The implications of Sen. Rand Paul’s campaign to out the whistleblower who first exposed President Trump’s withholding of Ukraine military aid for domestic political purposes has big constitutional implications, writes attorney Jason Zuckerman.
As the IC whistleblower’s allegations have been corroborated by several highly credible witnesses, there is no legitimate reason to attack a whistleblower who initiated an investigation in a responsible manner. Indeed, in the words of Acting Director of National Intelligence Joseph Maguire during his September 26, 2019 testimony, the whistleblower “acted in good faith throughout” and did “everything by the book and followed the law.” In contrast, a political actor in the IC plotting to impeach the President presumably would leak information to the media, not report information through the appropriate, lawful channel. The only ostensible reason for Senator Paul’s question is to chill whistleblowing during this Administration.
Although there is undoubtedly short-term political gain for Republican senators leading this crusade against a “deep state” conspiracy, they may come to regret undermining the First Amendment right to association. In particular, outing a whistleblower and forcing that whistleblower to reveal the names of other whistleblowers will result in harassment of whistleblowers, threats of physical violence, and otherwise chill associational rights. If Republicans are performing oversight of a Democratic president in the future, they will depend on whistleblowers to come forward and voluntarily participate in oversight investigations. And a political party focused on reducing wasteful spending should be eager to encourage civil servants to root out waste, fraud, and abuse.
The national security argument in the Senate impeachment trial of President Trump was a big dud. While the House managers made the case that the United States should arm Ukraine, they didn’t follow up the point because it was weak.
The president’s defenders noted, accurately, that Trump’s Ukraine policy was more militaristic than President Obama’s. If you measure national alliances in the coin of lethal weapons, Trump’s impeachable policy was superior to Obama’s multilateral and legalistic approach.
Why did the invocation of “national security’ in Ukraine fail to move the impeachment needle?
In an interview with Aaron Mate, Professor Stephen Cohen dissects why the Russia rhetoric was off-key and dangerous. The notion that arming Ukraine is a matter vital to U.S. national security–a central claim to Article 1 in the House bill of impeachment–is not supportable.
Cohen makes the argument–which Obama acted on–that there is no point in arming Ukraine when neighboring Russia has the ability to match and any exceed any U.S. escalation.
In the summer of 2016
President Barack Obama and Republican presidential candidate Donald Trump
didn’t agree about much, except for one obscure issue of U.S. foreign policy:
lethal military aid to Ukraine.
As commander in chief, Obama objected to such assistance, even in the face of a Russian proxy war. So did candidate Trump. On the eve of Trump’s nomination, his allies replaced the GOP platform’s demand for “lethal defensive weapons” with a call for “appropriate assistance,” a formulation that Obama might have used.
Now four years later, Article I of the House impeachment bill charges that Trump abused his power by endangering U.S. national security in two ways: first, by withholding lethal military assistance to Ukraine, and second, by soliciting foreign interference in a U.S. election.
The argument is expansive. The president supposedly “endangered U.S. national security, jeopardized our alliances, and undermined our efforts to promote the rule of law globally.” Ukraine, they contend, “is a ‘strategic partner of the United States’ on the front lines of an ongoing conflict with Russia. The United States has approved military assistance to Ukraine with bipartisan support since 2014, and that assistance is critical to preventing Russia’s expansion and aggression.”
This is the militarized
rhetoric of threat inflation. Ukraine may be a “strategic partner” but it is
not a member of NATO or any other military alliance. The invocation of a
“bipartisan” consensus papered over the fact that Obama wanted no part of it, while
implying, wrongly that the policy he pursued endangered American lives.
After throwing Obama’s
principled non-interventionism under the proverbial bus, the House managers adopted
a rationalization for U.S. policy rarely heard in U.S. politics in the past
assistance—which President Trump withheld in service of his own political
interests— ‘saves lives’ by making Ukrainian resistance to Russia more
effective,” the House managers claimed. “It likewise advances American national
security interests because, ‘[i]f Russia prevails and Ukraine falls to Russian
dominion, we can expect to see other attempts by Russia to expand its territory
and influence.’ Indeed, the reason the United States provides assistance to the
Ukrainian military is ‘so that they can fight Russia over there, and we don’t
have to fight Russia here.’”
The idea—persistent in
the annals of American exceptionalism—is that waging war or intervening
militarily overseas (sometimes described as “supporting the spread of
democracy”) will somehow make Americans safer in their homes. The Iraq
catastrophe, which destabilized the Middle East, stoked mass migration and
turbo-charged jihadist terror networks, seemingly proved the folly of the
notion. But not, it seems, to the House managers.
Such is the peculiar strength of the national security party in American politics. Once firmly aligned with the Republican party, this Washington faction (which Trump demonizes as “the deep state”) has shifted into de facto alliance with the Democrats. The former leaders of the national security agencies—the CIA’s John Brennan, Mike Morrell, and Michael Hayden, along with the NSA’s James Clapper—all supported the Iraq invasion. All now support the Democratic opposition. Not since George H. Bush, a former CIA director, was elected President in 1988 has the intelligence community leadership intervened so openly in American politics.
