Tag Archives: Zelensky

Impeachment – Why and What?

I recently heard that a friend of mine was confused about the impeachment process now underway in the House of Representatives. I will try here to clarify, in simple English and without legalisms, what is going on and why.

The president is currently subject to an “impeachment inquiry” started by a resolution of the House of Representatives. The “inquiry” is a fancy term for an investigation. That investigation is about the question whether the president in his dealings with Ukraine committed “treason, bribery or other high crimes or misdemeanors,” that are the criteria for impeachment in the U.S. Constitution. If impeached (by the House adopting articles of impeachment) and convicted (by the Senate finding that the asserted crimes in the articles are true), he may be removed from office. Since he is still president during this process, he cannot be indicted (according to the Department of Justice). Once removed, however, he can be indicted, tried, convicted and sent to prison for crimes committed while in office.

The investigation is being conducted through two main processes.

The first process is the gathering of evidence through testimony-under-oath by various witnesses who have been subpoenaed (ordered to appear) or have volunteered to testify. Initially, those depositions (taking testimony under oath recorded verbatim) were conducted in private sessions open to members of the three investigating committees from both parties. Despite the opportunity to be present and ask questions, Republicans have complained bitterly about what they hysterically and falsely called “secret” sessions, even to the point of storming into one of the sessions in a group, violating the security requirements that apply to the site of the depositions.

The second process is the public hearing phase, now being broadcast on many TV stations, in which the same witnesses are called to be examined in public, again by both Democrats and Republicans. Now the Republicans, including the president himself, are bitterly claiming that the hearings should not be public. In the end of their rhetoric, what the Republicans want is to shut down the impeachment process entirely. That is not going to happen.

Why, then, is this impeachment inquiry happening? The essence of it is that Donald Trump tried to use Congressionally approved funding to help Ukraine defend  against further military incursions by Russia and also the prospect of a meeting with Trump for the newly elected Ukraine president (Zelensky) to leverage Ukraine’s new leadership to announce investigations into the then-leading challenger to Trump’s re-election, Joe Biden. The immediate target of the investigation would be Biden’s son, Hunter, who was, for a period, being paid $50,000 a month to sit on the board of Burisma, a Ukrainian energy company. Republicans claim that this arrangement was part of the historic and endemic corruption that has afflicted Ukrainian political leadership for a very long time, but thus far no evidence has turned up to indicate that either Joe or Hunter Biden broke any laws.

All this is complicated by a number of details that are not central to the issue of what the president did, but they certainly illuminate his motives and explain his conduct. For one, Trump used his personal attorney, Rudy Giuliani to engage with the Ukrainians and to promote false conspiracy theories about the Biden’s and to lead a smear campaign against the sitting U.S. ambassador to Ukraine, Marie Yovanovitch. Trump eventually fired her without notice or explanation.

There are many other characters in this drama, some with long titles and long histories as diplomats in the U.S.-Ukraine relationship. Republicans have attacked many of these people because they obtained some or all of their information about Trump’s campaign against Biden through other sources. Indeed, the initial report that started all of this came from an anonymous whistleblower. The Inspector General of the Intelligence Community within the Office of the Director of National Intelligence reviewed the whistleblower’s report and found it credible and disturbing. The impeachment inquiry followed.

It is important not to be distracted by the efforts of Republicans to focus the fight on side issues, such as the identity of the whistleblower or the “hearsay” nature of some of the evidence against Trump. The most damaging evidence was direct and produced by Trump himself, in the form of a memo (not a transcript) of his call with Ukraine President Zelensky in which Trump called on Zelensky to start the investigation. There is much additional testimony from Trump appointees, like Gordon Sondland, U.S. Ambassador to the European Union, who personally participated in the leveraging of Ukraine.

The impeachment may be broadened before it’s over. One example comes from the Mueller investigation. Mueller’s final report found 10 instances of obstruction of justice by Trump and/or members of his staff and administration. These may, and in my opinion definitely should, be included in the forthcoming articles of impeachment. A second major example is playing out in the courts now – Democrats in the House are seeking  access to many of the redacted materials in the Mueller Report that may show that Trump lied to Mueller and is thus guilty of the high crime of perjury.

So, the impeachment is pretty straightforward when the Republican smoke is cleared away. Trump tried to induce Zelensky to publicly announce a Ukrainian investigation of the Biden’s to damage Joe Biden’s challenge to Trump’s re-election. The evidence on this is clear. He did it. The evidence of obstruction of justice in the Mueller Report is also clear. The House of Representatives is collecting the evidence and presenting it through public hearings. Eventually, when the hearings are completed, the House will have the opportunity to vote on “articles of impeachment.” These are like a criminal indictment. They will state the specific charges of “treason, bribery or other high crimes and misdemeanors” that the House leadership believes are the basis for impeaching the president.

