Disingenuous Nikki Haley

Former U.N. ambassador and future presidential candidate Nikki Haley says Donald Trump should not be impeached, because (a) "the Ukrainians never did the investigation," and (b) "the president released the funds." You can be sure a very large number, approaching one hundred percent, of Republican senators will arrive at the very same disingenuous conclusion.

"When you look at those, there's just nothing impeachable there," Haley insisted.

No, of course there isn't.

Anyway, "the American people should decide this," Haley said, pushing all the usual inane and ignorant buttons. "Why do we have a bunch of people in Congress making this decision?"

Why? Could it be that the Constitution contemplates the need for a bunch of people in Congress making this decision? That would be a good reason.

It's good, at least, that Nikki Haley isn't teaching a course in civics or government.

So ok: The Ukrainians never did the investigation. Which misses the point entirely, not least because it was neither necessary nor expected that the Ukrainians do the investigation. Haley is but an early indicator that point-missing will be ubiquitous on the political right these next couple of months. The most consequential point-missing will be in the Senate. Just watch: Senators will find themselves unable to understand the most basic of concepts, and will inevitably descend into simplistic blather. It has actually already started.

By now Nikki Haley ought to know, and the senators will be properly told, that the shakedown of the Ukrainians required not that they do an investigation; only that they announce one. And for the shakedown to have its intended effect, the announcement had to be public, and to name Donald Trump's domestic political opponents. To that end, and for a shocking number of months, the U.S. diplomatic corps, plus a shadow diplomatic contingent of rogues and hustlers, plus officials in the Pentagon and the National Security Council and the White House and elsewhere in government—an immense frothing churn—at turns advanced or opposed Donald Trump's political extortion of Ukraine. For their part, the Ukrainians were confused and dismayed.

Here's how George P. Kent, the senior State Department official for Ukraine, put it in his recent congressional testimony: "POTUS wanted nothing less than President Zelensky to go to microphone and say investigations, Biden and Clinton."

What Nikki Haley's facile dismissal misses is that the objective of the shakedown was to extort Ukraine's president to sully Joe Biden with the implication of corruption, by announcing an investigation mentioning Biden or his son. Trump insisted the announcement be on camera for best effect.

The effect of such an announcement would be to permanently tarnish Biden's 2020 electoral chances, regardless of whether the investigation ever proceeded in good faith, or reached a conclusion, or was even conducted at all.

Notice as an aside how Trump's extortion differs from the usual ways that strings might be properly attached to foreign aid for the advancement of actual U.S. foreign policy. One could plausibly envision a scenario, involving some hypothetical country, where the U.S. had a genuine policy interest in the conduct of a properly run corruption investigation based on a factual predicate. Indeed, when he was vice president, Joe Biden was actually involved in some anti-corruption strong arming of Ukraine, in concert with our European allies and international agencies such as the World Bank. But as he inevitably does, Trump has turned reality on its head and insinuated, against all evidence, that it was Biden who was corruptly freelancing.

An announcement by Ukraine would be just the thing to elevate such baseless sleaze in the minds of a lot of barely informed voters. The smear lends itself to easy soundbites in political ads. This is how insidious alternative realities are constructed.

Notice also how Trump's shakedown lacks legitimacy and does damage. In the current instance there was no factual predicate, only imaginary and self-serving conspiracy theories. There was no policy interest, only a political one involving the president's reelection. The real U.S. anti-corruption policy on Ukraine had been ably carried out by America's ambassador, Marie Yovanovitch. It was she who had to be gotten out of the way to make room for Trump's own corrupt shadow foreign policy advancing his personal interests ahead of the nation's. And the thing most highly sought by the shadow policy was not a genuine anti-corruption program, but instead the political effect of an announcement, with its requisite public naming amounting to a fabricated smear.

All this came at great cost: to good governance, to U.S. security (Ukraine is a strategic ally), to U.S. foreign policy, and most certainly to Ukrainian security. Ukraine, we must always remember, is in a hot war with Russia and needs the aid to defend itself. And we, it must also be remembered, oppose Russia's lawless aggression and have been actively working to counter it.

The whole thing reeks of actual corruption—by the president. To be clear, the U.S. president; the Ukrainian president seems to have been earnestly trying to run a clean operation amidst the foul pressure from Washington. Nikki Haley thinks such abuse of office by our president is not impeachable, since the ostensible investigation didn't end up getting done. But why would that be the criterion? Isn't impeachment more about using the powers of office to pursue a corrupt act, and less about whether the corrupt act is successful?

"High crimes and misdemeanors" in the Constitution is a catchall phrase signifying behavior so egregious that it materially threatens the foundational structure and function of government. It's a "meta" crime that in some deep and fundamental way undermines the rule of law on which all else depends. As such, it is an elemental attack on the Constitution itself.

In his congressional testimony, George Kent said he "wrote a note to the file" that he had concerns "that there was an effort to initiate politically motivated prosecutions that were injurious to the rule of law, both in Ukraine and the U.S."

Kent testified that he had spent much of his diplomatic career working to promote the rule of law. "And in countries like Ukraine and Georgia, both of which want to join NATO, both of which have enjoyed billions of dollars of assistance from Congress, there is an outstanding issue about people in office in those countries using selectively politically motivated prosecutions to go after their  opponents. And that's wrong for the rule of law regardless of what country that happens."