Small in numbers, the
national security faction is influential in the civil service, the military,
the media, and on Capitol Hill. When House Speaker Nancy Pelosi was
contemplating how to respond to the revelations of Trump’s Ukraine extortion
last September, it was a CIA whistleblower and a Washington Post op-ed, signed by seven House freshmen Congressmen with national security
experience, that prompted her to drop her opposition to impeachment.
But if the “Trump endangers national security argument” was supposed to persuade the stony-faced Republican senators, it failed, and for good reason. The danger of Americans fighting Russia “over here,” meaning in the United States of America, is non-existent. Such thinking, judging by Trump’s excoriation of Bush’s Iraq “lies” and fondness for Putin, has little support in today’s Republican party. It has just a little appeal to the war-weary Democratic rank and file. The argument was implausible, if not risible. It undermines the otherwise strong case for impeachment.
On Monday, deputy White House counsel Mike Purpura responded deftly. He took to the Senate podium to play sound bites from Ambassadors William Taylor, Marie Yovanovitch, and Kurt Volker.
The three diplomats have
given credible and devastating testimony about Trump’s furtive efforts to
extract an official Ukraine investigation of his rival Joe Biden. They have all
testified to Trump’s abuse of power. Yet they all agreed the Ukraine policy he
implemented was a welcome corrective to Obama’s policy. Taylor called it a
“President Trump has been a more stalwart friend of Ukraine that President Obama,” Purpura declared said.
If you judge friendship in the coin of lethal weaponry–which the House managers do in Article I—then he had a point.
Over the objection of his hawkish advisers, Obama had blocked lethal military assistance to Ukraine on principled grounds (and he did so in a transparent and legal way.) His sensible position was summarized by Jeffrey Goldberg of the Atlantic in 2016: “Ukraine is a core Russian interest but not an American one, so Russia will always be able to maintain escalatory dominance there.” Obama’s policy was to support Ukraine in every way but militarily and to promote peace talks.
Obama’s dovish views about the limits of U.S. power were also grounded in the realities of Ukraine. The country’s economy, based on agriculture and extraction, is not dynamic. Its national institutions are weak. Its politics are dominated by shifting coalitions of oligarchs, some who align themselves with Moscow, others who look to the West for help. Some, like Mykola Zlochevsky, a former cabinet minister in a pro-Russian government, financier of the Burisma gas company, and patron of Joe Biden’s son, look both East and West for support. In any case, Ukraine was a weak reed for U.S. military intervention.
By contrast, Trump’s views about Ukraine were grounded in admiration for Vladimir Putin. In 2014, when a pro-Putin oligarch was ousted by the popular protests, supported by Washington (and Western intelligence services), Putin responded by snatching Crimea, the easternmost department of the country. Then he launched a proxy war to bleed and debilitate the pro-Western government in Kiev. Some 13,000 people have died in the conflict. Trump’s take: “Obama was outsmarted by Putin.”
Like Obama, Trump
downplayed the danger of Putin’s aggression to core U.S. interests, albeit for
very different reasons.
taking office, Trump quickly came around to
the hawk’s point of view, if only to differentiate himself from Obama. The
national security establishment, embodied by Taylor, Yovanovitch, and Volker,
approved of his about-face–until Trump used the militarized U.S. policy
for his own political advantage.
As national security adviser John Bolton wrote in his coming book, Trump withheld the aid on the condition that President Volodymyr Zelensky announce an investigation into Hunter Biden and Burisma. Trump’s action was corrupt and illegal. But it was not an abuse of power that threatened the safety of the United States of America, any more than Obama’s prudential policy was a national security menace. On a day when Ken Starr’s hypocritical testimony inspired ridicule and Bolton’s name went unmentioned, Purpura effectively scored a point in favor of the embattled president
The second prong or
Article 1 charges that Trump’s Ukraine power play endangered national security
by soliciting the assistance of a foreign government in a U.S. election. This
is a much more credible allegation. It is consistent with Trump’s non-criminal
collusion with Russians in the 2016 campaign, and a much more serious threat to
U.S. national security. If things go wrong in Ukraine, the American people will
not suffer. If the 2020 election is not considered legitimate, the foundations
of American democracy are not safe.
Purpura didn’t address
this second national security argument in his abuse of power argument. He
didn’t have to. He had illuminated the weakest link in the abuse of power
charge against the president.
One open secret of the National Security Agency is its ability to intercept the communications of foreign leaders. That ability, it is safe to say, include Ukraine president Voldymor Zelensky, the target of President Trump’s pressure campaign to extract a public statement about rival Joe Biden.
How that Trump has been impeached and faces trial in the Senate, House Intelligence Committee Adam Schiff says NSA has unspecified reccords that are relevant to the impeachment trial that the Congress does not have acces to.
Schiff, D-Calif., contended that the National Security Agency “in particular is withholding what are potentially relevant documents to our oversight responsibilities on Ukraine, but also withholding documents potentially relevant that the senators might want to see during the trial. That is deeply concerning.” He also said “there are signs that the CIA may be on the same tragic course.”
The case for impeaching President Trump for bribery is strong, says law professor Randall Eliason
Article II, Section 4 of the Constitution singles out bribery as grounds for impeachment: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
1. A federal public official;
2. directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept;
3. anything of value
4. in return for being influenced in the performance of any official act.
Let’s consider how a federal prosecutor would meet these elements when it comes to President Trump and Ukraine.