Seven Outright Falsehoods in GOP Staff Report on Impeachment

On December 2, 2019, Republican staff of the three committees overseeing the impeachment inquiry published a report prepared for the GOP Chairs: Representatives Devin Nunes, Jim Jordan, and Michael McCaul. This report, however, is not a serious examination of the evidence, nor is it intended to be. Unlike the House Intelligence Committee’s Trump-Ukraine Impeachment Inquiry Report , the minority staff report makes no attempt to construct a coherent statement of facts, nor to offer its own version of events as an alternative to the one set forth in the majority’s report. The point of the minority report is not to offer an explanation of what really happened, but to make what really happened seem unknowable.

Not everything in the report is a lie. In many instances, it is clear that, where possible, there was great care taken to avoid outright mistruths, through the careful phrasing of arguments to suggest a more sweeping defense than is actually offered, or through focusing on irrelevant and ambiguous witness testimony while ignoring direct and clear testimony to the contrary.

But staying within the bounds of the factual record – or even within the bounds of reasonable subjective interpretation of the record – could only get House Republican staff so far, and much of the report doesn’t just dance around the truth so much as it strides into deliberate falsehood. In order to depict the events at the heart of the Trump-Ukraine impeachment inquiry in a light that could at all be construed as a defense of President Trump’s conduct, it appears that some outright lies were needed.

Here is a list of the seven most damaging falsehoods included in the minority report:

1. “Although the security assistance was paused in July, it is not unusual for U.S. foreign assistance to become delayed.” (Minority at 32)

The minority report dismisses the hold on the security assistance to Ukraine as a routine quirk in the way government operates – “not unusual,” and nothing more than “a bureaucratic issue that would be resolved.” (Minority at 32)

This is a lie. The hold was not routine – nothing like it had ever happened before. (e.g., Cooper at 98; Sandy at 88) The hold was not bureaucratic – it was ordered directly by President Trump himself. (e.g., Hale at 180) And the hold was not due to any sort of interagency conflict – because “the unanimous view of all the agencies [involved in Ukraine and apportionment policy] was that the hold should be lifted and the aid should flow to Ukraine.” (Williams at 115)

In fact, witness testimony showed that, in the entirety of the U.S. government, there is exactly one person who is known to have been in favor of the hold on security assistance to Ukraine. And that is President Trump himself. Witnesses unanimously testified that the agencies were given no explanation for the hold (see Part II), or for the eventual decision to restore the aid.

What’s perhaps most devastating to the Minority’s argument is that the White House actually exceeded the deadline for all of the security assistance to be spent—despite the Pentagon’s warning this would occur (Cooper). It took a new act of Congress to restore the full aid, which occurred in September.

As multiple witnesses testified before the HPSCI, “[T]he provision of such assistance [to Ukraine] was uniformly supported at State, Defense, the National Security Council, the House of Representatives, the Senate, and the expert community in Washington.” (Volker Depo at 20).[1] This universal support is due to the unanimous recognition that the assistance to Ukraine is critical to U.S. foreign policy and national security interests, and should be continued. (See, e.g., Kent at 319-320; Holmes at 154; Hale at 177; Cooper at 15-16)

As a result, when the hold was first announced to the broader interagency process during a July 18th meeting, it was met with “unanimous” opposition from the agencies in attendance. (Morrison at 264) The reaction from everyone was “[t]hat the aid is essential to Ukraine’s security, the U.S. relationship with Ukraine, and it should be released at the earliest opportunity.” (Morrison at 162) In the weeks following the announcement of the hold, multiple interagency meetings were held at all levels to discuss what it would take for President Trump to change his mind. Ambassador Hale described how, in an interagency meeting convened on July 26th to discuss the hold, the Deputy National Security Adviser “asked each agency, starting with me, as the State’s senior cabinet agency what our view was on this matter, and I advocated strongly for resuming the assistance, as did every other agency represented there with the exception of one, which was the OMB,” who “said that they had guidance from the President and from Acting Chief of Staff Mulvaney to freeze the assistance.” (Hale at 81) Even OMB did not offer support for the hold itself – instead, OMB “wasn’t expressing its policy views, [ ] they were relaying the President’s decision to withhold security assistance for Ukraine.” (Sandy at 99-100) But as Deputy Assistant Secretary of Defense Cooper testified, OMB’s insertion of itself into this part of the process was itself a strange and remarkable occurrence: “I had never heard of OMB injecting itself into a purely policy discussion or decision-making process. What struck me about it especially is, first, that that position was in contrast to all of the traditional foreign policy-making agencies long held and long expressed views. And, secondly, that the objection or concerns expressed were not related to the money, the budget part of OMB, but rather to the policy part of the decision.” (Cooper at 9)

