Refusing to Cooperate with the Impeachment Inquiry, Trump Shows His Disdain for the House of Representatives

Throwing down a gauntlet in front of House Speaker Nancy Pelosi, President Donald Trump announced that he will no longer permit his Administration to cooperate with the House of Representative's impeachment inquiry.  In furtherance of Trump's defiance of the House, U.S. Ambassador to the European Union, Gordon Sondland, who played a key role in Trump's pressuring of Ukrainian President Volodymyr Zelensky to investigate political rival Joe Biden, failed to testify at a House hearing.  Sondland skipped the hearing at the instruction of Trump's State Department.  Counsel to the President, Pat Cippollone confirmed the decision to impede the House investigation through a letter to Democratic House leaders, written on the President's behalf on White House stationary.

While this move to escalate the tension between the Democratically-controlled House and the Trump Administration will play well with Trump's supporters, who revel in the idea of a no-holds-bar fight with ideologically opposed parties, Trump's outward contempt for the House risks a more aggressive push for his impeachment.

Although Trump holds the Democratic leaders in Congress in disdain, congress is obliged to oversee the actions of the Executive Branch.  This is all part of the checks and balances of the U.S. Constitution, which seeks to ensure that no one branch of government dominates over the other two.  It is a power meant to guard against tyranny and authoritarianism. 

Given the gravity of the current situation, the President must be willing to provide information to Congress, and make members of his Administration available for testimony.

In this regard, some communications with the President may be privileged due to national security or the public interest. But a wholesale refusal to cooperate with congressionally issued subpoenas can hardly be justified, especially after the President himself released a memorandum of a telephone call between Trump and Zelensky where Trump clearly requested the Ukrainian President's help in gathering dirt against Trump's political rival, Joe Biden.  As the head of the Federal Elections Commission confirmed in June of this year, the act of soliciting something of value (in this case research on an opponent) in connection with a federal election is in and of itself a violation of law.  If the President pressured Ukraine by withholding congressionally approved military aid, his behavior becomes all the more egregious.

In the middle of this situation stands the U.S. Ambassador to the E.U.  Trump dismissed the U.S. Ambassador to Ukraine, Marie Yovanovich, because she stood in the way of Trump's efforts to have Ukraine investigate Joe Biden and his son, Hunter.  Despite the fact that Ukraine is not a member of the European Union, Sondland took over the role of coordinating the U.S. Government's policy with respect to the Ukraine.  Recently, text messages involving Sondland surfaced, strongly suggesting that Trump was using the military aid to pressure Ukraine.  Sondland's testimony, therefore, is important to determine the extent of the President's malfeasance.

Trump's refusal to permit Sondland, or any other member of the Administration, to cooperate with the House inquiry appears as a powerful indication that Trump has something to hide.  Moreover, given that Robert Mueller and his team of investigators have already documented Trump's tendency to obstruct official investigations, the President is courting yet another reason for his impeachment; that is obstruction of Congress.

In this regard, the President's Counsel charges that the impeachment inquiry violates the President's due process rights, and fails to follow accepted procedures from prior impeachment inquiries.  Cipollone's criticism of the House is misguided as he fails to recognize the purpose behind the separate steps of the impeachment and removal process, as well as the breadth of authority the Constitution grants the House over impeachment proceedings.

The Constitution is not concerned with the personal rights and interests of the person who happens to occupy the Office of President.  Nor should it be.  The Constitution is concerned with the well-being of the Republic.  In this regard, the President acts as a fiduciary, a person who is required to suppress his or her own personal interests, in favor of making decisions that are in the best interests of the people of the United States.

This is why impeachment is not a criminal proceeding, nor should it be treated as one.  Impeachment is about the integrity of the U.S. Government.  At one point in his political career, the President's staunchest defender in the Senate agreed with this principle.  Senator Lindsey Graham, serving as a Representative in the House of Representative in 1999, said of impeachment:

• You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body[, the House of Representatives,] determines that your conduct as a public official is clearly out of bounds in your role. . . .  Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.

