How the impeachment proceedings laid out a devastating case for a bribery charge against Trump

How the impeachment proceedings laid out a devastating case for a bribery charge against Trump
President Donald Trump talks on the phone aboard Air Force One during a flight to Philadelphia, Pennsylvania, to address a joint gathering of House and Senate Republicans, Thursday, January 26, 2017. This was the President’s first Trip aboard Air Force One. (Official White House Photo by Shealah Craighead)

Did President Donald Trump try to bribe Ukrainian President Volodymyr Zelensky, the most explosive allegation to arise in the impeachment proceedings?

While it wouldn’t be required to show Trump bribed Zelensky in order to justify impeachment — other charges related to campaign finance law, separation of powers, or civil rights abuses could be warranted — bribery is the most potent allegation because it is laid out explicitly in the Constitution is a possible basis for impeachment.

And based on the evidence provided in the two weeks of public impeachment proceedings, the case for bribery is already overwhelming.

The bribes

There are at least two prongs of a potential bribery charge. First, Trump and White House withheld a formal meeting with Zelensky while demanding he announce investigations into political rivals: the Democratic National Committee and former Vice President Joe Biden. This meeting was particularly important for a new Ukrainian president looking to demonstrate that he has the support of the United States.

The second prong of the bribe involves withholding congressionally approved military aid to the country in exchange for the same investigations. This is even more significant because not only would it be wrong for Trump to withhold the funds for a personal reason, but since the aid was approved by Congress, it was actually a potentially a violation of the law to withhold the aid at all without proper justification. (Trump could permissibly, on the other hand, withhold a White House meeting for no reason at all — but not for a venal reason.)

We know the meeting quid pro quo — a White House sit-down with the president in exchange for investigations — was explicitly offered to the Ukrainians. This is not even really in much dispute.

U.S. envoy Kurt Volker texted a Ukrainian official on the morning of July 25, on the day of Trump's most substative call with Zelensky:

Heard from the White House -- assuming President Z convinces trump he will investigate/'get to the bottom of what happened' in 2016, we will nail down date for visit to Washington

This is a clear quid pro quo — give the investigations, get the White House meeting.

Ambassador Gordon Sondland similarly testified that Trump wanted the White House meeting withheld for this reason. He said he was directed in this effort by Rudy Giuliani, the president’s personal attorney. When asked how he knew the orders were coming the president, Sondland reported that Trump had directed him to work with Giuliani. He also noted that the investigations Trump desired — in particular, the investigation of Biden — would benefit the president.

Giuliani also hadn’t been hiding his intention to get Ukraine to pursue the investigations. He spoke about them frequently in public and to the media, and there's no doubt Trump was aware of these appearances. And he told the New York Times that his motivation was the personal interests of his client, the president.

“I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop,” he said. “And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.”

We know Trump was directly involved in the second prong of the bribe because he mentioned it in the July 25 phone call with Zelensky. Trump emphasized that the U.S. has always done a lot for Ukraine, but said it hadn’t always been reciprocated. Then Zelensky asked Trump about Javelins — military arms Ukraine receives from the United States. At the mention of this assistance, Trump quickly made a request.

I would like you to do us a favor, though,” Trump said — strongly implying that the coming request was a condition for Zelensky’s request. 

Trump then went on to detail the investigations he wanted — and that he wanted Zelensky to work with Giuliani on them, as well as Attorney General Bill Barr. And unlike others who described the investigations as related to “2016” and “Burisma” — an oil company where Bide’s son served on the board — Trump made clear that he wanted these investigations because they targeted the DNC and the Bidens.

Was the second bribe really a bribe?

Some have raised doubts about whether military aid was really conditioned on the announcement of the investigations. That’s a fair question, because although Trump makes the request in the phone call, the entire context of his request is not clear from the call record itself. It may not have been entirely clear to Zelensky at the time that Trump was asking for a bribe.

However, the testimony has made clear that Trump's intention was indeed to ask for a bribe from the Ukrainians, even if he was trying to also preserve some deniability about what he was doing. (Michael Cohen, a former lawyer for the president who is in prison in part because of crimes he said he did on Trump’s behalf, has said that the president often makes his requests in a sort of code.)

