At the heart of the impeachment inquiry, members of Congress may have been mistakenly led to believe that there were two phone calls between President Donald Trump and Ambassador Gordon Sondland in early September—with the second call having the possibility of helping the President’s case. That’s not what happened. There was only one call, and it was highly incriminating.
The call occurred on September 7th. In this call, Trump did say there was “no quid pro quo” with Ukraine, but he then went on to outline his preconditions for releasing the security assistance and granting a White House visit. The call was so alarming that when John Bolton learned of it, he ordered his deputy Tim Morrison to immediately report it to the National Security Council lawyers.
Sondland has testified there was a call on September 9th in which Trump said there was “no quid pro quo,” but that he wanted President Zelenskyy “to do” the right thing. A close reading of the publicly available evidence shows that the latter call was actually the very one that sent Morrison to the lawyers, and that Ambassador Bill Taylor foregrounded in his written deposition to inform Congress of the quid pro quo.
As this article was in the publication process at Just Security, the Washington Post published a report raising doubts about the existence of the September 9 call. The analysis that follows is consistent with the Post’s report and, among other points, shows why Sondland’s “no quid pro quo” call is in fact the same as the September 7th call that Morrison reported to NSC lawyers on September 7th.
One of the central questions that the House’s impeachment inquiry is attempting to resolve is “whether President Trump sought to condition official acts, such as a White House meeting or U.S. military assistance, on Ukraine’s willingness to assist with two political investigations that would help his reelection campaign.” And, over the past several weeks, witnesses testifying before the House Permanent Select Committee on Intelligence (HPSCI) have given uncontested testimony that established the following:
- During a July 10, 2019 meeting at the White House, the U.S. Ambassador to the European Union told Ukrainians officials that there would be a “pre-requisite of investigations” before any White House meeting would occur. (Sondland Opening Statement, Nov. 20, 2019, at 10; Hill Depo. at 27; Vindman Depo. at 29)
- During a July 25, 2019 phone call, President Trump asked President Zelenskyy for the “favor” of an investigation into Joe Biden and the false, Russian-backed claims that it was Ukraine that interfered in the 2016 U.S. election. (Memcon of Trump-Zelenskyy Call, July 25, 2019)
- Following a July 26, 2019 meeting between the Ambassador to the EU and Ukrainians officials, President Trump asked the ambassador, “So [Zelenskyy is] going to do the investigation?”, to which the ambassador replied, “He’s going to do it.” (Holmes Depo. at 24; Sondland Testimony on Nov. 20, 2019)
- President Trump demanded that President Zelenskyy make a public announcement that he was opening an investigation into Biden and the 2016 election as a pre-requisite before he would agree to a White House meeting. (Sondland Opening Statement, Nov. 20, 2019, at 14)
- President Trump’s personal attorney told both American officials and Ukrainian officials that the president would require, as a quid pro quo, that Ukraine announce the desired investigations before any White House meeting would occur. (Sondland Opening Statement, Nov. 20, 2019, at 14)
- At a meeting in Warsaw, Poland, the U.S. Ambassador to the European Union informed a senior Ukrainian official that the security assistance money would not be released until Ukraine publicly announced an investigation into “Burisma and 2016.” (Sondland Declaration, Nov. 4, 2019, at 2; Taylor Opening Statement, Oct. 22, 2019, at 10-11; Morrison Depo. at 144-145)
That list is by no means exhaustive. In addition to other testimony before the HPSCI supporting these facts, the Acting Chief of Staff/Director of the Office of Management and Budget Mick Mulvaney stated during a press conference that the security assistance to Ukraine was withheld as a quid pro quo in exchange for Ukraine conducting an investigation into false allegations of Ukrainian interference in the 2016 election.
What then, is there left for the impeachment inquiry to prove?
In the face of this damning and conclusive evidence, the White House and House Republicans have been forced to retreat to their current defense: that President Trump himself has not been proven to have done anything wrong, because there was no witness who testified to having personally heard the President announce that he was seeking a quid pro quo from Ukraine, in exchange for release of the security assistance.
This “defense,” it should be noted, is hardly a defense at all. There is no dispute that the President used the powers of his office to coerce a foreign state into investigating a domestic political rival, nor is there any dispute that the Ukrainians were informed by the Trump administration that the hold on security assistance would not be lifted until these investigation were publicly announced. Multiple witnesses also testified that EU Ambassador Gordon Sondland had told them that, in his conversations with the president, Trump had described his requirement for Zelenskyy to publicly announce the investigations into Biden and 2016. However, to the extent that no witness testified to having personally heard Trump request a quid pro quo in regards to the security assistance, there are two reasons for this.
