These developments, unfolding over the past week, have strained the well-oiled Trump-defense infrastructure. Since before his election in 2016, Trump allies and prominent Republicans have been rationalizing or reframing Trump’s behavior to his benefit. With the most recent allegations substantiated by the release of a rough transcript of the Zelensky call and the complaint filed by a whistleblower within the intelligence community, that effort has been a lot trickier than in times past.
Trump’s allies have risen to the moment — with varying degrees of success.
We can break out the defenses of Trump into four periods: the call itself, the accumulation of information by the whistleblower, the process the complaint followed and the aftermath of the revelation of the complaint’s existence.
1. The call
Trump and Zelensky spoke. Trump mentioned past U.S. aid to Ukraine, though a new round of aid was being withheld at that time. He asked Zelensky for a “favor” — investigating an unfounded conspiracy theory that could clear Russia of a role in hacking the Democratic Party’s computer network in 2016 — and then asked Zelensky to investigate Biden, who is running for president in 2020, and his son Hunter.
Zelensky was clearly already aware of Trump’s interest in a Biden investigation, mentioning Trump’s attorney Rudolph Giuliani — who had been pressing for such a probe — even before Trump did. No evidence has emerged to suggest that the Trump-Giuliani theory is accurate. From all accounts, Biden pushed for the ouster of a Ukrainian prosecutor in early 2016 in concert with international concerns about the prosecutor, not in an effort to kill an investigation (which wasn’t underway) into a company for which Hunter Biden was working, as alleged by Trump.
The White House has acknowledged that documentation of the Trump-Zelensky call (which was classified as “secret,” a lower level of clearance) was moved to a highly secure storage system to keep it from being leaked.
How Trump’s allies defend the call
A. Trump did nothing wrong. Some Trump defenders, like House Minority Leader Kevin McCarthy (R-Calif.) simply dismiss the importance of the call out of hand.
“Why would we move forward with impeachment?” McCarthy told CBS News’s “60 Minutes” in an interview that aired Sunday. “There’s not something that you have to defend here.”
That’s pretty obviously a subjective view with which others disagree. Some Trump allies, though, point to one specific piece of evidence for Trump’s innocence in his behavior: a determination from the Justice Department that no laws were broken. Specifically, a spokeswoman said:
“...the Department’s Criminal Division reviewed the official record of the call and determined, based on the facts and applicable law, that there was no campaign finance violation and that no further action was warranted.”
The circumstances for that determination are important later. But we should note that while this is an apparent exoneration of criminal culpability, there’s no exoneration process for problematic political actions.
B. The information Trump sought is important and his requests justified. A central defense of Trump is a corollary of the argument above: Trump did nothing wrong because he was asking the right questions.
The flaw with this assertion is that in each case, Trump’s actual requests — look into the hacking, look into the Bidens — are jury-rigged into a more-defensible, overarching issue. The hacking “favor” was really about probing Russian interference in the election! The Biden request was really about Trump wanting to crack down on corruption! The former is questionable simply because there’s no actual evidence that anything involving Ukraine played a role in the Democratic National Committee intrusion. The latter is perhaps even more dubious because Trump never once mentioned corruption — nor has he ever put any significant focus on the issue that would bolster this claim. Even when Trump has talked about the issues publicly, it’s in the context of how his opponents behaved poorly, not about interference or corruption.
The Ukraine call has drawn an enormous amount of attention to Hunter Biden’s work for Burisma Holdings, a Ukrainian energy company that paid him $50,000 a month to work on its board from spring 2014 until earlier this year. Trump’s allies argue that unanswered questions about that work remain — although those questions are often centered on the propriety of a sitting vice president’s son working for a foreign corporation.
“The son had no experience in the legal issues he was supposed to advise on,” Miller said, adding, “He knew nothing about Ukrainian law and he knew absolutely nothing about natural gas, the issue at the heart of the company.”
While that may be, it certainly doesn’t make Biden’s work or Burisma “one of the biggest corruption scandals concerning Ukraine in the last few years,” as Miller put it. It’s also rocky terrain for a defender of Trump’s own staffing decisions.
2. Information about the call spreads
A whistleblower within the intelligence community heard from a number of people within the administration about the call and about its aftermath. They also read publicly available news reports about Trump and Giuliani’s efforts to cast aspersions on the Bidens or to put pressure on Ukraine — and opinion columns from the Hill in which Trump-friendly theories were detailed and spread.
How Trump’s allies defend against it
A. The evidence the whistleblower collected is secondhand or hearsay. This is perhaps the most common complaint from Trump defenders. Here, for example, was Sen. Lindsey O. Graham (R-S.C.) on CBS News on Sunday.
“This seems to me like a political setup. It’s all hearsay,” Graham said. “You can’t get a parking ticket conviction based on hearsay. The whistleblower didn’t hear the phone call.”
Regardless of the laws about parking tickets by jurisdiction, the whistleblower’s information gathering is not equivalent to a criminal trial. It’s not even an indictment. Instead, it is equivalent to telling a police officer about something you heard. It’s up to the authorities to investigate, which we’ll get to.
As for the concept of hearsay itself, read this.
In this case, the argument that the information is secondhand and hearsay becomes even less meaningful given the various ways in which the evidence collected by the whistleblower has been validated by either the released rough transcript of the call or by the White House itself.
