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Impeachment Should Focus on Actions, Not Motives

November 26, 2019
Impeachment Should Focus on Actions, Not Motives
(Photo by Win McNamee/Getty Images)

House Democrats need to be careful about how they frame any extortion/bribery allegation against Donald Trump.

President Trump’s congressional defenders, as buffoonish as they have looked throughout the impeachment proceedings, have laid a trap for the pro-impeachment forces. They have focused much of their questioning of witnesses on Trump’s motives and intentions at the time he decided to freeze military aid to Ukraine.

If House Democrats fall into this trap and make the debate about Trump’s initial motives for withholding the aid, they will weaken their case. Perhaps fatally.

Instead of fighting on the battlefield of Trump’s initial intentions, pro-impeachment lawmakers should concede that it is at least plausible that Trump’s decision to freeze the aid was made out of an ugly brew of ignorance, spite, and anger—but not necessarily out of a preconceived scheme to use the withheld aid as leverage to extort Ukraine into interfering with our 2020 presidential election.

That came later.

The GOP smorgasbord of possible explanations for Trump’s initial decision to withhold aid to Ukraine goes something like this:

  • Trump hates all foreign aid.
  • Trump thinks our allies aren’t paying their fair share and doesn’t want the U.S. to be played as a sucker.
  • Trump hates Ukraine.
  • Trump thinks Ukraine was “out to get him” in the 2016 election.
  • Trump believes the Putin/Giuliani conspiracy theory about Ukraine being at the center of the origins of the Russia “witch hunt.”
  • Ukraine has a long, sordid history of corruption.
  • Ukraine had just elected a new government, and Trump wanted proof that it would be less corrupt than the last one.
  • Trump often acts impulsively out of spite and anger.

While none of these arguments reflects well on Trump, all of them are plausible.

The narrative that Trump made an ad hoc decision to withhold aid is at least as plausible as a narrative that Trump, with careful planning and malice aforethought, hatched a fully-formed scheme to withhold aid for the precise purpose of using it to extort Ukraine into assisting his 2020 bid for reelection.

To date, the only evidence that the extortion scheme was already fully-formed and in place when Trump decided to freeze the aid comes from Mick Mulvaney.

Other evidence may emerge from a confidential White House review reported over the weekend, but it’s not likely. According to the Washington Post, the White House review turned up “hundreds of documents that reveal extensive efforts to generate an after-the-fact justification” for Trump’s initial decision to withhold aid. But the review appears to have been focused on internal discussions in August, well after Trump put the freeze in place, regarding the legal question of the extent to which congressionally-mandated aid could be withheld by the executive branch. None of this is likely to shed light on exactly what Trump had in mind at the time he ordered the freeze.

Mulvaney, however, is a different story. His importance as a witness derives from his direct, first-hand exposure to Trump and his role in implementing Trump’s decisions.

In his disastrous October 17 “get over it” news conference, Mulvaney admitted that “the look back to what happened in 2016 certainly was part of the thing he was worried about in corruption in [Ukraine].” He also conceded that demanding something in return for aid was something “we do all the time” with foreign policy, citing the use of a freeze on aid to Northern Triangle countries to get them to change their policies on immigration.

And then the blockbuster: “And I have news for everybody. Get over it. There is going to be political influence in foreign policy.”

Bad as this sounds, there’s enough plausible deniability in Mulvaney’s press conference to keep it from being a fatal admission. For starters, Trump’s defenders can point to Mulvaney’s insistence that “the money held up had absolutely nothing to do with Biden.”

Rather, Mulvaney cited three factors: (1) corruption in Ukraine; (2) whether other countries were participating in the support of Ukraine; and (3) whether Ukraine was cooperating “in an ongoing investigation with our Department of Justice.” The “deliverable,” according to Mulvaney, was “how they were going to deal with corruption.”

Mulvaney’s statements skirted along the edges of an admission of a preconceived extortion plot, but left enough ambiguity to fall short of conclusive proof. His statements about Ukrainian corruption and Trump’s obsession with other countries paying their fair share align well with Republican anti-impeachment arguments. And his insistence that the lookback to the 2016 election was related to a larger issue of corruption in the Ukraine, and had nothing to do with the Bidens, makes his press conference, however ugly, insufficient to definitively blow up the GOP’s narrative about what Trump had in mind when he froze the aid.

Also, Mulvaney almost immediately backed away from what he said at that press conference. And, most importantly, Mulvaney isn’t Trump.

Which brings us to another problem with focusing on the initial decision, rather than the later activities: Knowing how Trump makes impulsive decisions without process or expert advice, there may be only one person who has first-hand knowledge about what Trump was thinking when he froze Ukraine’s aid.

And that’s Trump himself.

By contrast, the implementation of Trump’s conditions for releasing the aid necessarily required participation by numerous career officials who have no political axe to grind.

Long story short: Whereas evidence of the origin story may be confined to a single hostile witness, there will be no shortage of credible post-freeze witnesses.

All of this means that there is nothing to be gained by Democrats framing the debate in terms of Trump’s initial intentions and motivations. At best, this will lead to a stalemate. And whatever the burden of proof is for impeachment, a stalemate doesn’t clear the bar.

A better approach would be to concede that while there may be room for debate about Trump’s initial motivations, there is no doubt that he later tumbled onto the idea that he could achieve a personal political benefit by conditioning the release of the aid on a public announcement that Ukraine was investigating his political rival.

By taking the question of initial motivation off the table and focusing on what came later, the pro-impeachment forces would not have to overstate the importance of Mulvaney’s press conference. Instead, they could rely a mountain of credible testimony about what happened after the freeze was put in place from the likes of William Taylor, Alexander Vindman, Jennifer Williams, Gordon Sondland, Kurt Volker, David Holmes, and Fiona Hill.

Not only that, but focusing on post-freeze actions also elevates the importance of Trump’s own statements. The summary of Trump’s July 25 phone call with Ukrainian President Zelensky conclusively establishes that Trump requested Ukraine to investigate the Bidens. If there were any doubt about what Trump was asking Zelensky to do, it was erased when Trump stated unequivocally that what he wanted from Ukraine was “a major investigation into the Bidens.”

These statements were made by Trump in the context of the way things stood at the time of the July 25 phone call, not on his state of mind when he made the initial decision. There’s no reason for Democrats to tie themselves in knots trying push back Trump’s guilty motives to an earlier date.

So forget about Trump’s initial state of mind. It doesn’t matter. Focus on the key facts:

(1) Trump withheld crucial military aid from Ukraine;

(2) Ukraine knew it;

(3) While the aid was being withheld, Trump asked Ukraine for a “favor”—investigations into the 2016 election and the Bidens;

(4) The request for investigations morphed into a demand for a public statement;

(5) Ukraine agreed to make the public announcement, was working with U.S. government officials on a script for the announcement, and was scheduled to deliver it in a CNN interview with Fareed Zakaria;

(6) Ukraine canceled the CNN interview only when Trump released the aid after the scheme was exposed by the whistleblower report.

Case closed.

There’s no need to get drawn into an irrelevant debate about why Trump froze the aid in the first place.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.