The Weekly Sift

If Democrats put off impeachment until Trump does something worse, he’ll do something worse.

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This week’s biggest news story unfolded slowly, and we still don’t have it all.

Flouting the law. Early in the week, the story centered on yet another example of the Trump administration flouting the law: On August 12, a whistleblower in the intelligence community filed an official complaint, which the the IC’s inspector general (Trump appointee Michael Atkinson) found to be “a credible urgent concern” on August 26. Invoking that phrase legally requires the Director of National Intelligence (acting DNI Joseph Maguire, who got the job after Dan Coats was let go; on July 28 Trump tweeted that Coats would leave on August 15) to pass the complaint on to the House and Senate Intelligence Committees. But he did not do so.

House Intelligence Chair Adam Schiff wrote to Maguire on September 10:

In an unprecedented departure from past practice, you have not transmitted the disclosure to the Committee, nor have you notified the Committee of the fact of the disclosure or your decision not to transmit it to the Committee. Instead, in a manner neither permitted nor contemplated under the statute, you have taken the extraordinary step of overruling the independent determination of the [Intelligence Community Inspector General] and preventing the disclosure from reaching the Committee.

He followed this up with a September 13 letter, which appears to be a response to the DNI’s refusal to produce the complaint. This letter accuses the DNI’s office of

a radical distortion of the statute that completely subverts the letter and spirit of the law, as well as arrogates to the Director of National Intelligence authority and discretion he does not possess.

The DNI’s action

raises grave concerns that your office, together with the Department of Justice and possibly the White House, are engaged in an unlawful effort to protect the President and conceal from the Committee information related to his possible “serious or flagrant” misconduct, abuse of power, or violation of law.

The letter concludes with a subpoena to deliver the complaint by September 17, or to appear before the committee to explain why on September 19. Maguire refused to do either one.

Mr. Schiff told CBS that Mr. Maguire had told him he was not providing the complaint “because he is being instructed not to, that this involved a higher authority, someone above” the director of national intelligence, a cabinet position.

That “higher authority” can only be the President.

What the complaint is about. Up to that point, no one — including Schiff or any other members of Congress — knew anything about the substance of the complaint, or why it was worth breaking the law to suppress. But then details began to leak out.

Wednesday the Washington Post reported that the complaint involved a conversation Trump had with a foreign leader.

Trump’s interaction with the foreign leader included a “promise” that was regarded as so troubling that it prompted an official in the U.S. intelligence community to file a formal whistleblower complaint

Naturally, pundits speculated about Vladimir Putin, but Thursday the New York Times reported that the complaint involved Ukraine, and included “other actions” beyond just a phone conversation.

Thursday night, Trump’s personal lawyer Rudy Giuliani let the cat out of the bag in an interview with CNN’s Chris Cuomo. It kind of has to be seen to be believed. Rudy claimed CNN won’t cover Obama/Biden scandals in Ukraine, but when Cuomo asked for the proof Giuliani says he’s assembled, he yelled, “I’m not going to give you proof!” Later in the interview he repeated that refusal and explained “You’re the enemy!” Giuliani kept on yelling:

You won’t cover it! But you want to cover some ridiculous charge that I urged the Ukrainian government to investigate corruption! Well I did, and I’m proud of it!

Just that fast, it goes from a “ridiculous charge” to something he’s proud to have done.

Friday, the Wall Street Journal reported

President Trump in a July phone call repeatedly pressured the president of Ukraine to investigate Joe Biden’s son, according to people familiar with the matter, urging Volodymyr Zelensky about eight times to work with Rudy Giuliani on a probe that could hamper Mr. Trump’s potential 2020 opponent.

Yesterday, Trump admitted he talked to Zelensky about Biden and his son, but insisted there was nothing improper in the call. However, so far he has refused to release the transcript. (As he so often does when he’s trying to deflect criticism, he says he’s “considering” releasing it. He considers a lot of things that never happen — sitting down with Robert Mueller, for example.)

By now we seem to know this much: On July 25, Trump talked to new Ukrainian President Volodymyr Zelensky, pressuring him to investigate a story (largely unsupported by facts, as Chris Cuomo lays out) that as Vice President, Biden pressured Ukraine to fire a prosecutor who had investigated his son. [2]

On August 30, Trump was reported to be considering withholding $250 million in military aid that Congress had appropriated for the Ukraine (which badly needs the aid because it is under persistent attack from Russia, which has already taken Crimea from Ukraine). On September 1, Mike Pence met with Zelensky in Warsaw. Schiff’s letter demanding the whistleblower complaint is September 10, and aid to Ukraine is released on September 12.

We still don’t know what “other actions” the complaint talks about.

Now let’s connect the dots. Those are all just facts; now I start to speculate. It appears that Trump tried to coerce Ukraine into taking action that would help his re-election campaign.