Many, if not all, of the impeachment witnesses have testified that they were surprised and alarmed that the aid to Ukraine was placed on hold in July. Pentagon official Laura Cooper has said that she was concerned that the hold was unlawful. They all believed and testified that it was the consensus of the interagency process that Ukraine had made sufficient progress fighting corruption that the aid should be allocated quickly.

Yet despite this consensus, Trump and his Chief of Staff Mick Mulvaney withheld the aid. Many officials testified that no reason was given for the hold.

Was the hold really about corruption?

Trump and his defenders have claimed that the hold was because of corruption in Ukraine, not because it was used as a bribe. But this is hard to believe, given Trump demonstrated lack of corruption in other countries or even in his own government. He once berated former Attorney General Jeff Sessions for indicting his Republican allies on criminal charges. And officials reported that though Trump was directed to mention concerns about "corruption" in his two calls with Zelensky, he didn't bring the topic up either time.

The claim that Trump just cared about "corruption" is also not credible because the interagency process had determined — and was in a much better position to assess — that Ukraine was making progress fighting corruption, as multiple officials testified.

And it doesn’t make sense because, if Trump was genuinely concerned about Ukrainian corruption, it would be even more inappropriate to tell the country to investigate Americans.

“The Ukrainian judiciary is imperfect at the moment,” testified Lt. Col. Alexander Vindman. “And the reliance on US support could conceivably cause them to tip the scales of justice in favor of finding a U.S. citizen guilty if they felt they needed to do it.”

Trump’s request for the investigations was itself corrupt, as testimony from State Department official George Kent made clear.

Kent said that the U.S. warned Zelensky’s administration against investigating his predecessor, Petro Poroshenko. Going after previous administrations and political opposition is a hallmark of corrupt regimes. Ukrainian official Andriy Yermak responded to the warning about going after Poroshenko: “You mean the type of investigations you’re pushing for us to do on Biden and Clinton?”

So it wasn’t about corruption — but was it a quid pro quo?

This analysis so far leaves open the possibility that though Trump clearly wasn’t engaged in anti-corruption, he may not have been setting up a quid pro quo in withholding the Ukraine aid. A quid pro quo — an offer of “this for that” — is a necessary part of a bribery charge.

Circumstantially, there’s strong reason to infer from the fact that Trump withheld the aid from Ukraine for no discernible, credible reason, and from his remarks on the phone call, that Trump was trying to leverage the aid to get what he wanted, even if he didn’t make it explicit. But that's not all. Much additional evidence supports this conclusion about Trump's intent.

Most notably, Chief of Staff Mick Mulvaney said in an Oct. 17 press briefing that Trump withheld the aid because he wanted Ukraine to do the DNC/2016 investigation. He was given multiple opportunities to back off from this claim in the moment, but he reaffirmed it. 

Told what he was talking about was a “quid pro quo,” Mulvaney responded: “We do that all the time.”

He added: “Get over it.”

Mulvaney later lied and said he never admitted to the quid pro quo. But the fact that he lied, instead of saying that he “misspoke” or made a mistake, is even more damning. He knew he had revealed something deeply damaging to the case, and so he tried to cover it up. Since his reversal was clearly a lie, his initial claim that there was a quid pro quo is more credible.

It’s true that Mulvaney distinguished between pressure for the DNC investigation and pressure for the Biden investigation. But in Trump’s call, and the discussions of U.S. diplomats, the two investigations always came as a package deal. It’s not credible to believe that the aid was used as leverage for only one of the investigations.

Moreover, many people involved in the diplomatic process interpreted the withheld aid as part of the quid pro quo. This included Sondland, who made the quid pro quo explicit to the Ukrainians in September.

On Aug. 22, Sondland wrote in an email to Secretary of State Mike Pompeo clearly suggesting that if Ukraine moved forward with the investigations, the aid would start moving:

I would ask Zelensky to look him in the eye and tell him that once Ukraine’s new justice folks are in place (mid-Sept) Ze should be able to move forward publicly and with confidence on those issues of importance to Potus and to the US. Hopefully, that will break the logjam.

Pompeo replied simply “Yes.”

Sondland’s explanation about how he came to believe Trump wanted the investigations in exchange for the aid is sketchy. He was in contact with Trump at this time, but he did not describe how often they spoke and indicated the president never explicitly tied the two things together. Given the many shifts and previous gaps in Sondland's testimony, it's hard to take his testimony as reliable on this fact. But it's clear he came to believe that the aid was tied to the investigations confidently enough to pass this message along to Ukrainian officials. Ambassador Bill Taylor and former National Security Council Staffer Tim Morrison confirmed that he made this offer to the Ukrainians.

