U.S. IMPEACHMENT INQUIRY

The House of Representatives has launched an impeachment inquiry into President Trump’s latest and most egregious abuse of power: his request that the Ukrainian government investigate a rival candidate in the 2020 election. Free and fair elections are a core feature of U.S. constitutional democracy, and they are only possible if those who hold office do not use their powers to gain unfair advantages over those who seek their office. By asking the President of Ukraine to investigate former Vice President Joseph Biden and his son, President Trump appears to have sought to use the powers of his office to secure an unfair and unlawful advantage. In so doing, President Trump appears to have violated his oath to preserve, protect, and defend our Constitution. 

According to a memorandum of the July 25, 2019 telephone conversation, President Trump stated his view that “the United States has been very very good to Ukraine” and that “I wouldn’t say that it’s reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine.” After Ukrainian President Volodymyr Zelensky stated that Ukraine was “almost ready to buy more Javelins [anti tank weapons] from the United States for defense purposes,” President Trump responded, “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it.”

President Trump proceeded to ask Zelensky for two favors: first, that Zelensky investigate a conspiracy theory that has been used by Trump and his allies to discredit the Department of Justice’s investigation of Russian interference in the 2016 election (“Russia investigation”). The theory, which has been discredited by federal prosecutors and President Trump’s , former homeland security advisor  claims that CrowdStrike, a cybersecurity firm hired by the Democratic National Committee to investigate the 2016 hack of its servers fabricated evidence that Russia was behind the attack. Second, President Trump asked Zelensky to investigate former Vice President Joe Biden, a rival candidate in the 2020 presidential election, and to have a follow-up conversation about it with Trump’s personal attorney, Rudy Giuliani, as well as Attorney General William Barr. 

Before the call, President Trump reportedly told his acting Chief of Staff, Mick Mulvaney, to put a hold on $391 million in military aid to Ukraine that was intended to help that country counter ongoing threats to its sovereignty from Russia. The Trump administration’s withholding of military aid blindsided senior Ukrainian officials. By September, Ukrainian officials reportedly expressed concern to U.S. Senators that the funds were being withheld as a penalty for resisting pressure to investigate the Bidens. 

Congress had previously approved two batches of military aid for Ukraine: Department of Defense aid amounting to $250 million for military equipment and State Department aid amounting to $141 for maritime security and other efforts to help Ukraine combat Russian aggression. In May, a Department of Defense official certified in a letter to four congressional committees that “the Government of Ukraine [had] taken substantial actions to make defense institutional reforms for the purpose of decreasing corruption [and] increasing accountability.” Agency officials were reportedly instructed to tell members of Congress that delays in transmitting military aid to Ukraine were due to an “interagency process” but to provide no further information. 

In sum, it appears that President Trump’s decision to request favors of Zelensky and his order to withhold important diplomatic contacts and military aide from Ukraine were part of a concerted effort to get a foreign power to take action for his personal political gain. This effort began prior to the July 25th phone call, and continued afterwards, as evidenced by the recently-released cache of text messages sent and received by senior diplomats. The text messages make clear that American officials, apparently at the behest of the President, conditioned calls and face-to-face meetings with President Trump, which the new Ukrainian president viewed as crucial, on Ukraine signaling its intention to pursue the investigations President Trump wanted. 

Despite the fact that Ukraine’s prosecutor general has said that there is no evidence of wrongdoing by Biden and his son, reports emerged in May 2019 that Giuliani, Trump’s attorney sought to meet with Ukraine’s incoming government to advocate for investigation of Biden and the origins of the FBI and Special Counsel’s Russia investigation. Giuliani explained his plans to travel to Ukraine during this period by noting that the Ukrainian government had information that “will be very, very helpful to my client, and may turn out to be helpful to my government,” although Giuliani ultimately canceled his trip soon after his plans were revealed. President Trump also reportedly instructed Vice President Mike Pence not to attend Zelensky’s inauguration at a time that Zelensky and Ukraine’s incoming government were seeking recognition and support from the Trump administration. In the months after the July 25 call, President Trump and his allies continued to  pressure the Ukrainian government, both in public  and in private, to investigate Biden. 

There is also substantial evidence that President Trump and other administration officials sought to cover up the July 25 phone call and a credible whistleblower complaint stating that President Trump had abused the powers of his office for political gain. By and through attorneys at the White House Counsel’s office and with the assistance of the Department of Justice, President Trump prevented a whistleblower complaint from being transmitted to Congress even though it had been  deemed “credible” and a matter of “urgent concern” by the Inspector General of the Intelligence Community. In such circumstances, federal law requires that the Director of National Intelligence transmit the Inspector General’s determination and the whistleblower’s information to House and Senate Intelligence Committees. In addition, the Department of Justice decided not to pursue a criminal campaign finance investigation of the allegations, despite receiving a criminal referral from the general counsel of the Central Intelligence Agency. Only after House Speaker Nancy Pelosi announced an impeachment inquiry into these matters did the administration relent and release the complaint. 

