RESPONSE TO TIM SMITH’S DEFENSE OF TRUMP’S ‘FAVOR’
In his “Usually Right” column titled “Seeking a Legal Quid Pro Quo” in the Observer-Tribune for November 28, Tim Smith argues that the rough transcript of President Trump’s July 25th telephone call to the newly-elected president of Ukraine, Volodymyr Velensky, indicates that Trump’s request “would indeed be a quid pro quo, but it is one ‘favor’ being traded for another, and not only is it not a crime—it’s business as usual in every capital across the globe.” Mr. Smith, who touts his “analytical” approach to “policy and philosophical arguments,” claims to have arrived at this conclusion through a careful analysis of the document. His argument contains several logical and factual errors, however, and his conclusion does not follow. Interestingly enough, he projects the source of these errors through his unintentionally ironic statement that “analytical people infer all sorts of nefarious things when they lack direct information to fill gaps—and when they lack trust.” Yes, indeed they do.
Mr. Smith starts with the premise that Trump “wanted greater efforts at stamping out internal corruption,” an assertion that has no basis in the transcript and no basis in whatever information is available about Trump’s behavior. Anti-corruption was certainly the policy of the State Department—as stated repeatedly by Ambassador Yovanovich, charge d’affairs Taylor, special envoy Volker, and others. It had also been the policy of the Obama administration, and Vice President Biden had pressed the Ukrainian government on that policy. In the transcript, however, Trump’s concern about “stamping out internal corruption” is exclusively and particularly focused on Burisma, the Ukrainian gas company that once had Hunter Biden on its board. Trump also claims that Joe Biden “stopped the prosecution” (of corruption, presumably in Burisma), a claim for which there is no evidence. In addition, if, as Trump claims, the defense aid was held up pending guarantees that Ukraine is serious about prosecuting corruption, then what are we to make of the letter written to congressional committees in May by Undersecretary of Defense John Rood in which he certifies that “Ukraine has taken substantial actions to make defense institutional reforms for the purposes of decreasing corruption,” and “now that this [. . . ] has occurred, [ . . .] implementation of this further support will begin no sooner than 15 days following this notification.” In other words, there was no valid reason to withhold the promised aid authorized by Congress. As J. Brian Atwood, a former Foreign Service officer has stated, “If the president delayed aid to extract a favor from Ukraine’s government, that not only would have undermined our policy, but it also would have fallen outside of his legal authority as chief executive and violated federal election laws. He could have delayed the aid to further policy objectives. He could have, pursuant to the Impoundment Act, asked for the funds to be redirected. He could not, however, legally, direct congressionally appropriated funds to achieve personal political ends.” In addition, if Trump had been concerned about corruption going forward (if indeed that is why the funds were on hold), then how are the Bidens at all even relevant? Hunter Biden left the Burisma board in early 2019; and Joe Biden has been out of office for three years. If they were corrupt, their alleged corruption would be in the past! [If indeed Senator Graham’s Senate Judiciary Committee investigates past corruption concerning Burisma and somehow finds Joe Biden guilty of shielding his son—again, no evidence so far that this is so—then that would be a black mark on Biden the presidential candidate. But isn’t this the point? To weaken Biden’s candidacy in 2020, not to uncover present corruption in Ukraine, and Burisma in particular? This has nothing to do with getting at present corruption as a condition for releasing defense aid and setting a date for Velensky to visit the White House.]
The next flaw in Mr. Smith’s argument is his statement that “it is in our national interest to know whether or not a former vice president, and current presidential candidate, may have somehow been involved in influence peddling.” Certainly the voters in the 2020 election would want to know if a candidate has been so involved, but the proper way to get this information is through the State Department or, pace Senator Graham, such congressional committees as Senate Judiciary. Asking a foreign government to pursue an investigation into an officer of a former administration who is also a current candidate for president is to present that government with a manifest conflict of interest; and, given that Ukraine is currently at war with Russia and in desperate need of military and diplomatic assistance from the U.S., that conflict of interest is acute. The pressure on Zelensky to do the requested “favor,” given the stakes of the proffered aid, would be intense; and since Trump made his prejudgment clear (“Biden went around bragging that he stopped the prosecution . . . It sounds horrible to me.”), Zelensky would feel pressure to see that the investigation’s conclusions would align with Trump’s feelings of horror. In addition, for Ukraine to investigate an American presidential candidate on the request of the incumbent American president would require them to roll the dice: any investigation would either favor the incumbent or damage the challenger, and the incumbent could punish Ukraine if it did not favor him; likewise the challenger, if he were to become president in 2020, could do the same. This whole thing may be, as Mr. Smith avers, “business as usual in every capitol across the globe,” but if it is, then organized crime is the model; and if the USA participates in this model of transactional politics, we can say goodbye to the “shining city upon a hill” that President Reagan used to uphold as our model for the world.
The next flaw in Mr. Smith’s argument is in his reading of the “favor”: he writes, “there is no sense of a demand there, and certainly in none of the language is there any suggestion that something is going to be withheld if the ‘asks’ are not met.” Let’s do our own analysis.
