hide the "fact" that it was Ukraine or the Democrats hell-bent on self-hacking in order to make Trump and Russia look bad, and not Russia, that did the hacking.  Mick Mulvaney not only stated that there was a quid pro quo, he demanded that we "get over it".

 

 

Mulvaney tried to walk his comments back later, saying that there was no quid pro quo. Unfortunately for him, take backsies only work in fifth grade. They do not prevent his earlier comments from being considered during impeachment deliberations. If Mulvaney really had exculpatory evidence, Trump would be pushing him to testify before Congress faster than he could yell "Fake News". Republicans crying about not getting firsthand testimony after the White House has blocked most firsthand witnesses are like the boy who shot his parents and begged the court for mercy because he was an orphan.

 

 

Zelensky Never Felt Pressured By Trump So There Could Not Have Been A Quid Pro Quo

 

Jim Jordan and John Ratcliffe presented the strongest case against a quid pro quo in Ukraine. They emphasized that there were multiple meetings between American State Department officials and President Zelensky after the July 25 phone call and that Zelensky never mentioned any linkage between the release of military aide and his making an announcement that he would investigate Burisma or the Bidens. In fact, Zelensky said that he did not feel like he was under any pressure to announce an investigation and that he did not even know there was a quid pro quo. If he was unaware of any linkage between Trump's request for investigations and the release of military aide to Ukraine then there was, according to Jordan and Ratcliffe, no quid pro quo. Ambassador Taylor said he believed Zelensky was an honest straight shooter and Ratcliffe pounded on that fact again and again as he demanded to know why someone with Zelensky's integrity would swear up and down that Trump had not extorted Ukraine. Finally, they noted, the military aide was released on September 11 even though Zelensky did not make a public statement announcing he was opening up investigations. THAT, they said, drove a nail into the theory that Trump was shaking down Ukraine. Watch the two videos and note the timeline in the following three tweets.

 

 

 

 

 

 

 

 

Jordan and Ratcliff's arguments seem persuasive--until you engage your brain and think about what they are saying. First, if you watch Ratcliffe's video closely, you will see he says over and over again that Zelensky did not detect a hint of linkage during the July 25 phone call. But that leaves open the possibility that Zelensky became aware sometime after July 25 that the aid was linked to a public announcement that he was opening investigations. In fact, between 0:51 and 0:55 of the second video it looks like Ambassador Taylor is trying to say that the Ukrainians became aware of the linkage at some point in September. At least, that is what it looks like he was trying to say before Ratcliffe cut him off.

 

How do we explain Zelensky's insistence that he was not shaken down by the Trump Administration to announce investigations into the Bidens and the 2016 election? Both Ambassador Taylor and John Ratcliffe insisted that Zelensky is honest and a true reformer. However, even the most honest and honorable people will lie under extreme circumstances. In fact, there are times when lying is the only honorable course to take. Lying was the most honorable (though most dangerous) thing to do when Nazi storm troopers knocked on your door and asked "Where are the Jews?"

 

There are three reasons why someone who is as honest as Zelensky is would lie about not being blackmailed:

  1. Zelensky needed the military aide desperately. Russia had invaded and was holding part of Ukraine's territory and threatening to take more. There had already been up to 13,000 killed in Ukraine's war with Russia, over 3,300 of those who died were civilians.  There were just under 3000 deaths on 9/11, therefore the war in Ukraine must have had a similar impact on Ukranians that the attack on 9/11 had on the U.S. Actually, it has probably taken a bigger psychological toll. The U.S population on 9/11 was over 7 times Ukraine's population today. So when envisioning the impact of the war on Ukraine we must think about how seven 9/11 attacks would have affected us. 
  2. Zelensky knew that he HAD to get military aide to save his people. And to do that, he had to keep Donald Trump happy. Zelensky knew that Trump would not be a happy camper had he told the world that Trump was shaking him down.
  3. Trump explicitly said that he wanted Zelensky to work through this process with Rudy Giuliani and William Barr. Zelensky is no dummy. He probably figured out that there were two channels of communications going on simultaneously--an official one going through the State Department and this unofficial one which the President wanted to use for communication about the conditions Ukraine would have to fulfill to get its military aide. Zelensky probably figured out that complaining to our Ambassador about being blackmailed would do no good--why would the Ambassador be in a better position to fight against Trump's demands than Giuliani? And there was always the possibility that Trump could have been angered if word got back to him that Zelensky had not followed his request to communicate through Giuliani.

 

Of course, none of this PROVES that Zelensky lied when he said he had not felt threatened. But it does show that Jordan and Ratcliffe were stretching things when they claimed this proves that there was no quid pro quo.

 

Trump's Alibi--His No-Quid-Pro-Quo Phone Call With Gordon Sondland

 

Gordon Sondland testified that during a September 9 phone call President Trump told him, “I want nothing ... that’s what I want from Ukraine”. Trump is now using this statement to prove that he was innocent. 