It is sad to note that Kent clearly saw the U.S. modeling the kind of corruption he'd worked to eradicate over his career, with pernicious effect on both countries. And it is also sad to realize that while Ukraine has been attempting to dig itself out of an entrenched culture of corruption, the U.S. under Trump has been pushing it back into the mire. So we should once again underscore that while opposing Ukrainian corruption has become almost a cliché, anti-corruption efforts as a matter of U.S. foreign policy, conducted by dedicated public servants in the U.S. government, were in fact real and ongoing—at least before they were subsumed by Trump's corrupt shakedown.

Nikki Haley thinks the determinate fact is that the investigation didn't get done, whereas I have said the shakedown was more about the announcement than the investigation. But the announcement never happened either. Why not?

It turns out that Ukraine had anguished for months over how to respond to the White House extortion demands that of late were holding up its desperately needed aid, and that had also insisted on the very same quid pro quo for a coveted Oval Office visit by Ukraine's newly elected president. An earlier variant of the shakedown involved how high an official (Vice President Pence? Sorry, no.) would attend the Ukrainian president's inauguration.

By September, time was running out on the aid. In his amended testimony to Congress, Ambassador Gordon Sondland said he told Ukrainian officials "that resumption of the U.S. aid would likely not occur until Ukraine provided the public anticorruption statement that we had been discussing for many weeks." That "statement" was the announcement of investigations of the Bidens and of a debunked conspiracy theory related to the 2016 election. Two U.S. senators told President Zelensky that only Trump could unlock the aid, which if not released by September 30—the end of the U.S. fiscal year—might be lost entirely.

In congressional testimony William Taylor, the top U.S. diplomat in Ukraine after Yovanovich's outster, said Trump wanted the Ukrainian president to make the announcement on CNN. The Ukrainians were confused and apprehensive: Didn't Trump hate CNN? The Ukrainians deliberated internally about what to do.

New York Times reporter Andrew Kramer, who broke the story about how things looked from the Ukrainian side, wrote: "Finally bending to the White House request, Mr. Zelensky's staff planned for him to make an announcement in an interview on Sept. 13 with Fareed Zakaria, the host of a weekly news show on CNN."

The announcement was finally going to happen. But then it didn't. That's because the aid was released September 11, two days before the scheduled interview.

Does the aid's ultimate release let Trump off the hook, as Nikki Haley suggested? Again, it depends on whether impeachment hinges on the deliberate pursuance of a seriously corrupt act that undermines government, rather than the mundane consideration of whether the act was technically consummated. Can you dodge culpability if your serious effort to rob a bank is somehow thwarted?

After all, the reason the aid was finally released was that the White House got caught in the corrupt act. The whistleblower complaint involving Trump's July 25 call was filed on August 12. Its existence became public knowledge on September 18. In the intervening time, a lot of internal machinations had gone on inside the government. The NSC's chief counsel stashed the call log on a highly secure server, making it inaccessible to the officials who would usually have access to it, and suggesting consciousness of presidential wrongdoing. The intelligence community's inspector general notified the acting DNI of the whistleblower complaint on August 26, deeming it "credible" and "urgent"—the legal threshold requiring Congress be notified. The acting DNI consulted the White House and Justice Department, which claimed privilege. On September 9,  two days before the aid was released, the acting DNI also notified the House Intelligence Committee about the complaint's existence, but refused to share the details. On September 13 committee chairman Adam Schiff issued a subpoena to the acting DNI for production of the complaint.

So pressure had been building by late August. In her congressional testimony Laura Cooper, a top Pentagon official for Ukraine, said there were internal deliberations about whether withholding the aid was even legal.

Other deliberations inside government involved fears that Russia would interpret the holdup as a weakening of U.S. support for Ukraine, which might result in increased Russian aggression. Not that Trump would have cared about that.

By September Congress had become deeply concerned about why the aid it had authorized hadn't been released. Three House committees opened investigations on September 9, the same day as Congress was notified about the whistleblower complaint. The Senate Appropriations Committee met on September 12 to discuss compelling the administration to release the aid, but was told that it had been released the night before. With all the increased attention, and with the revelation of the whistleblower complaint, plus the new House investigations, the jig was finally up. Ukraine got its aid without having to announce an investigation, although there was a brief period of uncertainty over whether it would follow through with the announcement anyway. U.S. diplomats, who had been counseling Ukraine to stay out of U.S. politics, persuaded the Ukrainians to cancel the interview. The institutions of government held, after a fashion, despite the White House's corrupting efforts.

But those efforts were serious, material, and illegal, and if ignored they would establish a damaging precedent in American governance. They played out over many months, and involved multiple agencies and many officials. They truly were an attack on the rule of law, an undermining of the constitutional foundation, and not just in an oblique technical sense.

But the framers had foresight: The Constitution contains specific measures for its own protection from a rogue, lawless president.

And that, Nikki Haley, is why we "have a bunch of people in Congress making this decision."


Copyright (C) 2019 James Michael Brennan, All Rights Reserved

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