Efforts to reverse President Trump’s decision to freeze the security assistance were extensive, as were efforts to minimize the hold’s damaging effects. The Secretary of State, Secretary of Defense, and National Security Advisor were all personally involved in the campaign, and had series of meetings with Trump to try and convince him to reverse course, without success. (Taylor at 213) Both Secretary of State Pompeo and NSA Bolton had one-on-one meetings with President Trump in a failed effort to convince him to unfreeze the assistance. (Morrison at 172-173) At one point in mid-August, Ambassador Bolton even ordered that a draft Presidential Decision Memorandum be prepared, ordering the release of the aid. (Morrison at 166) Bolton’s plan was to arrange for a meeting in which the heads of the relevant executive agencies would all meet with President Trump in private, “to tell the President they endorsed the swift release and disbursement of the funding.” (Morrison at 166, 265) The hope was that in the face of the principals’ unanimous opposition to the hold, Trump might momentarily relent, at which point Bolton would already have the Presidential Decision Memorandum on hand for Trump to immediately sign and memorialize the release. (Morrison at 265)

The overwhelming consensus of Trump’s own cabinet officials was that the decision to halt the security assistance was dangerous, destructive, and indefensible. The minority report dismisses their concerns as nothing more than the discomfort of “unelected bureaucrats within the foreign policy and national security apparatus who fundamentally disagreed with President Trump’s style, world view, and decisions.” (Minority of 110)

The minority report takes the position that the hold was a sound policy decision, and never explicitly acknowledges the negative policy consequences. However, the minority report does suggest that, even if the hold was actually not a good idea, it still didn’t rise to the level of being a problem. At worse, it was no more than a minor hiccup that could be easily dealt with by government officials. In support of this point, the minority report argues that U.S. officials had “confidently predicted” the aid would eventually be release, and so was never a cause for concern. (Minority at 32)

This claim is without support. Although Ambassador Volker did testify, as the report notes, that “looking back” he thought the hold was “not significant” and that he was “confident we were going to get it fixed internally,” what the minority report does not include is why Volker had been so confident it would be fixed. (Volker at 80) As Volker explained, “In this case, here you had an instance where everyone that I spoke with in the policy side of the administration, [ ] Pentagon, military, civilian, State Department, National Security Council, they all thought this is really important to provide this assistance. And so, in that circumstance, for there to be a hold placed struck me as unusual. … And I just didn’t believe that this hold would ever be sustained because the policy community in the administration was determined to see it go forward.” (Volker at 79) (emphasis added) Similar testimony was given by Ambassador Hale, who stated that he “had confidence that the argument in favor of this assistance was so strong that, in the end, it would prevail and we would be able to resume the assistance” (Hale at 186), and also by FSO Croft, who “believed that [the hold would be released] because of both bipartisan support in Congress and the questionable sort of legality of OMB putting on an informal hold.” (Croft at 85)

In other words, to the extent some witnesses felt confident that this issue would ultimately be resolved, it was only because of their belief that the hold on the security assistance was so irrational, legally dubious, and bereft of any agency or Congressional support that it seemed impossible that President Trump’s decision would not, eventually, be reversed.

2. “The President’s initial hesitation [ ] to provide U.S. taxpayer-funded security assistance to Ukraine without thoughtful review is entirely prudent.” (Minority at ii)

The hold on the security assistance to Ukraine could have been neither “thoughtful” nor “prudent,” as the minority report alleges, because it was devoid of any policy purpose whatsoever. As the witnesses unanimously testified, in announcing the hold, President Trump made no attempt to explain what policy purpose it was intended to serve:

  • “The [OMB] official said that the order had come from the President and had been conveyed to OMB by Mr. Mulvaney without further explanation. … NSC counterparts affirmed that there had been no change in our Ukraine policy, but could not determine the cause of the hold on how to lift it.” (Holmes at 21)
  • “OMB did not really explain why they were taking the position, other than they had been directed to do so,” and “all that representative of OMB said was the President has instructed, through Mr. Mulvaney, that [ ] the military aid be suspended.” (Hale at 82, 105)
  • “OMB never [ ] provide[d] a detailed explanation for the reason behind the hold.” (Williams at 92)
  • “There was great confusion among the rest of us because we didn’t understand why that had happened.” (Kent at 304)
  • “I was adamantly [ ] opposed to any suspension of aid, as Ukrainians needed those funds to fight against Russian aggression. I tried diligently to ask why the aid was suspended, but I never received a clear answer; still haven’t to this day.” (Sondland public testimony)
  • “And I couldn’t tell [the Ukrainians why there was a hold]. I didn’t know and I didn’t tell them, because [ ] there’d been no guidance that I could give them.” (Taylor at 138)
  • “Nobody ever gave a reason why…. There should have been [an explanation], but there wasn’t.” (Volker at 122)
  • “Q: Was there any reason provided by the OMB reps on anyone else at the meeting for the hold? A: No.” (Morrison at 162)
  • The agencies involved “were just wanting to find out [why the freeze had occurred]. And they were in touch with OMB, and they weren’t getting much information apart from the fact there was a freeze.” (Hill at 226)
  • “The funds were held without explanation.” (Cooper at 45)
  • “[B]asically we were trying to get to the bottom of why this hold was in place, why OMB was applying this hold.” (Vindman at 181)
  • “It wasn’t clear where [the decision] was coming from as we pushed this into the PCC process, which is the best way to come to a decision, and if somebody is blocking this, they need to sort of show their hand.” (Reeker at 167)

At the time the hold was announced, the only known person to have knowledge as to why the hold was being implement was, once again, President Trump himself. Not a single other government official was able to offer an explanation as to why he had done this.

For weeks after the hold was announced, officials in the affected agencies sought an explanation for the hold, because without knowing why President Trump had done this, no one could figure out what needed to be done to change his mind. Efforts to persuade President Trump to reverse course were all failures. At one point, after Ambassador Bolton tried and failed to change President Trump’s mind during a one-on-one meeting to discuss the issue, the only explanation offered was that President Trump “was not yet ready” to release the assistance. (Morrison at 267-268.)

Eventually, in the face of sustained questioning by both Cabinet Secretaries and members of Congress, the Trump administration would come to offer two explanations for why the hold had been placed: (1) that President Trump was concerned about corruption in Ukraine, and (2) that President Trump was concerned about Europe not contributing enough to Ukraine. Neither of these after-the-fact justifications for Trump’s actions find support in the record.

“President Trump was ‘not prepared’ to lift the pause on security assistance to Ukraine, citing Ukrainian corruption” (Minority at 48)

The first explanation for why President Trump had ordered the hold came during a Deputies Committee meeting convened in late July or early August in order to figure out a way to have the hold released. (Morrison at 165) During this meeting, OMB informed the other agencies “that the President was concerned about corruption in Ukraine, and he wanted to make sure that Ukraine was doing enough to manage that corruption.” (Morrison at 165)

Neither President Trump nor the OMB have ever attempted to explain what sort of anticorruption reform measures President Trump was seeking, or what changes would be necessary to convince President Trump that Ukraine was “doing enough.” And at no point has President Trump or the OMB or anyone else offered an explanation for why the anticorruption reform measures that are already part of the obligation process were not sufficient to satisfy President Trump’s concerns.

In May, two months before the hold was announced, the federal government had already certified Ukraine’s compliance with the anticorruption benchmarks established and monitored by an interagency process. That process was complete. Both the Department of Defense and the Department of State had signed off on a certification that “Ukraine had met all the necessary anticorruption requirements as well as other benchmarks [ ] under U.S. law in order to obtain” the security assistance. (Cooper at 32)In the end, the security assistance was released without any attempts to monitor whether Ukraine was meeting additional benchmarks or meeting any newly imposed anticorruption requirements. The certifications had already all been completed, and the Department of Defense “did not conduct any sort of review [ ] about whether Ukraine was making any sort of progress with regard to its anticorruption efforts in July or August or beginning of September.” (Cooper at 92-93)

Finally, the idea that President Trump has some overriding concern with corruption in foreign states in unsupported by anything from his nearly three years in office. The minority report’s attempt to cast Trump’s motivations as the result of a “deep-seated and genuine concern about corruption in Ukraine” (Minority at 79) is contradicted by his failure to ever before demonstrate a concern with “corruption” before scheduling White House interviews or abiding by laws enacted by Congress requiring the provision of security assistance to foreign states. The word “corruption” never even appeared in either of President Trump’s calls with President Zelensky, despite the fact his advisors encouraged him to raise the issue in his communications with the Ukrainian president, and handing him talking points reminding him to raise the issue.