The first is that, with a single exception, every individual who interacted directly with President Trump refused to comply with House subpoenas for their testimony.
The second is that the single exception who did testify, Ambassador Sondland, did not testify accurately when he said that President Trump had never asked him for a quid pro quo from Ukraine. In fact, President Trump had personally informed Sondland of his specific demands for a quid pro quo from Ukraine – and the White House National Security Council is sitting on documents that confirm it.
I. The “No Quid Pro Quo” Call
Of all the omissions from Ambassador Sondland’s testimony, one of the most significant has to do with his testimony about what has been dubbed the “no quid pro quo” call. Because the White House and State Department did not comply with the House’s subpoenas for records, no documents concerning this call have been produced, but all witnesses agree that, some time around the second week of September, President Trump and Ambassador Sondland had a phone call, and at some point during this call, Trump said the words “no quid pro quo.”
Sondland has, at times, been ambiguous as to when exactly this phone call took place, and has vacillated between the dates of September 6-9. But in the version of events that Sondland most frequently describes in his testimony, he says that he made the “no quid pro quo” call on September 9th. Sondland has testified it was a brief conversation, in which he asked President Trump a single question:
I asked him one open-ended question: What do you want from Ukraine? And as I recall, he was in a very bad mood. It was a very quick conversation. He said: I want nothing. I want no quid pro quo. I want Zelenskyy to do the right thing. (Sondland Depo. at 106)
It is this testimony from Sondland that the White House and House Republicans have clung to, in support of their claim that the impeachment inquiry has failed to show misconduct by the President. ’’
President Trump has taken to regularly invoking Sondland’s testimony at rallies and at press events, asserting that Sondland’s description of the “no quid pro” call exonerates him. In fact, in the middle of Sondland’s public testimony, President Trump made an appearance on the White House lawn, a portion of Sondland’s paraphrased testimony in hand, to perform a dramatic reenactment of the call, as it was described by Sondland.
Overall, it must be noted, Sondland’s testimony was incredibly damning for Trump. However, it was not quite as damning as it should have been.
Because in reality, as shown from the testimony of other witnesses, the “no quid pro quo” call did not take place on September 9th. What’s more, the call was not prompted by any text from Bill Taylor. And lastly, Sondland’s testimony about the “no quid pro quo” call omitted the most important part: the part where President Trump informed Sondland that the security assistance would be at a “stalemate” until President Zelenskyy stood in front of a microphone and personally announced that he was opening an investigation into Trump’s political rivals.
II. The “No Quid Pro Quo” Call Took Place on Sept. 7, Not on Sept. 9
The “no quid pro quo” call did not take place on September 9th, as Sondland claimed at one point in his testimony; instead, it took place on September 7th. This is shown from the testimony of Tim Morrison, Senior Director for European Affairs for the National Security Council, and Charge D’Affaires Bill Taylor, both of whom were briefed on the call by Sondland shortly after it occurred.
This detail is critically important, not because the precise date of the call is significant in and of itself, but because of what it shows about the true content of that call – the substance of the conversation that Morrison and Taylor described in their testimony, and that Sondland omitted from his.
Though Ambassador Sondland testified that, to the best of his recollection, the “no quid pro quo” call occurred on September 9th, Sondland was also quick to point out that as a result of his inability to review certain State Department records, his “memory admittedly has not been perfect.” (Sondland Testimony of Nov. 20, 2019) Still, Sondland said he had a distinct reason for remembering the date of this particular call: it was prompted by what Sondland described as a “fairly shocking” and “alarming” text message he received from Charge Taylor, in a group chat that included Ambassador Kurt Volker. It was in response to this text, Sondland said, that Sondland made the call to President Trump:
So rather than ask the President nine different questions – is it this, is it this, is that – I just said what do you want from Ukraine? I may have even used a four letter word. And he said I want nothing, I want no quid pro quo, I just want Zelensky to do the right thing, to do what he ran on or – or words to that effect. (Sondland Testimony of Nov. 20, 2019)
Because Ambassador Volker’s text exchanges were one of the few documentary records produced in response to the HSPCI’s subpoenas, we have a copy of the text exchange Sondland referred to. Per Volker’s records, Taylor’s text was sent at 12:47am on September 9th:
After speaking to President Trump, Sondland testified, he texted a response to Taylor at 5:19am, which Sondland described as a “paraphrase” of what Trump had just told him: “The President has been crystal clear: no quid pro quos of any kind.”