At the time, Graham was arguing in favor of the impeachment of President Bill Clinton, who lied while under oath about a sexual relationship he had with a White House intern.  Graham not only pressed for Clinton's impeachment in the House, but also served as a House Manager during Clinton's trial in the Senate.  As Manager, Graham was tasked with presenting the reasons why the House concluded Clinton should be removed from office.

 

Yet, consistent with the President's narcissism, Trump's public defense against impeachment has, many times, focused on Trump's personal interests, and not the best interests of the United States.  Thus, Trump makes claims concerning personal legal rights, like the argument that his lawyers should be permitted to cross-examine witnesses and call witnesses of their own.

 

But impeachment is not a criminal proceeding.  It is a political one.  Article I of the Constitution grants the House of Representatives "the sole Power of Impeachment."  There are no other provisions in the Constitution which define the role of the House in impeachment, or the procedures that the House must follow.  It is therefore up to the House itself to define its own rules and proceed accordingly.

 

The Constitution is very specific on effects of an impeachment.  It stands as but the first step in a process to determine whether to remove a person from civil office.  Pursuant to Article II, once the House has impeached the President, the Senate then holds a trial, with the Chief Justice of the Supreme Court presiding.  The Senate can only convict with a two-thirds majority.  Article II, Section 3, Clause 7 of the Constitution limits the effect of impeachment:

• Judgment in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.

The Constitution may use words such as "trial" and "conviction" which are reminiscent of criminal law.  But it is clear that impeachment is not meant to be punishment.  The Constitution reserves the decision on whether a person removed from office will be subject to any criminal proceeding and criminal punishment to the appropriate law enforcement authorities.

 

Nonetheless, analogies can be made between criminal process and the impeachment and removal of a president.  In this regard, impeachment can be seen as similar to a grand jury proceeding, through which a prosecutor can seek an indictment.  This is the decision to charge a person with a crime and hold a trial.  But even in criminal law, at that first stage of a criminal prosecution, not all of the personal rights enumerated in the Constitution apply.  A person subject to a grand jury proceeding is not entitled to the right of legal counsel or the right to cross-examine witnesses.  Moreover, the Government in a grand jury proceeding is not required to present evidence that favors the accused.

 

To support the argument that the House is proceeding unfairly, the White House relies on certain procedures followed in prior impeachment processes.  But again, this fails to recognize that the House has the "sole Power of Impeachment."  The House is not bound to follow any procedures established in prior impeachment proceedings.  In addition, because impeachment is a political act, not a criminal law proceeding, it is not subject to judicial review.  Under the political questions doctrine, the courts will not hear a case when the Constitution textually commits the issue to one of the political branches of government, that is Congress or the Executive.  Because the text of the Constitution unequivocally gives the power over impeachment to the House, the courts will not review the exercise of that power.  What process the House will follow that leads up to a vote on articles of impeachment is simply up to the discretion of the House and its leaders.

Another argument that Trump uses to support his decision to thwart the impeachment inquiry is that the Democrats in the House are attempting to overturn the 2016 presidential election.  He likens impeachment to a coup.  But again, impeachment and removal from office are powers granted the House and Senate in order to protect against the abuse of office by the President.  It is an entirely appropriate procedure to invoke when a president uses his authority to conduct foreign policy in manner that benefits himself privately.  The Constitution protects against the abuse of the impeachment and removal power by dividing authority between the House and the Senate.  Thus, impeachment itself does not remove a president from office.  Rather, he must be convicted after a trial in the Senate.  Moreover, in order to convict, the Constitution requires a super-majority of two-thirds before a president can be removed from office.  Safeguards therefore exist to ensure that the process is a deliberative one, and not merely a negation of an election.

Indeed, even if the President is impeached, his Vice President will assume the Office of President.  The President and Vice President run together on the same ticket.  Presumably, with both the President and Vice President coming from the same political party. the Vice President will agree with the major policy objectives of the President.  An impeachment, therefore, does not overturn an election.  It simply is one step in removing a person who has shown an unfitness to hold the Office, leaving the President's political party in charge of Executive Branch.