Taylor also testified:

...on September 8, Ambassador Sondland and I spoke on the phone. He said he had talked to President Trump as I had suggested a week earlier, but that President Trump was adamant that President Zelenskyy, himself, had to “clear things up and do it in public.” President Trump said it was not a “quid pro quo.” Ambassador Sondland said that he had talked to President Zelenskyy and Mr. Yermak and told them that, although this was not a quid pro quo, if President Zelenskyy did not “clear things up” in public, we would be at a “stalemate.” I understood a “stalemate” to mean that Ukraine would not receive the much-needed military assistance. Ambassador Sondland said that this conversation concluded with President Zelenskyy agreeing to make a public statement in an interview with CNN.

He added:

...during our call on September 8, Ambassador Sondland tried to explain to me that President Trump is a businessman. When a businessman is about to sign a check to someone who owes him something, he said, the businessman asks that person to pay up before signing the check. Ambassador Volker used the same terms several days later while we were together at the Yalta European Strategy Conference. I argued to both that the explanation made no sense: the Ukrainians did not “owe” President Trump anything, and holding up security assistance for domestic political gain was “crazy,” as I had said in my text message to Ambassadors Sondland and Volker on September 9.

On Thursday, a staffer for the U.S. embassy in Ukraine confirmed that those he worked with, including Taylor, had discussions that confirmed everyone had made the same inference about Trump's intention even earlier.

"Everyone is nodding, of course, that's what's going on," he said. "Of course the president is pressing for a Biden investigation before he'll do these things the Ukrainians want. There was nodding."

He added: "Everyone by that point agreed — it was obvious — what the president was asking for."

Eventually, it's been widely reported, Zelensky planned to have an interview with CNN to announce the investigations on Sept. 13. On Sept. 11, however, the military aid was released — and Zelensky canceled the interview.

So the evidence is overwhelming that when Trump withheld the aid and asked Ukraine for investigations of hid political enemies, he was setting up a bribe. To sum up the case:

  • No credible explanation is given for the hold on the aid.
  • The White House was already withholding a meeting as leverage.
  • Trump responded to Zelensky's discussion of the aid with a request for a contingent favor: the investigations.
  • Mulvaney admitted that the desire for an investigation was a motivation behind the hold and then unconvincingly walked this claim back.
  • Sondland and officials at the U.S. embassy in Ukraine believed Trump was using the aid as part of a quid pro quo.
  • Zelensky planned to give the desired announcement of investigations while aid was being withheld, but once it was no longer hanging over his head, he canceled it.

But didn't Trump say "no quid pro quo"?

Still, even with all this evidence, some defenders of the president say there was no quid pro quo. They point to Trump's comments telling Sondland on the phone: "I want no quid pro quo. Tell Zelensky — President Zelensky to do the right thing."

They also point to the fact that, on Sept. 11, the aid was released even though Trump didn't get the investigations he wanted. How can Trump have been trying to bribe Zelensky if he told Sondland he didn't want a quid pro quo and released the aid with getting what he wanted?

The answer is simple, and Democrats have said it many times. Trump said "no quid pro quo" — which, Sondland said in his testimony, he never even asked about — on Sept. 9, the day Democrats opened an investigation into Trump and Giuliani's conduct in Ukraine. The whistleblower complaint warning about Trump's effort had already been filed. Members of Congres and the press were beginning to ask about the withheld aid earlier that month.

With the scheme exposed, Trump wanted to deny that the quid pro quo he had been pressing and that he had tried to leverage never existed. Making this defense credible, of course, required lifting the aid.

But the evidence as laid out, and as is largely uncontested, makes the case clear. Legal experts at Lawfare have argued that the mere solicitation of a bribe — made on July 25, as I've argued — is sufficient to meet both the constitutional and federal statutory requirements for the crime.  The facts strongly support the inference that Trump, in his July 25 call and in his actions surrounding it, was trying to bribe Ukraine not only with a White House meeting but with a congressionally approved military aid. Arguably, it would be unreasonable to deny this plain fact.

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