“President Trump was ‘not prepared’ to lift the pause on security assistance to Ukraine, citing … frustration that Europe did not share more of the burden.” (Minority at 48)

In late August, the Trump administration began to offer a second explanation for why a hold had been placed on the security assistance: that President Trump “wanted Europe to do more.” (Sondland at 105) This explanation seems to have been first offered by President Trump during a phone call on August 31st with Senator Johnson, who had called Trump to ask for him to release the hold. Additionally, in early September, OMB sent out “an email that attributed the hold to the President’s concern about other countries not contributing more to Ukraine.” (Sandy at 42)

As FSO Holmes testified, when the State Department heard that this might be President Trump’s concern, the staff immediately began trying to address it.

“After the hold was placed on the security assistance, many people I think were scrambling to try to understand why. I believe it was Senator Johnson who had said that the President was concerned about burden sharing, perhaps others as well, and so in trying to interpret why this might have happened, we were looking into the facts of what the Europeans have provided and what we have provided. It’s very illuminating, what we learned.” (Holmes public testimony)

As Holmes explained:

“The United States has provided combined civilian and military assistance to Ukraine since 2014 of about $3 billion, plus [ ] three $1 billion loan guarantees. [T]hose get paid back largely. So just over $3 billion. The Europeans, at the level of the European Union plus the member states combined since 2014, my understanding, have provided a combined $12 billion to Ukraine.” (Holmes public testimony)

Despite President Trump’s professed concerns with “burden sharing,” the data showed that Europe already provided substantially more monetary support to Ukraine than the United States did.[2] And, ultimately, the hold was released without any increase to the assistance provided by Europe to Ukraine.

The minority report does not identify any policy results achieved by President Trump’s decision to hold the security assistance to Ukraine, nor does it attempt to explain how the hold could have had a positive effect on either anticorruption reform or European assistance to Ukraine. There is also no record of President Trump raising the concerns with European states in the interim period, or informing them that the U.S. assistance to Ukraine would be suspended to encourage them to spend more.

3. “President Trump was reluctant to meet with President Zelensky for a different reason—Ukraine’s long history of pervasive corruption and uncertainty about whether President Zelensky would break from this history and live up to his anti-corruption campaign platform.” (Minority at 14)

In seeking to explain President Trump’s refusal to agree to a White House meeting with Zelensky, the minority report claims that the “U.S. foreign policy officials were split on President Zelensky” and that “the U.S. foreign policy apparatus was divided on the question of whether President Trump should meet with President Zelensky,” because “the State Department was unsure how he would govern as president.” (Minority at 19)

This is false. No such “split” existed, and the unanimous view of all government officials involved was that President Zelensky was serious about anticorruption policy and deserved the United States’s support. As Ambassador Hale testified, “The general impression was that [President Zelensky] was doing the things that we wanted to see done.” (Hale at 85) And, as Deputy Assistant Secretary of Defense Cooper testified, “the new government was, pretty early on, embraced in terms of its anticorruption and reform agenda. You know, we had really been struggling at times to bring the previous government along, so the fact that the new government was, you know, proceeding in such a positive fashion, albeit in early days, I just don’t recall anyone raising that as an issue.” (Cooper at 99)

President Trump’s advisors were also unanimous in their belief that Trump should agree to the White House meeting. According to Ambassador Sondland, “we all believed [a White House meeting for President Zelenskyy] was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U. S. foreign policy goals in the region.” (Sondland at 26)[3] As Ambassador Reeker testified, “To say that I was dismayed, frustrated that the White House meeting had not yet taken place is a fair [ ] statement. … We didn’t know exactly where or why, so we were pursuing this PCC process to try to force a decision and a movement forward on that, and that that was, indeed, through that period in July going into August was of concern to I think all of us working on Ukraine trying to figure out why.” (Reeker at 89)

The President appeared indifferent to the U.S. embassy’s work on actual anticorruption efforts in their effort to convince Mr. Trump to schedule a White House meeting with Zelensky. “It became apparent that the energy sector reforms, commercial deals, and anti-corruption efforts on which we were making progress were not making a dent in terms of persuading the White House to schedule a meeting between the presidents,” Holmes testified (at 6) (emphasis added).

