WH Lawyers Have Already Closed the Case on Impeachment

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It’s over.  Although there is still more to hear from White House lawyers this week, their short presentation on Saturday made clear that the House impeachment case is a loser.

The House managers’ argument is simple. It alleges that President Trump withheld military assistance from Ukraine in order to force that country’s new president to investigate — among other things — why and how former Vice President Biden’s son became a director of a corrupt Ukrainian energy company. A subsidiary argument is that Trump also refused to provide, for the same reason, a White House meeting with President Volodymyr Zelensky.  In withholding the assistance and the meeting, the House managers argue, Trump used the power of the U.S. government for his own political purposes — a corrupt act that they claim warrants his impeachment.

The president’s lawyers, however, in their short two-hour summary of what they will say this week in more detail, fatally undermined this case. They began with the famous July 25 transcript that recorded a conversation that day between the two leaders. In the transcript, as the lawyers pointed out, neither Trump nor Zelensky made any reference to the military equipment for Ukraine that Trump was allegedly using to pressure his counterpart. (Zelensky did mention that Ukraine was “almost ready” to buy more Javelin anti-tank weapons, but they were not part of the withheld assistance.)

Even more important, there is nothing in the transcript that suggests Zelensky was aware — at least on July 25 -- that anything was being withheld from Ukraine. Obviously, Trump could not be pressuring Zelensky by holding back military assistance if the latter was not aware of it. This is a fatal flaw in the House managers’ argument.

The president’s lawyers then produced strong circumstantial evidence that officials in Ukraine were not aware, until Aug. 28, that anything was being withheld. Through the rest of July and almost all of August, U.S. officials who would regularly hear from their Ukrainian counterparts heard nothing about the military assistance. But on Aug. 28, Politico published an article saying that Trump was withholding aid. This immediately set off a storm of calls from officials in Ukraine to their U.S. counterparts, showing that Ukrainian officials had been unaware that anything was being delayed. Again, if those officials had been in the dark, Trump could not have been using withheld aid to force Ukraine into investigating the Bidens.

In addition, the president’s lawyers also showed that withholding of a White House meeting was also not being used to pressure Zelensky. In the transcript of the July 25 conversation, Zelensky says, “I am very hopeful for a future meeting,” and the House managers have argued that his eagerness to get such a meeting was another part of Trump’s alleged pressure campaign. However, shortly after his statement about a meeting with Trump, Zelensky says, “On the other hand, I believe that on September 1 we will be in Poland and we can meet in Poland hopefully.” Thus, if he was perfectly satisfied to meet in Poland and not in Washington, the House managers’ claim that Zelensky was pressing for a White House meeting was clearly false.

Finally, the president’s lawyers showed, by quoting from the July 25 transcript, that Trump was genuinely concerned about the failure of our European partners to share the burden of protecting Ukraine, a concern that Zelensky echoed. This countered the House’s charge that burden-sharing was just a post hoc excuse for failing to promptly deliver the assistance. Similarly, by showing that the president withheld aid funds to other countries when he was concerned that corruption or other factors would waste U.S. taxpayers’ money, the White House lawyers demonstrated that Ukraine was not an exception.

There will be much more of this on Monday, but the outlines of a defeat for the House managers were obvious in the two-hour presentation on Saturday morning.

What’s left for Senate Democrats is an attempt to get 51 votes for additional witnesses. But it’s a fool’s errand. Now circulating in the media is a story about a book by John Bolton in which he allegedly says the president directed him to hold up delivery of the assistance until Biden was investigated. The president no doubt says many things to many people that he trusts. But all these statements of intention are irrelevant if he never told the Ukrainians that the assistance was being withheld. Without such knowledge, President Zelensky was not being pressured.   

Once it is clear that that Zelensky and other Ukrainian officials did not know until the end of August that any armaments were being withheld, there is no longer any basis for claiming that Trump was applying pressure — no matter what Trump might have been discussing with his top aides.

Peter J. Wallison a senior fellow at the American Enterprise Institute. His most recent book, “Judicial Fortitude: The Last Chance to Rein In the Administrative State” (Encounter Books), was published in October. 

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