The content of the Ukraine phone call, as unseemly as it may be for President Donald Trump, will not be the basis of impeachment, the way Bill Clinton’s “perjurious, false and misleading testimony to the grand jury” was. Which is why House Democrats are utilizing it as pretext to fish the whole expanse of the vast waters of presidential diplomatic communications with foreign leaders.
A few breaths after grousing that Trump attorney Rudy Giuliani “seems to think I’m judge and jury here,” House Intelligence Committee Chairman Adam Schiff, the California Democrat, almost comically delivered the verdict, telling ABC News on Sunday that “what we have seen already is damning” and falsely claiming that in his July 25 call with Ukrainian President Volodymyr Zelensky, Trump used “the full weight of his office with a country beholden to America for its defense … to try to coerce that leader to manufacture dirt on his opponent and interfere in our election.” A few sentences later, Schiff said what Trump did in the phone call was “ask for foreign interference in our election.”
On possible Ukrainian interference in the 2016 U.S. elections, the transcript released by the White House last week shows Trump used these phrases: “I would like you to do us a favor though … I would like you to find out what happened … 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 … Whatever you can do, it’s very important that you do it if that’s possible.”
In response, Zelensky said: “I guarantee as the president of Ukraine that all the investigations will be done openly and candidly. That I can assure you.”
Trump then turned to the subject of Joe Biden, his possible 2020 opponent, who had boasted that while visiting Ukraine as vice president he threatened to withhold $1 billion in U.S. loan guarantees the country needed to stay solvent and successfully pressured the regime there to fire a prosecutor investigating the private Ukrainian natural gas company Burisma. On its board sat his son Hunter Biden, as his firm “received regular transfers into one of its accounts — usually more than $166,000 a month — from Burisma from spring 2014 through fall 2015, during a period when Vice President Biden was the main U.S. official dealing with Ukraine and its tense relations with Russia.”
What Trump said to Zelensky was: “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.”
How is any of that using “the full weight of his office” to pressure Zelensky to “manufacture dirt on his opponent and interfere in our election” and “ask for foreign interference in our election”?
Schiff’s stretch of the facts is worthy of rubber-limbed comic superhero and scientific genius Reed “Mister Fantastic” Richards of the Fantastic Four, who can reshape his arms and legs at will and “stretch around a problem and expand upon the perfect solution.” Unlike Richards, however, Schiff is not “the smartest man in the Marvel Comics universe.”
Even more stretching came from Senate Foreign Relations Committee Democrat Chris Murphy of Connecticut, who on Sunday told CBS News, “there’s an implicit threat in every demand that the president of the United States makes.” If you accept that assertion, there isn’t a president in history whose private communications could have withstood the scrutiny of his political opponents.
The Zelensky call provides no evidence of wrongdoing, and so Schiff promises, “We’re gonna find out what other communications were also improperly hidden in this classified system that’s meant to contain the most highly sensitive, classified information involving covert action, not the president’s misconduct.”
That means the president’s discussions with Russian ruler Vladimir Putin, and most anything else House Democratic investigators think might contain dirt with which they can destroy Trump. Obama White House chief of staff and ex-Chicago Mayor Rahm Emanuel told ABC News on Sunday he suspected the translator notes personally secured by Trump himself from his meeting with Putin in Hamburg in 2017 were to be found within the same secure White House computer system where the Zelensky transcript was relegated.
Executive Privilege: Too Vague And All Too Vital
It is widely assumed that a president’s legal ability to invoke executive privilege and make it stick, so as to withhold from Congress the content of communications with foreign leaders, is watertight. But as constitutional and international law scholar Emily Berman of the University of Houston has pointed out, “no clear guidelines govern executive privilege. Neither the question of what information qualifies as privileged nor when Congress’ need for disclosure outweighs the executive’s need for secrecy are governed by established rules.”
Consequently, “the determination hinges on such factors as political brinksmanship, media interest, and whether the information Congress seeks is perceived to relate to executive wrongdoing.”
In U.S. v. Nixon, the 1974 case that doomed Richard Nixon’s presidency by requiring he turn over tapes and other records, a unanimous Supreme Court nonetheless gave good reason for keeping the president’s private discussions private, citing “the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties.”
The justices stated that “the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”
Obviously that’s especially the case when a president is speaking to a foreign head of state.
And the high court made no bones about the privilege being explicitly enshrined in the Constitution:
“Whatever the nature of the privilege of confidentiality of presidential communications in the exercise of Article II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of presidential communications has similar constitutional underpinnings.”
The Court’s opinion even alludes to the secrecy employed in the framing of the Constitution of the United States itself.
“There is nothing novel about governmental confidentiality,” the justices noted. “The meetings of the Constitutional Convention in 1787 were conducted in complete privacy.” They added: “Moreover, all records of those meetings were sealed for more than 30 years after the Convention.” This was because “Most of the Framers acknowledged that without secrecy no constitution of the kind that was developed could have been written.”
So as Schiff and House Democrats push hard to discover and disclose something more convincing than the Zelensky nothingburger, Trump has the defense of executive privilege within a landmark, unanimous Supreme Court ruling on his side.
And he has something more: a solemn responsibility to preserve for future presidents the ability to conduct candid discussions with foreign allies, friends — even enemies. A president must be able to engage in “persuasion, badgering, flattery, threats, reminders of past favors and future advantages,” as the Washington Post’s Mary McGrory described Lyndon Johnson’s no-holds-barred style of leadership even before becoming president. And it can’t work when it’s in the public eye.
Imagine not being free to discuss coordinating the fight against terrorism, or the details of classified intelligence, with other free countries. Or a president being unable to pick up the phone and personally warn a hostile power of the consequences of its actions against the U.S. or our allies. Trump or any other president allowing Congress to fish around in classified White House computer systems would be a direct threat to future presidents’ ability to use the office to protect the country.
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