Sadly, Trump's presidency has never been about what is best for the American people.  It has always been about Trump's self-aggrandizement.  He has sought outright flattery from his Cabinet members.  He attempts to enforce personal loyalty, and not loyalty to the Constitution and the rule of law.  He has publicly stated that he sees nothing wrong with accepting help with finding disparaging information on a political opponent from a foreign source.  He has viewed an investigation about national security, namely the investigation of Russian interference in the 2016 election, as an investigation of himself instead of as the counter-intelligence investigation it was.  When he sees an investigation as potential detrimental to his personal interests, he engages in witness tampering and otherwise attempts to obstruct that investigation.  His current refusal is simply a continuation of that behavior.  His continued willingness to thwart the law and investigations into his conduct  should be considered as a violation of the trust he holds from the American people, and featured prominently in the House's deliberations on whether to impeach him.

By: William J. Kovatch, Jr.

 

Legally, Hearsay Can Support a Criminal Investgation

Ever since the jaw dropping details of the whistleblower complaint was released publicly, President Trump and his friends have been trying desperately to attack the whistleblower’s credibility. Through that complaint, the whistleblower detailed a shakedown perpetrated by Trump through his private lawyer, Rudolph Giuliani, of the Ukrainian Government, going back to a time before Volodymyr Zelensky was elected President of Ukraine.  Trump and Giuliani have been trying to get Ukraine to provide dirt to undermine the conclusion that Russia interfered in the 2016 election, as reached by the US intelligence community, the FBI and Robert Mueller’s investigation.  Trump and Giuliani also wanted Ukraine to provide information to damage the reputation of Trump’s political rival, Joe Biden. One argument Trump has used is that the whistleblower only had “second class” information.

Of course, Trump meant that the whistleblower had second-hand knowledge, meaning the whistleblower did not listen to the telephone call with Zelensky himself.  Rather, the whistleblower collected information concerning Giuliani’s pressure on Ukrainian officials from other people. Essentially, Trump’s friends, such as Republican Senator Lindsey Graham, claim that Trump cannot be impeached based on “hearsay.”  Hearsay, as every lawyer knows, is when a witness tries to testify regarding something the witness heard another person say. Although the law of hearsay is complex, with some exceptions hearsay is inadmissible in a trial and cannot support a criminal conviction.

Setting aside the fact that impeachment is a political process, and not a legal criminal proceeding, what Trump, and his friends such as Graham, forget is that Trump has not been impeached yet. Speaker of the House, Nancy Pelosi, has only announced that the House has opened an impeachment inquiry. This means that the House will formally begin acquiring evidence and holding hearings for the purpose of determining whether to impeach Trump.  That is, the House will commence an investigation into Trump’s actions.

This is where the hearsay defense falls apart. Even if impeachment were a true criminal proceeding, the use of hearsay would not invalidate the commencement of an investigation. For example, pursuant to US law, hearsay can be used to issue a search warrant.  A warrant can be issued upon a showing of probable cause.  Hearsay can establish probable cause if it has indicia of reliability. Indicia of reliability can include information about the person’s background, and details that can be corroborated. Here

Concerning the whistleblower's background, the New York Times claims that he is a CIA Analyst who was attached to the White House.  This would mean that the whistleblower was trained in collecting facts, and providing an analysis of what those facts mean.  He would have training in foreign affairs.  He would also have access to people who work with the President on a daily basis, who would have direct first-hand knowledge of the events and processes described,

Additionally, the details concerning the telephone call and the pressure placed on Ukraine have been, and are continuing to be, corroborated. First, Trump acknowledged that he placed pressure on Ukrainian President Volodymyr Zelensky concerning Biden.  Trump himself said to reporters, “Even the Ukrainian government put out a statement that that was a perfect call, there was no pressure put on them whatsoever. But there was pressure put on with respect to Joe Biden. What Joe Biden did for his son, that’s something they should be looking at.”  Thus, even before the White House released the memorandum of the telephone call, Trump admitted the substance of the call, and that his aim was to compel Zelensky to provide information on Biden.

