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Whistle-Blower Memo Shows Impeachable Crimes Beyond Trump-Ukraine Call

Whistle-Blower Memo Shows Impeachable Crimes Beyond Trump-Ukraine Call

(Bloomberg Opinion) -- The whistle-blower complaint against Donald Trump, in just a few pages, establishes the evidence for a quid pro quo between Trump and Ukrainian president Volodymyr Zelenskiy — unfreezing aid payments in exchange for investigating Joe Biden and digging into an unsupported fringe theory about the origins of the Trump-Russia collusion allegation.

Second, it provides strong evidence that some in the Trump administration understood that Trump’s call to Zelenskiy was wrong and potentially criminal — and, third, that they took steps to cover it up.

Despite its brevity, the whistle-blower complaint does just about everything that Robert Mueller’s report failed to do over several hundred pages: provide proof of Trump soliciting interference in a U.S. election from a foreign government. The complaint also documents Trump abusing his office for personal gain. Abusing one’s office for personal gain is a textbook definition of the federal crime of bribery and extortion. It’s also a textbook definition of an impeachable offense.

Let’s start with the quid pro quo. The complaint makes it clear that for several months before the July 25 call, Trump was already trying to make it clear to Zelenskiy that he must initiate the investigations that Trump wanted. According to the complaint, on May 14, Trump told Vice President Mike Pence to cancel a planned trip to attend Zelenskiy’s inauguration on May 20. Instead Trump sent Rick Perry, the secretary of energy. The whistle-blower says that it was “made clear” to U.S. government officials “that the president did not want to meet with Mr. Zelenskyy until he saw how Zelenskyy ‘chose to act’ in office.” The whistle-blower suggests that this message was communicated to Zelenskiy, although the whistle-blower does not know how that happened.

It will obviously be necessary to question Perry about whether he carried such a message. (And in the meantime, a good lawyer would tell the secretary that he had better stop talking about the whole scandal on CNN.)

The fact the Trump was already trying to send a message to Zelenskiy in May provides crucial context for what happened on July 18, when someone in the Office of Management and Budget told the rest of the government that aid to Ukraine was being suspended. The whistle-blower says White House officials said explicitly that the order came directly from Trump, and that “neither OMB nor NSC [National Security Council] staff knew why this instruction had been issued.”

All this makes it very clear that Trump stopped the payments to create leverage against Zelenskiy to get the investigations going. The failure to explain the policy rationale to the rest of the government is highly probative that the president knew his rationale wouldn’t wash if it were shared with his own officials. It is highly unusual for a policy decision to be attributed directly to the president by senior officials without them being able to say or explain why it was taken.

The content of the July 25 phone call itself is laid out in more detail in the summary released yesterday than in the whistle-blower complaint. But one thing the complaint does make clear is that Zelenskiy came to understand that he was being told to take action on the investigations in exchange for unfreezing the aid. The complaint points out that, on the evening of July 25, Ukrainian president’s website included a Russian language readout of the phone call that said the Trump had “expressed his conviction” that the new Ukrainian government would be able to “complete the investigation of corruption cases that have held back cooperation between Ukraine and the United States.”

The statement amounted to an explicit recognition of the quid pro quo: According to the Ukrainian president’s understanding of what Trump had said, the investigations were what had “held back cooperation” — that is, the aid was being held back pending the start of the investigations.

Taken together with Trump’s action in suspending the aid, the Ukrainian acknowledgment of Trump’s proposed exchange strongly indicates that both sides knew exactly what had happened on the call. It’s hard to imagine more explicit evidence of the quid pro quo, short of a recorded conversation.

The whistle-blower also makes it clear that U.S. officials who heard the call understood that this was what had happened. Their contemporaneous interpretation of the phone call is also very strong evidence of a quid pro quo. These government officials told the whistle-blower that they believed they had “witnessed the President abuse his office for personal gain” — in other words, that they recognized that what the president had done was wrong, and even criminal. The whistle-blower also recounts that these government officials went to the White House counsel and that there was a “discussion ongoing” about what they had seen.

Then came the cover-up. According to the complaint, it had at least three parts. Senior White House officials “intervened to ‘lock down’ all records of the phone call, especially the official word-for-word transcript.” At the direction of White House lawyers, these officials took the record of the call out of the computer system usually used to preserve and file such communications for use by other government officials. And they put it into a separate, special system used for highly classified communications.

Each of these actions counts as evidence that someone in the White House was trying to stop information about the call from getting out to the rest of the government. Depending on the intent of those who took the steps, each could potentially constitute obstruction of justice.

It will of course be necessary to figure out whether Trump himself was involved in this cover-up. If he was, that would constitute a separate impeachable offense. Equally important, however, it would show that Trump had some consciousness of guilt, at least after the fact. Regardless of who ordered the cover-up, the whole undertaking points to the general understanding that Trump had offered a quid pro quo, or at least that he had acted in a way that naturally gave rise to that understanding.

There is much more to be said about the whistle-blower complaint. The bottom line, however, is that it makes the case for impeachment and potentially criminal liability for Donald Trump. And it does it all in just a few clearly written pages.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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