With these text records to support his account, Ambassador Sondland testimony’ that this this call took place on September 9th went largely unchallenged during the hearings before the HPSCI. But despite the text recordings – which would seemingly corroborate Sondland’s memory and provide him precise evidence about when the call occurred – Sondland’s testimony has had a curious uncertainty too. For instance, in Sondland’s amendment to his closed-door testimony, he avoided identifying the precise date for the call altogether, instead giving a range of possible dates – from September 6th to September 9th – and then noting that his lack of access to his phone records prevented him from identifying the date with more certainty:
And, in his public testimony before HPSCI, when asked to confirm that this call had indeed taken place on September 9th, Sondland repeatedly invoked his lack of access to the records to explain his inability to say with certainty if the call occurred on September 6th or September 9th:
CASTOR: And then the – the next time, you know, we tried to unpack this, the – the next time you talked with the President was on the telephone – was September 9th, according to your deposition, right?
SONDLAND: I may have even spoken to him on September 6th but again I just don’t have all the records. I wish I could get them, then I could answer your questions very easily.
Again and again, Sondland deferred from providing a certain date for the phone call, focusing instead on his inability to refresh his memory with the relevant records:
CASTOR: Okay. And then in your September 9th communication with The President during your deposition that was a striking moment when you walked us through your telephone call with President Trump on September 9th.
SONDLAND: By the way I still cannot find a record of that call because the State Department or The White House cannot locate it. But I’m pretty sure I had the call on that day.
Sondland’s testimony about the White House’s inability to locate records of this call is also curious. On the one hand, the failure to preserve such critical records might appear to be something like obstruction, if not the outright destruction of evidence. On the other hand, the White House informing Sondland that it “cannot locate” a record of the September 9th call makes perfect sense – if in fact no call occurred at all between Sondland and Trump on September 9th.
Finally, it makes little sense that Sondland would have considered Taylor’s September 9th text message to be “fairly shocking” and “alarming,” or necessitate a pre-dawn call to the White House to ask the President about whether there was a quid pro quo. After all, Sondland himself had told Taylor just one day before that the President had communicated a quid pro quo, and Sondland had told Morrison the same thing the day before that.
After Fiona Hill resigned in mid-July as the NSC’s Senior Director for European Affairs, Tim Morrison took over her role, and for the next three months, he received updates on Ukraine-related matters from Ambassador Sondland. In his closed-door testimony, Morrison described how, on September 7th, he received a call from Sondland, who wanted to update him on a call he had just had with President Trump:
In the phone call, he told me that he had just gotten off the phone — the September 7th phone call — he told me he had just gotten off the phone with the President. I remember this because he actually made the comment that it was easier for him to get a hold of the President than to get a hold of me, which led me to respond, “Well, the President doesn’t work for Ambassador Bolton; I do,” to which Ambassador Sondland responded, “Does Ambassador Bolton know that?” But that’s why I have a vivid recollection of this. And he wanted to tell me what he had discussed with the President. … He told me [ ] that there was no quid pro quo, but President Zelenskyy must announce the opening of the investigations and he should want to do it. (Morrison Depo. at 190) (emphasis added)
Important to note: this is the same “no quid pro quo, but…” language that Sondland used to describe his call with Trump that took place in the September 6-9 timeframe.
In Morrison’s public testimony, he once again placed the “no quid pro quo” call on September 7th:
GOLDMAN: Now a few days later, on September 7th, you spoke again to Ambassador Sondland who told you that he had just gotten off the phone with President Trump, isn’t that right?
MORRISON: That sounds correct, yes.
GOLDMAN: What did Ambassador Sondland tell you that President Trump said to him?
MORRISON: If I recall this conversation correctly, this was where Ambassador Sondland related that there was no quid pro quo, but President Zelenskyy had to make the statement and that he had to want to do it.
GOLDMAN: And by that point, did you understand that the statement related to the Biden and 2016 investigations?
MORRISON: I think I did, yes.
GOLDMAN: And that that was essentially a condition for the security assistance to be released?
MORRISON: I understood that that’s what Ambassador Sondland believed.
In this call, Sondland told Morrison of Trump’s demand that President Zelenskyy personally announce the Burisma/2016 investigations, and upon hearing this, Morrison said, he had a “sinking feeling.” (Morrison Depo. at 145) Morrison was concerned President Trump’s “requirements” could not be met in time for the hold on the military assistance to be lifted. As Morrison explained, although the end of the fiscal year was September 30th, “because Congress imposed a 15-day notification requirement on the State Department funds, September 7th, September 30th, that really means September 15th in order to secure a decision from the president to allow the funds to go forward.” (Morrison Testimony on Nov. 11, 2019)
In other words, on September 7th, when Sondland was briefing Morrison about Trump’s demands for Zelenskyy to announce the investigations, there were only eight days left before the security assistance evaporated all together. Ukraine only had eight days left to provide Trump with something that would satisfy his demands.