Then, the release of the memorandum of the telephone conversation itself confirmed details the whistleblower disclosed in his complaint.  This included Trump referring to his view that while the United States has been good to Ukraine, the relationship has not always been reciprocal.  Indeed, as recorded in the memorandum, Trump specifically asked Zelensky for a favor, which appeared to be connected to Zelensky's expressed desire to buy more Javelin missiles.  This "favor" actually turned out to be two.  trump wanted Ukraine to investigate whether the server of the Democratic National Committe taht had been hacked was in Ukraine.  He also wanted information on Joe Biden and his son, Hunter.  The whistleblower mentioned both of these in his complaint.

Moreover, Giuliani himself has been corroborating the allegation that he has been acting as the go between for Trump to Ukrainian officials, and that this has been going on for some time.  Giuliani has been making appearances on television confirming that he traveled around the world to meet with Ukrainian officials and to talk about Joe Biden.

With this much corroboration, the whistleblower’s allegations would almost certainly be ruled to be supported by indicia of reliability and thus support a finding of probable cause.

Hearsay can be used to identify potential witnesses. In this instance, the House Judiciary Committee will hold hearings. It is perfectly acceptable to use the information provided by the whistleblower to identify people working in the White House from whom the Committee will want to hear. In fact, Judiciary Committee Chair Adam Schiff announced that the committee is working with the whistleblower's lawyers to have the whistleblower testify before the committee.  When testifying before the committee, the whistleblower can identify with whom he spoke concerning his allegations, and how he knows about the process the White House used to try to cover up the phone call.  This will help the committee identify witnesses with first-hand knowledge of the allegations, and what other evidence the committee will need to subpoena.  Over the next few months, we can expect there to be ongoing testimony by White House staff, Rudy Giuliani, and members of the intelligence community concerning the pressure Trump placed on Ukraine.

It is important to keep in mind that impeachment itself is not the end process. That is, a president is not removed from office simply because the House votes in favor of impeachment. If comparisons to criminal law are to be maintained, impeachment is more like an indictment. It represents the House concluding that there are reasons why a majority of House members believe the president has abused his office and deserves to be removed. Whether the president is actually removed is determined by the Senate, which holds a trial over which the Chief Justice of the Supreme Court presides. It will be up to the Senate to determine its own rules on how the trial proceeds, just as the House decides the rules concerning impeachment.

At this time, the United States is just at the beginning of an impeachment inquiry. To say that the whistleblower’s allegations, as outlined in his complaint, cannot support the opening of an investigation is just plain wrong. These allegations, which already have corroborating evidence, can and should serve the basis of identifying avenues the Judiciary Committee should pursue in collecting further evidence to permit the House to decide whether ultimately to impeach President Trump.

By: William J. Kovatch, Jr.

Trump's Telephone Call with Ukrainian President Volodymyr Zelensky Reveals Why Trump Must be Impeached

On Wednesday morning, the White House released damning evidence which revealed that U.S. President Donald Trump deliberately sought information from a foreign country that Trump hoped would be damaging to a political opponent, former Vice President Joe Biden.  Specifically, the White House released a memorandum of a telephone conversation between President Trump and Ukrainian President Volodymyr Zelensky that took place on July 25, 2019.

The phone call was at the heart of an allegation by an unnamed member of the U.S. intelligence community, who filed a whistleblower complaint with the Inspector General of the Intelligence Community, Michael Atkinson, on August 12, 2019.  Prior to the release of the transcript, all that was known of the complaint was that it concerned an allegation of an inappropriate promise made by Trump to a foreign leader through a telephone call.  The complaint was deemed credible and of an urgent concern by Atkinson, who turned over the complaint to acting Director of National Intelligence, Joseph Maguire.  Because it had been deemed of urgent concern, federal law required Maguire to turn the complaint over to the intelligence committees of the House of Representatives and the Senate.  When Maguire failed to do so in the time proscribed by statute, Akinson alerted Congress to the existence of the complaint.

While the Administration dragged its heels on releasing the text of the complaint, the Wall Street Journal published an article on September 21, 2019, asserting that Trump had pressured Zelensky about eight times in the telephone call to investigate Biden and his son Hunter.  Despite initial denials and cries of  "fake news," Trump himself acknowledged that he had pressured Zelensky into investigating Biden and his son.  Trump's admission, along with his Administration's intransient stance on withholding the text of the complaint, prompted the House Democrats to meet on Tuesday night.  As a result of that meeting, House Speaker Nancy Pelosi, who had been opposed to impeachment over the findings of the Mueller Report, announced that the House would now begin a formal impeachment inquiry.  Feeling the political pressure on him growing, Trump agreed to the release of the transcript of his telephone call after obtaining consent from the Ukrainian Government.