If the articles are approved by a majority vote in the House prior to the 2020 election, the impeachment moves to the Republican-controlled Senate for “trial” to determine if the president is guilty of the charged offenses and, if so, what the penalty should be. This process will be controlled entirely by Republicans and, absent a massive change in positioning, Republicans will refuse to convict the president regardless of the charges and regardless of the evidence.

The question of judging Trump’s conduct in office will then move to final determination in the election of 2020.

Transcripts, Quids & Quos and Evasions

I continue to see media stories describing the document released by the White House that purported to be a “transcript” of the conversation in which the president of the United States tried to pressure a foreign leader into investigating a domestic political rival (Joe Biden). The same stories often use the term “quid pro quo” which translates roughly to “something for something” or “this for that.” I remain mystified and angry that experienced people whose job it is to communicate continue to misuse terms that are essential to understanding the stories they are reporting.

While I doubt any media people will read this blog post or care much what I have to say, but that has not stopped me before and it will not do so now. You might say I am writing this without the expectation of a quid pro quo. But it would be far better not to say that. Here’s why.

First, what is a “transcript?” This is not particularly mysterious, though there are different meanings for different situations. For example, in education, a transcript is “an inventory of the courses taken and grades earned of a student throughout a course of study.” https://bit.ly/2O04dD4 Anyone who has an education will likely recognize this one.

In the world of law, however, “transcript” refers to something quite specific. In fact, the proper relevant term is “transcript of record” which is a “typed or written copy of the court reporter’s notes that have been taken down during a trial.” Black’s Law Dictionary at https://bit.ly/2CrYqR7

This is a precise record of what is actually said, word for word, during the proceeding for which a transcript is being made. It is typically recorded as the events occur by a trained “court reporter” who either types into a special machine that produces tapes from which the “transcript” is printed or in more modern environments the reporter speaks into a device that records the reporter’s words. To assure precision and accuracy, the parties to the proceeding may review and propose corrections to the “transcript” before it is considered “final” and no longer subject to dispute.

Transcripts in the above sense are routinely created in “courts of record” and in depositions and formal arbitrations. A “court of record” is usually a trial court or higher but does not typically include small claims court and traffic courts where no verbatim record is created.

Note that I referred to “parties” in the plural in referring to the review/correction process. Regardless of the positions of the parties or who asked that the deposition be taken, both sides get to review the record and disputes are settled by the court. The result is that a “transcript of record” is as accurate as humans can make it: taken down and produced by disinterested professionals, evaluated by partisans and ultimately determined by a neutral authority.

You get the idea, I’m sure. A “transcript” as regards an event is a precise, accurate record of exactly what was said by the participants. Anything less formal is not actually a “transcript” and lacks the credibility of an official transcript.

For example, if I sit in on a telephone call and make personal notes of what I heard, then have someone type up my notes, no “transcript” results. Instead, there is just a typed version of my notes and there is no process by which the accuracy and precision of my note-taking is assessed and corrections made by independent parties with an interest in accuracy and precision. In this situation there is no “transcript” of the call. Even if a disinterested professional is involved in taking notes, the absence of independent review of the resulting document deprives the document of the credibility to be given to a “transcript.” In the case of Trump’s call with the president of Ukraine, there is an additional problem that a “translation” was required, adding an additional layer of uncertainty to the end product.

It follows, therefore, that the document released by the White House of Trump’s “perfect call” with Ukraine President Zelensky is not a “transcript” and should not be referred to as one by the media or anyone else. There is no basis for the conclusion that the document has the precision and accuracy of an authentic “transcript.”

At the same time, since the White House obviously believed the president’s claim of perfection for the call, the document that was released may reasonably be presumed to be the best version, from Trump’s point of view, of what occurred. As has been reported everywhere but Fox News and Breitbart, the document is clearly damning and proves that Trump is once again lying about what transpired. Numerous parties who listened in on the call have testified under oath that Trump unquestionably demanded an investigation, and public disclosure thereof, of a domestic political rival.