And Morrison had another reason for knowing the precise date this call occurred – because as soon as the call was over, he went to the NSC lawyers to report it.
GOLDMAN: Did you tell Ambassador Bolton about this conversation as well?
MORRISON: I did, yes.
GOLDMAN: And what did he say to you?
MORRISON: He said to tell the lawyers.
GOLDMAN: And why did he say to tell the lawyers?
MORRISON: He did not explain his instruction.
GOLDMAN: But he is not going to — he doesn’t tell you to go tell the lawyers because you are running up on the eight-day deadline there, right?
MORRISON: Again, I don’t know why he directed that, but it seems reasonable and is consistent with what I was going to do anyway.
After going to the NSC lawyers to document what Sondland had told him about the “no quid pro quo” call, Morrison’s next move was to email Charge Bill Taylor with an urgent request for a call. In his testimony, Taylor described how, because this happened on a Saturday, he had to make a special trip in to the embassy in Kiev, in order to use the facilities there to make a secured call to Morrison. (Taylor Depo at. 250-252) Morrison then briefed Taylor on the call he had just had with Sondland:
Two days later, on September 7, I had a conversation with Mr. Morrison in which he described a phone conversation earlier that day between Ambassador Sondland and President Trump. Mr. Morrison said that he had a “sinking feeling” after learning about this conversation from Ambassador Sondland. According to Mr. Morrison, President Trump told Ambassador Sondland that he was not asking for a “quid pro quo.” But President Trump did insist that President Zelenskyy go to a microphone and say he is opening investigations of “Biden and 2016 election interference,” and that President Zelenskyy should want to do this himself. Mr. Morrison said that he told Ambassador Bolton and the NSC lawyers of this phone call between President Trump and Ambassador Sondland. (Taylor Opening Statement, Oct. 22, 2019, at 12) (emphasis added)
The next day, Sondland sent a group text message to both Taylor and Volker, letting them know that he’d had “multiple conversations” with both President Zelenskyy and President Trump, and wanted to brief them on the calls. Volker was not available to join the call, but Taylor was, and he spoke to Sondland at approximately 11:30am on September 8th:
Taylor testified that during his September 8th call with Sondland, Sondland briefed him on what Taylor understood to be the same phone call with President that Morrison had briefed him on the day before:
[O]n September 8, Ambassador Sondland and I spoke on the phone. He confirmed that he had talked to President Trump as I had suggested a week earlier, but that President Trump was adamant that President Zelenskyy, himself, had to “clear things up and do it in public.” President Trump said it was not a “quid pro quo.” I believe this was the same conversation between Ambassador Sondland and President Trump that Mr. Morrison had described to me on September 7.
The language that Taylor says Sondland used to describe his call with Trump once again matches the language described by both Morrison and Sondland in their testimony:
Ambassador Sondland also said that he had talked to President Zelenskyy and Mr. Yermak and had told them that, although this was not a quid pro quo, if President Zelenskyy did not “clear things up” in public, we would be at a “stalemate.” I understood a “stalemate” to mean that Ukraine would not receive the much-needed military assistance. Ambassador Sondland said that this conversation concluded with President Zelenskyy agreeing to make a public statement in an interview on CNN. (Taylor Opening Statement, Oct. 22, 2019, at 16)(emphasis added)
Taylor was able to precisely date his phone calls with Morrison and Sondland – which took place on September 7th and 8th respectively – based on his own contemporaneous notes about the call, as well as the text messages records from Volker:
Shortly after that call with Ambassador Sondland, I expressed my strong reservations in a text message to Ambassador Sondland, stating that my “nightmare is they [the Ukrainians] give the interview and don’t get the security assistance. The Russians love it. (And I quit.).” I was serious. (Taylor Opening Statement, Oct. 22, 2019, at 16) (emphasis added)
The text message Taylor described was sent on September 8th, at 12:37pm:
Based on the testimony of both Morrison and Sondland, as well as the corresponding text records, Sondland’s “no quid pro quo” call with Trump had already happened on September 7th. Indeed, it also explains why Sondland’s text message in reply to Taylor on Sept. 9 began, “Bill, I believe you are incorrect about President Trump’s intentions. The President has been crystal clear no quid pro quo’s of any kind.” It was a reference to their phone conversation the day before, when Sondland debriefed Taylor about his call with the President.
III. The “No Quid Pro Quo” Call Was in Response to Negotiations That Occurred in Warsaw, Not Bill Taylor’s Text
In addition to Sondland giving incorrect testimony about the date of the “no quid pro quo” call, Sondland was also incorrect about what had prompted the call in the first place. His September 9th text exchange with Bill Taylor could not have been what caused him to call President Trump, because that call had happened at least two days before the text. Instead, Sondland had called Trump in order to confirm whether a proposed modification to the quid pro quo arrangement would be acceptable to Trump.
