The Comprehensive Case that President Trump is Innocent

Perception, the old saying goes, is reality.It’s not. Reality is reality. Truth isn’t what I imagine it to be. Truth is truth. Yet when I warp the truth with the bias of my own perception, my vision of reality is distorted because it’s filtered through my interpretation.

This, at its core, is what the impeachment effort against President Trump is all about—the bias of perception clouding reality; interpretation substituting for truth.

And in their push for impeachment, Congressional Democrats want us to listen to the whispers of interpretation and perception when reality and truth are screaming at us.

The reality is that truth is derived not from the perception of anonymous whistleblowers or diplomats or media pundits masquerading as reporters, but from the application of governing law to the facts of the case against Donald Trump.

And this is the comprehensive case that Donald Trump is innocent.

Impeachment is governed by Article II, Section 4 of the Constitution, which provides that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The case against the President is essentially a bribery charge, and the crime is governed by 18 U.S.C. § 201(b): “Whoever… corruptly gives, offers or promises anything of value to any public official…or offers or promises any public official…to give anything of value to any other person or entity, with intent…to influence any official act” is guilty of bribery under federal law.

While impeachment is a political and not legal proceeding and as such governed only by the Constitution and not federal law, this statute is instructive as it outlines the elements of the offense that must be established if President Trump is to be convicted and removed from office.

The Supreme Court interpreted these elements in United States v. Sun-Diamond Growers to mean that one must with a corrupt intent engage in a quid pro quo, which the Court defines as “a specific intent to give or receive something of value in exchange for an official act.”

Establishing a “quid pro quo”—a Latin phrase that translates to “something for something”—is thus necessary to prove bribery.In order to support a bribery article of impeachment, then, Democrats must prove that President Trump had corrupt intent when he engaged in a quid pro quo with the Ukrainian government to exchange the release of $400 million military aid and/or an official visit to Washington for new Ukrainian President Volodymyr Zelensky for a public declaration from Zelensky’s office that the Ukrainian government had launched a corruption investigation into the son of possible Democratic presidential candidate Joe Biden.

The evidence against Trump centers on a July 25th phone conversation between Trump and Zelensky in which Trump asked Zelensky for a “favor” after Zelensky brought up the sale of Javelin missiles. That favor, Democrats allege, was that Zelensky “look into” allegations that Biden “stopped the prosecution” of Burisma Holdings, a company on whose board Biden’s son Hunter served.

Last year, Biden himself bragged about pressuring Ukraine to fire said prosecutor by threatening to withhold a billion dollars in loan guarantees during a visit to the country in 2016.

“And I went over, I guess, the 12th, 13th time to Kiev,” he told the Council on Foreign Relations in January, 2018. “And I was supposed to announce that there was another billion-dollar loan guarantee. And I had gotten a commitment from Poroshenko and from Yatsenyuk that they would take action against the state prosecutor. And they didn’t.

“So they said they had — they were walking out to a press conference. I said, nah, I’m not going to — or, we’re not going to give you the billion dollars. They said, you have no authority. You’re not the president. The president said — I said, call him. I said, I’m telling you, you’re not getting the billion dollars. I said, you’re not getting the billion. I’m going to be leaving here in, I think it was about six hours. I looked at them and said: I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money. Well, son of a bitch. He got fired. And they put in place someone who was solid at the time.”

This certainly seems like an admission from the former Vice President that he had engaged in a quid pro quo with the Ukrainian government to exchange American loan guarantees for the firing of a prosecutor who just happened to be investigating his son’s company. Did Biden act with corrupt intent? The context of President Trump’s call with President Zelensky makes it abundantly clear that he wanted to find out.

This is absolutely, perfectly legal. The President of the United States has the absolute authority to authorize a legitimate investigation into the potentially corrupt actions of another government official. If the shoe were on the other foot, one would certainly expect a Democratic president to ask an ally to look into whether Trump had pressured that ally to drop an investigation into Ivanka.