First, Trump establishes that Ukraine is unlikely to get much help from countries other than the U.S. “We [the U.S.] do a lot for Ukraine. [. . .] Much more than the European countries are doing [. . .] . The United States has been very very good to Ukraine. I wouldn’t say it’s reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine.” The notion of reciprocity is thus inserted, with a nod to Ukraine’s difficulties (presumably the war in the Donbass and the struggle of the new government to establish itself), giving Ukraine an excuse for lack of reciprocity. Zelensky acknowledges Europe’s lack of help and the U.S.’s generosity, and then mentions “the next steps specifically,” namely, that Ukraine is ready to “buy [not to accept as gifts] more Javelins.” Zelensky thus expresses gratitude for help and then immediately announces willingness to purchase weapons, implying that Ukraine doesn’t expect to depend entirely on American largesse. The next words are Trump’s: “I would like you to do us a favor though [. . . ].” Much has been made of that word “though,” and rightly so. In context, it is being used as a conjunctive adverb in the sense of qualifying what has been said immediately before. The sense would be: Even though I acknowledge the difficulty you might have had in reciprocating our friendly gestures, I have a request that even you, in your difficulties, should be able to do for me. The pronoun reference shifts from first person plural “we” [the U.S.] to singular “I,” thus framing the reciprocity as a personal transaction between Zelensky and Trump. He first asks for investigations into “Crowdstrike.” This involves a conspiracy theory that Ukraine has a “server” proving that the 2016 election was hacked by Ukraine, not Russia. This theory was categorically described by Fiona Hill, Trump’s former top Russian expert in the State Department’s office in Ukraine, as a “fictional narrative that has been perpetrated and propagated by the Russian security services themselves.” Trump then says, “I guess you have one of your wealthy people . . . “. He fails to elaborate, but apparently he is referring to a wealthy Ukrainian who is in charge of Crowdstrike, which is false, since Crowdstrike Holdings (a cyber-security technology company based in California) is owned by co-founder Dmitri Alperovitch, a Russian-born American whose company was funded by American venture capital. Trump then refers to the “whole nonsense” about a “whole situation” that “ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine.” Mueller, former Special Counsel appointed by the Justice Dept., had conducted a long investigation that concluded that Russia, seeking to denigrate Hillary Clinton and to promote Trump’s candidacy, interfered in the 2016 election. Calling Mueller “incompetent” indicates clearly that Trump rejects the authority or validity not only of an investigator who had received unanimous bipartisan acclaim for his competence and impartiality, but whose investigation was loudly embraced by Trump when it found that no one in Trump’s campaign had actively “colluded” or conspired with Russian agents to undermine his 2016 opponent. Trump then advances his surmise that Ukraine was the culprit—a neat inversion of the facts. The Mueller report concluded definitively that Russia meddled to promote Trump, an established fact that Trump continues to deny in favor of the debunked theory that Ukraine meddled to promote Trump’s opponent, Hillary Clinton.
Zelensky’s response to Trump’s request is expressed as an enthusiastic affirmative. He pledges to cooperate fully with the request, expressing a strong desire for friendship and a “strategic partnership.” This is followed by Trump’s approval, after which he encourages Zelensky to work with Rudy Giuliani, his personal lawyer (rather than anyone in the State Department, as would be more proper), and with “the Attorney General,” not of Ukraine, but of the United States. Trump calls Giuliani “a very capable guy” and “a highly respected man.” Trump is thus implying that Zelensky’s government would be incompetent (like America’s government-appointed Special Counsel Mueller?!) to do the investigation itself. The implication is that Ukraine is in the position of a client state, isolated and unsupported by anyone but the U.S. under Trump’s leadership.
Trump then gets to “the other thing” (besides Crowdstrike and alleged Ukrainian interference in the 2016 election), namely: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution [of Burisma’s corruption and Hunter Biden’s seat on its board] and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.” Trump later refers to the prosecutor that Biden helped to remove as “a very fair prosecutor” who was “treated very badly.” That prosecutor, Viktor Shokin, contrary to Trump’s characterization, was fired after strong complaints not only from Biden representing the U.S. government but European diplomats and such organizations as the International Monetary Fund that Shokin was shielding corrupt Ukrainian officials. Among other misdeeds, he had shielded Burisma’s owner, Mykola Zlochevsky, from prosecution by British authorities in a money-laundering probe. Vice President Biden called for Shokin’s removal after it was obvious that Shokin would not seriously prosecute corrupt Ukrainian politicians and oligarchs, including Zlochevsky. This is to say the exact opposite of Trump’s claim: Biden called for the removal of Shokin not because Shokin was trying to prosecute Burisma, but rather because Shokin was failing to prosecute Burisma at the time Hunter Biden was on Burisma’s board!