It should be noted that no real word for word transcript of the telephone conversation exists.  Rather, the White House released a memorandum of the telephone call pieced together by government officials whose job included taking notes of such conversations.

Nonetheless, despite Trump's claims that the telephone call was "perfect," and that the transcript would exonerate him, the memorandum instead provides a smoking gun of an abuse of presidential power for personal political gain.

A review of the conversation demonstrates how Trump brazenly ignores his constitutional oath, and seeks to use his office for his own personal benefit.

Specifically, the memorandum confirms that Trump requested that Ukraine cooperate with his private attorney, Rudolph Guiliani, and the Attorney General, William Barr, specifically mentioning Trump's belief that Biden stopped a prosecution in the Ukraine that involved Biden's son, Hunter.  After Zelensky agreed to cooperate, Trump stated that he would have both Giuliani and Barr call Zelensky.

Joe Biden, of course, seeks the Democratic nomination for the 2020 presidential election, and currently leads the pack of potential nominees in most polls.  Indeed, in head to head polls, Biden leads Trump by wide margins.  Receiving information that Biden acted corruptly from Ukraine could potentially help Trump in his bid for reelection.

Trump faces the problem, however, that no evidence exists showing that either of the Bidens did anything wrong.  Before Zelensky was elected Ukraine's President, Vitkor Shokin served as Ukraine's top prosecutor.  He was supported by Russia, who was interfering in Ukrainian internal politics.  As is well known, once Ukraine started to turn more towards the West, Russia supported armed Ukrainian separatists, and even invaded Ukraine, occupying the Crimea and claiming it as Russian territory.

Shokin was viewed by Western European governments and the Obama Administration as being soft on corruption.  President Obama sent Biden on a mission to Ukraine to pressure the Ukrainian President to remove Shokin by withholding about $1 billion in U.S. aid.  The intention behind the move was to pressure Ukraine to be tougher on corrupt oligarchs through more aggressive investigations.

At the time, Biden's son, Hunter, held a position as a paid member of the board of a Ukrainian oil and gas company, Burisma.  While Burisma had been under investigation by the Ukrainian Government, under Shokin, the investigation had stalled.  Thus, by insisting on the appointment of a tougher prosecutor, Biden was not only representing official U.S. policy, but risking a renewed investigation of the company that employed Hunter.  No evidence exists that Biden was using his office for personal gain, or that Hunter himself had engaged in any sort of corruption.  Trump's goal. therefore, was simply to manufacture as much alternative facts as possible to cast dispersions on Biden, and hopefully use that to whittle away at Biden's lead in the polls.

In addition to claiming that his request to the Ukrainian President was appropriate, Trump has also claimed that the memorandum shows that there was no pressure placed on Zelensky, and no quid pro quo (or an exchange for something of value to Ukraine for providing the requested information).  Trump's defense again strains credibility.

At the beginning of the telephone conversation, Trump reminds Zelensky that the United States has been Ukraine's biggest supported.  Trump denigrates the actions of European allies, such as Germany, for not doing as much as the United States in supporting Ukraine.  Zelensky responds by fawning all over Trump, agreeing with his statement "1000%."  Most of Zelensky's responses transmit his desire to stay in the good graces of the Trump Administration.  Specifically, Zelensky is quoted a saying, "We are ready to continue to cooperate for the next step specifically we are almost ready to buy more Javelins from the United States for defense purposes."  A Javelin is a missile used by the U.S. military, and would presumably be used by Ukraine in defending its territory from Russia and Russian backed separatists.