As a matter of fact, this sort of cooperation on criminal investigations between the United States and Ukraine is required under the terms of their Mutual Legal Assistance Treaty, which was ratified by the U.S. Senate on October 18, 2000 and signed by President Bill Clinton on January 5, 2001:

  • 1. The Contracting States shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation, prosecution, and prevention of offenses, and in proceedings related to criminal matters.
  • 2. Assistance shall include:
  • (a) taking the testimony or statements of persons;
  • (b) providing documents, records, and other items;
  • (c) locating or identifying persons or items;
  • (d) serving documents;
  • (e) transferring persons in custody for testimony or other purposes;
  • (f) executing searches and seizures;
  • (g) assisting in proceedings related to immobilization and forfeiture of assets, restitution, and collection of fines; and
  • (h) any other form of assistance not prohibited by the laws of the Requested State.
  • 3. Assistance shall be provided without regard to whether the conduct that is the subject of the investigation, prosecution, or proceeding in the Requesting State would constitute an offense under the laws of the Requested State.

President Trump is therefore not only authorized to request Ukrainian aid in a criminal investigation, the Ukrainian government is under the terms of the treaty obligated to comply.

And an objective reading of the transcript of Trump’s phone call with President Zelensky reveals that Zelensky was not at all pressured to comply.He wanted to even though President Trump made absolutely no mention of the $400 million that Trump had just decided to withhold a week earlier.

It's almost hard to believe given the media coverage of the call, but not once in the transcript is the aid ever mentioned.This would be exceedingly strange if Trump really were trying to use its release as bait to get Zelensky to launch an investigation into Joe and Hunter Biden.

According to the Washington Post, on July 18 “President Trump told his acting chief of staff, Mick Mulvaney, to hold back almost $400 million in military aid for Ukraine at least a week before a phone call in which Trump is said to have pressured the Ukrainian president to investigate the son of former vice president Joe Biden, according to three senior administration officials.

“Officials at the Office of Management and Budget relayed Trump’s order to the State Department and the Pentagon during an inter-agency meeting in mid-July, according to officials who spoke on the condition of anonymity to discuss internal deliberations. They explained that the president had ‘concerns’ and wanted to analyze whether the money needed to be spent.”

Did Trump just forget to mention this in the call the following week? Highly unlikely, especially if this really was the centerpiece of his bribery plot.For there to have been a quid pro quo, there must have been a quo for Trump to quid pro!

Yet the Zelensky Administration didn’t even know that the $400 million had been withheld until a full month after the phone call.

Buzzfeed News reported that “when Ukraine’s President Volodymyr Zelensky spoke with President Donald Trump in the now-infamous July 25 phone call, he believed $391 million worth of military aid was already on its way to Kiev, two Ukrainian officials and a US official told BuzzFeed News.

“The Ukrainian government didn’t know it was being held up in Washington by Trump, according to the two Ukrainian officials. Nearly a month after the…the Ukrainian government was left stumped when they received word that the aid had in fact been suspended.”

Moreover, the transcript of that call makes it abundantly clear that President Trump’s concerns about American-Ukrainian relations were more broadly aimed at corruption in Ukraine and the belief that the country’s European NATO allies weren’t paying as much as the U.S. in shared defense against the Russian occupation of Crimea:

President Trump: Well it is very nice of you to say that. I will say that we do a lot for Ukraine. We spend a lot of effort and a lot of time. Much more than the European countries are doing and they should be helping you more than they are. Germany does almost nothing for you. All they do is talk and I think it's something that you should really ask them about. When I was speaking to Angela Merkel she talks Ukraine, but she ·doesn't do anything. A lot of the European countries are the same way so I think it's something you want to look at but the United States has been very very good to Ukraine. I wouldn't say that it's reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine.
President Zelensky: Yes you are absolutely right. Not only 100%, but actually 1000% and I can tell you the following; I did talk to Angela Merkel and I did meet with her I also met and talked with Macron and I told them that they are not doing quite as much as they need to be doing on the issues with the sanctions. They are not enforcing the sanctions. They are not working as much as they should work for Ukraine. It turns out that even though logically, the European Union should be our biggest partner but technically the United States is a much bigger partner than the European Union and I'm very grateful to you for that because the United States is doing quite a lot for Ukraine. Much more than the European Union especially when we are talking about sanctions against the Russian Federation. I would also like to thank you for your great support in the area of defense. We are ready to continue to cooperate for the next steps specifically we are almost. ready to buy more Javelins from the United States for defense purposes.
President Trump: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike... I guess you have one of your wealthy people... The server, they say Ukraine has it. There are a lot of things that went on, the whole situation. I think you're surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it's very important that you do it if that's possible.
President Zelensky: Yes it is very important for me and everything that you just mentioned earlier. For me as a President, it is very important and we are open for any future cooperation. We are ready to open a new page on cooperation in relations between the United States and Ukraine. For that purpose, I just recalled our ambassador from United States and he will be replaced by a very competent and very experienced ambassador who will work hard on making sure that our two nations are getting closer. I would also like and hope to see him having your trust and your confidence and have personal relations with you so we can cooperate even more so. I will personally tell you that one of my assistants spoke with Mr. Giuliani just recently and we are hoping very much that Mr. Giuliani will be able to travel to Ukraine and we will meet once he comes to Ukraine. I just wanted to assure you once again that you have nobody but friends around us. I will make sure that I surround myself with the best and most experienced people. I also wanted to tell you that we are friends. We are great friends and you Mr. President have friends in our country so we can continue our strategic partnership. I also plan to surround myself with great people and in addition to that investigation, I guarantee as the President of Ukraine that all the investigations will be done openly and candidly. That I can assure you.
President Trump: Good, because I heard you had a prosecutor who was very good and he was shut down and that's really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor of New York City, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what's happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The other thing, There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it... It sounds horrible to me.

There are a full 542 words from both Trump and Zelensky in between Trump’s reference to a “favor”—which Zelensky seems eager to do—and the first and only offhand mention of the Bidens in the entire conversation.

If aid were really conditioned on such an investigation, then why did Trump only mention it in passing as a part of Ukraine’s larger problem with corruption?

Trump asking Zelensky to “look into” what Trump believes was possibly “horrible” misconduct by the then-Vice President is thus revealed to be part of a broader discussion of corruption in the Ukrainian government in the form of holdovers from the Petro Poroshenko regime. Trump, in other words, wants to make sure that Ukrainian corruption—which was such an issue in the past that Ukraine and the U.S. signed a treaty aimed at combating it—would not be a barrier to the two countries’ ongoing cooperation.

What’s more, it appears as though that investigation was already underway.

Investigative reporter John Solomon claims that a newly unearthed Ukrainian document shows that the NABU, Ukraine’s equivalent to the FBI, had requested that the probe into Burisma Holdings be reopened in February.

“The U.S. government had open-source intelligence and was aware as early as February of 2019 that the Ukrainian government was planning to reopen the Burisma investigation,” Solomon said. “This is long before the president ever imagined having a call with President Zelensky.”

Zelensky, for his part, needed no bribe or even convincing to agree “not just 100%, but 1,000%” with President that his country needed to get a better handle on its corruption and that Ukraine’s NATO allies needed to step up their aid.

These two factors—not an investigation of the Bidens—were what prompted a holdup of the aid to Ukraine.

POLITICO first broke the news of this holdup on August 28th, and its sources made absolutely no mention of it being contingent on any sort of investigation.

“President Donald Trump asked his national security team to review the funding program, known as the Ukraine Security Assistance Initiative, in order to ensure the money is being used in the best interest of the United States, a senior administration official told POLITICO on Wednesday,” wrote reporters Caitlin Emma and Connor O’Brien.

