By Jonathan R. Wetherbee
What did Donald Trump do in Ukraine?
I’ve had a tough time finding a singular article on the facts surrounding the House’s impeachment articles for Abuse of Power. The Washington Post put together this timeline of events, but there’s a shortage of articles that weave the facts together in a coherent story.
The House of Representatives charged Donald Trump with two articles of impeachment. The second article of impeachment was for Obstruction of Congress, and was actually built on a procedural error that (in my opinion) all but killed that article. The first article is for Abuse of Power, and we’re talking about the facts of that charge in this article.
In order for there to be an Abuse of Power, there needs to be a power that’s identified in the first place. That Presidential power needs to come from the Constitution (e.g., the power to nominate federal court justices) or from legislation (e.g., the power to tax corporate earnings).
The power that was alleged to have been abused here is a legislative power. Via the Foreign Assistance Act of 1961 and the Freedom Support Act of 1992, the President has the power to withhold funding or aid in order to strengthen democratic institutions abroad.
An example of this power being used is when President Trump cut aid to El Salvador, Guatemala, and Honduras because of the volume of citizens from those countries that were applying for asylum.
The exercise of that power in regards to Ukraine was when President Trump, through his then Chief of Staff Mick Mulvaney, withheld military aid from Ukraine that was intended to support their fight against Russian-backed forces.
The question that is at issue in the Trump-Ukraine facts is “Was President Trump withholding military aid in order to improve Ukrainian democratic institutions or was he trying to corrupt them?” He was doing one or the other, and where you land on that question dictates whether you think Donald Trump committed a ‘high Crime or Misdemeanor.’
A Recent History of Ukraine
The history of Ukraine, and any former Soviet country, is that of being haunted by its Soviet past. After the dissolution of the Soviet Union, Ukraine bounces from left-leaning to right-leaning and pro-EU to anti-EU flavors, but one constant was the presence of corruption in the country’s democratic institutions.
In 2010 and in the midst of a recession, Viktor Yanukovych was elected President of Ukraine. In November 2013, Yanukovych went back on a promise to strengthen ties with the EU and pulled out of a negotiated pact. The implication was that Yanukovych would bow to Russian pressure and strengthen economic relations between Ukraine and Russia.
Protests erupted after that decision and Yanukovych fled to Russia after suppression efforts turned violent. Russia responded by supporting the occupation of territories near the Ukraine’s eastern border, and that conflict is on-going.
After Yanukovych fled to Russia, a snap election saw Petro Poroshenko become the new President of the Ukraine. Poroshenko, to some of the protestors’ satisfaction, was pro-EU. To other protestors’ chagrin, he came with a history of corruption that he would carry throughout his presidency.
Poroshenko’s past corruption allegations include securing the acquisition of a $1 billion steel plant for $80 million (8% of its value!) for a Ukrainian oligarch. During his presidency, his anti-corruption apparatus was notoriously bad at fighting corruption; there was even a moment where his corruption prosecutor was coaching suspects on how to avoid corruption prosecution.
He was the embodiment of an old guard that put fighting corruption as a low priority. Despite support from some Ukrainians who recognized progress he had made in other areas, corruption in his administration remained unpopular.
Americans in the Ukraine
Much of Ukrainian corruption lived in the prosecutor general’s office, which was headed by a Poroshenko loyalist, Viktor Shokin. High-ranking officials in that department were caught taking bribes and the IMF even threatened to halt a bailout program because of corruption concerns.
One example of this corruption was the circumstances surrounding the case against Ukrainian oligarch Mykola Zlochevsky. An anti-corruption prosecutor in the UK seized $23 million worth of Zlochevsky’s assets and, according to the then-US Ambassador to the Ukraine, requested supporting documents from the Ukrainian prosecutor general for a money laundering investigation. When the Ukrainian prosecutor general didn’t provide the documents, a UK judge forced the release of the frozen assets and the case had to be closed.
That was April 2014, just one month before Hunter Biden joined the Board for Burisma Holdings, a large natural gas company controlled by Zlochevsky. Zlochevsky is the implicated in a $6 million bribery case in which Burisma and Ukrainian tax officials are under investigation. Zlochevsky has been outside of the Ukraine since November 2019.
Hunter Biden was paid a salary for serving on the Board and paid additional consulting fees, but he had no prior experience in the energy sector or in the Ukraine.
US State Department officials started to speak out against Ukrainian corruption, or even Hunter Biden specifically. Former US Ambassador to the Ukraine Geoffrey Pyatt condemned the Ukrainian Prosecutor General for failing to support the UK fraud case against Zlochevsky, Former US Ambassador to the Ukraine Marie Yovanovitch condemned corruption in the Prosecutor General’s Office, and US state department deputy George Kent spoke about concerns with Hunter Biden’s role with Burisma Holdings. Presumably, Joe Biden’s staff didn’t escalate Kent’s concern because of the passing of Beau Biden, which was around the time that George Kent found out about Hunter’s board service.
Ukrainian prosecutors would repeatedly state that they found no wrongdoing by either Hunter or Joe Biden in their investigations into Zlochevsky and Burisma Holdings.
