Even Getting Caught Red-Handed Isn’t Enough

The undisputed facts about President Donald Trump’s July 25 phone call with Ukrainian president Volodymyr Zelensky reveal conduct utterly incompatible with the president’s constitutional duty. Notwithstanding his desperate efforts to cast aspersions on the credibility and loyalty of the Ukraine whistle-blower and the many White House officials who conveyed their firsthand knowledge and profound concerns to that individual, it’s telling that neither Trump nor anyone else seriously questions the truth of the whistle-blower’s account of the phone call. That Trump pushed Zelensky to investigate Joe Biden is clearly confirmed by the White House’s own document memorializing the call.

Whether a majority of the House of Representatives votes to impeach Trump for that conduct isn’t the only crucial question facing Congress. Another is whether all or virtually all members of both the House and the Senate—including those who would choose not to vote to impeach or convict him—are prepared, individually and collectively, to condemn the president’s actions unequivocally. Trump and some of his supporters are now insisting that his efforts to have a foreign nation initiate an investigation of his potential political opponent were “totally appropriate” and “perfectly fine.” And there’s no doubt Trump himself thinks this sort of thing is standard operating procedure for the chief executive in dealing with foreign leaders: On Monday, The New York Times reported that Trump recently tried to enlist Australia’s prime minister in an effort to discredit Special Counsel Robert Mueller’s investigation.

The boundaries of acceptable presidential behavior are defined by which actions the political system tolerates or condemns. Impeachment by the House and conviction in the Senate would be the most powerful congressional rejection of Trump’s conduct. Even if the House impeaches, however, the number of senators who are prepared to convict Trump is almost certainly fewer than 67—the number required to remove him from office. Rightly or wrongly, a good number of senators (and some House members, too) will likely argue that, with the campaign season already upon us, Trump’s fate should be left to the electorate.

That’s all the more reason to recognize that impeachment and removal aren’t the only momentous choices Congress now confronts. If a substantial group of members of Congress signals not merely that the president’s conduct does not warrant impeachment and removal but also that it does not even warrant branding as intolerable, such conduct will become normalized—at a great cost to previously unquestioned first principles of constitutional governance—even if the House impeaches Trump.

At a very minimum, the president of the United States urged the president of Ukraine to investigate whether Joe Biden—the person he believed most likely to be his opponent in next year’s election—engaged in misconduct when Biden engaged in diplomatic efforts on behalf of the United States during the Obama administration.

That single, uncontroverted fact—that the president exploited his power as the nation’s chief diplomat to enlist a foreign ally to help advance his own electoral prospects by developing potentially compromising information about a U.S. national—is straightforward, unequivocal, and stunning. In that alone, Trump deviated wildly from his constitutional role and abused his office. But as members of Congress contemplate the president’s fate, and how to otherwise address his conduct, they must also reckon with the following aggravating factors:

• Trump’s remarks to Zelensky about Biden weren’t a mere friendly suggestion in a conversation between equals. Ukraine is deeply dependent on the United States for its security and well-being. In the July 25 conversation, Trump pointedly noted that although “the United States has been very, very good to Ukraine, I wouldn’t say that it’s reciprocal necessarily.” Zelensky then thanked Trump “for your great support in the area of defense,” stated that “we are ready to continue to cooperate for the next steps—specifically, we are almost ready to buy more Javelins from the United States for defense purposes,” and acknowledged that Ukraine “can cooperate even more so” with Trump in order to secure “your trust and your confidence.” This was the context in which Trump urged Zelensky to investigate Biden and his son. Whether or not the conversation included any express quid pro quo, there was obviously an understanding between the two leaders that Trump’s willingness to aid Ukraine was dependent on whether Zelensky would do Trump’s bidding.
• At the time of the call, Trump was holding back hundreds of millions of dollars in military assistance. Congress had appropriated the money to help Ukraine deter Russian aggression. Trump was withholding it without offering the Office of Management and Budget, the State Department, other relevant executive-branch agencies, or Congress any plausible reason for such an unusual disregard of appropriated funds.
• Joe Biden’s past involvement in Ukrainian affairs was in his official capacity as vice president of the United States. In seeking the removal of the Ukrainian prosecutor Viktor Shokin, Biden was acting in a manner entirely consistent with objectives openly adopted by the U.S. president and shared by the entire European Union and the International Monetary Fund.
• Trump had no reliable evidence on which to base his insinuations that Joe Biden or his son Hunter Biden had done anything improper. Tellingly, Trump’s intelligence and law-enforcement agencies did not, as far as we know, suggest the possibility of any wrongdoing. Nor was Trump’s own Department of Justice investigating any alleged misconduct. Trump was, in effect, contracting out Ukraine to do something the executive branch of the United States (understandably) had refused to do.
• Trump repeatedly urged Zelensky to deal with Rudy Giuliani rather than with U.S. diplomats from the State Department. As the State Department subsequently acknowledged, “Mr. Giuliani is a private citizen and acts in a personal capacity as a lawyer for President Trump. He does not speak on behalf of the U.S. Government.” Making him the point person for dealing with the Ukrainian government was a very suspect method of international diplomacy, to say the least: Not only did Giuliani have fiduciary obligations to Donald Trump in his personal capacity rather than an obligation to act in the best interests of the nation, but also, according to the whistle-blower complaint, “multiple U.S. officials [said] that they were deeply concerned by what they viewed as Mr. Giuliani’s circumvention of [the] national security decision-making processes to engage with Ukrainian officials and relay messages back and forth between Kyiv and the President.”
• Giuliani left no doubt about what he wanted Ukraine to do on Trump’s behalf. Even before the July 25 phone call, he complained in a tweet that Zelensky was “still silent” regarding the “alleged Biden bribery” of the former Ukrainian leader Petro Poroshenko and that he should investigate it “if you want to purge how Ukraine was abused by Hillary and Clinton people.” Giuliani and his aides did, indeed, engage in a series of contacts designed to implore Ukraine to investigate the Bidens, and Giuliani candidly acknowledged that he did so in order to advance Trump’s personal interests: He openly boasted to The New York Times that the information he hoped Ukraine might develop “will be very, very helpful to my client,” adding that Trump “basically knows what I’m doing, sure, as his lawyer.”
• Zelensky shrewdly let Trump know that he stayed at Trump Tower the last time he was in New York. In pointing this out in the July 25 phone call, the Ukrainian president was exploiting the fact, known to all foreign officials, that Trump wields the powers of his office to enrich himself and that the way into his good graces is to line his coffers.
• After the call, White House officials deviated from standard protocols. They moved the transcript of the communication—reportedly at the direction of White House lawyers!—into a system reserved for extremely sensitive and highly compartmentalized programs in order to prevent its ordinary dissemination. Whether or not this was, as the whistle-blower wrote, “an abuse of the system and … not consistent with the responsibilities of the Directorate for Intelligence,” at the very least it reflected the fact “that White House officials understood the gravity of what had transpired in the call.”

This litany demonstrates beyond any doubt that, as David Kris has written, Trump “used the carrots and sticks of U.S. foreign policy and diplomacy, and at least attempted to use certain counterintelligence and law enforcement tools, to damage a political opponent. This represents a profoundly corrupt misuse of the machinery of government for personal gain.”

It’s important to stress, however, that even without these surrounding circumstances (or even if some of them depend on contested facts), what’s within the four corners of the White House account of the July 25 call, standing alone, reflects a gross abuse of office.

It also easily satisfies the constitutional standards for impeachment. Recent debates about whether Trump violated federal election law are misplaced and trivialize what’s really at stake here. The president’s derelictions are far more profound and more fundamental to the constitutional order than a mere violation of the criminal code. To use the scholar Charles Black’s canonical test for whether impeachment is warranted, Trump engaged in (1) extremely serious conduct that (2) corrupts or subverts the political and governmental process and “tend[s] seriously to undermine and corrupt the political order,” and (3) is “plainly wrong in [itself] to a person of honor, or to a good citizen, regardless of words on the statute books.”

Indeed, Black’s hypothetical case illuminating the operation of this test was eerily prescient: “Suppose,” he wrote, that “a president were shown by convincing evidence to have used the federal tax system consistently and massively as a means of harassing and punishing his political opponents. As far as I know, this conduct is not criminal in the ordinary sense. But does such gross misuse of what is supposed to be a politically neutral arm of government not tend seriously to undermine and corrupt the political order? Is it not obviously wrong, to any man of ordinary honor? If these questions are answered ‘yes,’ then this offense, as lawyers might say, is eiusdem generis, of the same kind, with treason and bribery … If it is not a crime under statute, then it is the kind of offense which ought to be held impeachable, though not criminal in the ordinary sense.”

And yet there’s another important feature of Donald Trump’s conduct with respect to the July 25 phone call, one that hasn’t received nearly the attention it deserves, that provides even more compelling proof of his unfitness to serve as chief executive—namely, what Trump thinks and says about that phone call today.