President Trump never offered a policy justification for his refusal to meet with President Zelensky, because it had no possible policy justification. But President Trump did have a reason for refusing to meet with President Zelensky, and the Ukrainians were informed of it. As Ambassador Sondland described in his public testimony,

“President Trump wanted a public statement from President Zelensky committing to investigations of Burisma and the 2016 election. Mr. Giuliani expressed those requests directly to the Ukrainians and Mr. Giuliani also expressed those requests directly to us. We all understood that these prerequisites for the White House call and the [ ] White House meeting reflected President Trump’s desires and requirements.” (Sondland public testimony)

4. “The security assistance was ultimately disbursed to Ukraine in September 2019 without any Ukrainian action to investigate President Trump’s political rival.” (Minority at 64)

The minority report argues that there is no evidence of a quid pro quo because “U.S. security assistance ultimately flowed to Ukraine without the Ukrainian government taking any action to investigate President Trump’s political rival.” (Minority at 65)

This is false. President Trump did not release the security assistance until after an agreement had been reached for President Zelensky to “go to a microphone and say he is opening investigations of Biden and 2016.” (Taylor at 244) This deal had been reached on September 8th, with a phone call between President Zelensky and Ambassador Sondland that had “concluded with President Zelensky agreeing to make a public statement in an interview with CNN.” (Taylor at 39) President Zelensky had then scheduled an interview with CNN to take place on September 13th, in which he planned to announce the investigations.[4]

It was only then, on September 11th, following a meeting with Vice President Pence, Senator Portman, and Chief of Staff Mulvaney, that President Trump finally reversed course and agreed to the release the security assistance to Ukraine. (Morrison at 243) At the time, President Trump had no way of knowing that President Zelensky would ultimately not carry through with what he had agreed to do. But the fact that President Trump ultimately carried out his end of the deal – while President Zelensky did not – does not change the fact that President Trump only released the aid after Ambassador Sondland obtained the agreement from Ukraine. In fact, as FSO Holmes testified, even after the security assistance was released, President Zelensky still seemed intent on going through with the CNN interview:

“Also on September 13, following a meeting with President Zelenskyy in his private office in which I took notes, Ambassador Taylor and I ran into Mr. Yermak on the way out. When Ambassador Taylor again stressed the importance of staying out of U.S. politics and said he hoped no interview was planned, Mr. Yermak shrugged in resignation and did not answer, as if to indicate they had no choice. In short, everyone thought there was going to be an interview, and that the Ukrainians believed they had to do it.” (Holmes public testimony)

It ultimately did not happen, for reasons that have yet to be established. But President Zelensky’s intent to carry out the interview, followed by President Trump’s release of the aid, is confirmed by the record before the HPSCI.

And throughout the ongoing discussions between Ukraine and the United States about the announcement of the investigations, the question of which side would perform first, and which second, had been a recurring point in negotiations. In fact, both Ukrainian and American officials had previously expressed concern over the possibility that President Trump would not carry out his side of the agreement once Ukraine had given him what he wanted. As Andriy Yermak expressed in a group text to Ambassador Volker sent on August 10th:

“I think it’s possible to make this declaration and mention all these things. [ ] But it will be logic to do after we receive a confirmation of date. … Once we have a date, will call for a press briefing, announcing upcoming visit and… [the] Burisma and election meddling in investigations.”

Ukraine’s position was clear: first the White House meeting is scheduled, and then we announce the investigations. Not the other way around.

