Impeachment, Ukraine

The Republicans’ Impeachment Shrug

By Day 3 of the hearings, the only argument left for Trump’s defenders is postmodern nihilism: You can’t make us care.
by Kim Wehle
November 19, 2019
Featured Image
Jennifer Williams and Lt. Col. Alexander Vindman are sworn in prior to testifying before the House Intelligence Committee, November 19, 2019. (Courtesy C-SPAN)

On Tuesday morning, Lt. Col. Alexander Vindman, an Army officer detailed to the National Security Council, and Jennifer Williams, an aide to Vice President Mike Pence, testified in the House impeachment hearings. Both were on the July 25 phone call in which President Trump asked Ukrainian President Volodymyr Zelensky for the “favor” of investigating Joe and Hunter Biden. Their testimony was not earth-shattering, but it did damage two of the Republican defenses to the Trumpian quid pro quo that Democrats are now characterizing alternately as bribery and extortion.

Last week, Republicans complained that the Democrats only presented weak “hearsay” evidence. The testimony of Vindman and Williams took that defense off the table, because they both have first-hand knowledge of the July 25 call. Vindman also attended a July 10 meeting involving a Ukrainian delegation in which the quid pro quo was first discussed.

The second defense that was rendered inoperable is the Republican argument that the Ukrainians didn’t know that the president was holding up diplomatic and financial goodies unless they complied with his demand to investigate the Bidens. How could there be a “favor for favor,” they asked, if the Ukrainians weren’t even aware that they had to launch investigations if they wanted the nearly $400 in military aid that Congress had authorized in the spring of 2019?

Vindman—who speaks fluent Ukrainian and Russian—testified that Zelensky mentioned the company linked to Hunter Biden by name on the July 25 call. The name “Burisma” is not one that would have come up had Zelensky not been briefed on it, Vindman explained, and he wouldn’t have been briefed on it if it didn’t matter to President Trump—and therefore to Ukraine. For her part, Williams also confirmed that Burisma was expressly mentioned on the call, although the word didn’t appear in the White House’s call summary. (Vindman testified that he failed in his internal attempts to have Burisma explicitly mentioned in the call summary before it was released.)

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A lawyer’s instinct in watching the impeachment hearings is to look for whether there is a defense on the merits—that is, whether there is an alternative version of the facts that makes sense.

The evidence presented so far shows that a White House meeting for the newly elected Ukrainian president—and the military aid needed to defend the country against Russian aggression—was withheld pending Zelensky’s public announcement of investigations into Joe and Hunter Biden and supposed Ukrainian interference in the 2016 U.S. elections. The evidence also shows that the president’s personal lawyer, Rudy Giuliani, was given substantial foreign policy authority that was ultimately exercised in a manner demonstrably at odds with the official U.S. policy towards Ukraine.

So far, there is no meaningful defense on the merits. None.

The one question remaining—really the only one—is: Who cares?

Or as some people frame it: Is the president’s established conduct impeachable?

If you wanted to answer this question on the merits, you’d have to keep in mind that the president takes an oath of office to uphold the Constitution on behalf of the United States of America. Scholars have likened the presidency to a fiduciary relationship or a power of attorney—the idea being that the holder of the office is empowered only to act on behalf of his constituents. Unlike a monarchy, the presidency is not a divine grant of power to a particular individual.

Imagine, for example, that a trustee is charged with managing a $10 million trust fund until the beneficiary turns 18. The fiduciary needs cash to launch his own start-up company, so he takes the $10 million and “invests” it in the company for his own benefit. Clearly, such self-enrichment would be a violation of the fiduciary’s legal obligation to act solely in the interests of the beneficiary.

Likewise, the facts so far establish that Trump used his office to try and secure his own power in 2020. He did this in a way that undermined the written national security policy of the United States—which the president himself signed—as well as the interests of the American people.

And again, there is no alternative version of events offered by Republicans.


