There's Good News, Too

Since President Trump’s inauguration, American democracy has taken some serious hits, but it has also continued to demonstrate amazing resilience.  There’s good news, too.

• Perhaps most importantly and against President Trump’s explicit orders, a number of current and former administration officials have responded to congressional subpoenas and testified to the House Intelligence Committee.  The drumbeat of their testimony has been relentless.  The prepared statements of several of these officials — especially former ambassador to Ukraine William Taylor and National Security Advisor Alexander Vindland, a lieutenant colonel stationed at the White House — have been careful, well-documented and damning.  While Taylor himself did not listen to the phone call from Trump to Zelinski, Vindman did.  Taken together the two testimonies provide almost ironclad evidence of the quid pro quo offered by Trump to Zelinski in their phone call.  Perhaps more important for democracy, the Executive Branch (president) is having less and less success in blocking the Legislative Branch’s (Congress’s) constitutional responsibility for presidential oversight. 
• In a news conference, the President’s Chief of Staff, Mick Mulvaney, acknowledged the quid pro quo nature of Trump’s request for a “favor” from the Hungarian president.  When challenged by reporters Mulvaney tried to double down and emphasized the quid pro quo, only to have to walk the statements back a few hours later.  
• Over the objections of Trump’s attorneys, a federal court judge in New York State ruled that the state should be allowed to see Trump’s tax returns and other financial records.  Since this is a state (as opposed to a federal) issue, the President has no control over it and could not be pardoned for it by either himself or the next president.
• President Trump’s precipitous withdrawal and the easily predictable slaughter of many Kurds in northern Syria have provoked widespread criticism across the political spectrum, including Senate Majority Leader Mitch McConnell.

Polling has shown a dramatic increase among Americans favoring not only impeachment hearings (58%) but also conviction by the Senate (almost 50%).  Even among Republicans, 30% favor impeachment hearings and almost 20% support removing Trump from office.

There can hardly be doubt that the President will be impeached by the House of Representatives.  Conviction and removal by the Senate had been considered impossible until now; after this week, however, it can now only considered unlikely … and the investigation is just beginning.

More important than even the poll numbers and the intransigence of the Republican Party, what seems most heartening is that democracy’s defenses seem to be holding, if only shakily.  While Republican officeholders still maintain a consistent wall against Trump’s impeachment, support for their position is wavering.  Holes in the President’s capacity to block testimony from administration officials are beginning to show.  The judiciary system seems to be upholding its constitutional responsibility to limit Trump’s power.  All this gives me hope that our commitment to democracy and to a free press will hold.

The change in the polling numbers is also heartening if only because the honest reporting of responsible news outlets seems to be getting through.  Rather than quoting Trump without qualification, mainstream journalists are now regularly using phrases like “he said, without evidence” and “this is contradicted by ___,” when quoting Trump.  While mostly invisible to the public, some cracks in Fox news’s unwavering support for the President are showing.  The free press continues to function.

While the damage to our democracy continues to pile up, we should not forget our democracy’s profound resilience.

Can He Really Do That?

For months President Trump has been refusing to cooperate with what is now a formal impeachment inquiry into his presidency.  But last week, he reached a new level of non-cooperation, announcing that the inquiry was another “witch hunt,” and he would send no more documents to the House Intelligence Committee nor allow any government officials to testify (although several officials have already defied him).  Later in the week, White House lawyer Pat Cipollone sent a blistering letter to the committee, refusing the subpoenas and attempting to delegitimize the inquiry.   The Administration’s stance is that they can refuse to give any information to congressional investigators.  Now the President has descended into calling it a "lynching."

What is important to notice is that the President is claiming the right to a blanket refusal as opposed to refusing individual documents or administration officials’ testimony.

CAN THE PRESIDENT REALLY DO THAT? 

Well, yes and no. 

YES, HE CAN

Can President Trump really refuse to hand over documents or prohibit Administration officials from testifying?  And the simple answer is fairly obvious: Of course, he can; he’s already doing it and will continue doing it until the Supreme Court prevents him.  Until then, no one can force him to comply.  Any unfavorable decision in the lower courts would, of course, be appealed by Trump’s team, and it is not clear whether lower courts would (or could) enforce their decision before the Supreme Court weighs in.  The Court might decide to expedite the process and consider the appeals immediately.  Otherwise, the decisions regarding Trump's authority would have to wend their ways through the courts, which could take until after the 2020 elections resolution. 

NO, HE CAN’T

According to the nonpartisan Lawfare Blog, the President's actions are unconstitutional, and the constitutional and “legal” arguments in Cipollone's letter are baseless and misrepresent constitutional law and precedent.

The basic conflict is that the Constitution gives Congress the "sole power" to conduct inquiry without having to meet any of the President's conditions.  But the President is claiming executive privilege which gives him the right to keep conversations and documents from Congress.  Stalemate!

Trump’s problem, however, is that executive privilege can be invoked in very limited circumstances. 

Executive Privilege is a doctrine that enables the president to withhold certain information from disclosure to the public or even Congress. The doctrine is based upon constitutional principles of separation of powers, and is designed to enable the president to receive candid advice from advisers, as well as to safeguard information, the disclosure of which might threaten national security.  

Executive privilege is never mentioned in the Constitution, and the Supreme Court has never explicitly defined its limits or its priority vis-à-vis congressional oversight. 