This would be an unprecedented abuse of power. Constitutionally, presidents have sweeping power over American foreign policy, but using that power to extort partisan political favors from foreign countries is an enormous breach of trust.

However, this also would be entirely consistent with everything we know about Trump. One character trait that has been consistent all through his administration is that he can’t compartmentalize. He can’t keep his government trips separate from his campaign rallies. His people can’t keep their political campaigning separate from their taxpayer-supported jobs. He can’t separate his business from his administration, or his family from his government. He can’t keep from blurting out secrets when he talks to the Russian ambassador.

Each previous president has understood the distinction between his person and the office he held. Each has understood that the power of the presidency is a trust from the People of the United States, to be used for the benefit of the nation. Sometimes presidents have crossed that line — for example, by bringing a foreign issue to a head when they needed a distraction from a domestic issue that was going badly for them — but they all knew the line was there.

Trump simply doesn’t grasp this. He is the President, so the power of the presidency is his, to do with as he likes. Sometimes that might be for the benefit of the nation (as he understands it), but he may also use that power to enrich himself and his family, cover up his mistakes, reward his friends, or strike at his enemies. And if, as in this case, the opportunity to get a partisan advantage from a foreign power presented itself, I doubt he would see anything wrong with pursuing it. One purpose of foreign aid is to make other countries do what the president wants, and this president wants Ukraine to investigate Joe Biden.

What should be done? First, no one should give Trump the benefit of the doubt on this, because he’s the one withholding information. If the whistleblower complaint [1] is as laughable as he says, he could just instruct DNI Maguire to release it so we can all enjoy the joke. If his conversation with Zelensky is as “perfect” as he says, he can release the transcript for us all to admire.

But if he won’t reveal those pieces of evidence, it’s probably because they don’t support his version of events. We all know this from childhood: If somebody stole the candy, and there’s one boy who won’t take his hands out of his pockets, you can bet that those hands are chocolate-stained.

Second, Politico’s legal affairs columnist Renato Mariotti makes an excellent point: It’s important not to try to shoehorn this abuse of power into the definitions of more typical crimes.

If what Trump is accused of doing is true, it is a kind of corrupt conduct that the criminal system is not equipped to handle. Labeling his behavior with criminal terms such as bribery and extortion not only misunderstands the statutory language, it gives Trump and his supporters ammunition with which to defend themselves, making impeachment—the proper constitutional remedy for presidential corruption—harder to achieve.

We have seen this happen already with the Russia investigation: Criminal conspiracy became the standard of judgment, and when Mueller didn’t find proof beyond reasonable doubt of Trump’s participation in that conspiracy (perhaps because his obstruction of justice worked), Trump could crow about “no collusion”. What Mueller did establish — that Trump knew about and welcomed an attempt by an enemy nation to get him elected — would have sunk any previous administration. But because winking at a foreign dictator’s attack on our democracy is not an indictable crime, Trump could claim “total exoneration“.

Trump and his defenders are already trying to spin things the same way in this case, by claiming that no explicit quid-pro-quo came up in the Zelensky conversation. (Trump’s near-simultaneous blocking of military aid Ukraine desperately needs was just a coincidence.) Quid-pro-quo would be a key element of a bribery or extortion charge, but it misses the point here. Mariotti continues:

Labeling Trump’s alleged conduct as “bribery” or “extortion” cheapens what is alleged to have occurred and does not capture what makes it wrongful. It’s not a crime—it’s a breach of the president’s duty to not use the powers of the presidency to benefit himself.

That kind of breach is what impeachment is for, and “No one should expect law enforcement to act if our elected representatives are unwilling to do so.”

Impeachment politics. It’s important to recognize that this is just another in a long series of impeachable offenses. If the evidence turns out to be what as it seems now, this may be the most flagrant violation yet, but it’s far from the only one.

• The Mueller Report collected evidence of seven instances of obstruction of justice. (It examined ten possible obstructions, but found that three of them failed to include all three elements in the definition of obstruction.) Mueller himself refused (because of DoJ policy) to conclude that the president had committed a crime, but literally hundreds of former federal prosecutors have signed a statement saying that the evidence in the Mueller Report would be enough to indict Trump if DoJ policy did not forbid indicting a sitting president.
• Trump’s business relationships with foreign countries and foreign governments violate the Constitution’s Emolument Clause. (Again, the reason we don’t have more complete information about this is that Trump is withholding it. Until he releases his tax returns and other relevant documents, he doesn’t deserve any benefit of the doubt.) So far, Democrats have left this violation to the courts, but that is not the proper jurisdiction. Oversight of the Executive Branch is a fundamental congressional responsibility. The primary issue is abuse of power, which is a political judgment, not a legal one.
• Trump’s self-dealing — using presidential power to channel public money into his businesses, as well as getting government entities to do PR for his properties — is another abuse of power.
• His stonewalling of Congress’ legitimate oversight authority — claiming ridiculous privileges, refusing subpoenas, and flouting laws requiring the administration to turn over documents — threatens the constitutional separation of powers.
• His declaration of a phony emergency and subsequent pilfering of money to build his wall threatens the constitutional separation of powers.