The proposed modification to the quid pro quo arrangement had been worked out the week before, during the American delegation’s trip to Warsaw. Originally, this trip had been intended to include a bilateral meeting between President Trump and President Zelenskyy, but Trump had canceled at the last minute, citing his need to monitor an incoming hurricane. Vice President Pence was sent in his place, and on September 1st, Pence and Zelenskyy met at the Warsaw Marriott. Both Sondland and Morrison were in attendance.
After the bilateral meeting concluded, several officials from both sides stayed behind, including Sondland and Zelenskyy’s senior adviser Andriy Yermak. Morrison observed Sondland and Yermak speaking to one another, and immediately after, Morrison testified, Sondland came over to brief him on the conversation:
I recall Ambassador Sondland telling me that what he conveyed to the Ukrainian Presidential advisor, Mr. Yermak, was that the Prosecutor General would be sufficient to make the statement to obtain release of the aid. (Morrison Depo. at 182, 272)
Concerned, Morrison immediately placed a call to Charge Taylor to brief him on Sondland’s conversation with Yermak. As Taylor explained in his opening statement before his public testimony,
During this [September 1] phone call with Mr. Morrison, he described a conversation Ambassador Sondland had with Mr. Yermak in Warsaw. Ambassador Sondland told Mr. Yermak that the security assistance money would not come until President Zelenskyy committed to pursue the Burisma investigation. I was alarmed by what Mr. Morrison told me about the Sondland-Yermak conversation. I understand that Mr. Morrison testified at his deposition that Ambassador Sondland proposed that it might be sufficient for the Ukrainian Prosecutor General to commit to pursue the investigation, as opposed to President Zelenskyy. But this was the first time I had heard that the security assistance—not just the White House meeting—was conditioned on the investigations. (Taylor Opening Statement, Oct. 22, 2019, at 101-11)
As described in Taylor’s testimony, following his call with Morrison, Taylor sent a text message to Sondland:
Very concerned, on that same day—September 1—I sent Ambassador Sondland a text message asking if “we [are] now saying that security assistance and [a] WH meeting are conditioned on investigations?”
Ambassador Sondland responded asking me to call him, which I did. During that phone call, Ambassador Sondland told me that President Trump had told him that he wants President Zelenskyy to state publicly that Ukraine will investigate Burisma and alleged Ukrainian interference in the 2016 U.S. election. (Taylor Opening Statement, Oct. 22, 2019, at 11)
The text messages from Volker show that the exchange Taylor described took place after 12pm Eastern time on September 1st:
It was this September 1st conversation with Andriy Yermak that led to ’the “no quid pro quo” call, because the “no quid pro quo” call was a discussion about whether Trump was willing to accept what Sondland had offered to Yermak: that it be the chief prosecutor, and not Zelenskyy, who announced the Biden and 2016 investigations.
As Morrison testified regarding the September 1st discussions in Warsaw:
My recollection is that Ambassador Sondland’s proposal to Mr. Yermak was that it could be sufficient if the new Ukrainian Prosecutor General, not President Zelenskyy, would commit to pursue the Burisma investigation. (Morrison Depo. at 15)
[Sondland] walked across the space and he briefed me on what he said he had said to Mr. Yermak. … He told me that in his — that what he communicated was that he believed the — what could help them move the aid was if the Prosecutor General would go to the mike and announce that he was opening the Burisma investigation. (Morrison Depo. at 134) (emphasis added)
And as Taylor testified:
Ambassador Sondland also told me that he now recognized that he had made a mistake by earlier telling Ukrainian officials that only a White House meeting with President Zelenskyy was dependent on a public announcement of investigations—in fact, Ambassador Sondland said, “everything” was dependent on such an announcement, including security assistance. He said that President Trump wanted President Zelenskyy “in a public box” by making a public statement about ordering such investigations. In the same September 1 call, I told Ambassador Sondland that President Trump should have more respect for another head of state and that what he described was not in the interest of either President Trump or President Zelenskyy. At that point I asked Ambassador Sondland to push back on President Trump’s demand. Ambassador Sondland pledged to try. We also discussed the possibility that the Ukrainian Prosecutor General, rather than President Zelenskyy, would make a statement about investigations, potentially in coordination with Attorney General Barr’s probe into the investigation of interference in the 2016 elections. (Opening Statement of Taylor, Oct. 22, 2019, at 11)
Sondland, for his part, initially failed to recall altogether that he’d spoken with Andriy Yermak in Warsaw about any investigations, and denied that any quid pro quo arrangements had been discussed. However, on November 4th, after learning of what Morrison and Taylor had testified to regarding his conversation with Yermak in Warsaw, Sondland amended his testimony. In his amendment, Sondland stated that he “now recall[ed]” his September 1st conversation with Yermak, and that he and Yermak had discussed whether the public announcement of the investigations needed to come from President Zelenskyy himself, or if it would be acceptable for the announcement to instead be made by Ukraine’s Prosecutor General:
These discussions about whether it would be acceptable for the Prosecutor General to make the announcement – and not President Zelenskyy – were an attempt to find a compromise solution to Trump’s demands. Having Ukraine’s chief prosecutor make the announcement would at least minimize the damage, by helping to maintain the appearance of a regularly instituted investigation, rather than a politically motivated scheme. In contrast, if President Zelenskyy were to make the announcement himself, any illusion that this was an independent prosecutorial decision would have been dispelled. Worse yet, it would compromise Zelenskyy in the process, undermining his independence as Ukraine’s president. Thus, in Warsaw, the American and Ukrainians officials had discussed whether the Prosecutor General might be an acceptable substitute, and left it to Sondland to determine if it would be acceptable to President Trump.