This brings us to the question of “quid pro quo.” The media and Republican defenders of Trump have obsessed over whether the call involved a “quid pro quo.” Here, again, we must refer to the environment of law, where this term is often used and has a well-understood meaning. As stated in Black’s Law Dictionary (https://bit.ly/36LZOMu),

What for what; something for something. Used in law for the giving one valuable thing for another. It is nothing more than the mutual consideration which passes between the parties to a contract, and which renders it valid and binding. [emphasis added]

In simple English, as applied to the Trump-Zelensky call, Trump was demanding a public declaration of an investigation of his chief political rival in exchange for the release of aid funds that Congress had previously appropriated. Still in simple English, Trump said, “if you want the money released, you must announce the investigation I want.” What for what; something for something. You do this for me and I’ll do that for you. Clear as a bright sunny day.

Reading the document released by the White House, the “best version of the call per Trump himself,” it is plain that Trump demanded something in exchange for something else. A “favor,” his word, for a favor.

The media would do well to stop calling the White House document a transcript. It is not a transcript. At best it is a summary of notes about the call. It has not been vetted by independent authorities or any outside party with an interest separate or independent from Trump.

As for the quid pro quo, why use a Latin term when simple English will do? While quid pro quo is easy to understand, the use of Latin here will only obscure the issue for many readers. Some short-hands are useful but this one, in this setting at least, is not. It is helping the Trump administration muddy the public understanding of the illicit bargain Trump sought to achieve.

Finally, there is this question, as yet unanswered by the White House: why were the records of the Trump-Zelensky call secreted in a top secret computer? If they are exculpatory, why haven’t they been released? The answer, I suggest, is that the original records would be even worse for Trump than the doctored notes falsely presented as “transcript” to the world.

Whistling by the Graveyard

On August 25, 2018, the New York Times published a “News Analysis” of Donald Trump’s treatment of the American legal system:  Trump’s War on the Justice System Threatens to Erode Trust in the Law, by Michael D. Shear and Katie Benner. https://nyti.ms/2oINv1V

The piece opens with this:

In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his associates, Mr. Trump is directly undermining the people and processes that are the foundation of the nation’s administration of justice.

The result is a president at war with the law.

Further, and presciently,

The president’s public judgments about the country’s top law enforcement agencies revolve largely around how their actions affect him personally – a vision that would recast the traditionally independent justice system as a guardian of the president and an attack dog against his adversaries.

The comment ends with this:

“No matter when this all ends, Trump will have caused long-lasting damage to the ability of the Justice Department and the F.B.I. to execute on its mission…. He is sacrificing our public safety and national security on the altar of his own ego.” [quoting Christopher Hunter, a former FBI agent and prosecutor]

Certainly, the authors could not have precisely foreseen how Trump’s approach to governance would lead to the present circumstances, but their overall impression of the direction of Trump’s presidency was stunningly accurate.

Now, perhaps emboldened by what he convinced himself was “exoneration” by Mueller and thus a free hand going forward, Trump has been caught out trying to use a foreign power to influence the 2020 election. And, the evidence is clear, Trump and his loyal team of lawyers, who were also allowed to skate by Mueller, have clumsily tried to cover up the president’s crimes by secreting the records in a computer system designed to contain only coded high-security information. Indications are that this is not the first time they have done this. As we have come to expect, Trump responded to all this by threatening his “enemies,” attacking the press and deflecting by inventing others’ offenses that he purports to expose.

All of that was simply too much for the Speaker of the House, Nancy Pelosi, who called for an impeachment inquiry and had the votes to do it. Trump responded by declaring that Pelosi was no longer the Speaker of the House. This from a man who publicly swore a solemn oath to protect and defend the Constitution of the United States.

Also, as we have come to expect, Republican enablers in and outside the White House rushed to Trump’s defense with all manner of false and hysterical claims. While the wagons were being circled, more news emerged, including that Secretary of State Pompeo was listening on the Trump-Zelensky call even though he indicated otherwise in television interviews. Trump is demanding to “face my accuser” and has said that the White House is trying to determine the whistleblower’s identity even though the governing law provides for protection of that individual’s identity. Trump supporters have offered a large cash award for anyone who will conclusively identify the whistleblower. Trump has not repudiated them for this action, arguably putting the whistleblower’s life in danger.

And so it goes. Meanwhile, the Editorial Board of the New York Times and the editors of the St. Louis Post-Dispatch have both called for Trump to resign. Likely, other major newspapers will join the list. What goes around ….

The Times if, of course, still trying for “journalistic balance,” by giving print space to defenders of Trump to make their case. The same Sunday that the Times printed “The Allegations Are Grave. An Election Is at Risk. The Founders Were Clear,” a half-page op-ed appeared, entitled “Impeachment Is an Act of Desperation,” by Christopher Buskirk, publisher and editor of the very conservative website American Greatness. Buskirk’s argument is the reason for the title of this post.

