Will Congress Impeach Over the Ukraine?

October 2, 2019

Tags: Biden, Bribe, Extortion, Impeachment, ukraine, Whistleblower
Posted in: 2020, Democracy, Trump

Like a dog hearing he’s going for a car ride, with that first leak the Dems couldn’t wait to hang their heads out the window for another ride around the block.
 

There are few hard facts: a leak claims a whistleblower in the intelligence community believes during a July 25 phone call Trump made unspecified “promises” to the Ukrainian president in return for his investigating Biden family corruption. The whistleblower did not have direct knowledge of what was said, and may have read a transcript or summary. Trump knew the call was monitored by multiple people and said whatever he said anyway.

Despite the lack of real information, the story blossomed like chlamydia at band camp to soon say Trump illegally withheld $391 million in military aid from the Ukraine in a direct quid pro quo for the Ukrainians finding dirt on Biden. Correlation was turned into causation and a narrative was created in mid-air. That was then crowd-refined into a tweetable “Trump is again inviting foreigners into our democratic process.” From there it took the New York Times only 48 hours to question whether the “president can get away with weaponizing the federal government to punish political opponents.” Impeachment was called for, and one nominal Trump challenger literally demanded on MSNBC execution be considered.

Democrats also decided all sorts of procedural and legal stuff the public will not pay attention to has been trod upon because the whistleblower complaint has not been handed over to them. In sum, “many elements are murky, but something clearly stinks” said the NYT, suggesting that’s good enough as a standard for demanding regime change in the middle of an election.

The big difference this time around is there’s no holy grail pee tape to quest after for three years. A transcript of the call between Trump and the Ukrainian president exists. What did Trump say? The Ukrainian government version, which is as close as we have to an actual fact at present, has been quietly online for two months now and reads “Donald Trump is convinced that the new Ukrainian government will be able to quickly improve image of Ukraine, complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA. [sic]”

For whatever Trump said to fulfill the headlines stating he pressured/extorted/bribed the Ukrainian leader, or manipulated U.S. foreign policy to (again?!?) bring a foreign government into the 2020 election, the actual words matter a lot. If this whole thing turns out to be shoehorning some broad or flippant statement by the president about investigating corruption which may involve the Biden family into a quid pro quo accusation, it will fail spectacularly with voters. If we all have to become whistleblower law experts the same way we all were obstruction experts just a few weeks ago for this to matter, it fails. The Dems might as well bring Congressman Wile E. Coyote onto the floor with his Acme Impeachment Kit.
 

And yet while the actual words matter, it should not be lost that none of what Trump was supposed to have really done — using military aid to get dirt on Biden — happened. We’re talking about talking about maybe burning the Reichstag, just not in so many words.

No one claims the Ukrainians investigated Biden at Trump’s demand (and Dems insist there was no wrongdoing anyway so an investigation would be for naught anyway.) It is thus a big problem in this narrative that the long-promised military aid to the Ukraine was only delayed and then paid out, as if the bribe was given for nothing in return, which hardly makes it a bribe. Trump is apparently bad at bribing; even though he made the decision to temporarily withhold the aid for some reason, the Ukrainians were never even told about it until weeks after the “extortion” phone call, meaning nobody’s arm got knowingly twisted. So no bribe was given, or to the Ukrainians’ knowledge, no money withheld.

As with all the souls Trump supposedly sold to get his Moscow hotel but then there was no Moscow hotel, the Dems claim they see a smoking gun but there is no body on the ground under the muzzle. So will this devolve into another complicated thought crime, another “conspiracy” to commit without the committal? “No explicit quid pro quo is necessary to betray your country,” helpfully tweeted Adam Schiff, chair of the House Intelligence Committee. Three years ago “almost” might have worked but we are far too cynical now following the collapse of Russiagate. The gray areas will fall to Trump in the court of public opinion.
 

Sigh. This will drag on for a while anyway. So the next step is for someone to see the actual whistleblower complaint, or, better, the transcript of the call itself. Because absolutely everything swirling around Washington otherwise today is just based on a leak.

Prying things loose if Trump wants to keep them from Congress will not be easy. The law sets conditions for disclosure of the whistleblower compliant itself, based on the specific legal definitions of credible and urgent; the media is mangling this part of the story by using vernacular definitions. How to apply those criteria can be argued over to Kiev and back. For example, the complaint itself seems to have nothing to do with intelligence operations except that it was allegedly filed by an intelligence staffer. That could make it not an “urgent” matter in the definition of the law and thus not available to Congress.

Trump’s withholding of the whistleblower complaint is also consistent with the stance taken by both the Clinton and Obama administrations. Bill Clinton, in a signing statement accompanying the original 1998 Intelligence Community Whistleblower Protection Act, wrote this “does not constrain my constitutional authority to review and, if appropriate, control certain classified information to Congress.”

Obama also reserved the right to withhold information from Congress “in [undefined] exceptional circumstances” when the original Act was updated as Congress created the Office of the Intelligence Community Inspector General in 2010. Trump is thus the third president to assert a whistleblower complaint does not grant the filer the right to force classified, privileged information into the public sphere. That right rests with the president — Clinton, Obama, Trump, as well as the next one. Citing long precedent, the courts would likely agree if asked.

While there is room to argue over the release of the complaint to Congress, there are nothing to compel the release of the presidential call transcript itself. What presidents say to other world leaders with the expectation of privacy is at the core of conducting foreign policy. No world leader is willing to interact frankly with the American president today wondering if the conversation will be on CNN tomorrow. That was one of the arguments used to assess the damage whistleblower Chelsea Manning did revealing State Department documents containing such conversations. So, never mind the Ukraine, no president would readily turn over a transcript without a fight, a fight he’ll likely win given the long standing unitary role of the executive in foreign policy.

Law and precedent are thus on Trump’s side if he chooses to withhold the complaint and transcript from Congress. If no one can see those documents, there is no means to move any investigation decisively forward, though theatrical hearings are always possible. A full leak of those specific, highly classified materials would be unprecedented. It would then be a true Constitutional crisis if illegally obtained, leaked docs were used at the heart of an impeachment process.
 

There’s more. As a whistleblower myself I know well the personal cost of telling the truth. It requires enormous courage to place yourself at odds with the full power of the government. You risk your job, your life as you knew it, and your freedom. Our democracy requires such people to come forward despite all that. So it is with some mixed feeling I record my skepticism here. At the core whistleblowers are different solely in motive; whistleblowers act because conscience tells them they must. They understand their allegiance is to The People, not a party (leakers) or self-interest (traitors.)

If the whistleblower here is someone who wrapped themselves in hard-fought legal protections to score points snitching over a difference in partisan politics, it will contribute to ending what little faith the public has in the vital process of revealing the truth at whatever cost, and will cause someone with legitimate concerns now trying to decide what to do to sit down. I hope with all of my soul, and with respect for those like Ellsberg, Manning, and Snowden, that this whistleblower proves worthy to stand next to them. And God help his soul and our country if not. 

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