Impeach Page 9

  The Accidental Whistleblower

  Alexander Butterfield didn’t have anything to do with the Watergate break-in. As deputy chief of staff, his role in the White House involved day-to-day tasks like handling President Nixon’s schedule. So “when the Senate Select Committee on Presidential Campaign Activities published a list of people it intended to interrogate, Butterfield wasn’t on it,” as Alicia Shepard, author of Woodward and Bernstein: Life in the Shadow of Watergate, wrote.

  “I was sort of surprised,” Butterfield explained, “but relieved since I had nothing to do with Watergate.”

  Technically, this is true: Butterfield had nothing to do with the break-in at Watergate—or with the cover-up. But, in the end, he played as significant a role in the impeachment of President Nixon as just about anyone else.

  When he was finally asked if he would speak to Senate investigators, on July 13, 1973, Butterfield, a lifelong Republican, had no desire to reveal any secrets about President Nixon. “If the investigators asked me an indirect or fuzzy question,” he recalled, “I was justified in giving an indirect, fuzzy answer.”

  But when Butterfield was asked by one of the investigators, a Republican named Donald Sanders, whether there were any recording devices in the White House, he knew he had no choice but to answer honestly.

  “Yes,” Butterfield conceded—and thus, “The Nixon Tapes” were born.

  Alexander Butterfield was no willing whistleblower. “Frankly, I don’t like being known as the man who revealed the existence of the tapes,” he said later. But his testimony in 1973 served the same purpose as the whistleblower’s complaint did in 2019: revealing where to look for the crime.

  Just as President Trump locked down the word-for-word transcript of his call with President Zelensky—which was mentioned by the whistleblower but has not been released—President Nixon did the same with his tapes, even after Butterfield’s testimony. When Archibald Cox, the special prosecutor responsible for the investigation of the Watergate matter, issued a subpoena for the tapes, Nixon refused to comply. And even after the DC Circuit Court of Appeals sided with Cox, Nixon did everything in his power to limit access to the tapes.

  As reporters Bob Woodward and Carl Bernstein wrote in their book, The Final Days, Nixon’s allies had a creative plan by which they would keep the contents of the tapes from the public: “The President would personally listen to the subpoenaed recordings and supervise the preparation of transcripts that would be turned over to the court as a substitute for the tapes. The Prosecutor, long a bone in Nixon’s throat and a bad idea in the first place, would be fired. That would eliminate the question of any litigation for still more of the President’s tapes.”

  The president’s advisers ultimately deemed this plan too dangerous, so they suggested a compromise: “Senator John C. Stennis, the seventy-two-year-old Mississippi Democrat who chaired the Senate Armed Services Committee, would be asked to make a comparison between the transcript and the tapes,” wrote Woodward and Bernstein. The problem was that Senator Stennis was partially deaf, and, to quote Woodward and Bernstein, “the tapes were difficult to hear under the best of circumstances.”

  When Cox (understandably) declined to accept this deal on October 20, 1973, President Nixon ordered him fired—an event that would come to be known as the “Saturday Night Massacre,” after Nixon also fired not one but two attorneys general who refused to carry out his directive. President Nixon hoped that removing Cox, as well as the attorneys general, would insulate him from the investigation, but when the Supreme Court ruled that he had to release the tapes, he was forced to accept that it would not.

  The “smoking gun” tape, in and of itself, didn’t do much more than confirm that President Nixon had been aware of the Watergate break-in—and had tried to impede the investigation into it. But once investigators understood its contents, they were able to weave together the story of a cover-up spanning multiple years, which, as Article I of Nixon’s impeachment indicates, included everything from “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States” to “endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony.”

  In Article III, Congress noted that Nixon also “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas,” which is an impeachable offense in itself. To quote Senator Lindsey Graham, who at the time of this statement was a member of the US House seeking to impeach and remove President Clinton: “The day Richard Nixon failed to answer that subpoena is the day he was subject to impeachment because he took the power of Congress over the impeachment process away from Congress and became the judge and jury.”

  Indeed, when all the evidence of Nixon’s obstruction was put together, he was left with no choice but to resign.

  President Trump’s Obstruction of Justice

  The summary of President Trump’s phone call with President Zelensky is to the Ukraine scandal what the Nixon Tapes were to Watergate.

  Just as Nixon’s administration did everything it could to keep the tapes under wraps, Trump’s administration made a concerted effort to hide the transcript of his conversation with President Zelensky. As I mentioned in Chapter 2, the whistleblower detailed an operation led by White House lawyers to “‘lock down’ all records of the phone call,” which prompted White House officials to remove “the electronic transcript from the computer system in which such transcripts are typically stored for coordination, finalization, and distribution to Cabinet-level officials.”

  This abuse of power—hiding a transcript of potentially criminal conduct—was only the beginning of President Trump’s campaign to hide the truth.

