The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATED 9-25 AT END]
American democracy, and the constitutional system that supports it, appear to be entering an especially dark and dangerous period.
Here's what we know about Ukraine-gate:** a complaint was filed under the Intelligence Community Whistleblower Act (50 USC 3033) regarding a matter of "urgent concern"—defined in the statute as a "serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information."
**As is often the case, Lawfare has an outstanding analysis (by Robert Litt) of the legal background of this matter. Highly recommended.
The complaint was sent (as required by statute) to the Intelligence Community Inspector General (ICIG)—a presidential appointee, by the way. The statute provides that the ICIG "shall determine whether the complaint or information appears credible," after which he/she "shall transmit to the Director of National Intelligence a notice of that determination, together with the complaint …"
The ICIG apparently found that the complaint did, indeed, "appear[ ] credible," and he sent it to the DNI.
The statute says what happens next:
Upon receipt of a transmittal from the Inspector General … the Director shall, within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees, together with any comments the Director considers appropriate. Sec 3033(k)(5)(C) (emphasis added).
This, as everyone knows, has not happened; perhaps we will hear more about the reasons for the Administration's decision not to follow the statutory command when Acting DNI Joseph McGuire appears before Congress on Thursday.
It means that neither the public nor Congress knows what's in the complaint, and if I were more confident that we (or at least our elected representatives) would find out soon enough, I'd shut up and wait to see what our president did or did not say.
But I am not confident about that, and the basic contours of what we do know (based both on reporting in the Times, the Wall Street Journal, and the Washington Post, and on the President's own acknowledgment and defenses that he is already putting forward***) are chilling enough. Apparently, in late July—at a time when his Administration was withholding (at Trump's explicit direction) almost $400 million in already-appropriated funds targeted for the Ukrainian military—Trump initiated a call to the Ukrainian president, during which he suggested/encouraged, repeatedly, that the Ukrainians coordinate with his personal lawyer (and chief consigliere) and open an investigation into supposed improprieties committed by Joe Biden (on behalf of his son Hunter) when Biden was vice-president.
***See his comments to reporters yesterday:) "The conversation I had [with President Zelensky] was largely congratulatory, with largely corruption, all of the corruption taking place and largely the fact that we don't want our people like Vice President Biden and his son creating to the corruption already in the Ukraine …" And today, he hammered again on the anti-corruption theme: "If you don't talk about corruption, why would you give money to a country that you think is corrupt?"
This is an almost unimaginable breach of his duties as president: trading our taxpayer dollars for political dirt on his opponents, and conditioning critical US foreign policy decisions on a foreign government's help in his campaign for re-election. This is not just a presidential candidate publicly asking for help from a foreign government ("Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing"), as terrible as that was. This is the President of the United States using the power that We, the People have placed in his hands for his personal benefit.
The "anti-corruption" defense is truly laughable, and anyone who thinks that Trump's true concern here is with rooting out corruption in Ukraine is being taken for a ride; he cares as much about corruption in Ukraine as he does about corruption in Russia, in Saudi Arabia, in the Philippines, or in North Korea, viz. not a whit.
I doubt that the conversation contained an explicit quid pro quo; even Trump would not say "Investigate Biden and I'll release the money" any more than John Gotti would say "Kill that S.O.B. and I will promote you through the ranks." But I can already hear the Trump faithful: "See?! No collusion!! Just good old corruption-fighting!" And I have faith—or at least hope—that the American people will treat that story with the contempt it deserves.
Presidents cannot act this way. Five or ten years ago, that would have been stating the obvious; are we really debating it now? The US government is not the Trump Organization, and the executive branch is not the Mafia. If our governing principle is "the President can do whatever he damn well wants to," we are in a very, very perilous state indeed.
Where are the Republicans who will stand up to him on this? Trump famously—and grotesquely—boasted during the campaign that he could gun someone down on Fifth Avenue in broad daylight and not lose any voters; I did not think that he was including members of the House and Senate in this appraisal. The Republicans hold the key here if we are to avoid turning a genuine national crisis into a partisan shitshow. I have to believe that there are still some Republican office-holders who will finally say: This is over the line. And I have to believe that there are some Republican senators who will, should it come to an impeachment trial, actually listen to the evidence and cast their vote accordingly.
To my critics:
Having now read through most of the comments to the original post, here's my take-away. Many critics of what I wrote take some variant of the following position, taken verbatim from one of many comments to this effect:
"I am not too interested in outrage from anyone who was NOT outraged when Joe Biden withheld the loan guarantees to Ukraine until they fired the prosecutor who was investigating Biden's son. Apparently, to Post, it was ok for Biden to actually blackmail Ukraine as VP, but outrageous for Trump to push to reverse it…."
