On September 24, Democrats launched an impeachment inquiry against President Trump, The New York Times reported. In the week since, the story has developed and spread with facts, rumors, hearsay, and lies. Kenneth Starr’s former special counsel helped us find answers.
Impeachment proceedings began after the recent release of a whistle-blower complaint dated August 12, which cited an “urgent concern” regarding a July 25 phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky. During the call, the president appeared to request Ukrainian assistance for investigating former Vice President Joseph R. Biden, Jr., and his son, Hunter Biden—both of whom have worked in the Ukraine in the past. The circumstances of the request may be an impeachable abuse of authority, which will be decided by the impeachment inquiry and Congress.
Quid Pro Quo
President Trump’s request was made just a week after he asked his chief of staff to freeze money that was allotted as $391 million in aid to Ukraine. In addition, according to a summary of the call released by the White House, he also asked for Ukraine’s help with looking into another matter, immediately after President Zelensky suggested that Ukraine was ready to buy more Javelin anti-tank missiles for defense against Russian forces invading Crimea.
“I want you to do us a favor though,” replied the president. He then asked President Zelensky to work with Attorney General William Barr and President Trump’s personal lawyer, Rudy Giuliani, to investigate cybersecurity firm Crowdstrike, as well as Joe and Hunter Biden. The discussion seemed to some like a quid pro quo agreement, though the White House has stressed the innocence of the call.
“The law doesn’t draw a line; it understands that often, exchanges like this happen with a ‘nod and a wink’ or a ‘nudge nudge’ or an implicit understanding,” said Professor Paul Rosenzweig, a Senior Fellow at the R Street Institute and a Professorial Lecturer in Law at The George Washington University Law School. “The law has never required an explicit quid pro quo—it’s never required anybody to say, ‘If you do this, I’ll do that.’ The law would not exclude this from being a quid pro quo—it wouldn’t demand it either, but the evidence leads you in that direction.”
Professor Rosenzweig, who served as special counsel to Kenneth “Ken” Starr during the impeachment of former President Bill Clinton, also said that whether or not the series of events qualifies as a quid pro quo isn’t the issue. “Just asking a foreign leader to help you beat your political opponent is an abuse of power. Adding in the extortionate withholding of funds just makes it that much worse.”
The Biden-Crowdstrike Factor
The White House has claimed that its concerns about Ukraine and its delay in the granting of financial aid is in the interest of weeding out corruption in the foreign country itself, while former Vice President Biden and his son are an incidental part of that.
“It’s perfectly appropriate for President Trump to withhold funds unless the Ukraine does better at cracking down on corruption, in general,” Professor Rosenzweig said. He likened that to telling Argentina that the United States won’t give it more money until they’ve paid off their previous debts to the U.S. or telling Israel that the U.S. will withhold funds if Israel builds settlements on the West Bank.
“That’s a totally acceptable use of the American levers of power to achieve our diplomatic objectives through financial incentives. What isn’t appropriate is doing that against your top-level Democratic opponent [in the 2020 U.S. presidential election] or his son.”
President Trump also mentioned CrowdStrike, a cybersecurity technology company based in California, which the Democratic National Committee (DNC) hired to investigate Russian hacking of the DNC’s email server before the 2016 U.S. presidential election. The mention of CrowdStrike during the phone call supported White House claims of concerns about Ukrainian corruption—some believe the missing email server is located somewhere in Ukraine. It also touches on an allegation made by the president at a rally in Michigan that claims of pro-Trump Russian election meddling were simply smear tactics by Democrats to hurt Trump’s public image and, thus, his chances in the election, or to falsely overturn the election results.
“There’s no evidence that that’s the case,” Professor Rosenzweig said. “The evidence that’s been uncovered by a bipartisan intelligence committee investigation and by the intelligence community in general is that the Russian efforts were to aid Trump and to disrupt the Clinton campaign; so, there’s no evidence that this is an anti-Trump effort.”
The Bully Pulpit and Nonsense on Stilts
As someone with experience with the presidential impeachment process, Professor Rosenzweig noted some striking similarities between former President Clinton and President Trump.
“Both President Trump and President Clinton really use the power of the public ‘bully pulpit’ as a way of energizing their supporters and attempting to demonize their opponents,” he said. “Clinton’s target obviously was Kenneth Starr; Trump’s target right now seems to be the whistle-blower. So by making this about how bad the other guy is rather than how bad you are, presidents use their power of commanding the public attention to try to change the dynamic.”
And it works. It worked for President Clinton and it seems to be working for President Trump. “The president is attempting to control the narrative and use his bully pulpit of Twitter to do so, and so far, he’s succeeding in rallying his base,” Professor Rosenzweig said. “So far, no Republicans are calling for his impeachment.”
A letter sent to the chairman of the House Committee on Foreign Affairs, Eliot L. Engel, by Secretary of State Mike Pompeo on Tuesday morning exemplified these practices. In the letter, Secretary Pompeo said that the State Department officials subpoenaed to appear before multiple impeachment committees this week would not do so, calling the proceedings “an attempt to intimidate and bully” the State Department. However, there is no legal precedent to support those accusations.
“Secretary Pompeo’s making that up,” Professor Rosenzweig said. “There is no exception to the Congressional subpoena authority. He might say there’s an executive privilege, but he didn’t say that.
“It’s nonsense—it’s nonsense on stilts.”
Professor Paul Rosenzweig was interviewed for this article. Paul Rosenzweig is a Senior Fellow at the R Street Institute, a foreign policy think tank in Washington, D.C., and a Professorial Lecturer in Law at The George Washington University Law School. He earned his J.D. from the University of Chicago Law School and then served as a law clerk to the Honorable R. Lanier Anderson III of the United States Court of Appeals for the Eleventh Circuit.