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Analysis: Assessing the Trump team’s 6-point impeachment defense

The Washington Post logo The Washington Post 1/25/2020 By Philip Bump

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President Trump’s legal team in his impeachment trial began its defense on Saturday morning with a slightly more lawyerly version of one of Trump’s favorite tweets: read the transcript.

“They didn’t talk a lot about the transcript of the call,” White House counsel Pat Cipollone told the assembled senators in the Senate chambers at the outset of his remarks, “which I would submit is the best evidence of what happened on the call.”

That line, in itself, is a neat encapsulation of Trump’s case. It focuses on the rough transcript of Trump’s July 25, 2019 call with Ukrainian President Volodymyr Zelensky as exculpatory — while also asserting that the central issue is the call itself. It isn’t. The presented evidence shows a broad campaign of pressure of which that call was only one part, a campaign that is harder for Trump’s team to refute.

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Cipollone soon transitioned to Michael Purpura, the deputy White House counsel. Purpura began by articulating a six-point defense that his team would offer during its presentation. Those six points, like Cipollone’s claim about the rough transcript: carefully worded, constrained — and often not hard to undercut. Here’s each point as he stated it, and what the available evidence says about the claims.

The Trump team’s case

1. “The transcript shows that the president did not condition either security assistance or a meeting on anything. The paused security assistance funds aren’t even mentioned on the call.”

Remember what’s at issue here. Trump, on the July 25 call, asked Zelensky to launch two investigations, one focused on former vice president Joe Biden and unfounded allegations about his actions in Ukraine in 2016, and another centered on a bizarre conspiracy theory in which Ukraine is implicated in 2016 election interference. To compel Ukraine to launch those investigations, the Democrats argue, Trump delayed a White House meeting sought by Zelensky and withheld military and security aid scheduled to be sent to Ukraine.

Purpura’s right that the transcript doesn’t include any conditioning of the requested investigations on a meeting or aid during the call. What he doesn’t mention, though, is evidence sitting just outside that call which makes clear that Trump’s team made that conditionality clear to Zelensky’s team.

Trump spoke with Ambassador to the European Union Gordon Sondland that morning. Sondland then reached out to then-Ukraine special envoy Kurt Volker, asking Volker to call him. Shortly after, Volker sent a text message to Andriy Yermak, a key adviser to Zelensky, with whom he’d earlier had lunch in Kyiv.

“Heard from White House,” Volker wrote. “[A]ssuming President [Zelensky] convinces trump he will investigate / ‘get to the bottom of what happened’ in 2016, we will nail down date for visit to Washington.”

Volker then sent a message to Sondland.

“[H]ad a great lunch with Yermak and then passed your message to him,” Volker wrote. “He will see you tomorrow, think everything in place.”

Sondland testified about that message, which he said, “likely I would have received that from President Trump.”

During the call, Zelensky at one point seems to make explicit reference to the investigate-for-visit mandate mentioned by Volker.

“I also wanted to thank you for your invitation to visit the United States, specifically Washington D.C.,” Zelensky said, according to the rough transcript. “On the other hand, I also wanted (to) ensure you that we will be very serious about the case and will work on the investigation.”

No, Trump didn’t say that Zelensky wasn’t getting a meeting without the investigation. He didn’t need to. His team had already passed that along.

To Purpura’s second point, it is true that there was no mention of the aid during the call. We’ll get to that in a moment.

2. “President Zelensky and other Ukrainian officials have repeatedly said that there was no quid pro quo and no pressure on them to review anything.”

In its careful wording, this is also true. Zelensky, sitting with Trump in a meeting on Sept. 25, was asked if he felt pressure from Trump in the call. After indicating that he didn’t want to get involved in the politics of the question, he conceded that he hadn’t felt pushed.

That admission, as he obviously understood, was what Trump wanted to hear. Trump quickly jumped on it: “In other words, no pressure,” he said, paraphrasing his counterpart.

David Holmes, a political staffer at the embassy in Ukraine, explained why he felt that Ukraine would not only have felt pressure but also pressure not to concede that they were being pressured. He was speaking about how Ukraine would have tried to navigate the hold on aid, but the point is broader.

“Whether the hold, the security assistance hold, continued or not, Ukrainians understood that that’s something the president wanted, and they still wanted important things from the president,” Holmes said. “So I think that continues to this day. I think they’re being very careful. They still need us now going forward.”

Purpura suggested that treating Zelensky’s claims with skepticism was akin to reading Zelensky’s mind. Taking the assertions of Zelensky and other Ukrainian officials at immediate face value, though, offers no more assurance of yielding an accurate interpretation.

This conflict gets to the heart of what Trump is alleged to have done. Either the United States has the ability to exert pressure on Ukraine or it doesn’t. Trump asks that we assume there is no implicit pressure at play and that everything that occurred is no more complicated than the most basic reading of events. That request can be evaluated on its own merits.

3. “President Zelensky and high-ranking Ukrainian officials did not even know — did not even know the security assistance was paused until the end of August. Over a month after the July 25th call.”

Cipollone and Purpura lamented that the House impeachment managers had failed to offer evidence exculpating the president, as though prosecutors are generally in the habit of doing so. Included in that overlooked evidence were statements from administration officials indicating that Ukraine and Zelensky weren’t aware of the hold on aid — introduced in early July — until late August when Politico broke the story. Several of those who testified said that this was the first point at which the issue was raised by their contacts in Ukraine.

Trump’s lawyers mostly skipped the evidence that contradicts this, of course. Emails sent on July 25 itself to staffers at the Defense Department indicated that the Ukrainian Embassy was aware of the hold, which had been announced within the administration a week earlier. A former senior Ukrainian official, working in Zelensky’s administration at that point, indicated that she was aware of the hold by late July. Catherine Croft, a State Department official, testified that she was surprised at how quickly her Ukrainian colleagues learned about the hold soon after it was known in the administration, though she didn’t know when precisely that occurred, as Purpura pointed out.