  Once members of his administration heard about the whistleblower’s complaint, they did everything they could to prevent that report from reaching the public as well. As I mentioned in Chapter 2, complaints like these, labeled “urgent” by the inspector general, are supposed to be released to Congress on a pro forma basis by the director of national intelligence, since the laws governing whistleblower complaints say the DNI “shall” do so. But for reasons that are still unclear, DNI Maguire, along with the Department of Justice, denied Congress access to it.

  The stated reason for doing so—which was that DNI Maguire worried releasing the complaint would risk violating executive privilege—didn’t make sense on its face. After all, every whistleblower complaint involving the president by definition contains executive-branch-sensitive materials, so if DNI Maguire’s analysis held, the president of the United States really would be above the law. That’s why, eventually, just as Nixon was ordered to release his tapes, DNI Maguire felt compelled to send the whistleblower’s report to Congress.

  But before he did, the Justice Department joined DNI Maguire in trying to bury the whistleblower’s report. In the face of a criminal referral from the general counsel of the CIA, the DOJ secretly concluded that President Zelensky opening an investigation into Vice President Biden wouldn’t constitute a “thing of value” for Trump’s campaign—and thus, deemed President Trump’s request legal.

  This decision didn’t make any sense either, since the Justice Department had repeatedly stated in the past that “things of value” didn’t have to be monetary and could include everything from a favor to a sexual relationship. Moreover, a longstanding memorandum of understanding between the DOJ and the Federal Election Commission required the FEC to be told of cases like this, because even if the DOJ declined to bring criminal charges, the FEC would retain the right to bring civil ones.

  In this case, knowing an FEC investigation could become public, the DOJ blew off this policy, which had been in place for 40 years, and kept the matter hidden even from the FEC. This was especially surprising because, just six years ago, the FEC’s vice chairman confirmed the existence of this very policy in a public memorandum he wrote.<
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  His name?

  Don McGahn—the same Don McGahn who would later become President Trump’s White House counsel.

  Is the “Transcript” a Transcript?

  Even after the report came out, President Trump continued his campaign of obstruction of justice. Rather than releasing a word-for-word transcript, of the kind the whistleblower referenced, Trump’s administration released an edited transcript.

  President Trump has claimed that this is “an exact transcript of my call, done by very talented people that do this—exact, word for word,” but the White House’s document itself says otherwise. “A Memorandum of a Telephone Conversation (TELCON) is not a verbatim transcript of a discussion,” it reads. “The text in this document records the notes and recollections of Situation Room Duty officers and NSC policy staff assigned to listen and memorialize the conversation in written form as the conversation takes place.”

  There are also three sets of ellipses (“. . .”) in the transcript, which may be a sign that some of the conversation has been excised from the record. Trump officials have claimed that these ellipses merely serve as punctuation, meant to indicate a pause, but the Washington Post has reported that pauses in White House transcripts are traditionally punctuated with dashes rather than ellipses.

  When Lt. Col. Vindman testified before Congress about President Trump’s phone call, he confirmed the Washington Post’s reporting. Not only did the transcript contain key omissions—including additional discussion surrounding Vice President Biden and Burisma—but at least one of them was replaced by ellipses. And when Vindman attempted to change the transcript to more accurately reflect the conversation, his edits were rejected.

  Either way, for the purposes of this article of impeachment, let’s assume that despite all these red flags, the “transcript” is comprehensive. That still wouldn’t affect the case, because the document President Trump released was itself massively incriminating. And just like Nixon’s tapes, as I’ve explained, this “transcript” is only one element of a much larger story of obstruction of justice.

  Executive Privilege

  Nixon didn’t only suppress the smoking-gun tape. As laid out in Article III of his articles of impeachment, he also asserted executive privilege to deny Congress access to evidence—and to try to establish immunity not only from impeachment but from congressional oversight in general. That is exactly what President Trump is doing today.

  Even before President Trump’s call with Zelensky became public, Trump had adopted an unprecedented view of executive privilege. He asserted it to block Congress from obtaining documents about the census citizenship question, invoked it to try to bar the full Mueller report from being given to Congress, and used it to prevent his former White House counsel, Don McGahn, from providing documents to Congress—or from testifying before them.

  As David Graham has argued in The Atlantic, Trump’s interpretation of executive power often has a circular logic, which renders it impossible even to begin to hold him accountable. “In defending Trump, his attorneys have contended that Congress cannot obtain documents related to Trump’s financial dealings, because that’s a power reserved for prosecutors,” Graham wrote. “Elsewhere, they have argued that prosecutors can’t investigate Trump, because that’s a power delegated to Congress under the Constitution. And when Congress has attempted to flex that impeachment power, Trump has said it’s a coup, and that the only proper venue for presidential accountability is elections.”

  There’s a simple way to understand this. Our founders created three “I’s” to rein in a lawless president—indictment, investigation, and impeachment—and Trump’s claim is that none of them apply to him.