Joe Biden has publicly bragged about pressuring Petro Poroshenko to oust Viktor Shokin. Shokin had some serious corruption allegations leveled against him, and Western diplomats and leaders wanted him gone. He was accepting bribes from individuals so as to not prosecute them, and Zlochevsky’s connection to a later bribery case would validate that.
But Shokin’s successor would prove problematic for other reasons. For one, he carried on Shokin’s tradition of corruption. Even more terrifying than that is that he worked with Trump / Giuliani fixer Lev Parnas on a smear campaign against US Ambassador Yovanovitch that led to her ousting and included her being personally surveilled, but that’s the subject of another piece entirely.
So, the Ukrainian prosecutor’s office was corrupt and Western efforts to leverage reform weren’t successful.
Political Revolution in the Ukraine
In comes Volodymyr Zelensky, a name that you’ve probably heard in the news. Before 2018, he was kind of like the Amy Poehler of the Ukraine. He created and starred in a political parody called Servant of the People, which is similar in flavor to Parks and Recreation or Veep. He’s starred in, hosted, or produced several popular Ukrainian shows.
He and his production company founded the Servant of the People political party in 2017, but initially claimed that it was to prevent other politicians from using the popular TV series’ name. As popularity for the (not) political project grew, appetite for a political outsider was evident, and Zelensky formally announced that he would run for president for the Servant of the People party.
In the election’s first round, he garnered a 30% plurality out of the 39 listed candidates, and in the runoff against Poroshenko, he won with 73% of the vote. Zelensky, who had no prior government experience, was now the President of a country with 3 million more people in it than the State of California.
As Zelensky took office as the President of the Ukraine, he would find that the highest-profile national issue would not actually be centered around Ukraine.
Military Aid Frozen
As mentioned earlier, after Russia supported occupation of Ukrainian regions, the US stepped in to provide military funding and approved the sale of weaponry to the Ukraine. It’s important to remember that this conflict is on-going and people are dying. Military assistance should only be withheld only for good reasons because peoples’ lives are on the line.
Military aid to the Ukraine was frozen in July 2019. Specifically, OMB executes the aid freeze in mid-July 2019 and multiple testimonies claim that Ukrainian officials knew of the freeze by late July.
What’s in question is the intent behind the freezing of that aid. The fact that aid was withheld in order to ensure investigations into the Bidens is (as we’ll see) largely undisputed. Again, the central question of this sequence of events is whether Donald Trump was trying to clean up Ukrainian democratic institutions or whether he was trying to corrupt them.
Quid Pro Quo
For some backstory, President Trump hired former NYC Mayor Rudy Giuliani to help him navigate the Mueller investigation and kept him around after the release of the Mueller report. In May 2019, one month after Zelensky’s election, Giuliani said that he was going to travel to the Ukraine to press for investigations into Hunter and Joe Biden. Giuliani canceled the trip after push-back from liberal and conservative pundits. So, we know that Trump associates were keen to ensure these investigations happened.
John Bolton, then National Security Advisor, said that in a May 2019 meeting with other senior White House officials that President Trump asked him to secure a meeting between Ukrainian officials and Giuliani.
In June 2019, OMB Director Mark Sandy would claim that President Trump started asking about the military aid to the Ukraine after it was publicly announced. Bolton would later claim that President Trump wanted to continue the freeze in military aid contingent on Ukrainian officials helping with an investigation into the Bidens. John Bolton was the only White House executive or Cabinet-level advisor to have shared his experience on the aid to the Ukraine.
Another source of this understanding of a ‘quid pro quo’ comes from Gordon Sondland, then US Ambassador to the EU, and Kurt Volker, then US special representative for Ukraine negotiations.
State department employees testified to an understanding of a ‘quid pro quo’ between those two officials. According to National Security Council employees, In the July 10th meeting with high-ranking Ukrainian officials, Sondland brought up specific investigations before Bolton cut the meeting short. NSC employees followed up by contacting NSC lawyers to distance themselves from what they called a “drug deal.” Based on texts from Sondland and Volker, we see repeated instances where White House meetings were conditional on Biden investigation progress.
Sondland, in a call to a GOP Senator, said that Trump would release the military aid if investigations were commenced. He repeated this claim to Ukrainian officials in September, and this was after the August 12 whistle blower complaint and a Politico article that announced the hold on aid.
You may have heard of the July 25th phone call between President Trump and President Zelensky. With the above facts as context, we see Trump’s insistence into investigations (both of the Bidens and of a conspiracy theory known as ‘Crowdstrike’) by the Ukraine and some have claimed that there is conditional language that links his requests to the military support that was discussed immediately prior to investigation requests.
On September 11, the aid was released without preconditions.
Those facts only get us part of the way through to answering the question of whether there was an Abuse of Power. Throughout the impeachment trial, we saw Democratic and Republic Senators largely split on party lines.
The impeachment trial demonstrated how a common understanding of the impeachment facts did little bring the political left and the political right together. It demonstrated how fact-checkers are limited in their ability to bridge political discourse. The trial showed that ‘political discourse’ is much more than facts.