Buskirk posits that by proceeding with an impeachment inquiry into Trump’s conduct, the Democrats are playing into the Republicans’ hands and assuring Trump of victory in 2020. Why? Because (1) “we’ve all been down this road before” and nothing Trump has done or said so far has affected his support that “has bounced around in more or less the same range since he took office,” (2) what about Hunter Biden in Ukraine? (3) impeachment “success requires broad public support,” and (4) Democrats can only beat Trump by focusing on the issues.

The corollary to the first point is that “there will be no resignation, there will be no conviction in the Senate.” That is probably true, but it misses the point that Trump’s conduct is so egregious across a broad range of areas and issues that a well-presented impeachment case in the House will serve the Democratic agenda in 2020 as well or better than any candidate on her/his own. It also ignores the Democratic sweep of House seats, and return to a majority there, in 2018. Finally, to claim that Trump’s popularity has not been affected by his prior egregious acts in office ignores the reality that his “popularity” is very low. These are not the likely elements of a winning position.

Buskirk’s second point is the classic Republican trope transplanted from Barack Obama (the usual target of Trump ego-angst) to Joe and Hunter Biden. But, no matter what the Bidens may have done in Ukraine, and so far there is no evidence of wrongdoing, a point made repeatedly by past and present Ukrainian officials with reason to know, it would not justify Trump’s attempt to arm-twist a foreign government into investigating a domestic political opponent. Except for self-defense against physical threats, American law does not support a defense that “someone else broke the law so I can too.” This is essentially the “Hillary’s emails” defense and it’s worthless. As Yogi Berra famously said, it’s déjà vu all over again.

Buskirk’s third point – impeachment success requires broad public support – is, I believe, simply wrong. Impeachment requires only a smartly executed process of compiling and presenting for public viewing the evidence of corruption in the multiple scenarios in which Trump has acted as if he were above the law. But even if Buskirk’s claim is right, we are in early days and it’s premature to conclude that the public won’t get on board as the evidence of Trump’s venality and illegality is presented. Again, this assumes the presentation is properly done. I have argued repeatedly that this must not turn into another political show with politicians sitting on the House committees trying to act like practicing prosecutors. Develop a list of “points to be proved” and leave the questioning to experts that know how to do it.

Finally, the fourth point that defeating Trump requires beating him on the “issues,” is an attempt to divert attention from what is at the root of the current mess. Trump has willfully violated a serious federal law designed to protect American elections from foreign interference and then tried to cover it up. Moving the records to a secret computer for coded security information is functionally equivalent to Richard Nixon’s deletion of 18.5 minutes of tapes involving a crucial meeting between the President and his Chief of Staff H.R. Haldeman, the revelation of which ultimately destroyed Nixon’s support in the Senate and forced his resignation prior to being impeached and removed. Trump’s crimes are extremely serious and they follow a thoroughly documented showing of at least 10 prior instances of criminal obstruction of justice in the Mueller Report. He was only saved from indictment by Mueller because the Department of Justice, dubiously, has opined that a sitting president may not be indicted.

Buskirk argues that impeachment of Trump now is just “political theater” and “more Washington psychodrama.” He claims the voters are simply uninterested in the crimes Trump may have committed and that they “just want to know what Washington is going to do for them.”

Methinks Buskirk has it backwards. Trump’s most ardent supporters seem only interested in political theater. The proof is evident in the endless tapes of Trump’s rallies that have little or nothing to do with “issues” and everything to do with performance. Trump is a star in that crowd because … he’s a star. He gives voice to their anger and fear and they see no irony in the fact that he is rich and unlike them in almost every way. He does not really share their fear and anger; he puts on the show they came to see and they love him for it even though the hard evidence is that he has done virtually nothing to make their lives better.

And that is the ultimate point. Even if Buskirk’s assessment regarding the “issues” is correct, it fails to reckon with Trump’s massive and ongoing failure to deliver on most of his electoral promises. If indeed it is only “issues” that will motivate the voters, and Trump’s illegal and immoral conduct of the Office of President and multiple violations of his oath of office are not “issues” of interest or force in the election, Trump’s performance still fails. Most of his governance actions are for “show” to impress his political base but it is not a stretch to show how he has failed to deliver.

So, is impeachment a mistake? I don’t think so. Democrats have been handed a weapon by Trump that needs to be used with surgical precision. We have a criminal in the White House, a person who does not respect the office he holds or guiding principles of the government he swore to serve. It should not be hard for the Democrats to show this to the electorate in a compelling way, to motivate their own base to go the polls in 2020 and, if Donald Trump still sits in the White House, to send him packing.