 

 

 

 

 

Similarly, the Republicans argued that President Trump DID release military aide to Ukraine on September 11, and he did this without the Ukrainians making a public commitment to investigate Burisma, the Bidens, or the 2016 election. Therefore, there was no quid pro quo.

 

But these articles ignore the timeline of events. The Whistle Blower first filed his complaint on August 12 with the Inspector General of the Intelligence Community. The Inspector General forwarded the complaint on August 26 to the Acting Director of the DNI along with a letter saying the complaint "appears credible" and was "of urgent concern". Three House Committees announced they were starting an investigation into the Trump/Giuliani Ukraine scandal on September 9. And Adam Schiff wrote to the Acting Director of National Intelligence on September 10 demanding that he hand the Whistle Blower's complaint to the Intelligence Committee. Thus, we know with 100% certainty that Donald Trump knew that he was caught by September 9 at the latest. And it is very possible--even likely--that he was tipped off that there was a whistle blower complaint against him even earlier. We know that Acting DNI Director Joseph Maguire showed the complaint to the White House's Office of Legal Counsel and then to the Department of Justice before he sent it to Congress. He did this in order to get a determination as to whether the complaint could be withheld from Congress because it fell under executive privilege. The Whistle Blower Protection Act mandated that the complaint should have been forwarded to Congressional Intelligence Committees no later than September 2. Thus, we know that Maguire had to have shown the complaint to the White House and the Justice Department before September 2 for review. It seems very likely that William Barr or someone in the White House's Legal Counsel office gave the President a heads up well before September 9 that trouble was heading his way and that the President had this in mind when he told Sondland, "no quid pro quo". Indeed, the New York Times reports that two anonymous officials have told them that the President was tipped off to the whistle blower's complaint in late August.

 

And if that isn't enough to kill the "No Quid Pro Quo" argument, Susan Simpson published a detailed analysis in Just Security of Gordon Sondland's, Tim Morrison's, and Bill Taylor's testimony that left no doubt that the "no quid pro quo" phone call Ambassador Sondland was talking about happened on September 7, not on September 9 as he said was the most likely date for the call, and most importantly, this call did indeed contain a quid pro quo despite Trump's uttering the magic "no quid pro quo" words. Simpson's analysis was confirmed in the Senate Intelligence Committee's impeachment report.

 

In Ambassador Sondland’s testimony, he was not clear on whether he had one conversation with the President in which the subject of a quid pro quo came up, or two, or on precisely which date the conversation took place during the period of September 6 through 9.  In one version of the conversation which Ambassador Sondland suggested may have taken place on September 9, he claimed that the President answered an open question about what he wanted from Ukraine with an immediate denial—“no quid pro quo.”  In another, he admitted that the President told him that President Zelensky should go to a microphone and announce the investigations, and that he should want to do so—effectively confirming a quid pro quo.

Both Ambassador Taylor and Mr. Morrison, relying on their contemporaneous notes, testified that the call between Ambassador Sondland and President Trump occurred on September 7, which is further confirmed by Ambassador Sondland’s own text message on September 8 in which he wrote that he had “multiple convos” with President Zelensky and President Trump.  A call on September 9, which would have occurred in the middle of the night, is at odds with the weight of the evidence and not backed up by any records the White House was willing to provide Ambassador Sondland.  Regardless of the date, Ambassador Sondland did not contest telling both Mr. Morrison and Ambassador Taylor of a conversation he had with the President in which the President reaffirmed Ambassador Sondland’s understanding of the quid pro quo for the military aid.

As Ambassador Sondland acknowledged bluntly in his conversation with Mr. Holmes, President Trump’s sole interest with respect to Ukraine was the “big stuff” that benefited him personally, such as the investigations into former Vice President Biden, and not President Zelensky’s promises of transparency and reform.

 

Finally some of Trump's defenders will say, "He released the aide. No harm, no foul. And since the aide was released he did nothing wrong." This logic is faulty for three reasons. First, not all of the aide that Congress voted to give Ukraine was actually given to them-- $35 million was withheld and they still haven't gotten it. Second, it is not clear there was no harm. Ukraine was at war with Russia and at least 13 Ukrainian soldiers died while Trump was withholding aide. There is no guarantee they would still be alive had he not delayed aide, but it is jumping to a conclusion without evidence to say that delaying the aide caused no ham. And third, by withholding aide until he got caught, Trump was like the kid who was reaching into the cookie jar just as his parents walked in. The kid immediately put the cookie back in the jar and said, "What's the big deal? I didn't take a cookie." No parent would buy this excuse and neither should we.