Republican members of the House Intelligence Committee attempted to challenge Vindman for bias and leaking (there is no evidence for either suggestion). Devin Nunes railed against the media and assailed Robert Mueller’s investigation into Russia’s interference in the 2016 election. Republicans made a great deal of noise about matters that have been reported in the press. (Which is odd, since just last week Republicans were wailing about the lack of witnesses with first-hand knowledge of events.)

But through it all, Republicans have not put even a dent in the central story of abuse of office by the president of the United States.

The only Republican argument left is a postmodern nihilism: You can’t make us care.

And it’s true. Nothing can make Republicans take abuse of power by this president seriously. They too are elected to represent the people, but seem more eager to focus their attention on sudoku or cribbage or whatever wealthy old men in a minority party do to fill the time.

But when “we refuse to care” is the basis of an entire political party’s view of a constitutional crisis, then something has gone very, very wrong. And the problem does not stop with the president.

Reason and argument are the only guideposts which prevent politics from devolving into pure will-to-power. When one of our political parties openly abandons even the pretense of reason and disdains even the idea of argument and instead retreats into the smug assertion that they simply will not countenance either evidence or the law, we are in dangerous territory.


UPDATE (7 p.m. EST): Republicans had the best run to date with the two witnesses who testified Tuesday afternoon, former special envoy Kurt Volker and national security aide Tim Morrison. This was as expected.

Here’s the alternative defense narrative that finally squeaked out:

Volker testified that Trump was distrustful of the Ukrainians based in part on bogus conspiracy theories peddled by Rudy Giuliani and others. He suggested that the military aid was held up until September 11 because Trump was skeptical about the Ukrainians in general. When Zelensky convened a parliament on September 2 and began anti-corruption initiatives, Trump released the aid a little over a week later.

For his part, Morrison testified that he believes the July 25 call was not inappropriate (even though he went to National Security Council lawyers about concerns with political fallout from a leak of the call record). He explained that, at the time of the call, he didn’t have an issue with Trump asking President Zelensky to investigate Joe Biden, but admitted that Trump’s asking for an investigation of someone like Nancy Pelosi or Kurt Volker would not be acceptable.

Morrison also said that the burying of the whistleblower complaint on a top-secret server by NSA’s top lawyer was a mistake (according to that lawyer, John Eisenberg).

Here’s the nagging problem for Trump’s defenders: These were the best witnesses on the roster for Trump so far, and the central narrative has not changed.

In fact, like Gordon Sondland before him, Volker changed his original testimony today. At his October 3 deposition, Volker said he had no recollection of Gordon Sondland bringing up the Burisma/2016 election investigations at the July 10 meeting in the White House with a Ukrainian delegation. Volker also testified that he had no recollection of then-National Security Advisor John Bolton abruptly ending that meeting with the now-famous “drug deal” jab. Today, however, Volker said that his recollection was refreshed by Lt. Col. Alexander Vindman’s testimony that Sondland did in fact raise the investigations on July 10.

Volker also testified that he didn’t understand Trump’s sought-after investigations of Burisma to mean investigations of the Bidens, but that in hindsight he should have made that connection. He added that a president’s getting a foreign government to investigate a political rival—particularly a former vice president—is inappropriate, and that this is what he later saw recorded in the call notes of the July 25 conversation between Zelensky and Trump.

Morrison testified that he was on the July 25 call, that the Bidens were mentioned, that the word “corruption” was not, and that he had a “sinking feeling” after Gordon Sondland told him that a Ukrainian investigation into the Bidens was necessary as a condition to Trump’s release of the aid.

Bingo.

One thing remains crystal clear and unrebutted: Every witness to date concurs that the promotion of democracy and the rule of law in Ukraine is in Ukraine’s and America’s interest, and antithetical to Russia’s interest—and that Trump’s withholding of Ukrainian aid was bad for both Ukraine and America.

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).