The Mueller Report, Ukraine

The ‘No Collusion’ Song Goes Silent

We’re not hearing it—and no surprise, since President Trump unabashedly asked Ukraine to disadvantage Joe Biden in the 2020 U.S. presidential election.
by Kim Wehle
October 11, 2019
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(GettyImages)

After issuing a misleadingly incomplete four-page summary of Special Counsel Robert Mueller’s report last April, Attorney General William Barr irresponsibly went on national television to declare “no collusion” between the Trump campaign and Russia. This message amplified Trump’s months-long refrain of “NO COLLUSION!”—even though the term “collusion” has no legal significance whatsoever, as Mueller made clear in his report. After the report’s release, President Trump again starting singing the “no collusion” refrain, now adding a chorus of “complete and total exoneration.”

There are two things worth noting here.

The first is that Team Trump’s “no collusion” tune has gone silent in the latest round of foreign election interference scandals. The evidence is clear from Trump’s own words that he sought to motivate Ukraine to manufacture dirt on Joe Biden and his son by opening a criminal investigation in Ukraine that—to date—has no basis in fact. The silence suggests that Team Trump knows the “no collusion” cry won’t work this time.

Second, by heralding “no collusion” as somehow legally significant when it came to Russian interference in the 2016 election, Barr created the impression that if evidence of collusion did exist, if would be legally meaningful—if not for prosecuting a president, then possibly for impeachment.

In Mueller words, “collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.” By contrast, “[conspiracy and] coordination [would] require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference.” Mueller’s team found insufficient evidence of an agreement between the Trump campaign and Russia. It found instead that “the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts.” In other words, Mueller concluded that Team Trump was aware of what was going on and welcomed Russia’s help in winning the presidency, although the investigation didn’t establish that Team Trump actively engaged in that effort together with the Russians.

The Ukrainian scandal is different. The White House’s release of a summary of Trump’s July 25 call with Urkainian President Volodymyr Zelensky shows that Trump initiated the request for aid in the 2020 election. He did much more than willingly accept help. The timeline also shows that Trump was unilaterally withholding nearly $400 million in aid when he made the ask.

The evidence of “collusion” goes well beyond that phone call. According to the New York Times, for example, Kurt Volker, the former State Department special envoy for Ukraine, recently told congressional investigators that Trump’s personal attorney, Rudy Giuliani, had “rejected a generic draft statement that Ukraine’s government had to agree to . . . committing to fighting corruption generally” and instead “said the Ukrainians had to promise to pursue two specific investigations that could damage the president’s political domestic adversaries.” 

According to Volker, then, Giuliani confirmed that the July 25 call was not about rooting out corruption in Ukraine—it was about helping Trump pummel Joe Biden in 2020. That’s a whole different ball game than passively accepting help (which for that matter is also repugnant, as a true patriot would have called the FBI to stop the Russians in their tracks).

In politics and in the law, words matter. And for both politics and the law—and in the impeachment process now underway, a political process where potential violations of the law are being scrutinized—the sudden disappearance of the “no collusion” defense marks a significant moment.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).