Certainly it must be acknowledged that Hunter Biden showed poor judgment in agreeing to sit on Burisma’s board, and poor judgment on his father’s part not to counsel his son against such a venture. Yes, it is not unusual for companies with international aspirations to bring on high-profile individuals for public-relations purposes. Hunter Biden was joined on Burisma’s board by Joseph Cofer Black, former counter-terrorism chief under George W. Bush’s administration, and Aleksander Kwasniewski, former president of Poland. Nonetheless, for Hunter Biden to join the board while Burisma’s owner was under investigation for corruption, with his main qualification for such a lucrative position being the son of the sitting American vice-president, is unseemly at best. It can be credibly argued that young Biden wanted to lend his (borrowed) prestige to help a Ukrainian company gain a foothold in the global market so that Ukraine could develop its economy and, not incidentally, not have to depend on foreign aid in its struggle to fully disengage from Russia, its former imperial overlord and present invading adversary. That would be the plausible noble motive of other board members such as Black and Kwasniewski. Nothing illegal, to be sure! But the financial motive—the lucrative remuneration!—is obviously the compelling motive for all the board directors, and young Biden’s participation smells particularly bad.
The Bidens’ poor judgment, however, is far from evidence of corruption; and, as noted above, Joe Biden’s efforts were to root out corruption, not contribute to it. This brings us to Trump’s contravention of the facts relating to the former ambassador to Ukraine, Marie Yovanovich. In March of this year she was asked by the State Dept. (under Secretary Pompeo) to extend for an additional year her three-year appointment as U. S. Ambassador to Ukraine; in May, just a month and a half later, her appointment was abruptly terminated for no cause other than President Trump had ‘lost confidence’ in her. On what possible grounds? Ms. Yovanovitch’s record on anti-corruption efforts was stellar enough for the State Dept. to urge her to stay on to continue its firm policy of rooting out Ukrainian corruption for the very reason Trump has given for holding up military aid: so that aid would not be misused. But, as George Kent, Deputy Assistant Secretary of State memorably testified, “ You can’t promote principled anti-corruption action without pissing off corrupt people.”
Corruption was rampant in Ukraine from the time it secured its independence from the Soviet Union, largely due to subversion of its democratic efforts by Russia under the Putin regime and the puppet government of Viktor Yanukovych. The Ukrainian Prosecutor General who succeeded Viktor Shokin is Yuri Lutsenko, who was dismissed by the Ukrainian Parliament last August, a few months after Zelensky won the presidency with broad support on an anti-corruption platform. After Lutsenko’s investigation of the death (resulting from a sulphuric acid attack) of anti-corruption activist Kateryna Handziuk failed to satisfy human rights organizations’ demand for justice, Lutsenko agreed to resign, but then-president Petro Poroshenko refused to accept his resignation. Poroshenko was notoriously corrupt, and Zelensky’s decisive election victory over him indicated the strong will of the Ukrainian electorate for serious reform. Ambassador Yovanovitch was on to Poroshenko’s corruption and Lutsenko’s weakness and incompetence. In March of this year, Lutsenko gave an interview with John Solomon, a conservative columnist for The Hill, alleging that Yovanovitch had interfered with Ukrainian prosecutions of corruption, an allegation that our State Department called “an outright fabrication.” Why would Lutsenko do such a thing? Because Rudy Giuliani wanted Yovanovitch removed, and Lutsenko wanted to please Giuliani because Giuliani represented President Trump, who temporarily is invested with the world’s most powerful office. Why would Giuliani be against Yovanovitch? Because she rejected Giuliani’s allegation that Joe Biden shielded his son Hunter from prosecution when he sat on Burisma’s board. Where did Giuliani get that idea? From Lev Parnas and Igor Fruman, Ukrainian-Americans now convicted of bribery and violating federal election financing laws. And why did Parnas and Fruman want Yovanovitch ditched? Because she was on to their corruption, Lutsenko’s corruption, and Giuliani’s dogged determination to promote the interests of his chief client, President Trump, a determination that still pursues any avenue—even if it is invented out of whole cloth—to protect the most corrupt, mendacious, and irresponsible president in American history.
So here we are. As of this writing (12/5/2019) the House Intelligence Committee has passed the impeachment torch to the House Justice Committee, which has just concluded its open hearing consulting with four highly-distinguished academic experts on Constitutional law. Three of them (selected by the majority Democrats) stated unequivocally that Trump violated his oath of office by seeking to bribe President Zelensky and should be impeached; the fourth, selected by the minority Republicans, said it’s too soon to impeach, that the process should slow down by allowing the courts to become more involved. The Republican response has been to decry the process as a ‘hoax’ and a ‘sham’, an ‘unfair’ effort of the Democrats to ‘undo the 2016 election.’ This last claim has merit. It is an effort to undo the 2016 election of a man who for the past three years has demonstrated over and over again that he is unfit to hold the office; and his attempt to bribe a foreign national with congressionally-appropriated funds to help compromise the candidacy of a political rival is precisely why the impeachment clause was included in the U. S. Constitution.
********
RES PUBLICA 