  On indictment, his attorney general, William Barr, has said that President Trump is shielded even from the 10 instances of obstruction of justice documented in the Mueller report because of DOJ memos, written during Nixon’s and Clinton’s presidencies, barring the indictment of a sitting president. The idea behind this guideline, to quote the DOJ, was that an indictment “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.” In other words, Nixon’s and Clinton’s Justice Departments believed that a criminal indictment would distract the president from doing his job. Trump’s DOJ, of course, has taken the same approach. So the first I, “indictment,” is out.

  And yet—somehow, President Trump has taken the position that he cannot be investigated either, even though this claim flatly contradicts the very DOJ memos he relies on regarding indictment, which say he can in fact be investigated. So the second “I” is out too. And now President Trump is taking the view that he cannot be impeached and that the entire process is illegitimate and a coup. There goes the third “I” as well.

  President Trump’s claims of executive privilege may be particularly creative, but he is not the first president to push back against congressional oversight. Indeed, our constitutional system has always been defined by a balance between the public’s need for transparency and the government’s need to have a zone of secrecy around decision-making.

  Both transparency and secrecy are important, but in many cases there’s no avoiding the fact that they can be mutually exclusive. The Constitution, as written, erred on the side of transparency, with no mention whatsoever of executive privilege in its original text. But since it was ratified, presidents over time have found a need for their advisers to give them frank information without fear of embarrassment, and the privilege has been used by Democratic and Republican presidents alike—who have refused to provide certain documents and testimony in congressional investigations of various sorts.

  Nixon differentiated himself from his predecessors, however, by adopting a particularly expansive understanding of executive privilege, viewing it as a license to ignore congressional oversight altogether. That is the philosophical underpinning of the infamous comment following his resignation: “When the president does it, that means that it is not illegal.”

  This belief, of course, had already been proven false by the time Nixon said it—when the Supreme Court ruled that he had to release the tapes. Which is why, for a while, Nixon’s view of executive privilege seemed to be headed to the ash heap of history. When I teach constitutional law every year, my students are aghast at these Nixon arguments—because they don’t only seem unconstitutional; if the stakes were not this high, they would almost be comical. Yet here we are in 2019, and Nixon is back. On steroids.

  In the wake of Nixon’s resignation, presidents were circumspect in their invocations of executive privilege, not wanting to be associated with Watergate. Presidents Gerald Ford, Jimmy Carter, and George H. W. Bush each invoked it only once, President Reagan three times. The exception was Bill Clinton, who used it over a dozen times. Ken Starr’s impeachment referral to Congress actually enumerated this as a reason for impeachment, arguing that President Clinton had abused executive privilege, a referral that I believe (and argued at the time) had strength to it.

  Clinton’s use of executive privilege, to shield personal wrongdoing, had strong echoes of Mr. Nixon. And, for that reason, it attracted a lot of scrutiny—not only in Congress but also in the courts. Like Nixon, Clinton eventually had to choose between cooperating and obstructing justice. Unlike Nixon, he chose the former.

  Presidents George W. Bush and Barack Obama saw Clinton’s story as a cautionary tale—only invoking privilege sparingly (six times for Bush, one for Obama). But President Trump appears to be dead set on following the precedent set by Nixon and Clinton. This seemed to be true well before his phone call with Zelensky, but as soon as the House of Representatives opened its impeachment inquiry, Trump’s interpretation of executive privilege became even more extreme, as he deployed the powers vested in him as president to obstruct justice.

  “You’re Damn Right We’re Obstructing”

  Just over two weeks after Speaker Pelosi formally opened an impeachment inquiry, on October 8, US ambassador George Sondland, a key wit
ness to President Trump’s conduct with Ukraine, was set to testify before Congress. Texts sent to him by Ambassador Taylor—including the “it’s crazy to withhold security assistance for help with a political campaign” text—were at the core of the case against President Trump. Sondland’s response—including the “I believe you are incorrect about President Trump’s intentions” text—was at the core of President Trump’s defense. Many believed the phone call between President Trump and Sondland, which took place in the nearly five-hour window between the two texts, held answers to some of the most important questions about President Trump’s arrangement with President Zelensky, and about his efforts to cover it up. Sondland’s testimony, investigators had hoped, would provide some clarity.

  But early in the morning of the very day on which Sondland was set to testify, the White House announced that he would be barred from doing so. Shortly thereafter, President Trump tweeted: “I would love to send Ambassador Sondland, a really good man and great American, to testify, but unfortunately he would be testifying before a totally compromised kangaroo court.” That same day President Trump’s White House counsel, Pat Cipollone, sent Congress the letter I mentioned in Chapter 2 (which is reproduced in the appendix), declaring, “President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.”

  Cipollone’s eight-page letter, as David Graham has argued, can be captured in a five-word phrase: “You’re damn right we’re obstructing.”

  As with Trump’s previous claims of executive privilege, Cipollone’s letter rests on a fundamental contradiction. On the one hand, Trump’s lawyers have refused to participate in any criminal investigations because of their belief that the president cannot be indicted in court. The only way you can investigate a president, they argue, is through impeachment. On the other hand, President Trump’s lawyers have begun arguing that impeachment itself is “illegitimate.”