Due to reluctance by both Ukrainians and American officials to wade into these political waters, this version of the quid pro quo deal was ultimately never finalized. Weeks later, though, the Ukrainians were informed of an escalation in the terms of the deal. Now, it was not just the White House meeting contingent on the announcement of the investigation, but also the security assistance. (Taylor at 143)

Finally, on September 8th, following phone calls with both President Trump and President Zelensky, Ambassador Sondland informed Ambassador Taylor that he had gotten President Zelensky’s agreement to announce the investigations during an interview with CNN. (Taylor at 208) This time, though, it was Ambassador Taylor who expressed concern over whether President Trump or Ukraine would be required to perform their side of the bargain first. In a September 8th text to Sondland after their phone call, Taylor wrote: “The nightmare is they give the interview and don’t get the security assistance.” But Taylor’s nightmare scenario did not come to pass. On September 11th, three days after Zelensky agreed to announce the investigations but two days before the interview was scheduled to take place, President Trump released the security assistance. What President Trump hadn’t known, though, was that once the security assistance was released, Ambassador Taylor would intervene and convince President Zelensky to not uphold his end of the bargain.[5]

5. “The Ukrainian government denied any awareness of a linkage between U.S. security assistance and investigations” (Minority at 52)

The minority report suggests that no quid pro quo could have existed, because the Ukrainian side was never informed that such a quid pro quo existed. However, the undisputed testimony of Morrison, Sondland, and Taylor established that the Ukrainians were in fact aware of a link between the security assistance and the investigations, because Ambassador Sondland directly informed them of this on September 1, when Ambassador Sondland told a senior Ukrainian official “that the security assistance money would not come until President Zelensky committed to pursue the Burisma investigation.” (Sondland at 35; Taylor at 14; Morrison at 146) On September 8, Sondland told Taylor “that he had talked to President Zelenskyy and Mr. Yermak and had told them that, although this was not a quid pro quo, if President Zelenskyy did not ‘clear things up’ in public, we would be at a ‘stalemate.’ I understood a ‘stalemate’ to mean that Ukraine would not receive the much-needed military assistance,” Taylor said. (Taylor at 16) In his public hearing, Sondland corroborated Taylor’s testimony on this point:

GOLDMAN: And then you also told Ambassador Taylor in that same conversation that if President Zelensky – rather you told President Zelensky and Andrei Yermak that although this was not a quid pro quo as the president had very clearly told you, it was, however, required for President Zelensky to clear things up in public or there would be a stalemate. You don’t have any reason to dispute Ambassador Taylor’s recollection of that conversation you had with President Zelensky, do you?

SONDLAND: No.

GOLDMAN: And that you understood the stalemate referenced the aid, is that correct?

SONDLAND: At that point, yes.

So how can the minority report deny that the Ukrainians were aware of a link, given the conclusive evidence that they were in fact told of it? By noting that Ukrainian Foreign Minister Vadym Prystaiko “told the media that Ambassador Sondland had not linked the security assistance to Ukrainian action on investigations.” (Minority at 54) The minority report is correct: Prystaiko is quoted in a Reuters article from November 14th as saying that that Ambassador Sondland “did not tell [him]” about a link between assistance the investigations.

Except no one has ever claimed that Sondland told Minister Prystaiko, who became the foreign minister on August 29, that the security assistance was linked to the investigations. Sondland testified (and Morrison and Taylor corroborated) that he had told this to an entirely different Ukrainian official, senior advisor Andriy Yermak.

6. “Although subsequent reporting has connoted a connection between “Burisma” and the Bidens, the Democrats’ witnesses testified that they did not have that understanding while working with the Ukrainian government about a potential statement.” (Minority at 57)

This claim from the minority report is, technically, not a lie. Or at least, it’s not the minority report’s lie. Because Ambassadors Sondland and Volker did testify under oath that, at the time they had been negotiating with the Ukrainians, they had been unaware that the request to investigate “Burisma” was effectively a request to investigate Trump’s political rival Joe Biden and his son, Hunter. It was only later, after the release of the July 25th call transcript, that Volker and Sondland finally made the connection. As Volker testified at his public hearing, “I did not know that President Trump or others had raised Vice President Biden with Ukrainians or had conflated the investigation of possible Ukrainian corruption with investigation of the former Vice President… I now understand that others saw the idea of investigating possible corruption involving the Ukrainian company, Burisma, as equivalent to investigating former [ ] Vice President Biden.” And as Sondland testified, “I can’t recall the exact date the light bulb went on. It could have been as late as once the transcript was out but it was always Burisma to me and I didn’t know about the connection between Burisma and Biden.”

It’s worth noting that Volker and Sondland both acknowledge now that “Burisma” does equal “Biden,” and an investigation into “Burisma” was inappropriate and politically motivated. Volker and Sondland just denied being aware of that at the time.