And that brings us to the September 7th call between Sondland and President Trump, when Sondland called Trump to ask “one open-ended question: What do you want from Ukraine?” (Sondland Depo. at 106) Sondland did not make this call because of anything Taylor had texted him; rather, Sondland was apparently calling to ask President Trump if the solution that had been negotiated in Warsaw, in which the Prosecutor General made the announcement, would be acceptable to him.
It was not. President Trump rejected the substitution of the Prosecutor General, and demanded that President Zelenskyy himself make the announcement. As Morrison testified in his closed-door deposition,
[T]his was a conversation where Gordon related that both — the President said there was not a quid pro quo, but he further stated that President Zelenskyy should want to go to the microphone and announce personally – so it wouldn’t be enough for the Prosecutor General, he wanted to announce personally, Zelenskyy personally, that he would open the investigations. (Morrison Depo. at 144-145) (emphasis added)
THE CHAIRMAN: And then it was subsequently on the phone where he came back to you, Ambassador Sondland that is, and said, no, the Prosecutor General is not going to be sufficient, President Zelenskyy has to commit to that, right?
MORRISON: Yes, sir. He related the President told him there was no quid pro quo, but President Zelenskyy had to do it and he should want to do it. (Morrison Depo. at 229) (emphasis added)
Taylor’s testimony on this point is consistent with Morrison’s:
Ambassador Sondland also said that he had talked to President Zelenskyy and Mr. Yermak and had told them that, although this was not a quid pro quo, if President Zelenskyy did not “clear things up” in public, we would be at a “stalemate.” I understood a “stalemate” to mean that Ukraine would not receive the much-needed military assistance. Ambassador Sondland said that this conversation concluded with President Zelenskyy agreeing to make a public statement in an interview on CNN. (Taylor’s Opening Statement, Oct. 22, 2019, at 12) (emphasis added)
Taylor further testified that, in that same September 8th call, Sondland had also briefed him on his call with President Zelenskyy, and, Sondland said, President Zelenskyy had agreed to President Trump’s demands. Zelenskyy was going to go on CNN, and personally announce the investigations.
IV. The “No Quid Pro Quo” Call Was In Fact a Demand for Quid Pro Quo
Whether due to a faulty memory, or due to intentional deceit, Sondland’s testimony about the “no quid pro quo” call omitted the most critical part of the conversation: President Trump’s rejection of the compromise offer for the Prosecutor General to announce the investigations, and his demand that Zelenskyy himself do it. The “no quid pro quo” call was, in reality, a “here is the specific quid pro quo I want” call. And, by erroneously placing the call on September 9th, Sondland helped obscure these omissions from his testimony, by divorcing the call from its actual context in the ongoing negotiations with Ukraine over what form of quid pro quo would be acceptable. More importantly, it also gave the appearance that the call Sondland was describing was somehow different from the call that was described by two other witnesses – both of whom testified that the call included an explicit demand by Trump for a quid pro quo.