The perception at the time was not that Trump was strong-arming Ukraine, but that he was still acting as Russian President Vladimir Putin’s puppet.

“But the delays come amid questions over Trump’s approach to Russia, after a weekend in which the president repeatedly seemed to downplay Moscow’s military intervention in Ukraine and pushed for Russia to be reinstated into the Group of Seven, an annual gathering of the world’s largest advanced economies,” The POLITICO report continued. “The review is also occurring amid a broader internal debate over whether to halt or cut billions of dollars in foreign aid.”

This seems to confirm the White House’s explanation—that President Trump was concerned with how much the United States was spending in foreign aid while its fellow NATO allies were not paying enough.

A few days later, Congress was sufficiently concerned about the delay that Senators Ron Johnson (R-WI) and Chris Murphy (D-CT) traveled to Kiev to discuss the issue with Zelensky.

“I'm the one that called President Trump a few days before that [visit] and really tried to convince him to release the funding," Johnson told "The Dan O'Donnell Show in early September." "I heard his explanation for why he was concerned [about releasing it]. He has been incredibly consistent really from the day he's entered office: He's upset that Europe doesn't step up to the plate, that [German Chancellor] Angela Merkel doesn't commit more funds to help Ukraine and NATO since it's in their backyard and not ours, and he obviously was concerned about corruption.

"I had a meeting with Zelensky with Senator [Chris] Murphy. [Zelensky] was obviously concerned about the funding but in no way, shape, or form expressed any concern that any pressure was being put on him.”

Murphy, a fierce opponent of President Trump, gave a similar assessment of the meeting in an interview on CBS' "Face the Nation."

"In my meeting, to be clear, Zelensky did not, you know, make any connection between the aid that had been cut off and the requests that he was getting from [President Trump's attorney Rudy] Giuliani, he said.

Zelensky, though, has been adamant that he had never met with Giuliani and never even talked to him.

"I've never met Rudy Giuliani. Never. And never had any phone calls with him," he said on October 1.

During a joint news conference with President Trump at the UN General Assembly just days earlier, Zelensky answered the bribery question even more directly.

“President Zelensky, have you felt any pressure from President Trump to investigate Joe Biden and Hunter Biden?” asked a reporter.

“I think you read everything [in the transcript of the call,” Zelensky answered. “So, I think you read text. I — I’m sorry but I don’t want to be involved, to democratic, open elections of U.S.A. No, you heard that we had, I think, good phone call. It was normal. We spoke about many things, and I think, and you read it, that nobody push it. Push me.”

Zelensky has said this repeatedly over the past few months.

“I was never pressured and there were no conditions being imposed,” he told Japan’s Kyodo News Agency on October 6.

Three days later he said the exact same thing, telling the Associated Press that there was “no blackmail” whatsoever.

“We didn’t speak about this” during the call, Zelensky added, reiterating that the aid “wasn’t linked to weapons or the story with Burisma.”

Additionally, the Associated Press reported, “he said he wanted to meet with Trump in person but that there were “no conditions” set for such a meeting.

This directly refutes both planks of the bribery case against Trump—that either (or both) the release of aid and a White House meeting with Zelensky were contingent on Ukraine launching an investigation of the Bidens.

Naturally, Zelensky’s repeated insistence that his country was not bribed or blackmailed have been almost totally ignored in the American media.

Zelensky’s perception of the call and the reasons for the aid delay is the only perception that matters, as his government was the alleged victim in Trump’s bribery/extortion scheme.If he did not believe President Trump’s request to be anything more than routine cooperation between the two countries that was well in line with the terms of their 2001 treaty, then how could Trump be attempting to bribe him?

Moreover, the aid was eventually released without Ukraine ever publicly announcing that it had launched an investigation into Joe and Hunter Biden.