But Volker and Sondland were lying. No, it’s not the sort of lie for which they will face perjury charges, because they won’t. But it’s also not a lie that we’re required to indulge. Besides, even if Ambassador Volker really was too ignorant and too incompetent to understand the significance of his actions, the Ukrainians weren’t. They knew full well what Volker was asking them to do, even if Volker didn’t. As Volker acknowledged in his public testimony, in August, after he had cautioned the Zelensky administration against opening investigations into the former Ukrainian president, a senior Ukrainian official Yermak had responded, “What, you mean like asking us to investigate Clinton and Biden?” According to Volker, it was only later that he realized Yermak was referencing the Burisma and 2016 investigations that Volker had asked Ukraine to announce: “I didn’t quite understand [at the time] what he was referring to because, to my knowledge, we weren’t asking to investigate Clinton or Biden. And so I was kind of puzzled by the remark and that’s why I didn’t respond.” (Volker public testimony)

So there is no dispute that the Ukrainians recognized that “Burisma” equaled “Biden.” Whether or not Sondland or Volker knew it at the time, the Ukrainians knew they were being asked to interfere in the upcoming U.S. election.

But Sondland and Volker knew it too, of course. Volker’s text messages make this plain. On July 21st, Ambassador Taylor texted to the group: “Gordon [Sondland], one thing Kurt [Volker] and I talked about yesterday was Sasha Danyliuk’s point that President Zelenskyy is sensitive about Ukraine being taken seriously, not merely as an instrument in Washington domestic, reelection politics.”

As Sondland’s testimony confirmed, he knew that what Taylor was referring to was the “agreed-upon interview and agreed-upon press statements” about the investigations. (Sondland at 120) In other words, Sondland knew that investigations into “Burisma” and “2016” were connected to President Trump’s 2020 reelection campaign.

A review of public reporting on Burisma and Giuliani beginning in March of 2019 shows that Volker’s and Sondland’s knowledge of the political significance of “Burisma” isn’t just obvious, it’s undeniable. FSO Christopher Anderson, who was in effect Volker’s deputy during his time in Kyiv, testified that it was his job to track the public reporting on Lutsenko and Giuliani, and to keep Volker and other embassy officials updated. (Anderson at 43) Anderson said that the first time he discussed Giuliani with Volker had been in March 2019, after The Hill published a series of articles from John Solomon about then-Prosecutor General Lutsenko’s efforts to open investigations in Ukraine. (Anderson at 43, 58) Anderson testified that “there were several stories in The Hill newspaper, I believe. So we had been tracking those. We did not know to what extent that was, I guess, freelancing, perhaps, on whether that reflected – [Giuliani] was a private citizen, so we did not know to what extent that was significant. But we were certainly aware of those news reports and tweets. … I also know [Giuliani] was saying that he was representing him in a private capacity.” (Anderson at 41-42) In his deposition, Anderson stated that, “When The Hill [ ] reports came out, [ ] Ambassador Volker sent me a question, what is the background to this? And that’s when I provided some context about Lutsenko and what he was doing. So that was the first time I remember discussing anything related to [Giuliani] with him.” (Anderson at 58)

Embassy staff in Kyiv were also aware of reporting by the New York Times on May 9th about Giuliani’s plans to meet with President Zelensky in Kyiv, in order to convince him to open investigations President Trump’s political rivals. (Anderson at 110) The Times article leaves no doubt what Giuliani’s true interest in “Burisma” was:

[Giuliani] wants to meet with [Ukraine’s] president-elect to urge him to pursue inquiries that allies of the White House contend could yield new information about two matters of intense interest to Mr. Trump.

One is the origin of the special counsel’s investigation into Russia’s interference in the 2016 election. The other is the involvement of former Vice President Joseph R. Biden Jr.’s son in a gas company owned by a Ukrainian oligarch.

