While an impeachable offense is, as Gerald Ford said, “whatever a majority of the House of Representatives considers it to be,” and while the usual rules of courtroom evidence don’t apply in impeachment proceedings, Ford’s description doesn’t do justice to the House Intelligence Committee’s impeachment report released Tuesday.
The White House and many Republicans on the House Judiciary Committee say — wrongly — that the impeachment of President Trump is a partisan hit job. But the report outlines evidence of presidential misconduct that would be compelling in any court. In fact, if the evidentiary rules were what Republicans say they are, hardly anyone would ever be convicted of a crime.
No, the president isn’t out of the woods because he didn’t fall on his sword and confess, although he came very close. The argument that the case against Trump can’t succeed without a confession by him reminds me of the drug dealers who believed that they couldn’t be convicted if they spoke in code and didn’t say the word “cocaine.”
There is both direct and circumstantial evidence of misconduct. As I told juries when I was a federal judge, direct evidence is evidence that you see with your eyes, hear with your ears, like “I saw the mailman put mail in the mailbox.” Circumstantial evidence is based on what your senses tell you, but it also requires that you draw reasonable inferences from it, like, “I see there is mail in the box; the mailman must have been here.”
The direct evidence? The July 25 call in which President Trump said to Ukraine President Volodymyr Zelensky, “I have a favor to ask of you though,” and asked him to investigate the Bidens and 2016 election meddling, as well as the overheard conversation between Trump and European Union Ambassador Gordon Sondland at a restaurant in Ukraine. Even the statements of others recounting what the president told them are incriminating. Worse for the president are the statements of co-conspirators, like acting Chief of Staff Mick Mulvaney’s pronouncement that there was a “quid pro quo” and we should all “get over it.” Although the Mueller investigation established that the Trump campaign expected it would benefit from Russian interference, it did not establish that his campaign conspired with the Russian government. Not so here. There is ample conspiracy evidence through the “three amigos,” Sondland, Special Envoy Kurt Volker, and then-Secretary of Energy Rick Perry. Their statements, executing the president’s plan, are deeply incriminating.
Finally, there is Rudy Giuliani, the president’s personal lawyer. He is not just a coconspirator; he was the president’s agent. In the July 25 call, the president four times mentions Giuliani and says that Zelensky should talk to him. Giuliani is like the drug associate who carries out the kingpin’s orders, and whose statements — even as recounted by others — can convict him. The telephone company records attached to the impeachment report show dozens of phone calls among Giuliani, his associates, and senior White House officials. Given Giuliani’s aberrant television performances, and the group with whom he hangs — including Lev Parnas, the indicted coconspirator now seeking to cooperate — the president should be extremely nervous.
Giuliani, of all the witnesses, has fewer justifications for not testifying. There is no attorney-client privilege when you tell something to your lawyer that you want him to share with others. The statements weren’t meant to be confidential. Nor is there an executive privilege for statements Giuliani made to others on the president’s behalf. In fact, the only privilege Giuliani has is the Fifth Amendment against self-incrimination.
There is considerable circumstantial evidence, which could be enough to convict. There was no US interest in withholding aid to Ukraine. The most reasonable inference is the one that the civil servants drew when they found out about it — covering deliberations with the president — that the president was manipulating aid for partisan political purposes. That’s the kind of circumstantial evidence juries regularly accept. There is even evidence of “consciousness of guilt,” the e-mails of Office of Budget and Management employees, under Mulvaney’s direction, tried to come up with an after-the-fact explanation for the hold on the aid.
The impeachment process may be a political one, but as former national security adviser John Bolton said, he wanted nothing to do with the “drug deal” that Trump advisers were “cooking up on Ukraine.” Neither should we.
Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.