When Sondland briefed Morrison and Taylor on the “no quid pro quo” call on September 7th and 8th, he included details that caused both Morrison and Taylor to be alarmed, as was John Bolton when he was informed of it. For instance, Sondland’s description of his conversation with Trump had caused Morrison to become “pessimistic” that President Trump’s demands could be met in time for the aid to be release. (Morrison Depo. at 145) Morrison testified that when he learned of what President Trump said on the call with Sondland, he had a “sinking feeling,” because he “did not think it was a good idea for the Ukrainian President to [ ] involve himself in our politics.” (Id.) And when Sondland briefed Taylor on his call with President Trump, Sondland made plain his own understanding that the President’s demands were transactional in nature – that what Trump was asking for was a quid pro quo. As Taylor testified, Sondland explained to him that the reason President Trump was “a businessman,” and “[w]hen a businessman is about to sign a check to someone who owes him something, [ ] the businessman asks that person to pay up before signing the check.” (Taylor Depo. at 40) Taylor understood “the check” in this analogy to be the military assistance. (Id. at 146)
And yet, when Sondland appeared before Congress to testify about this same exact same phone call with President Trump, he could no longer recall any of the content of their conversation that had caused such alarm for Morrison, Taylor, and Bolton.
Still, as much as these omissions from Sondland’s testimony may have benefited President Trump, ’the differences between Sondland’s testimony and the testimony of the other witnesses are cosmetic. In substance, Sondland does not dispute the accuracy of the testimony given by the other witnesses.
For instance, Sondland does recall having a conversation with someone in which he was told what quid pro quo Trump required from Ukraine. The only problem is that Sondland has said he cannot recall if he had this conversation with President Trump, or with President Trump’s attorney:
GOLDMAN: On September 8, you then had a conversation directly with Ambassador Taylor about this same phone call where Ambassador Taylor said that you confirmed that you spoke to President Trump as he had suggested earlier to you and that President Trump was adamant that President Zelenskyy himself, meaning not the prosecutor general, had to, quote, “clear things up and do it in public,” unquote. Do you recall – you don’t have any reason to think that Ambassador Taylor’s testimony based on his contemporaneous notes was [in]correct?
SONDLAND: I don’t know if I got that from President Trump or if I got it from Giuliani. That’s the part I’m not clear on.
GOLDMAN: Well, Ambassador Taylor’s quite clear that you said President Trump. Mr. Morrison is also quite clear that you said President Trump. You don’t have any reason to dispute their very specific recollections, do you?
SONDLAND: No. If they have notes and they recall that, I don’t have any reason to dispute it. I just personally can’t remember where I got it from.
Sondland repeated this claim multiple times in his public testimony: that he remembered having a conversation about “whether or not the prosecutor could make the statement or Zelenskyy could make the statement,” but that “I don’t recall who told me – whether it was Volker, whether it was Giuliani, or whether it was President Trump – it’s got to be Zelenskyy, it can’t be the prosecutor. … Whoever I got that information from, I relayed to I believe [ ] Ambassador Taylor and to Mr. Morrison.”
So Sondland does remember a phone call in which someone told him about the quid pro quo that Trump was demanding – Sondland just ’can’t remember if it was President Trump that he had this conversation with. (Though whether the conversation was with Giuliani or President Trump makes little difference, since Sondland testified that he understood Giuliani was conveying the President’s conditions.)
But Morrison and Taylor both confirmed, in their testimonies, that it was President Trump. And Sondland has agreed that he has no reason to doubt the version of events described by Morrison and Taylor:
GOLDMAN: Now, you had a conversation on September 7 according to both Ambassador Taylor and Tim Morrison with Tim Morrison where you told Mr. Morrison that President Trump told you that he was not asking for a quid pro quo but that he did insist that President Zelenskyy go to a microphone and say that he is opening investigations of Biden and 2016 election interference, and that President Zelenskyy should want to do this himself. You don’t have any reason to dispute both Ambassador Taylor’s and Mr. Morrison’s testimony about that conversation, do you?
Finally, it’s worth noting that Sondland’s phone call with President Trump is not the only presidential phone call that Sondland now has difficulty remembering. When Sondland and Taylor spoke on September 8th, it wasn’t just Sondland’s call with President Trump that Sondland needed to tell Taylor about – Sondland also needed to update him on his calls with President Zelenskyy.