The reality is that the White House had concerns about where the $400 million in aid was actually going—toward fighting Russians in Crimea or lining the pockets of corrupt Ukrainian bureaucrats—and whether other NATO allies were paying enough themselves, but eventually released the money without any of the preconditions that were supposedly tied to it.

But it is the largely irrelevant perceptions of the reasons for the delay that have formed the basis of the impeachment case.

The star witness against President Trump is Star witness is Bill Taylor, the U.S. Ambassador to Ukraine, who claimed in text messages that he was concerned that the White House was delaying aid in exchange for a politically beneficial investigation.

During his closed-door testimony, however, he admitted that he has no evidence to back this up other than what he read in a New York Times article:

Congressman Lee Zeldin: What was the goal of requesting investigations into 2016 election and [Ukrainian company that employed Hunter] Burisma?
Taylor: As I understand it from one of the maybe the article in the New York Times about [Trump’s private lawyer] Mr. [Rudy] Giuliani’s interest in Burisma, in that article, he describes, and I think he quotes Giuliani at some length, that article indicates that Giuliani was interested in getting some information on Vice President Biden that would be useful to Mr.Giuliani’s client. I think that’s what he says. He says he’s got one client, and he’s useful to the client.
Zeldin: And then it’s your inference that Mr. Giuliani’s goal would be the President’s goal?
Taylor: Yes.
Zeldin: And your source is the New York Times?
Taylor: Yes.
Zeldin: So do you have any other source that the President’s goal in making this request was anything other than the New York Times?
Taylor: I have not talked to the president. I have no other information from what the President was thinking.

This testimony, however, prompted Gordon Sondland—the U.S. Ambassador to the European Union—to amend his own testimony.While Sondland initially told Congress that there was no quid pro quo between the Trump Administration and Ukraine, he amended this and now claims that there was.

However, he is basing this on nothing more than his own presumptions.

In his initial testimony, Sondland had said that Trump told him “I want nothing. I want no quid pro quo. I want Zelensky to do the right thing.”

Sondland even texted Taylor, “I believe you are incorrect about President Trump's intentions. The president has been crystal clear no quid pro quo's of any kind.”

Sondland’s original testimony reiterates this:

After Taylor’s transcript was released to the public, however, Sondland amended this testimony to include what he now “presumed” about the aid holdup. Even though Sondland admits that he “did not know (and still do not know) when, why, or by whom, the aid was suspended,” because he is relying on what Taylor read in a New York Times article, he just kind of assumes President Trump engaged in a corrupt quid pro quo.

His perception, however, is not reality.The reality is that every diplomat working on American-Ukrainian relations shared concerns about Ukrainian corruption generally and wanted to ensure that American aid would get to where it was supposed to go.

Marie Yovanovitch, the former U.S. Ambassador to Ukraine, was clear in her testimony:

Kurt Volker, the U.S. Ambassador to NATO, was even more direct in denying that there was ever a quid pro quo tied to either the release of aid money or a promise of a White House visit for President Zelensky:

If he wasn't clear enough in that answer, he clarified even further:

No one, it seems, who was directly involved in relations with Ukraine expressed any concern that there was any improper pressure being applied save for Bill Taylor, who admitted that he based his presumption on a New York Times article and not any actual evidence.

The actual evidence is clear: The whistleblower's report completely mischaracterized President Trump's phone call with President Zelensky which, it should be noted, the whistleblower did not hear firsthand or even secondhand. His report, therefore, is nothing more than than his own interpretation of someone else’s interpretation. When that interpretation is colored by political bias and a rather obvious desire to take out President Trump, that perception is not a reflection of reality.

And perception is never reality. Reality is reality. And the reality is that President Trump has done nothing impeachable, illegal or, quite frankly, wrong.

Dan O'Donnell

Dan O'Donnell

Common Sense Central is edited by WISN's Dan O'Donnell. Dan provides unique conservative commentary and analysis of stories that the mainstream media often overlooks. Read more

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