Trump doesn’t deny that he urged Zelensky to investigate the Bidens. Yet he’s not the least bit contrite about it. He doesn’t admit that he erred in an unguarded moment, and he certainly will never pledge to refrain from ever using his diplomatic authorities to advance his own electoral prospects. To the contrary: Trump insists that his conversation was “pitch perfect.” Just as he believes an attorney general’s job is to protect the president, regardless of any ethics constraints or norms of prosecutorial independence from the White House, it appears Trump sincerely believes there’s nothing wrong with using the levers of presidential diplomacy, and control of military aid, to induce foreign officials to dig up dirt on his political opponents. (The Washington Post reports that “even privately, Trump did not believe his conversation with the Ukrainian president was problematic, according to four people with whom he spoke.”)

The Ukraine imbroglio is merely the most dramatic of a series of Trump’s communications with foreign dignitaries so alarming that Trump and other officials have taken extraordinary steps to ensure that they’re not shared with many of the government officials who would ordinarily be privy to them. Trump made the shocking decision, for example, to not allow any other U.S. officials to know the content of his conversations with Vladimir Putin. And according to a recent report in the Post, he also told Russian officials in an Oval Office meeting in May 2017 that he was unconcerned about Moscow’s interference in U.S. elections.

A president who regularly engages in such nefarious communications with foreign officials—thinking that such conduct is unobjectionable—and who does so largely without any internal or external oversight is obviously a danger to the country.

What’s worse still, some of Trump’s principal defenders have embraced his substantive defense with gusto. Vice President Mike Pence, for example, claims that the president “did nothing wrong” and that the readout of his July 25 call “completely vindicate[s]” Trump. Likewise, Lindsey Graham insists that because there was no express quid pro quo, Trump’s shakedown of Zelensky was a “nothing burger.” Still other officials who have not (yet) publicly defended the president’s actions nevertheless appear unbothered by them. As far as we know, for example, when the attorney general and White House counsel learned of the president’s communication with Zelensky, and of his delegation to his private lawyer of the responsibility to secure Ukraine’s assistance in tarnishing Biden, they did nothing to put an end to the rogue operation, or to explain to the president that his constitutional oath requires him to put the nation’s interests ahead of his own.

Contrast this with, for example, the justly celebrated 2004 case in which John Ashcroft and dozens of high-ranking Justice Department officials threatened to resign when President George W. Bush refused to terminate a surveillance program that they had concluded was unlawful. The apparent absence of any similar resistance to Trump’s transgressions reflects at best an indifference by the highest-ranking Trump appointees to a manifest breach of constitutional duty. Perhaps they, like the political analyst Charlie Cook, thought the Zelensky communication and the Giuliani initiative were “not much more inappropriate than [what] we hear from [Trump] in a typical week.” But that simply demonstrates the danger we now face: Trump has used the powers of the presidency for his own self-aggrandizement and self-enrichment so brazenly and so regularly—such actions have become so normalized—that it no longer occurs to many of those close to the president to sound the alarm or take steps to end the deviance.

This is a big change. When President Richard Nixon misused the CIA to try to squelch an investigation into the Watergate break-in, some members of Congress and others didn’t think he should be impeached or removed for it—but virtually no one argued that his conduct was “totally appropriate,” a “nothing burger,” or consistent with the president’s constitutional duties. Likewise, when President Bill Clinton lied under oath about his conduct with Monica Lewinsky, many people thought it wasn’t the stuff of impeachment, let alone removal, and some people went so far as to sympathize with the president or to argue that his conduct didn’t meet the definition of perjury. But virtually no one argued that actual deliberate falsehoods under oath would have been proper.

Yet that’s effectively where we find ourselves now—confronted with a president, and some of his defenders, who would insist that abuses of presidential authority are unexceptional or, worse still, consistent with the president’s constitutional oath and duty.

In the long run, this defense of Trump’s Ukraine machinations may well prove more corrosive than what occurred in the July 25 conversation itself. The president, after all, continues to serve in office and—as the phone call with the Australian prime minister demonstrates—is likely to continue to engage in further self-serving activity with foreign dignitaries as the election approaches. More upsetting still, we’re perilously close to the point at which there may no longer be a national consensus that there’s anything constitutionally problematic about using governmental powers to advance one’s own pecuniary and electoral interests.

Presidents have abused their power before and will do so again. But Trump’s public defense of his abuse of power here is a distinct problem quite different from the abuse itself, one that exacerbates the threat to our constitutional system. When vice pays no homage to virtue but is open and proud, it presents a special challenge to accepted morality. If one steals cash, hides it, and denies the theft, the act poses an enforcement problem. But if one steals cash and then, once caught red-handed, publicly defends the act as legitimate, that defense poses a challenge to the norm itself. That is, in effect, what Trump is doing when he declares that his conversation with Zelensky was “pitch perfect” and when his appointees act as though nothing untoward has occurred. It’s now up to all members of Congress—whether or not they vote to impeach or remove Trump—to prevent this effort to rewrite the proper standards of the presidency.