In fact, according to Sondland’s text message to Taylor, there had been “multiple convos” with Trump and Zelenskyy that he needed to brief Taylor on:
Sondland has never testified about the substance of his conversations with President Zelenskyy on September 7th and/or 8th. In his private deposition, when shown this text exchange and asked about the referenced calls, Sondland responded, “Yeah. I don’t recall… I don’t recall the – I don’t recall the conversations. … I don’t – I don’t recall the conversations. I’d need more refreshment to recall the conversations.” (Sondland Depo. at 351)
But on September 8th, Sondland still recalled these conversations, and he briefed Taylor on them. And according to Taylor, Sondland told him his conversation with President Zelenskyy had “concluded with President Zelenskyy agreeing to make a public statement in an interview with CNN.” (Taylor Opening Statement, Oct. 22, 2019, at 12) Taylor testified that this was “the first time” he had had heard about Zelenskyy giving a CNN interview. (Taylor Depo. at 207)
In other words: on September 7th-8th, Sondland spoke to both President Trump and President Zelenskyy. In his call with President Trump, Sondland was told that Trump required Zelenskyy “to go to the microphone and announce personally that he would open the investigations.” (Morrison Depo. at 144-145) And in his call with President Zelenskyy, Sondland secured an agreement from Zelenskyy that he would “do a CNN interview” in which he “would make a statement regarding investigations.” (Taylor Opening Statement, Oct. 22, 2019, at 12) (see also Kent Depo. at 330-31, 333; Holmes Opening Statement, Nov. 21, at 10-11)
Sondland may no longer have any memory of what occurred on the September 7th-8th phone calls, but the sequence of events depicted by the text exchanges and Taylor’s testimony is clear: Trump told Sondland his demands for Zelenskyy; Sondland conveyed to Zelenskyy what Trump demanded; and Zelenskyy then agreed “to go to the microphone and announce personally that he would open the investigations.”
V. The White House Has Contemporaneous Written Records of the “No Quid Pro Quo” Call
As much as President Trump and the House Republicans like to claim that this is all a matter of “hearsay” or “second-hand information,” and that the true contents of President Trump’s communications with Sondland can be dismissed as some kind of unknowable he said/they said, the evidence of the “quid pro quo” call is not limited to witness testimony.
In fact, there does exist a detailed, contemporaneous record of what exactly Sondland said on that call with Trump. Because on September 7th, after his call with Sondland, Morrison immediately went to the NSC lawyers to report what had happened, because “[he] was concerned about what Ambassador Sondland was saying were requirements” for the release of the security assistance. (Morrison Depo. at 145) That is, Morrison went to the NSC lawyers to report Sondland’s claim that President Trump was involved in making an explicit quid pro quo demand to Ukraine.
In his deposition testimony, Morrison framed his repeated visits to the NSC lawyers as an effort to “protect” the President. “I wanted to make sure, in going to the lawyers,” Morrison said, “that there was a record of what Ambassador Sondland was doing, to protect the President.” (Morrison Depo. at 184) Morrison explained that he felt the need to document Sondland’s September 7th call with the NSC lawyers because Sondland had represented to him that President Trump was behind the quid pro quo scheme: “[P]art of what I’m trying to do here in talking to the lawyers is making sure they’re aware of what Mr. Sondland is doing. And he’s saying the President is aware, but I’m still not entirely certain that he is.” (Morrison Depo. at 224) (emphasis added)Of course, as Morrison later acknowledged under questioning from Chairman Schiff, it was also possible that Sondland was telling the truth about his conversations with President Trump. In which case, rather than serving to protect the President, Morrison’s efforts to document these calls would have the opposite result:
THE CHAIRMAN: But did you understand also at the time you took this action that if, in fact, Ambassador Sondland was acting at the direction of the President, you were also creating a paper trail incriminating the President?
MORRISON: Well, sir, you could make that argument, yes. (Morrison Depo. at 228)
When Morrison first heard about the “no quid pro quo” call on September 7th, he recognized immediately what House Republicans have yet to realize: the “no quid pro quo” call does not exonerate Trump, it incriminates him.
- Based on other text exchanges for which the exact time is known, Volker’s texts appear to have been recorded on Eastern time. If that is the case, then Sondland and Trump must have connected between approximately 1am, when Taylor sent the text, and approximately 5am, just before Sondland’s response to Taylor at 5:19am. It is hard to understand why Sondland would have thought he needed to call the White House at a time when most people – including presumably the president – would be sleeping, in order to ask a non-emergency question of: “What do you want from Ukraine?” Additionally, as the Washington Post reported, the White House has no record of the call. The Post also reported that “impeachment investigators believe the messages were logged in Eastern time, according to people familiar with the inquiry.”
- Morrison is clear that this call happened on September 7th, and Sondland does not dispute that Morrison is describing that the “no quid pro quo” call that Sondland testified took place on September 9th. (Sondland Testimony on Nov. 20, 2019)
- Additionally, after returning from Warsaw, Morrison went to the NSC lawyers to report Sondland’s conversation with Yermak.
- Based on the reported meeting times for the bilateral between Zelenskyy and Pence, these texts were recorded in Eastern time.
- This interview was scheduled for September 13th, on CNN’s Fareed Zakaria GPS, and a renewed effort occurred for a statement in a CNN interview later in September, but neither ultimately took place.
Originally published by the Just Security, 11.29.2019, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.