The complaint alleges that the memorandum of conversation of the July 25 call as well as other politically sensitive records of the President’s conversations with foreign leaders were locked down and placed on a special system that is meant to “store and handle classified information of an especially sensitive nature.” Classifying information to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization or agency” is unlawful. It is further evidence that the President and those around him engaged in unlawful conduct for his personal benefit rather than acting in the best interests of the American people. 

Although an inquiry is merited, and Congress should take appropriate steps to gather and confirm all pertinent facts, many of the most critical facts are not in dispute. President Trump has acknowledged that his conversation with the Ukrainian president was largely about corruption and “the fact that we don’t want our people like Vice President Biden and his son (adding to the corruption).” That is precisely what the memorandum of July 25, 2019 call between Trump and Zelensky shows. On a separate occasion, President Trump suggested that aid to Ukraine was contingent on how the country handled claims of corruption. President Trump also confirmed that he withheld military aid (although he claims that he did so for other reasons). And Giuliani separately acknowledged that he has been in contact with Ukrainian officials to ask them to investigate Biden and his son and to attack the basis for the Department of Justice’s investigation of Trump campaign’s contacts with Russia in the 2016 election.

In sum, President Trump’s misuse of his office to pressure a foreign country to investigate a rival, his linking of critical diplomatic contacts or military aid to that investigation, and his administration’s cover up of this conduct are all strong, independent bases for an impeachment inquiry. The misuse of public office for private gain—such as pressuring a foreign power to take actions for one’s own political benefit—is precisely the kind of conduct the Framers of the Constitution had in mind when they gave Congress the power to impeach and remove a president. And although the president’s conduct need not violate criminal standards of conduct to be deemed by Congress to be impeachable “treason, bribery, or other high crimes and misdemeanors,” the fact that President Trump’s conduct might plausibly have constituted several federal felonies, including bribery, extortion, conspiracy, solicitation of an unlawful campaign contribution by a foreign national, and obstruction of justice underscores its seriousness. 

For these reasons, Congress is right to assess whether Donald J. Trump, using the power of his high office, in violation of his constitutional oath to preserve, protect, and defend the Constitution of the United States, sought to undermine a free and fair 2020 presidential election by asking and pressuring a foreign power to commence an investigation of his political adversary. The inquiry should also determine whether President Trump is unconstitutionally failing, without lawful cause or excuse, to produce evidence and testimony to congressional committees conducting oversight of these matters, and whether by and through his aides, he misused the Department of State, the Department of Defense, and the Department of Justice to advance this scheme.

This inquiry should assess a course of alleged conduct that includes President Trump’s:

• Requesting, personally and by and through his associates, that the government of Ukraine pursue investigations for his personal political benefit, including:
  • President Trump’s July 25, 2019 conversation with Ukrainian President Zelensky in which he asks for two favors: help investigating the origins of the Russia investigation and an investigation of former Vice President Biden and/or his son; 
  • President Trump’s October 3, 2019 statement in which he said, in reference to Ukraine, that “they should investigate the Bidens”  and
  • Giuliani’s communications, personally and through intermediaries, with officials and other individuals associated with the Ukrainian government about investigating former Vice President Biden and/or his son and the origins of the Russia investigation;
• Withholding of military aid from Ukraine at the same time that President Trump and his associates were requesting that Ukraine investigate former Vice President Biden and/or his son and the origins of the Russia investigation;
• Withholding of diplomatically important calls and meetings between President Trump or Vice President Pence and President Zelensky pending commitments to investigate former Vice President Biden and/or his son and the origins of the Russia investigation;
• Requesting that other foreign governments and leaders help investigate the origins of the Russia investigation, including:
  • President Trump’s call with Boris Johnson, Prime Minister of the United Kingdom, in which Trump requested help discrediting the Russia investigation; and
  • President Trump’s call with Scott Morrison, Prime Minister of Australia, in which Trump requested help discrediting the Russia investigation;
• Requesting that other foreign governments investigate his political rivals, including:
  • President Trump’s October 3, 2019 statement that “China should start an investigation into the Bidens;” 
• Attempting to cover up the Ukraine call, the whistleblower complaint, and other evidence that President Trump was requesting that foreign governments take action for his political benefit, including:
  • The administration’s initial failure to disclose to Congress, as required by law, a whistleblower complaint deemed credible and pertaining to an “urgent matter” and credible;
  • The misuse of document classification and other efforts to conceal potentially damaging information about President Trump, including the nature and substance of his July 25 call with President Zelensky; 
  • The Department of Justice’s alleged failure to open an investigation into the merits of the criminal referral from the CIA’s General Counsel; and
  • Efforts to suppress evidence and intimidate potential witnesses, including the intelligence community whistleblower as well as agency officials and private citizens lawfully subpoenaed by Congress.