 

 


Trump Not Only Was Interested In Fighting Corruption In Ukraine--He Had An Obligation To Fight Corruption In Ukraine

 

Trump claims that he was withholding aide to make sure that Ukraine was fighting corruption. But the Defense Department had TWICE certified that Ukraine was making enough progress in its anti-corruption reforms that it warranted giving them military aide, once on July 13, 2018 and once on May 23, 2019. This is from a fact sheet put out by the Senate's Foreign Relations Committee

 

Long before President Trump ordered a halt to security assistance, the Secretary of Defense—in coordination with Secretary Pompeo—twice certified that Ukraine had made sufficient reforms to decrease corruption and increase accountability, and that the country could ensure accountability for U.S. provided military equipment. Further, after OMB held the assistance to Ukraine in July, the Department of Defense (DOD) conducted an additional analysis and concluded that the assistance was effective and should be resumed. [Amb. Taylor testimony, 10/22/19]. Finally, before the July 2019 hold, the Trump administration had approved sending foreign assistance to Ukraine nearly 50 separate times without ever holding it because of concerns that it would be diverted due to corruption.

 

It is also curious that we have seen no evidence that President Trump wants to fight corruption anywhere else in the world. He hasn't said a word against Saudi Arabia for murdering Jamal Khashoggi. And OF COURSE he has never, ever criticized Vladimir Putin's corruption. When Bill O'Reilly challenged Trump over his respect for Putin by calling Putin a killer, Trump responded, "There are a lot of killers . . . why, you think our country is so innocent?"

 

 

 

It seems Ukraine is the only place where Trump is interested in rooting out corruption. And it seems like the only place in Ukraine where Trump could interested in routing out corruption is Burisma  But look at the pivotal July 25 transcript of the phone call between President Trump and Zelensky. The word "corrupt" or "corruption" doesn't even appear in the transcript. He clearly indicated that he wanted Zelensky to open up an investigation against the Bidens, but he said nothing about setting up institutions or procedures to fight corruption, nor does he mention anyone else that he wanted investigated.

 

The idea that Donald Trump is interested in fighting corruption is laughable. Here are just a few names that should send anyone who has been paying attention down the memory road of corruption. Betsy DeVos, Elaine Chao, Tom Price, and Ryan Zinke, And who can forget Scott Pruitt? Trump promised to drain the Swamp, but Pruitt was the Okefenokee of corruption. For more details, see the long list of Team Trump's corruption and scandals published by Bloomberg News in March 2019. And who can forget that the Trump Foundation was shut down and that a court had ordered Trump to pay $2 million because it was a scam? Or that Donald Trump agreed to pay $25 million to settle a lawsuit by students who claimed that Trump University was a scam?

 

David Holmes testified before the impeachment Committee that Gordon Sondland had told him that President Trump "did not give an expletive about Ukraine." Holmes said that Sondland said Trump did not care about the war in Ukraine-- he only cared about Ukraine's announcing that it was opening up an investigation of Burisma and the Bidens. Sondland testified that while he did not dispute most of the details of what Holmes and others had said about his July 26 phone call, he did not remember saying anything about the Bidens, nor did he remember telling Holmes that Trump did not give an expletive about Ukraine. Though Sondland expressed doubts that he mentioned the Bidens, he did not definitively deny it.

 

But Sondland put the final nail in the coffin of the claim that Trump was just a super-dedicated corruption fighter when he testified that Zelensky only "had to announce the investigations. He didn’t actually have to do them, as I understood it.” (See 13:59-15:20)

 

 

If Trump was truly interested in fighting corruption in Ukraine he would have insisted that Ukraine must actually do the investigation. If actually doing the investigation was optional that could mean only one thing--Trump's only interest was in Zelensky making a public announcement that would help him win the 2020 election by smearing Joe Biden.

 

 

What Trump Did In Ukraine Was Wrong. But It Wasn't Illegal. But Even If It Was Illegal, What He Did Was Not Bad Enough To Warrant Impeachment

 

All of the arguments the Republicans have used to defend Trump have fallen one by one. They are now left bleating, "Well, maybe what Trump did was wrong, but it wasn't illegal. And even if it was illegal, it was not so bad that it justifies impeachment. Nothing he has done justifies overturning the will of the people as expressed in the 2016 election."

 

There are several problems with this argument. First, though Trump won in the Electoral College, he lost the popular vote by over 3 million votes. It is far from clear he ever had the will of the people. Second, to the extent that the 2018 election acted as a mid-term referendum of Trump's presidency, the Republican wipe out indicates that Trump has lost some of the will of the people that he had in 2016. And third, an act does not have to be illegal to to be worthy of impeachment.

 

The Constitution says Congress may impeach the President for "high crimes and misdemeanors" but it does not define what that phrase meant. Frank O. Bowman III, a law professor at the University of Missouri, writes.

