Deja Vu, All Over Again

The founders of our country and the framers of our constitution were, for obvious reasons, extremely concerned with the potential of foreign interference in US domestic politics as well as the possibility that foreign actors could also corrupt the President. In discussing the need for including the impeachment power in the Constitution in July 1787, James Madison opined that “He [the President] might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation [i.e. embezzlement or bribery] or oppression. He might betray his trust to foreign powers”. Similarly, Alexander Hamilton wrote in 1788 in Federalist 68, “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?…Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence.”

Those fears proved to be thoroughly warranted as the French attempted to directly interfere in the 1796 election and the infamous XYZ affair, also involving France, colored the 1798 and 1800 elections. In our recent history, rather than seeing foreigners acting on their own to influence US domestic affairs, we instead have evidence that US political campaigns have attempted to get foreign governments to adopt policies that would be detrimental to their US domestic political opponents. Nixon’s back-channel to the North Vietnamese in order to derail the 1968 peace talks and Reagan’s contacts with the Iranians in 1980 are the clearest examples. In addition, the increasing importance of money in politics has opened the door for foreigners using straw man donations to political campaigns, an effort made far easier by the Citizens United and the emergence of vehicles for dark money donations.

The current Ukraine scandal, however, is unique in a number of ways. First, this seems to be the first occasion where the foreign donations were designed not to gain business access in the US, but to influence US foreign policy towards another country for the economic benefit of the donors in that country. More importantly, this is the first time that a presidential candidate has specifically used US foreign policy to try and force a foreign power to investigate his political rival in an attempt to pervert a US election. This is exactly what the framers, what Madison and Hamilton, both feared and specifically why the impeachment process exists. And it is why Democrats would be derelict in the constitutional duty if they do not move forward with the impeachment process.

Despite its uniqueness, however, the Ukraine scandal is, in many ways, simply a reprise of Trump’s efforts in the 2016 election. There is virtually no difference between “Russia, if you’re listening” and “I would like you to do us a favor though” or the more explicit “They [the Ukrainians] should investigate the Bidens. Likewise, China should start an investigation into the Bidens, because what happened in China is just about as bad as what happened with Ukraine”. Similarly, there is little difference between Paul Manafort sharing internal polling data, the crown jewels of any political campaign, so that a foreign government can micro-target US voters and Giuliani’s having “strongly urged” a top Ukrainian official “just investigate the darn things”, meaning the Bidens as well as the conspiracy theory that the Ukrainians interfered in the 2016 election on the Democrats’ behalf. Both the request for and receipt of foreign assistance are crimes and impeachable offenses.

In most criminal conspiracy investigations, prosecutors start by squeezing the lower level actors who have actually committed the crimes and then work their way up the food chain, based on the knowledge and evidence uncovered along the way, until they reach the conspiracy’s mastermind at the top. With Trump, bizarrely, it is exactly the opposite. He openly and publicly solicits the crime and the investigation largely revolves around determining who the co-conspirators are and the details of the crimes they have committed at Trump’s behest and/or for their own benefit. That was the rabbit hole of the Mueller investigation where, by the time it was finished, the details it had uncovered were so disjointed and legally complex that the story that emerged was not compelling. It didn’t help that Mueller, because of the OLC memo, refused to call the crimes he actually did uncover crimes. Nor did it help that Pelosi was so dead set against impeachment at that point as well. And, because of those two failures, the very next day after Mueller’s testimony, Trump set about reprising the 2016 foreign interference in the 2020 election.

Democrats must avoid now falling down the Mueller rabbit hole now. There is no need to wait and see what evidence Parnas and Fruman provide nor the results of the reported criminal investigation of Giuliani. Assuredly, there will be plenty of other crimes uncovered, including obstruction of justice in the State Department, in DOJ, and of Congress in general, as well as potentially a prior quid pro quo with Ukraine that shut off an avenue of Mueller’s investigation. But there is no need to wait for those details. We already know what the crime is because Trump has admitted it. And, as we have seen, Republicans are incapable of defending the President’s actions when it is simply framed as a simple question: should the President be allowed to ask foreign countries to investigate political rivals. A similar, but more complex question the GOP has no real answer for is whether it is OK for the President to secretly withhold taxpayer funds appropriated by Congress in order to extort a foreign country to investigate his political rival in order to gain an advantage in an upcoming election. The reason the Republicans have no good answer is simply because the conduct is indefensible.

As I’ve previously argued, the whole cabal of co-conspirators, Pence, Barr, Pompeo, Mulvaney, Giuliani, and so many others, must be exposed and the crimes they have abetted and/or committed be detailed. But some of that effort may have to be separate from the impeachment inquiry simply because the details of those crimes are exactly the turf that Trump and the Republicans want to fight on. Democrats must never let themselves, the press, and the public lose sight of the core crimes the President has committed, and now admitted, against our democracy. If the impeachment investigation gets bogged down in the details of tangential crimes committed by Trump’s co-conspirators, then the inquiry risks becoming a deja vu of the Mueller investigation all over again.

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Originally published at on October 13, 2019.

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