Commentary / World

Why Trump's call is impeachment-worthy

by Noah Feldman

Bloomberg

A White House memo recording U.S. President Donald Trump’s July phone conversation with Volodymyr Zelenskiy is damning.

Trump’s request that the president of Ukraine initiate a corruption investigation into Joe Biden and his son Hunter wasn’t incidental. On the contrary, it appears to have been the point of the call, along with an additional request to investigate the origins of the Russian collusion allegations against Trump. Trump brought up the investigations nearly every time he opened his mouth. Zelenskiy responded positively, suggesting he got the point.

There is more than enough evidence here to support an allegation that Trump was not merely asking the president of Ukraine “to do us a favor,” as he put it, but rather proposing a quid pro quo in which U.S. aid for Ukraine would be reinstated in exchange for an investigation into the Mueller investigation, and into Biden. That would constitute an abuse of power by the president of the United States for his own benefit, since Biden was and is the leading contender for the Democratic nomination to challenge Trump in 2020.

Such an abuse, if proven, would almost certainly qualify as an impeachable offense. It might even constitute a federal crime of extortion, depending on whether political assistance to Trump in beating Biden would count as something valuable under the relevant statutes.

The first proof that the quid pro quo arrangement was the whole point of the call is that the call occurred at all. As Zelenskiy pointed out to Trump in the beginning of the call, he hadn’t just won his presidential election, as Trump seemed to think. Rather, his party had won parliamentary elections. Trump had already called Zelenskiy a different time to congratulate him on his presidential victory.

Zelenskiy seemed a little surprised at the attention conferred by the extra call. After explaining to Trump that “you are now calling me when my party won the parliamentary election,” he quipped: “I think I should run more often so you can call me more often.”

Congratulatory phone calls to new presidents of allies are not at all uncommon. But calls to congratulate a politician when his party wins a parliamentary vote are not standard operating procedure. Zelenskiy’s joke about getting so many calls from Trump suggests, in context, that Zelenskiy was trying to figure out why the president was bothering to call him over parliamentary elections.

Trump didn’t keep him in suspense for long. After Zelenskiy buttered up Trump by telling him that he was “a great teacher,” Trump jumped in say that “we do a lot for Ukraine.” He left no doubt that he was referring to financial aid. German Chancellor Angela Merkel, he said by way of contrast, “talks Ukraine but she doesn’t do anything.” Clearly Trump was saying that U.S. aid to Ukraine was greater than that given by other countries.

Zelenskiy responded to show he understood they were talking about money. “Technically the United States is a much bigger partner than the European Union and I am very grateful to you for that,” he said. The word “technically” seems in context to mean that the U.S. gave more aid to Ukraine than the EU did.

In the same response, Zelenskiy added: “I would also like to thank you for your great support in the area of defense.” This was an explicit reference to military aid — which Trump had frozen several days earlier. Zelenskiy then assured him that “we are ready to continue to cooperate for the next steps” and specifically mentions buying Javelin anti-tank missiles “from the United States for defense purposes.”

This context matters because of what happened next. The memo indicates Trump immediately responding by saying “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it.”

Then he asked for an investigation connected to CrowdStrike, an American company that investigated the Democratic National Committee email hacks in 2016 but which Trump seems to think is Ukrainian. After cryptically mentioning a missing server, he adds “I would like to have the attorney general call you or your people and I would like you to get to the bottom of it. As you saw yesterday” — July 24 — “that whole nonsense ended with a very poor performance by a man named Robert Mueller … but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.”

Trump was talking at this point about an investigation into the Mueller investigation. But Zelenskiy may have thought he was talking about an investigation into Biden. He assured Trump “we are ready to open a new page on cooperation” between the U.S. and Ukraine, and then spontaneously brought up Rudy Giuliani, who apparently had been trying to reach Zelenskiy to discuss the Biden matter: “One of my assistants spoke with Mr. Giuliani just recently,” he said, “and we are hoping very much that Mr. Giuliani will be able to travel to Ukraine and we will meet once he comes to Ukraine.”

Astonishingly, Trump hadn’t yet brought up Giuliani at all when Zelenskiy did. But he went with it, praising Giuliani and then saying, “The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the attorney general would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.” Trump then brought up Giuliani and Attorney General William Barr several more times in subsequent parts of the exchange, saying “We will get to the bottom of it. I am sure we will figure it out.”

Trump’s defenders will say this evidence is all circumstantial. But circumstantial evidence is not weak evidence: it’s simply evidence based on the circumstances in which an act of wrongdoing is committed — such as the license plate of a car that speeds away from a bank just after that bank is robbed. Criminals are convicted on such evidence all the time. They will also say that there’s no explicit quid pro quo proposal here. But as I wrote recently, “even when a corrupt deal is struck implicitly, the government can still prosecute extortion on a quid pro quo basis. Circumstantial evidence can be enough to prove a criminal exchange.”

In the absence of an explicit quid pro quo over restarting aid, the context and circumstances are what will become the focus of the investigation. There is enough here to support impeachment. Whether it is also enough to convince Republicans and lead to removal is another matter.

Bloomberg columnist Noah Feldman is a law professor at Harvard University.

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