B. Trump must get to face his defender. A corollary to the above argument is one deployed by Trump.
The most immediate problem isn’t that the standard established under the Constitution for confronting accusers is a function of a criminal trial (as this public defender explains) and not of general life. The most immediate problem is that the whistleblower isn’t an accuser in this sense any more than the guy who tells the police that he heard his friend talking about his boss committing a crime is the boss’s accuser.
C. The use of media reports is questionable. In a column published by the New York Post, a Trump defender argued that the whistleblower’s reliance on media reports should raise eyebrows, given that the dossier of reports compiled by former British intelligence officer Christopher Steele was seen as more credible because of news stories mirroring the reports’ claims — stories for which Steele was a source.
“The Ukraine whistleblower repeatedly cited articles from The New York Times, Politico and even a report from former Clinton flack-turned-ABC-newsman George Stephanopoulos as evidence of the alleged conspiracy,” the column says. “It isn’t known whether he or his sources provided information used in any of the cited articles.”
One of the whistleblower’s sources was obviously a source for the articles that are part of the evidence: Trump. Most of the articles that aren’t from the Hill are interviews with Trump. Others are interviews with Giuliani or a former Ukrainian prosecutor who had been working with Giuliani, Yuri Lutsenko.
3. The process begins
The whistleblower compiled the evidence and wrote a complaint in early August that was sent to the inspector general for the intelligence community, Michael Atkinson (a Trump appointee). After Atkinson determined that the complaint was both credible and an urgent concern, it went to the acting director of national intelligence, Joseph Maguire. By law, Maguire was to turn it over to congressional committees within a week. He didn’t, claiming that the action was blocked by his superiors.
How Trump’s allies defend against the complaint
A. The whistleblower’s complaint was allowed only because the rules for complaints were changed. Trump tweeted this theory over the weekend and again Monday.
It derives from an assertion made at the Federalist, a Trump-friendly site, in an article written by the author of the New York Post column. In short, it alleges that the whistleblower rules were changed in early August to allow for the use of secondhand sources.
The Daily Beast’s Kevin Poulsen wrote a thorough debunking of this claim. LawAndCrime.com collected other dismissals of the argument by legal and security experts. Journalist Julian Sanchez has detailed how the secondhand source standard easily and obviously predates August in several Twitter threads, including this one.
Update: The inspector general’s office has now been explicit. There was no change.
B. The whistleblower was found to have bias. As part of its review of the whistleblower complaint, the office of the inspector general did find “some indicia of an arguable political bias,” suggesting that the whistleblower might have bias against Trump. The nature of that bias isn’t clear.
But the inspector general nonetheless determined that the allegations contained in the complaint appeared to be credible, as an opinion from the Office of Legal Counsel indicates.
C. The complaint contains errors. Trump has dismissed the veracity of the whistleblower complaint in broad strokes. Some have called the complaint inaccurate because it suggests that Trump pressured Zelensky to launch the investigations. Others have highlighted conflicts on less important details, like the presence of a State Department official on the call. On Monday, though, the Wall Street Journal reported that Secretary of State Mike Pompeo himself might have been on the call.
It’s certainly true that not every detail of the document has been shown to be accurate. But it’s also true that the whistleblower’s description of the contents of the Zelensky call overwhelmingly matches what the rough transcript of the call shows — and the whistleblower’s description was compiled without access to that transcript. As noted above, the White House also acknowledged that it stored the conversation in a separate, secure storage system despite the low-level classification of the rough transcript.
It’s also the case that Zelensky understood the nature of the relationship between his country and the United States and that any assertion that he didn’t face pressure to acquiesce to Trump’s requests is questionable.
4. The news is out
Once the failure of the acting director of national intelligence to turn over the complaint came to Congress’s attention, the media began talking to sources in the administration who revealed components of the complaint and the Trump-Zelensky call. That was reported publicly and seized upon by members of Congress.
House Speaker Nancy Pelosi announced that House Democrats would launch an impeachment inquiry centered on reports about Trump’s interactions with Zelensky, a focus bolstered by the White House’s release of the rough transcript in an apparent effort to demonstrate that Trump had acted appropriately (as in the first point of this article).
How Trump’s allies defend the president
A. The House should have voted on an impeachment inquiry. The effort to defend Trump quickly gets into the weeds, as with the assertion that Pelosi violated protocol by not holding a vote before launching the inquiry.
House Minority Whip Steve Scalise (R-La.) made this argument Sunday on NBC News’s “Meet the Press.”
Graham made a similar argument on CBS News’s “Face the Nation.”
“The only way to open up an impeachment inquiry is to vote,” he said. “We need a John Hancock moment from House Democrats. Quit hiding behind Nancy Pelosi.”
By the time Pelosi launched the inquiry, more than 130 members of her caucus were publicly supporting an inquiry. After the rough transcript was published, that number soared. In other words, nearly every House Democrat was already on record with their views of an impeachment inquiry.
It seems unlikely that this argument will significantly affect views of the impeachment inquiry among nonpartisan observers.
B. Rep. Adam B. Schiff misrepresented the contents of the Trump-Zelensky call. At a hearing last week, Schiff (D-Calif.) summarized the contents of the call by reframing what each participant had said to highlight the subtext he saw in the conversation. The result was a presentation of the call that didn’t match what actually happened.
It’s fair to criticize the misrepresentation and useful to Trump’s allies to suggest that such a prominent critic of the president is essentially rewriting the transcript. It is not, however, treason.