Don’t build your fortress on quicksand.
That’s been my unsolicited advice for President Trump and his legal team. You always want the foundation of your defense to be something that is true, that you are sure you can prove, and that will not change.
Instead, the president and his team decided to make a stand on ground that could not be defended, on facts that were unfolding and bound to change. Last night, that ground predictably shifted. In a soon-to-be-published memoir, former White House national-security adviser John Bolton asserts that the president withheld $391 million in defense aid in order to pressure Ukraine into investigating Trump’s potential 2020 election opponent, former vice president Joe Biden.
For months, I’ve been arguing that the president’s team should stop claiming there was no quid pro quo conditioning the defense aid Congress had authorized for Ukraine on Kyiv’s conducting of investigations the president wanted. Trials and impeachment itself are unpredictable. You don’t know what previously undisclosed facts might emerge during the trial that could turn the momentum against you. So you want to mount your best defense, the one that can withstand any damaging new revelations.
Here, the president’s best defense has always been that Ukraine got its security aid, and President Volodymyr Zelensky got his coveted high-profile audience with the president of the United States (albeit at the U.N., rather than at the White House). Kyiv barely knew defense aid was being withheld, the very temporary delay had no impact whatsoever on Ukraine’s capacity to counter Russian aggression, and Zelensky was required neither to order nor to announce any investigation of the Bidens.
However objectionable the calculations that led to the delay may have been, nothing of consequence happened. Therefore, there was no impeachable offense. Case closed.
Except it’s not case closed, because President Trump and his advocates would not content themselves with a strong defense built on what was true. The president wants total vindication, which is not necessary in order to avoid removal from office. So he has mounted his defense on the impossible propositions that his interaction with Zelensky was “perfect” and that there was no quid pro quo.
Trump defenders implausibly claim that there is no evidence that he directed a pressure campaign in which the defense aid and the White House visit were made contingent on the announcement of investigations of (a) possible Biden corruption and (b) a discredited theory that Ukraine, not Russia, was responsible for hacking Democratic email accounts in 2016. To the contrary, Trump’s ambassador to the EU, Gordon Sondland, testified that the White House visit for Zelensky was undoubtedly withheld to coerce the investigations. Further, he says he came to realize, based on overwhelming circumstantial evidence, that the withheld defense aid was part of the pressure campaign.
It has always been possible, if not likely, that Sondland was understating his knowledge regarding the defense aid. The president’s team knew that. They have chosen to bowdlerize his testimony about a conversation in which he says the president told him there was “no quid pro quo.”
But Sondland added that Trump said, in the next breath, that he wanted Zelensky to “do the right thing” — under circumstances where “the right thing” obviously meant announce the investigations. Sondland later told NSC official Tim Morrison that, although the president said he was not asking for a “quid pro quo” while the aid was being delayed, Trump did want Zelensky to announce publicly that the investigations would take place — believing that such an announcement would put Zelensky “in a public box” that would force him to follow through. More significantly, after speaking with President Trump, Sondland had a conversation with President Zelensky, which he reported to Bill Taylor, the U.S. chargé d’affaires in Kyiv. Although the Ukrainians shouldn’t think of it as a “quid pro quo,” Sondland warned that if Zelensky failed to “clear things up” regarding the investigations, there would be a “stalemate.” Based on this, Zelensky agreed to announce the investigations — through that ended up not happening because the request was withdrawn.
Prosecutors do not need someone to admit, “there is a quid pro quo” in order to prove one. And when someone says, “there is no quid pro quo,” but then acts as if there is one (under different names, such as “stalemate” and “do the right thing”), that can actually improve the prosecutor’s case.
That aside, though, Sondland and other witnesses knew that Bolton was angry over Sondland’s conflating of the president’s desire for investigations with what Bolton understood to be the president’s foreign-policy objectives in Ukraine. Bolton called it a “drug deal.” He instructed his subordinate, Fiona Hill, to tell the White House counsel about it. He advised Taylor to complain to Secretary of State Mike Pompeo about it.
Thus, if you were President Trump, or lawyers representing him, you have to figure that Bolton would say not only that there was a quid pro quo but that he contributed to the creation of multiple paper trails about it. You have to build your defense around those highly foreseeable possibilities. Plus, as the Senate impeachment trial unfolded with House managers demanding that Bolton be subpoenaed, his version of events was bound to become public.
And so it has.
If the Trump defense had taken the position that we should assume for argument’s sake that the president put pressure on Ukraine but, in the end, he folded, the Bolton revelation would be a big nothing. The president’s team could have said it is just more of what we already knew.
They could have stayed on the ground where they are strongest: Nothing happened. All foreign policy involves pressure and quid pro quo. There is a good-faith basis to suspect the Bidens were involved in corrupt self-dealing. It is ridiculous to suggest that Ukraine’s defense, let alone American national security, was in any way compromised. President Trump has done much more to protect Ukraine from Russia than President Obama and the Democrats did — indeed, some of the Democratic House impeachment managers voted against the very aid to Ukraine, the brief, inconsequential withholding of which they now feign outrage about.
The president’s team could also have focused their energy on another key point that has gotten no attention: The claim that a Ukrainian investigation of the Bidens would have materially hurt Biden’s presidential campaign is specious.
Ukraine is a pervasively corrupt country. One minute Paul Manafort is a top political consultant to the regime, the next minute they have him under investigation. That is how it goes in Kyiv, where the party in power routinely persecutes political adversaries and attempts to curry favor with its Western supporters. Ukrainian investigations have no credibility. Americans might care deeply if Biden’s son is shown to have been cashing in on his father’s political influence — which such investigative journalists as Peter Schweizer have been illustrating. But Americans would put no stock in any Ukrainian investigation. As best we can tell, even if they announced they were investigating Biden today, they’d be erecting a statue of him by next month if his polls improve. Who cares?
On Monday, the president’s defense team is supposed to be arguing their main defense in the Senate impeachment trial. It should be focused on these ultimate issues. They should be in a strong position to contend that all the witnesses and documents Democrats want to subpoena cannot alter the stubborn fact that nothing of consequence happened in Ukraine — certainly nothing worthy of impeaching and removing a duly elected president nine months before Election Day.
But they decided to contest the underlying facts, where the president’s case is weakest. They decided to fight on quid pro quo . . . so now they will have to deal with John Bolton’s account and the rising demands that he be called as a witness.