Support The Bulwark and subscribe today.
  Join Now

The Trump Defenders Make Their (Weak) Case

They still can’t explain why the president withheld aid from Ukraine.
December 10, 2019
The Trump Defenders Make Their (Weak) Case
House Judiciary Committee Chairman Jerrold Nadler (left) bangs his gavel in an attempt to quiet ranking member Rep. Doug Collins during the committee’s impeachment hearing on December 9, 2019. (Alex Wong / Getty)

At long last, in Monday’s impeachment hearing before the House Judiciary Committee the public got to hear the official Republican defense of President Trump’s impeachable conduct relating to two things: first, his request of Ukrainian President Voldymyr Zelensky that he announce investigations of the Bidens and the debunked conspiracy theory that Ukraine interfered in the 2016 presidential election; and second, his strong-arming of the Ukrainians by withholding a White House meeting for Zelensky as well as $391 million in Senate-approved military aid needed in Ukraine’s war against Russia.

Bottom line: The Democrats have the facts on their side. Those facts should carry the day. But congressional Republicans don’t seem to care.

The factual defense of Trump is threefold. The president’s Republican supporters argued on Monday that the Ukrainians felt no pressure to announce investigations, that the Ukrainian firm Burisma has a reputation for corruption so it’s weird that Hunter Biden was put on its board, and that Ukraine said mean things about Trump in 2016. Therefore, the Republicans argued, it was reasonable for Trump to ask Zelensky for an announcement of investigations into the Bidens and Ukraine. In other words, Trump’s interactions with Ukraine were just routine, if mercurial, foreign policy for a president who, according to Republican counsel Steve Castor, believes that sending foreign aid into corrupt countries is “as good as kissing it goodbye.” Castor also shared his own “belief” that the whistleblower magically prompted a subset of the seventeen House Intelligence Committee fact witnesses to change their testimony so as to depart from the actual facts. Castor did not explain which witnesses he believes distorted the facts. Nor did he share what he believes they would have said absent whistleblower interference.

The problem with these defenses is that there is no known evidence that Hunter or Joe Biden did anything illegal, there is no evidence that Ukraine interfered in the 2016 election, and there is no evidence that the whistleblower suborned perjury. Meanwhile, multiple witnesses testified that there’s no question that the Ukrainians knew about the withholding of a White House meeting (indeed, that part is totally uncontested) and knew about the withholding of financial aid around the time of the July 25 call.

For the sake of argument, though, let’s give Trump the benefit of the doubt and assume hypothetically that the facts actually back up these defenses. Specifically, let’s assume that the Ukrainians felt no pressure to announce investigations in order to get a White House meeting (which Zelensky never did get) or their Senate-approved aid (which they finally got, minus $35 million because it was released too late). Let’s also assume that Hunter Biden’s appointment to the Burisma board was illegal. Let’s even assume that Ukraine took steps in 2016 to get Hillary Clinton elected—in addition to the established fact, in the words of the Mueller report, of Russia’s “sweeping and systematic” efforts to tip the election in Trump’s favor. (We’ll ignore Castor’s claim of whistleblower interference because it’s silly.)

If we assume these defenses are true, where does that leave things? Let’s consider each defense, one by one.

On the first issue, whether the Ukrainians knew about the hold on military aid is not relevant to whether Trump abused the power of his office. An attempted robbery is still a crime, even if the robber gets caught in the act. Likewise, an attempted abuse of the office of the presidency is corrosive to our republican system of government even if the president doesn’t get away with it. (Case in point: Richard Nixon.) And when the abuse of office is aimed at influencing the next election, impeachment is the only feasible remedy; voting out a guilty president isn’t a good option if the integrity of the next election is itself in question.

If we assume that the second and third “facts” are true—that there were good reasons to be worried about Hunter Biden and that the Ukrainians interfered in the 2016 U.S. presidential election—then we would have to credit the theory of mercurial Trumpism as the best explanation for his asking Zelensky for the favor of announcing investigations. But we’d still be left with a hot mess of a presidency on our hands.

First, while it would not be inappropriate for an American president to ask Ukrainians to assist U.S. authorities in investigations, it would be bizarre in the extreme for an American president to ask Ukrainians to perform investigations that American law enforcement and national security agencies are trained to do. Republicans have made no effort to suggest that there was a formal request for these investigations through legitimate diplomatic channels, treaties, and related laws.

Second, Castor testified on Monday that the Ukrainians understood that Giuliani was a “conduit to the president.” And Giuliani admitted publicly that he was in fact doing what Democrats have accused Trump of doing. On May 9, 2019, the New York Times reported that Giuliani planned to travel to Kiev to pursue two “matters of intense interest to Trump,” including both the Biden and 2016 investigations. Two months prior to the infamous July 25 call, therefore, it was public knowledge that:

Mr. Giuliani’s plans create the remarkable scene of a lawyer for the president of the United States pressing a foreign government to pursue investigations that Mr. Trump’s allies hope could help him in his re-election campaign. And it comes after Mr. Trump spent more than half of his term facing questions about whether his 2016 campaign conspired with a foreign power.

The day after that New York Times piece was published, Fox News’s Laura Ingraham asked Giuliani about it and about his calls for an investigation of Hunter Biden’s “questionable ties” to Ukraine. Giuliani responded: “All I want the Ukrainian government to do is investigate. . . . It’s a big story. It’s a dramatic story. And I guarantee you, Joe Biden will not get to election day without this being investigated.”

Thereafter, at a May 23 meeting, Trump put the self-proclaimed “three amigos” in charge of Ukraine policy—political appointees Rick Perry, Gordon Sondland, and Kurt Volker—and told them to work with Giuliani. On July 19, Volker told Giuliani that the Biden narrative was false, and Giuliani responded that he knew that it was false. Nonetheless, he kept up the pressure campaign on Ukraine.

Meanwhile, career experts at the Department of Defense, the Department of State, and the National Security Council uniformly believed that military aid to Ukraine was vital to national security and should be released. To date, there remains no explanation for the hold other than the Democratic narrative that it was used as leverage to get Zelensky to announce the investigations.

The best-case scenario for Republicans, therefore, is that Trump outsourced foreign policy to his private lawyer who had no legitimate authority to represent the United States on anything, who had no training and experience in diplomacy, whose fidelity is not to the Constitution but to Trump personally, who operates outside the boundaries of the laws and regulations governing federal employees, including the Constitution itself, and who took actions that harmed the nation’s interests. (Unchastened, Giuliani keeps running around Ukraine even now, trying to gin up a basis for pinning 2016 election interference on that country.) In short, Giuliani used the power Trump gave him to hurt Joe Biden and help his client in the 2020 presidential election—all to the detriment of U.S. foreign policy and national security.

Is Trump’s outsourcing of the State Department to Rudy Giuliani impeachable conduct? Well, if we were talking about an elementary school, a restaurant, an accounting firm—or virtually any other institution—we would probably fire a boss who unceremoniously handed off key responsibilities to an incompetent, corrupt, and politically unaccountable minion.

The standard should be higher for the president of the United States.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.