Gordon Sondland’s testimony frees Team Trump to adopt the best defense: the truth By Andrew C. McCarthy
https://nypost.com/2019/11/20/gordon-sondlands-testimony-frees-team-trump-to-adopt-the-best-defense-the-truth/
Wednesday’s impeachment testimony by US Ambassador to the European Union Gordon Sondland underscored the folly of the main defense strategy adopted by President Trump and his supporters against Democratic allegations that he traded military aid for dirt on the Bidens.
That strategy has been to categorically deny any quid pro quo. Yet contrary to other witnesses’ versions of events, Sondland clearly and explicitly acknowledges that there was a quid pro quo.
Specifically, Sondland testified that he knows Trump was stalling on a promised White House visit for Ukrainian President Volodymyr Zelensky. Sondland came to realize Trump was also withholding $400 million in defense aid. That was the quid.
The quo sought by the president was Kiev’s announcement that it would conduct investigations of Ukraine’s meddling in the 2016 election and of Burisma — a Ukrainian energy company that was lavishly compensating Joe Biden’s son Hunter. While serving as Team Obama’s point man on Ukraine policy, then-veep Joe Biden forced the firing of a Ukrainian prosecutor who was investigating Burisma.
Sondland later admitted that he presumed the quid pro quo. Even so, the president’s defenders shouldn’t fight the notion that there was a quid pro quo. Virtually all foreign relations involve quid pro quo, a Latin phrase that just means “this for that” — and doesn’t necessarily imply corrupt ends. Plus, discourse between foreign powers typically involves pressure. The domestic criminal-law concept of “extortion” has no application in foreign relations, where countries squeeze each other, and worse, to force accommodations.
That being the case, it was almost certain that Democrats would be able to show that the Trump administration pressured Ukraine, using the things Ukraine wanted, to get the accommodations the president sought.
I have assumed from the first that there was a quid pro quo. Republicans and the White House, to the contrary, have insisted up, down and sideways that there was no quid pro quo. That ill-advised strategy ensured that, in the highly foreseeable event a witness testified that there was a quid pro quo, the testimony would seem much more damaging than it actually is.
The president’s best defenses fully account for the likelihood that a quid pro quo could be shown. They always have.
First, I’ve taken to calling this the “Seinfeld Impeachment” — nothing actually happens. The Ukrainians were given their defense aid. Trump gave Zelensky a high-profile meeting (although not yet in the White House). Zelensky and his government were not forced to announce the investigations, and there is no reason to believe they have conducted them.
Zelensky regarded the president’s push as a request, and he has said he never felt pressured. For all but a few days of the weeks during which the defense aid was withheld, the Ukrainians were not even aware of the holdup — it was a bookkeeping issue in the massive US budget. Ukraine never missed the aid, and its security was never compromised. Moreover, Trump has been much more supportive of Ukraine’s national defense than was his predecessor. Unlike the Obama administration, Trump has provided lethal defense aid that has made a real difference on the battlefield.
Second, the Democrats’ claim of misconduct doesn’t come close to the Framers’ conception of an impeachable offense. The Constitution makes impeachment the remedy for “treason, bribery or other high crimes and misdemeanors.” As the plain text attests, the bribery the Framers had in mind was on the order of treason — i.e., a traitorous sale of the presidency to a foreign power.
As the Constitution defines it, treason occurs when an American adheres to a foreign enemy. An enemy implies wartime — i.e., aiding the enemy’s belligerence against the United States. The Framers, however, were also worried about presidential intrigue with foreign powers that were not wartime enemies — i.e., the possibility that a foreign power would bribe the president to pursue the foreign power’s interests, not ours.
Democrats maintain that the president is guilty of bribery, even though there was no bribe, because the federal bribery statute doesn’t require the bribe to be completed. A corrupt demand by a public official in exchange for the performance of an official act is enough.
For purposes of domestic law enforcement, it is perfectly appropriate for Congress to criminalize lesser offenses under the heading of “bribery.” In crafting the impeachment clause, however, the Framers weren’t relying on this federal statute, enacted about 175 years later. They had a very specific kind of bribery in mind. They were contemplating not only an actual bribe, but a bribe of the most egregious, traitorous kind.
Finally, the president didn’t have corrupt intent. Contrary to Rep. Adam Schiff’s “parody” version of the July Trump-Zelensky call, he wasn’t asking Ukraine to “make up dirt about my opponent.” There was significant reason to believe the Bidens were involved in self-dealing. There is abundant evidence that Ukrainian officials colluded with Democrats in the 2016 campaign. The president’s supporters say he was not so much seeking to help his 2020 campaign as to press for full accountability regarding Ukraine-Democrat collusion in the 2016 campaign and potential corruption in Obama administration dealings with Kiev.
Sondland’s testimony showed the president and Republicans need to rethink their defense. Fortunately for them, they not only have a case, it’s the case they should have been making all along.
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