By Kate Brannen
Editorial Director
Just Security
Since the impeachment inquiry began in September, a central question has gotten lost amidst the cast of characters, Republican members’ obfuscation and weeks of witness testimony: Did President Donald Trump solicit foreign interference in the upcoming presidential election?
The answer to that question has been clear since the White House released the call record of Trump’s July 25 conversation with Ukrainian President Volodymyr Zelenskyy. During the call, Trump asked a foreign government to investigate his political rival, former Vice President Joe Biden.
It was this solicitation — not any quid pro quo — that so alarmed the whistleblower and pushed him to file an official complaint at great risk to his personal safety and his career. He wrote:
In the course of my official duties, I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.
Trump’s ask of Zelenskyy was so grave that both the CIA general counsel, Courtney Simmons Elwood, and the general counsel at the National Security Council, John Eisenberg, decided the accusations had a “reasonable basis” and together called the Justice Department on Aug. 14 to discuss how to handle them. Elwood reportedly intended this call to be a criminal referral about the president’s conduct. Later in August, the Acting Director of National Intelligence and Inspector General for the Intelligence Community referred the allegations to the Justice Department as a possible criminal matter. This means that upon learning of Trump’s ask alone (forget everything else we’ve learned), multiple senior government lawyers, all appointed by Trump, were worried the president had committed a crime.
What crime did they have in mind? Federal law prohibits a person from soliciting, accepting or receiving a “contribution or donation of money or other thing of value” from a foreign national in connection with a U.S. election. But, Trump’s Justice Department, after receiving the criminal referrals about Trump’s conduct, determined there was no criminal case because, apparently, a foreign government conducting — let alone publicly announcing on CNN — that it was investigating Biden for supposed corruption is not a quantifiable “thing of value.” On that, the Justice Department is almost right: It would be very difficult to put a price on something that would be so valuable to the Trump campaign. That said, generating negative publicity about one’s opponents is something for which lawyers and lobbyists regularly charge their clients large amounts, as the Harvey Weinstein story taught us.
Trump’s solicitation of Zelenskyy is clearly an astonishing abuse of power and quite likely a crime all on its own. But it is also not a one-off incident. Trump has a pattern of asking foreign governments to interfere in U.S. elections to help him win. But, so far, there have been zero consequences for Trump’s actions, despite the Mueller Report and the chair of the Federal Election Commission making it clear that accepting or soliciting foreign interference in the election is a serious crime. This has left Trump undeterred from doing it again with just under a year to go before Election Day.
A Pattern of Behavior
In July 2016, Trump famously asked Russia to find Hillary Clinton’s “missing” emails. When asked if he was making a joke, Trump said no. Later that same day, Russian intelligence made its first effort to break into the servers used by Clinton’s personal office.
According to the Mueller report, the Trump Campaign also tried to obtain Clinton’s emails via Russian hackers through the work of Peter Smith, an investment adviser active in Republican politics. Smith kept Michael Flynn and Trump Campaign co-chairman Sam Clovis updated on his efforts. But was that directed by Trump himself? The Mueller report stated:
“After candidate Trump stated on July 27, 2016, that he hoped Russia would ‘find the 30,000 emails that are missing,’ Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails. Michael Flynn — who would later serve as National Security Advisor in the Trump Administration — recalled that Trump made this request repeatedly.”
Trump has said that he would have no qualms accepting “foreign dirt” on an opponent if it would help him win and would not alert the FBI. And even after his call with Zelenskyy was made public, Trump once again suggested a foreign government should interfere in the election; this time, asking China to investigate the Bidens. Republicans, looking for anyway to defend the indefensible, said Trump’s comments were just a joke.
But, during the same week as the President’s remarks on China, Michael Pillsbury, an informal White House adviser on China, said that he’d pressed Chinese officials for information on Hunter Biden and he also told the Financial Times that he’d received information about Biden during a recent visit to Beijing.
Meanwhile, White House trade adviser Peter Navarro declined to answer questions about whether he’d asked Chinese officials about the Bidens during trade talks. Instead of saying “No, that never happened,” Navarro said any questions about this were “inappropriate.”
And, China didn’t view Trump’s request as a joke. “We have no intention of intervening in the domestic affairs of the United States,” Chinese foreign ministry spokesman Geng Shuang said in a statement in October.
The pattern is more than clear: Trump has repeatedly asked foreign governments to interfere in U.S. elections to help him maintain political power. And there is no reason to expect him to stop. This is what’s at stake in his impeachment.
Originally published by the Just Security, 12.03.2019, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.