As House Democrats prepare for a full vote on impeachment articles, Senate Democrats have launched a new effort to pressure Senate Majority Leader Mitch McConnell (R-Ky.) into allowing testimony from witnesses at Trump’s impeachment trial.
The stakes in this battle over Trump’s trial have just been forcefully underlined by a new report from the House Judiciary Committee. The report, which supplements the articles passed by the committee last week, makes a strong case that Trump committed multiple crimes in carrying out his scheme.
Importantly, the very same witnesses that Senate Democrats want to hear from almost certainly have firsthand knowledge of the very same potentially criminal acts spelled out in that new report. Those include acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton.
In a new letter, Senate Minority Leader Chuck Schumer (D-N.Y.) calls for McConnell to agree to testimony from them and others, arguing they have “direct knowledge” of Trump’s decision to freeze military aid to Ukraine, amid his demand that Ukraine announce an investigation of potential 2020 opponent Joe Biden.
The new report from House Judiciary Democrats is notable because it makes the case that doing this constituted a federal crime, in addition to an impeachable offense.
The case that Trump committed crimes
The case the report makes is as follows. Federal statute makes “bribery” a crime if a public official “demands” or “seeks” anything “of value personally,” in return for performing “an official act,” and all of this has been done “corruptly.”
The report notes that Trump’s plot fits all these criteria. Trump sought announcements of investigations that would smear a political rival and help absolve Russia of 2016 electoral sabotage on his behalf. Trump directly pressured Ukrainian President Volodymyr Zelensky to do this, and numerous texts show U.S. ambassadors negotiating with Ukraine for a statement announcing it, which was confirmed by testimony from ringleader Gordon Sondland and others.
Those were “things of value” to Trump. His own lawyer Rudolph Giuliani openly said they would be “very helpful” to Trump himself. And we know from those texts and from extensive testimony that Trump conditioned two official acts — a White House meeting and the granting of military aid — on getting those things of value.
Trump did all this “corruptly" — he subverted our foreign policy to his personal and political ends. The talking point that Trump cared about “corruption” is laughable: Trump, Giuliani and Sondland sought only investigations that would help him politically; the Pentagon had recommended releasing the aid; and there is zero evidence that any of this amounted to a policy judgment on Trump’s part in any meaningful sense.
The report also argues Trump committed related crimes: “Honest services fraud,” because he defrauded the American people of honest service as a public official, and a subsidiary of that, “wire fraud,” because he communicated his corrupt scheme over a phone line.
The case against Trump is strong
Randall Eliason, a professor of white-collar criminal law at George Washington University who has just posted an extensive new analysis at the Just Security website about the relevance of bribery statutes to Trump’s misdeeds, told me the House report is correct as a matter of law.
“The legal and factual analysis of bribery and honest services fraud in the House report is exactly right,” Eliason told me. “These can’t be dismissed as mere political arguments. The report outlines compelling evidence of federal criminal violations.”
Meanwhile, former federal prosecutor Barbara McQuade has just posted a separate case that Trump committed honest services fraud.
All of this has numerous implications, none of them particularly good.
First, this should prompt us to revisit the Justice Department’s failure to launch a criminal investigation of the whistleblower complaint laying out much of this corrupt scheme. Remember, the CIA’s general counsel made a criminal referral to the Justice Department, which declined to investigate.
A full reckoning with this scandal must also get to the bottom of that decision, particularly now that Trump’s attorney general, William Barr, is working overtime to discredit the Russia investigation, just as Trump pressured Ukraine to help him do.
"In a properly functioning Justice Department, evidence like this would prompt a reexamination of whether these events warrant a criminal investigation, and even a new special counsel,” Eliason told me.
Presidential misconduct does not have to be criminal to be impeachable. But criminal statute can help guide how we define that impeachable misconduct. In this case, it plainly points to a way to understand the profoundly corrupt intent driving Trump’s scheme.
Will Senate Republicans refuse testimony?
In that context, the pressure on Senate Republicans to allow the testimony of Mulvaney, Bolton and others becomes a lot more significant. Mulvaney carried out Trump’s order to freeze the aid a week before his corrupt call with Zelensky. Bolton personally argued with Trump over the frozen aid.
Which means they both likely have direct knowledge of what drove Trump’s decision. This is almost certainly why the White House blocked them from testifying to the House impeachment inquiry, on the laughable grounds that it was illegitimate.
Presumably McConnell would not argue that his own Senate’s trial is also illegitimate, so that excuse is now out the window. So if Senate Republicans refuse to hear from these witnesses, after Trump corruptly blocked them, good luck defending the proceedings in the court of public opinion.
And if they do go through with that, but Trump wins reelection anyway, good luck to the rest of us.