Croft made another point, though, which directly undercuts a claim made by Purpura. “Common sense comes into play right here,” he said at one point. “The top Ukrainian officials said nothing, nothing at all to their U.S. counterparts during all of these meetings about the pause on security assistance. But then, boom, soon as the Politico article comes out, suddenly, in that first intense week of September, in George Kent’s words, security assistance was all they wanted to talk about."

“What must we conclude if we’re using our common sense?” Purpura continued. “That they didn’t know about the pause until the Politico article on August 28. No activity before. Article comes out, flurry of activity.”

During her testimony, Croft explained why Ukraine wouldn’t want to focus on the aid while it wasn’t publicly known.

"If this were public in Ukraine, it would be seen as a reversal of our policy and would, just to say sort of candidly and colloquially, this would be a really big deal, it would be a really big deal in Ukraine, and an expression of declining U.S. support for Ukraine,” she said in her closed-door testimony. “As long as they thought that in the end the hold would be lifted, they had no reason for this to want to come out.”

What Purpura also ignored, of course, is that Sondland himself had informed Yermak on Sept. 1 that the aid would be held until the investigations were launched. He did so of his own volition, as he testified, but it was nonetheless the case that an official close to Trump did inform Ukraine that there was a quid pro quo on this point.

Slideshow by photo services

4. “Not a single witness testified that the president himself said that there was any connection between any investigations and security assistance, a presidential meeting or anything else.”

This is a valid point. While several witnesses linked Trump’s personal attorney Rudolph W. Giuliani specifically to a meeting-for-investigations quid pro quo, no one testified that they’d been told that Trump made that conditionality clear. The only person who did make such a link was acting White House chief of staff Mick Mulvaney during a news conference in October. But, of course, Mulvaney declined to actually testify.

Trump’s team, justifiably, has long focused on the extent to which Trump himself has been kept at a distance from the allegations. There’s little question that, to some extent, that distance was intentional. Trump told Sondland, Volker and then-Energy Secretary Rick Perry to work with Giuliani, for example, just as he told Zelensky he’d put him in contact with his personal attorney. Giuliani himself told the New York Times and other outlets that he was working on Trump’s political behalf in seeking the investigations. Giuliani was also at the center of an effort to link a White House meeting to the announcement of investigations in a series of interactions in early August.

The link from Trump to those efforts seems obvious, but that it isn’t obvious — at least with the available testimony — retains some aspect of reasonable doubt.

5. The security assistance flowed on Sept. 11, and a presidential meeting took place on Sept. 25 without the Ukrainian government announcing any investigations.

To undercut the idea that the aid or the meeting were conditioned on the announcement of investigations, Trump’s team (as his allies have done in the past) noted that Ukraine got both the aid and the meeting. The aid was, in fact, released on Sept. 11, 2019. The two presidents did meet, in fact, two weeks later.

However.

That aid was only released after attention had been drawn to its being withheld publicly. House Democrats had launched an investigation into the hold. The Washington Post editorial board had explicitly connected the hold to the desired investigations. Trump had already been briefed on a complaint from an anonymous whistleblower in which that connection was mentioned as part of a broad campaign to pressure Ukraine. Trump had faced questions from both Sondland and political allies, like Sen. Ron Johnson (R-Wis.), about why the aid was being held and if it was being held to pressure Ukraine. The tables, in other words, had turned: now Trump faced significant pressure to release the aid.

Stack those factors against the administration’s stated rationale for the hold. That rationale centers on Trump’s purported concerns about Ukrainian corruption, concerns that weren’t manifested within the administration through any obvious process of evaluation and which for vague reasons were coincidentally alleviated just as all of this external pressure had come into play.

Another salient factor? On Sept. 11, Zelensky was still planning to participate in an interview with CNN in which he’d informed Trump’s team he would announce the investigations. That interview was only canceled once the Ukraine question broke into public view.

The claim that Zelensky got his desired meeting in late September is a simply ridiculous claim. What Zelensky wanted was a one-on-one demonstration that Ukraine is a close ally of the United States by having Zelensky and Trump sit down in the Oval Office. He wanted that photo of Trump and himself shaking hands, something he could present to the world — and Russia — as a statement of the big stick he was able to carry.

On Sept. 25, that’s not what he got. He got a bilateral meeting on the sidelines of the U.N. General Assembly. That same day, Trump also sat down with leaders from Japan and El Salvador. The day prior, he’d similarly met with leaders from India, the United Kingdom and Iraq. Claiming that the Sept. 25 meeting was what Zelensky sought is like claiming that dancing with a partner once at a party is equivalent to getting engaged.

From the time that Zelensky won his election in April of last year through the end of last year, about a dozen other foreign leaders got precisely the sort of meeting Zelensky sought; among them was Russia’s foreign minister.

6. The Democrats’ blind drive to impeach the president does not and cannot change the fact, as attested to by the Democrats' own witnesses, that President Trump has been a better friend and stronger supporter of Ukraine than his predecessor.

This is a subjective claim, but it’s true that, in prior years, Trump had authorized aid to Ukraine including military aid which hadn’t been provided under Barack Obama.

It raises an important question, though: Why did that support collapse in 2019? House Democrats argue that there’s an obvious answer. In April 2019, Joe Biden announced his candidacy. On the morning of July 25, Trump watched a Fox News broadcast showing Biden leading Trump in 2020 polling.

We’re asked to believe that this was not a consideration for a president who has tweeted scores of times about his political opponents. We’re asked to believe instead that he was focused on corruption in Ukraine, something he’d tweeted about only once before early September — and only then in the context of Joe Biden.

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