This is kind of what I meant by suggesting that we have entered the Twilight Zone of political discourse.
1. If Joe Biden, while VP, "withheld Ukrainian loan guarantees until they fired the prosecutor who was investigating Biden's son" in order to protect his son and derail an investigation into his son's activities, (a) he damn well should have been impeached, (b) he should certainly not be the Democratic nominee in 2020, and (c) if he is the nominee, I won't vote for him.
2. There is, however, not a single shred of credible evidence yet produced that he did so. At the same time, there are lots of contrary indications suggesting that the pressure he (and others in the US government and the EU) was applying to force the removal of the prosecutor in question (Victor Shokin) had nothing to do with his son.
(a) At the time that this pressure was being applied, Biden couldn't have been pressuring Ukraine to "remove the prosecutor who was investigating Biden's son" because Shokin had already cancelled the investigation into the company with which Hunter Biden was involved (Burisma). If Joe Biden was trying to protect his son, why would he want the Ukrainians to remove that prosecutor? Conditioning US loan guarantees on removal of the prosecutor who had cancelled the Burisma investigation, and demanding that the Ukrainians appoint someone who would be more aggressive in pursuing corruption cases, would presumably put Hunter Biden back in harm's way; why would Biden have done that? It makes absolutely no sense—and, absent any evidence to the contrary, my general assumption is that people act rationally.
(b) Pressuring the Ukrainians to remove Shokin was part of a policy that had been duly formulated and articulated by the US government, at a time, now past, when there was an actual process for formulating and articulating US foreign policy goals. It was also a key component to a multi-lateral effort involving the EU and several other countries, at a time, now past, when the US acted in concert with its allies. So Biden persuaded everyone in that immense loop to remove Shokin to protect his son? People actually believe that?
3. There is of course nothing wrong with the US placing conditions on the receipt of US aid; it's an accepted and perfectly appropriate part of the diplomatic arsenal. There is nothing wrong with demanding that a foreign government take actions that we believe advance US interests—that it open up its airspace to US planes, say, or sign the nuclear non-proliferation treaty, or improve press freedoms, or treat religious minorities more humanely, or …—before we will provide aid. Demanding that a foreign government take actions that advance a US official's personal interests—electoral, financial, or familial, and through your personal lawyer no less!—is a gross abuse of power and an impeachable offense. If anyone has an argument to counter that most obvious of statements, I've yet to hear it.
4. Up until I was about 10 years old, I would meet every charge of wrongdoing with "But he did it first!" I stopped doing that, because it is childish, and because it is irrelevant to the question of whether I committed a wrong. I do so wish that Trump supporters would do the same.
5. The last I looked, Trump is in charge of something called the "Department of Justice," which has, the last I looked, extensive investigative capabilities. If Trump believes that Biden's conduct warrants an investigation, I believe that he has Bill Barr's number. It is beyond peculiar, to me, that Trump's supporters continue to complain so bitterly about the need to investigate and expose all of the terrible, terrible things that Hillary and Bill and Biden and Obama and McCabe and Comey and … did—criminal activity of the most egregious kind—when Trump has the vast investigative apparatus of the US more or less at his disposal.
6. Finally, some people appear to believe that the release of the transcript proves the propriety of Trump's behavior. I think just the opposite. Does anyone seriously believe, for even a moment, that Trump would have pressed for an investigation of the Bidens were Joe Biden not a possible opponent in 2020? Is anybody that naive, or that gullible, as to think this has anything to do more generally with rooting out corruption in the Ukraine, and isn't just a political hit job? Anyone? But some of you seem to think that's ok—nothing wrong with a president asking a foreign government to pursue an investigation into a political rival. It is baffling, and mind-blowing, to me that this seems to be the case.
And if he wants an investigation, why isn't he pressing for an investigation here in the US, by his Justice Department? [Here's a hint: it's because the story of Joe Biden's wrongdoing is almost certainly a hoax and total bullshit, and the Justice Dep't would confirm that.]
Here's a little thought experiment:
Suppose we found out that President Obama had called up the President of Turkey, a year before the 2012 election, and said "You need to be investigating corruption more vigorously. There's a lot of talk about Mitt Romney's work in Turkey while he was at Bain, and while he was governor of Massachusetts, terrible stuff, and a lot of people want to find out about that. You should coordinate with my personal lawyer to get to the bottom of that, OK?"
Can you imagine what people would have said?? He would've been out on his ear—and rightfully so.