There are two strong arguments against the idea that the phrase requires criminal behavior: a historical one and a practical one. The history of the phrase “high crimes and misdemeanors” and of how it entered our Constitution establishes beyond serious dispute that it extends far beyond mere criminal conduct. The practical reasoning is in some ways more important: A standard that permitted the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior. . . .

 

one point on which the founding generation would have been clear was that “high Crimes and Misdemeanors” was not restricted to indictable crimes. Their understanding has been ratified by two centuries of American practice.

 

 

Bowman is obviously correct-- an act does not require a crime to be impeachable. Even the non-act of extreme negligence can be. Suppose, upon being sworn in, a new President said, "Screw this. I don't want to work. I'm going to take the next four years off lying on a beach in France. Thanks for the $400,000 a year salary, suckers!" No law, no matter how outrageous, would be vetoed if the President refused to do his job, nor would there be anyone to act as Commander-in-Chief.

Now, suppose Mexico decided to take advantage of our weakness by knocking down Trump's big beautiful wall. And suppose they sent in their army to retake Texas, New Mexico, and Southern California. And suppose our military was waiting for a command from their Commander-in-Chief to counterattack and President LazyBones phoned in from his nice French Villa to say, "I never was a big fan of Trump's Wall. But thanks for the $400,000 a year salary. Better learn some Spanish, SUCKERS." 

This situation that would demand impeachment, despite the fact that no laws have been broken.

 

But Trump is guilty of more thant the grossest kind of negligence. Most importantly, in deciding whether Trump deserves to be impeached we are focusing on the wrong thing when we debate whether the Ukranian quid pro quo is an impeachable offense. What is truly worthy of impeachment is not Trump's conspiracy against Ukraine. Oh, no. That pales in significance compared to what truly demands impeachment--Trump's conspiracy against American democracy. If you can only read one article about why Trump should be impeached, read this one by Adam Serwer in The Atlantic. Serwer writes:

 

All of these arguments, ranging from the weak to the false, obscure the core reason for the impeachment inquiry, which is that the Trump administration was engaged in a conspiracy against American democracy. Fearing that the 2016 election was a fluke in which Trump prevailed only because of a successful Russian hacking and disinformation campaign, and a last-minute intervention on Trump’s behalf by the very national-security state Trump defenders supposedly loathe, Trump and his advisers sought to rig the 2020 election by forcing a foreign country to implicate the then-Democratic front-runner in a crime that did not take place. If the American people could not be trusted to choose Trump on their own, Trump would use his official powers to make the choice for them.

 

It was, in short, a conspiracy by Trump and his advisers to keep themselves in power, the exact scenario for which the Framers of the Constitution devised the impeachment clause. This scheme was carried out by Trump-appointed officials, and by the president’s personal attorney, Rudy Giuliani, running a corrupt back channel aimed at, in his words, “meddling in an investigation.” And it came very close to succeeding. As Brian Beutler writes, “Had the whole scheme not come to light in a whistleblower complaint, and Trump not released his hold on aid to Ukraine, we might have awaken [sic] one morning to a blaring CNN exclusive about international corruption allegations against the Democratic presidential frontrunner and his party.”

 

Trump's Final Excuse: The Impeachment Process Is Unfair

 

There is an old legal saying, "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table." 

 

The Republicans don't have either the facts or the law on their side and they know it. All they can do is pound the table by complaining how unfair the process is.

 

Rachel Maddow did a masterful job showing that the Republicans' complaints are in bad faith.

 

 

  1. First, the Republicans complained that the impeachment inquiry was illegitimate because there had been no floor vote authorizing it. So then the House held a floor vote formalizing the impeachment inquiry.
  2. Then they complained that the impeachment inquiry was unfair because it was held behind closed doors. Matt Gaetz was so strident about this point that he led his Cavalcade of Clowns into storming the SCIF where hearings were held in a reckless publicity stunt that jeopardized national security. That objection fell as the House held seven open impeachment hearings with 12 witnesses that lasted over 30 hours.
  3. Then the Republicans whined that the President and his legal team had not been invited to the impeachment hearings. So the Judiciary Committee invited Trump and his legal team to participate in the hearings and Trump's lawyer turned them down.
  4. And finally, Newt Gingrich whined that the Democrats shouldn't be holding impeachment hearings during the Christmas season. Yet Gingrich led the House to vote to impeach Bill Clinton on December 19, 1998.

 

 

 

 

 

 

Thus, Republican claims that the process is unfair are in just as bad faith as their claims that there is not enough evidence to impeach. Donald Trump invited Russia to attack our elections in 2016 ("Russia, if you're listening . . . "). He has abused his powers to demand Ukraine muddy the waters of the 2020 election. Our Democracy is on the line. I call on Congressman Reed and all other Republicans to join the Democrats in impeaching Donald Trump. It is time to put country over party.