Although there have been specific cases brought before the Supreme Court (for instance the Court’s order that President Nixon turn over his tapes to a federal court), the Supreme Court has never offered explicit guidance about what is to happen when, in general, Congress and a president collide.  In most previous cases, in fact, Congress and president have worked together and found a way to resolve the issue without involving the judiciary. 

There have been decisions, however, made by lower courts that have then been used as precedents.  Some things are clear:

Executive privilege is not unlimited; in fact, it is quite limited to matters that pertain to

• communication between the president and his advisers and
• matters of national security.

A president cannot claim executive privilege

• when crime or malfeasance is suspected, or
• if Congress can demonstrate that the information sought is necessary to its functioning and can’t be obtained elsewhere.

On the basis of the above and other precedents, if the question of testimony and documentation cannot be worked out informally, each claim of executive privilege must be decided individually by the courts.  Trump’s blanket refusal to provide documents and testimony has no basis in the Constitution or legal precedents.

These are important questions not only for Trump’s future, but also for the future of the democracy.  If presidents are allowed to withhold from Congress anything they want, the Constitution’s requirement for congressional oversight (and the Constitution itself) is deeply wounded.

Beginning the Ukraine Affair

I had initially hoped that the Ukraine scandal would come to some kind of quick closure before I wrote about it.  Obviously, however, that’s not going to happen, and the case has gotten so sprawling and complex that it can be difficult to follow.  So this will be a one-post, simple summary of how it got started.  I’ll get to some of the many complications in future posts. 

How did this all begin?  (Much of the following is contained in an intelligence officer’s whistleblower report, most of which has been corroborated by many sources in the ensuing investigation.) 

First Indications

The first public indication of a problem was a September 5, 2019, editorial in the Washington Post stating there were some “reliable reports” that, in a July 25 phone call to Ukrainian President Volodymyr Zelensky, President Trump had attempted to 

force Mr. Zelensky to intervene in the 2020 U.S. presidential election by launching an investigation of the leading Democratic candidate, Joe Biden, [for alleged corruption].

According to emails between top American officials in Ukraine, the July 25 phone call was not an off-the-cuff decision by President Trump but the result of months of elaborate preparation, including the removal of the American ambassador to Ukraine, apparently for non-cooperation with the preparations.

Quid pro quo

Then without explanation, President Trump froze almost $400 million in military funds to Ukraine.  The funds had previously been appropriated by Congress to support Ukraine in its efforts to root out government corruption and limit Russian military and political intervention. 

Although it is never explicit in the emails or in the rough transcript of the phone call, Trump is clearly pressuring Zelensky: After mentioning the assistance the US has given Ukraine and suggesting that he could invite Zelensky for a state visit to Washington (a high priority for Zelensky), Trump asks for a "favor": that Ukraine re-open an investigation of Joe Biden and his son Hunter Biden and their relationship with a Ukrainian energy company for which Hunter Biden had done consulting.  Ukrainian prosecutors, however, had already thoroughly investigated and exonerated the Bidens.  Trump gave no new reasons for reopening the investigation.

Adding to the incriminating evidence, the only substantive matter Trump brought up during the call was the request for this “favor” from Zelensky.

There is no explicit quid pro quo mentioned in the call, but, reading the preparatory emails and the rough transcript of the call, it is obvious the President was threatening to freeze the funds designated for Ukraine if the “favor” was not granted. 

Trump was using the power of his presidency to withhold government funds until Zelensky would assent to Trump's “request” for a new investigation of Vice President Biden. 

This is an illegal and unconstitutional use of presidential power.

Transcript of the phone call inappropriately classified

As is customary with such calls, many people listened in on it, and stenographers created a word-for-word transcription.  Afterwards, White House officials were so concerned by the call that they arranged for that transcription to be stored in a highly classified computer that was ordinarily used only for documents of the highest national security value.  As can be seen from the transcript, however, nothing of high security value was discussed in the phone call.  It's hard to avoid the conclusion there's a cover-up afoot.

The whistleblower’s complaint and what happened then

In his complaint, the anonymous whistleblower acknowledges he or she did not listen in on the phone call directly but did talk with six different people, some of whom did listen to it themselves.  All told the same story.  (In the last two weeks several other potential whistleblowers have reported to the Inspector General that they do have firsthand knowledge, but none of them has yet come forward publicly.)  On August 12, the whistleblower submitted an extensive, well-documented complaint regarding the matter to the Intelligence Inspector General (IG).  The IG found the documents and its charges “credible and urgent,” which automatically required him to forward the complaint within fourteen days to the House Intelligence Committee.  Instead, he unnecessarily submitted it to the Director of National Intelligence (DNI), who sent it to the Justice Department, who sent it on to its Office of Legal Counsel where it lay dormant until weeks later when the whistleblower contacted the House Intelligence Committee directly.

In addition to providing extensive information about the July 25 telephone call, the whistleblower’s transcript reports that both Attorney General William Barr and the President’s personal lawyer Rudy Giuliani were involved and that White House officials who had witnessed the call were “deeply disturbed by what had transpired in the phone call.”

This attempt by President Trump to instigate an investigation by a foreign power into a political opponent is an impeachable action.  It is so clear-cut that House Speaker Nancy Pelosi has decided, for the time being, that the impeachment proceedings will be limited to that event rather than adding to it a combination of various other impeachable offenses (such as the many instances of obstruction of justice documented in the Mueller report).

In the next post, we’ll begin to look at the President’s frenzied response to the events that seem to be inexorably closing in on him.