This reference to Javelin purchases must be placed in context.  Congress had approved about $250 million in military aid to Ukraine.  However, just days before this telephone call, Trump had ordered that the disbursement of this aid be suspended.  It should also be noted that Trump's admiration of Russian President Vladimir Putin is well-known globally.  In fact, not long after this telephone conversation, Trump publicly stated his support for the readmission of Russia to the G-8, even though Russia had been thrown out because of its invasion of Ukraine.  Clearly, Zelensky had reason to believe that Trump's continued support of Ukraine in its struggle against Russia was soft at best, and could be withdrawn if Ukraine did not do as Trump requested.

In that regard, Trump is quoted as stating, "I would like you to do us a favor though," immediately after Zelensky brings up his desire to buy more Javelins.  The juxtaposition of this request from Trump immediately after Zelensky's spoken desire to buy more missiles, as well as his use of the word "though," indicates that Trump's willingness to provide additional aid was contingent on Ukraine's cooperation with his request for a favor.

What is interesting, however, is that Trump requests more than one favor.  The first one concerned a matter Trump refered to as "Crowdstrike."  Crowdstrike is the company that the Democratic National Committee used to investigate the hacking of its email server.  The Crowdstrike, the FBI and Robert Mueller's investigative team all concluded that Russia was responsible for that hacking.  Yet Trump refused to believe his own Government in reaching that conclusion.  One reason for his belief is because Crowdstrike never turned the physical server over to the FBI.  Trump believed rumors that Ukraine was in possession of the server.  He therefore asked Zelensky for his help in proving that Trump's convoluted conspiracy theory was true.

It is beyond odd that Trump demanded of the Ukraine that it find evidence Trump hoped would exonerate Trump's buddy, Putin, from the conclusion of the U.S. intelligence community, the FBI and the Mueller team that Russia interfered in the 2016 U.S. presidential election.  It demonstrates Trump's refusal to accept the conclusions of the Mueller and his team, who spent about two years investigating Russia, the Trump Campaign and the Trump Administration.  That investigation resulted in numerous criminal indictments, including the indictments of Russian officials.

Indeed, the timing of the telephone call further demonstrates the contempt that Trump held for Robert Mueller and his investigation.  Mueller had testified before Congress on the day before this telephone call.  Through his investigation, Mueller presented evidence of Russia's interference in the election, that the Trump Campaign had welcomed Russia's interference (although the conduct of campaign officials did not rise to the level of conspiracy), and of numerous instances that could support a conclusion that Trump engaged in obstruction of justice by frustrating the investigation into Russia's interference.

Mueller crafted his report on the investigation with the understanding that a sitting president could not be indicted during his term in office.  Thus, Mueller was careful not to make a conclusion that Trump had committed criminal acts.  Nonetheless, through his report, Mueller made it clear that his investigated did not exonerate Trump.  Rather, he preserved the evidence so that it could be used presumably either by Congress through impeachment or through a criminal prosecution once Trump left office.  Trump and his Administration publicly characterized the investigation as finding that there was "no collusion" and "no obstruction," despite the fact that Mueller made neither of those findings.

Trump, of course, repeatedly referred to the Mueller investigation as a "which hunt," confessing his belief that he, his campaign and his administration did nothing wrong.  Thus, in an interview aired in June of 2019, Trump answered a question from George Stephanopoulos by stating that he did not think it would not be wrong to accept information about a political opponent in an election from a foreign national.  Trump even indicated that if a foreign national provided such information, that he did not believe it was necessary to inform the FBI.  This brazen flaunting of the law raised such an uproar, that the Chairwoman of the Federal Elections Commission was prompted to tweet that "it is illegal to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election."  A thing of value incudes information that can be used against an opponent.

Trump, of course, never accepted that he did anything wrong.  Thus, in the shadow of Mueller's testimony before Congress, Trump went one step further than merely welcoming foreign interference in a U.S. election; he outright solicited such interference from a foreign leader.

The conclusion here is inescapable.  The memorandum of the telephone call to Zelensky shows that Trump has violated the public trust.  He has violated his oath to protect and defend the Constitution against all enemies, foreign and domestic.  In fact, Trump himself has violated the Constitution as well as criminal law by soliciting foreign interference in connection with a federal election.  In order to protect the constitutional balance, governmental ethics and our treasured democracy, the House of Representatives has no choice now, but to proceed with the impeachment inquiry.

By:  Willliam J. Kovatch, Jr.