This is an absolute watershed moment in American democracy. Whatever happens to President TrumpDonald TrumpTrump defends indicted GOP congressman House to vote Thursday on holding Bannon in contempt Youngkin calls for investigation into Loudoun County School Board amid sexual assault allegations MORE is far less important than what happens to the structure of our federal government. If we’re going to have a sustainable democracy, we cannot have a White House with unlimited power to mow down norms and laws.
One casualty of the law-eroding phenomenon — thus far — is the whistleblower complaint identifying, among other things, Trump’s July 2019 phone conversation with Ukrainian President Volodymyr Zelenskiy. We now know from the White House’s release of summary notes of that conversation that Trump asked Zelenskiy to dig for dirt on his political rival, Joe BidenJoe BidenWhite House: Window for finalizing sweeping budget package 'closing' Jayapal says tuition-free community college 'probably won't' be in spending plan Jan. 6 panel votes to hold Bannon in contempt MORE, and his son, Hunter. The notes indicate that this conversation occurred after the Ukrainian president mentioned his country’s need for nearly $400 million in promised military aid that Trump was personally blocking.
To date, we have seen the summary notes — with ellipses. But as of Wednesday afternoon, only select members of Congress had seen the whistleblower complaint — and only after a rare, bipartisan and unanimous resolution in the Senate calling for its release. The complaint itself was publicly released last night, on the eve of Director of National Intelligence (DNI) Joseph McGuire’s scheduled testimony before the House Intelligence Committee.
Trump’s supporters in Congress have cried foul that the disclosure of private conversations between the president and world leaders sets a dangerous precedent. Critics of the move also claim Biden is a bad actor because he shouldn’t have been talking to the Ukrainians about foreign policy under President Obama when his son was on the board of a Ukrainian gas company.
Trump backers are also making the argument that the notes don’t expressly show a “quid pro quo” — as if the only thing problematic about a president’s pressing a foreign leader to drum up opposition research on a political opponent would be if he simultaneously threatened to withhold large sums of money promised by the U.S. Senate that the country needed in order to stave off pro-Russian separatists.
This is all a decoy, folks. Don’t take the bait.
Congress never even asked for the notes. The White House gave them over willingly, making a kerfuffle around a drama of its own creation. If a bad precedent was set regarding the confidentiality of presidential conversations with foreign leaders, that is Trump’s fault entirely. All Congress asked for was the whistleblower report that it is squarely entitled to under federal law. That handoff should have happened weeks ago. But the White House said no.
The statute states that the DNI “shall” turn the complaint over to Congress if the intelligence agencies’ inspector general (IG) deems it credible and a matter of “urgent concern.”
The law does not allow the DNI to pass it on to the Department of Justice for a veto, which — bizarrely — is what happened here. DOJ then wrote a memo making the tortured argument that the president’s dealings are somehow not related to “intelligence activity” within the meaning of the statute, and blocked the handoff.
We are now hearing complaints from Trump defenders of a biased whistleblower — whose identity we do not know (for good reason).
All of these distractions are beside the point. This is not about the whistleblower — whom the IG found credible — or Joe Biden. It’s not about Hunter Biden, and it’s not about whether a “quid pro quo” is laid out in unmistakable language in the notes of a conversation that the White House took upon itself to make public in an effort to stem the tide of impeachment.
It’s about the sanctity and integrity of the office of the presidency — nothing else.
During McGuire’s testimony, Rep. Adam SchiffAdam Bennett SchiffJan. 6 panel votes to hold Bannon in contempt Press: Steve Bannon behind bars in Capitol basement? Paris Hilton to visit Capitol Hill to advocate for bill on children's treatment centers MORE (D-Calif.), chairman of the House Intelligence Committee, walked through the checkmate that this presidency has created in terms of accountability. Essentially, DOJ concluded that the whistleblower law’s requirement that the complaint go to Congress does not apply to the president, because he sits above the intelligence apparatus, and the FBI declined to investigate the matter once McGuire handed it to DOJ. That means nobody in the executive branch — by this president’s account — can investigate him. Congress is it, folks.
Congressional Democrats appear to have finally realized that pulling the impeachment lever is necessary to secure the integrity of the office of the president — regardless of what happens to Trump. Nervous talk of losing seats in “red” states has dissipated. And House Democrats seem to have accepted the potential inevitability that, if an obstreperous Senate won’t exercise its impeachment prerogative regarding this president, so be it. The Executive Office of the President as we know it will outlive Trump — but only if “We the People” preserve it. As Schiff said today in closing the session, “This is democracy.”
Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is also a professor at the University of Baltimore School of Law. She is the author of “How to Read the Constitution and—Why.” Her next book, “What You Need to Know About Voting—and Why,” is forthcoming with HarperCollins in July 2020. Follow her on Twitter @kim_wehle.
The piece has been updated.