As I’ve explained before, impeachment is not just about crimes, it can also be Congress’ only way to defend our system of government and maintain its status as an equal branch, if the President refuses to respect that equality. We’re at that point now.

The objection to impeachment among House Democrats isn’t that there is no case, it’s that the politics are wrong: The majority of voters aren’t there yet; some purple-district Democratic congresspeople might lose their seats if they vote to impeach; bringing impeachment to a vote and failing might be worse than doing nothing; likewise, impeaching Trump only to see the Senate acquit him might be counter-productive.

Nate Silver sums up this point of view:

I don’t understand how impeachment serves as more effective deterrent against impeachable conduct when the opposition impeaches even when it would politically benefit the president to do so (& he’d remain in office). That actually incentivizes impeachable conduct, in fact.

But Elizabeth Warren sees it differently:

A president is sitting in the Oval Office, right now, who continues to commit crimes. He continues because he knows his Justice Department won’t act and believes Congress won’t either. Today’s news confirmed he thinks he’s above the law. If we do nothing, he’ll be right.

What tips me over to Warren’s point of view is that this is not going to stop. Trump will push until he finds the line that Congress will defend. If that line hasn’t been reached yet, then he’ll push further.

Up until now, I have argued against those who worry that he’ll lose the election and refuse to leave office. And if the election happened today, I still think the system would stand against that usurpation. But if standards are allowed to continue eroding, who can say where they will be by November 2020 or January 2021?

Even Nancy Pelosi seems to recognize the seriousness of this moment:

I am calling on Republicans to join us in insisting that the Acting DNI obey the law as we seek the truth to protect the American people and our Constitution.

This violation is about our national security. The Inspector General determined that the matter is “urgent” and therefore we face an emergency that must be addressed immediately.

If the Administration persists in blocking this whistleblower from disclosing to Congress a serious possible breach of constitutional duties by the President, they will be entering a grave new chapter of lawlessness which will take us into a whole new stage of investigation.

Republicans. Democrats hesitate to pursue impeachment because they expect Republicans to refuse to defend the Republic and the Constitution against a president of their own party.

So far, for example, Mitt Romney is the only Republican in Congress who has expressed even a slight concern about either the flouting of the whistleblower law or the abuse of power allegedly described by the suppressed complaint. And his mildly expressed tweet is unlikely to make the White House quiver in fear.

If the President asked or pressured Ukraine’s president to investigate his political rival, either directly or through his personal attorney, it would be troubling in the extreme. Critical for the facts to come out.

My attention is focused on North Carolina Senator Richard Burr, the Republican who chairs the Senate Intelligence Committee. DNI Maguire’s refusal to release the whistleblower complaint is snubbing Burr in the same way that it snubs House Intelligence Chair Schiff. Will he roll over and accept that diminishment of his authority? Up until now, the Senate committee has been less partisan than the House committee. His Democratic counterpart, Senator Warner of Virginia, seems to express bipartisan confidence:

Senator Mark Warner of Virginia, the top Democrat on the Senate intelligence panel, said on Thursday that he and the committee’s Republican chairman, Senator Richard Burr of North Carolina, also expected both the inspector general and acting director to brief them early next week and “clear this issue up.”

We’ll soon see if that confidence is justified. If Burr demands to see the complaint, then things get interesting.

But in any case, if the Democratic majority in the House won’t move forward with impeachment, Senate Republicans will never be put on the spot. It may be true that they will respond in a corrupt and cowardly way. But if the question is never put to them, they don’t have to expose their corruption and cowardice.

Above all, Democrats need to ask themselves: If the abuse doesn’t stop here, with Trump pressuring a foreign leader to dig up dirt on his major rival, where will it stop?

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[1] One important point is often getting shuffled aside: When government officials leak information to the press, critics ask why they didn’t do things “the right way”, by going through the official whistleblowing process. By all accounts, this whistleblower has done everything according to the proper legal process, and so far it is not going well: The complaint has not reached Congress, and it appears that the DNI has not protected his identity. The Justice Department (which has no role in the official process) has been consulted, and quite possibly the White House as well.

People throughout the government are watching. What many of them are learning, I suspect, is that if they know about wrongdoing, their only effective choices are to keep quiet or go to the press. I’m sure the Washington Post would be doing a better job of getting the complaint heard while protecting the whistleblower’s identity.

[2] The short version of the context is that Biden was one of many people pressuring Ukraine to get rid of the corrupt prosecutor, for a variety of reasons unconnected to Biden’s son. The dismissed prosecutor also claims that his Biden investigation had already concluded (without charges) before he was fired.