But if they’re trying to shoehorn some broad or flippant statement by Trump into a bribery charge, it will crash with voters.
Peter VAN BUREN
This is the moment Democrats—the entire #Resistance—has been waiting for. A formal inquiry, announced by House Speaker Nancy Pelosi on Tuesday, has brought the much anticipated impeachment train into the station, ready for boarding.
There are few hard facts: a leak claims a whistleblower in the intelligence community believes that 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 yet said whatever he said anyway.
Despite the lack of real information, the story blossomed until the hive concluded that Trump had illegally withheld $391 million in military aid from Ukraine in a direct quid pro quo for the Ukrainians finding dirt on Joe 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 questionwhether 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 that execution be considered.
Democrats also decided that all sorts of procedural and legal stuff the public does not pay attention to has been trod upon because the whistleblower complaint had not been handed over to them. In sum, per the New York Times, “many elements are murky, but something clearly stinks,” which suggested that’s good enough as a standard for demanding regime change in the middle of an election.
On Tuesday night, Democratic House Speaker Nancy Pelosi called for a formal impeachment inquiry. The complaint seems to be enough to start things, but finishing this to the point of an actual vote to impeach will require much more.
The big difference this time around is that 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 the truth at present, has been quietly online for two months now. It 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]”
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 that 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, it fails. The Dems might as well bring Congressman Wile E. Coyote onto the floor with his Acme Impeachment Kit.
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 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 Biden wrongdoing anyway, so an investigation would be for naught). 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 makes it hardly 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 only for there to be 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 thoughtcrime, 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. So the next step is for someone to see the actual whistleblower complaint, or, better, the transcript of the call itself. Because absolutely everything else swirling around Washington today is based on just 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 complaint 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 that 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 “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 that 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 is 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. Right now, no world leader is willing to interact frankly with the American president, worried that the conversation might appear on CNN the next day. That was one of the arguments used to assess the damage whistleblower Chelsea Manning did revealing State Department documents containing such conversations.
On the other hand, if the contents of the transcript might exonerate Trump or weaken the whistleblower complaint, there is nothing to prevent Trump from shutting this all down by simply releasing the transcript (he said Tuesday that he would). Remember, he knows what was said and the Dems demanding impeachment do not.
Of course, law and precedent are on Trump’s side if he chose to withhold the complaint and transcript from Congress. And 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. And if illegally obtained, leaked docs were used in an impeachment process, it would amount to a true constitutional crisis.
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 know it, and your freedom. Our democracy requires such people to come forward despite all that. So it is with some mixed feelings that I record my skepticism here. At the core, whistleblowers are different solely in motive; they act because their consciences 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 wrapping 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 those with legitimate concerns 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 him and our country if not.