That Giuliani was seeking to use an investigation into Burisma as a vehicle for creating political trouble for Biden was well known among State Department officials involved in Ukraine policy. (Reeker at 141, 145, 147). “[W]e all were aware from press reports, from everything else, his own television statements” of what Giuliani was trying to do in Ukraine, Ambassador Reeker testified. (Reeker at 146) “[I]t was quite clear from Giuliani’s public comments that his interest in Burisma was the Bidens.” (Reeker at 183) As Ambassador Reeker described in his testimony, during the Spring of 2019 it was impossible to escape the steady news reports about Giuliani and the investigations into Burisma and 2016: “it was just one of those things it was always out there, because, of course, Giuliani was talking about it and the press was writing about it all the time.” (Reeker at 224)

Ambassador Volker wasn’t able to escape the deluge of Giuliani news either. At a conference at the Carnegie Endowment for International Peace on May 29th, Volker was asked about Giuliani’s recent activities in Ukraine:

“There is an effort to bring the 2020 [ ] U.S. presidential campaign into Ukraine, with people like the President’s lawyer Mr. Giuliani seeking evidence and other things [such as] Ukraine’s involvement in 2016 situation in the United States and Russian interference, as well as questions about former Vice President Joe Biden. … Is it possible to kind of [ ] keep the politics out? Or is that hard?”

In his response, Ambassador Volker did not directly address either Giuliani or his efforts to launch an investigation into Joe Biden – in fact, in every public interview Volker gave throughout the spring and summer of 2019, Volker has refrained from answering any question about Giuliani or Biden – but Volker did acknowledge that there was an ongoing campaign to use Ukraine as a vehicle for “U.S. domestic politics”:

“No, it’s actually not [getting hard to keep the presidential campaign and Ukraine policy separate]… The actual relationship with Ukraine and with the new presidential team, that’s one thing. What is happening is it’s getting into the media and into the atmospherics around Ukraine in our domestic politics. And so, the way I would say it, I think President Trump, in the wake of the Mueller investigation having been concluded, and there not being any accusation of collusion, is now going on the offensive, and saying well the only collusion was people trying to feed Hillary Clinton information to damage me, President Trump. And so, he is now pushing that. That is all a domestic political narrative.”

But although Volker consistently avoided answering questions about Giuliani and Biden, Volker’s testimony that he did not become unaware of President Trump’s interest in a Biden investigation until September 25th, when the call transcript was released, is simply not credible. Reporting in the Ukrainian and U.S. media – which Volker kept up to date on though his staff at the U.S. embassy – shows how pervasive knowledge of Giuliani’s activities was, and that his efforts to secure an investigation into Burisma were squarely aimed at providing Trump with an electoral advantage in 2020:

This includes articles such as an April 5th report of an interview with the Director of the Ukrainian Institute for Policy Analysis and Management, Ruslan Bortnik, on his perception of Ambassador Volker’s role in Ukraine:

“Volker today turned out to be an ambassador without a message, that is, a person who nominally retains the function of special envoy for Ukraine, but really cannot meet anyone and does not conduct any negotiations because of his inability to organize a productive dialogue with the Russian Federation. However, he continues to try to play some important role in Ukrainian affairs, especially with regard to the Manafort case, allegedly Ukrainian interference in the US elections, Burisma Holding and the ongoing election campaign in the USA.”

Or this May 3rd article from a Ukrainian news site, predicting Trump’s efforts to pressure Zelensky into investigating Biden:

Now the question is whether Trump will be helped in the attack on Biden by new president Vladimir Zelensky.

“It is unclear whether the new prosecutor general of Ukraine, whom Zelensky will appoint, will investigate the Burisma case. Since Biden and Poroshenko were against Kolomoisky, who is credited with having ties to Zelensky, it’s obviously worth waiting for the next round of scandal against Biden and Kiev’s assistance in this matter. “New details may also come up about Hillary’s headquarters relations with Poroshenko,” says Nguyen.

According to experts, in the next year and a half Ukraine will not leave the screens of American TV.

Or this May 10th article in the Daily Beast, confirming that Trump was directing Giuliani’s efforts in Ukraine:

As The New York Times reported, Giuliani has been actively seeking information on the involvement of Hunter Biden, the former vice president’s son, in an energy company owned by a Ukrainian oligarch. In the Obama era, the former vice president had pushed for the ouster of a Ukrainian prosecutor whose office controlled the investigations of the company, on which Hunter Biden sat on the board. …

“I’m doing this as part of my role as the president’s lawyer to follow up on [leads],” Giuliani told The Daily Beast. “This is what a defense lawyer does…I’m going after it like a hound dog.” Trump’s attorney also noted that he’s been briefing the president on his progress, and that they’ve had multiple conversations on the topic, though he wouldn’t go into further detail.

Giuliani did say that, based on their private chats, he believed he had the full blessing of President Trump to pursue this private investigation—one now explicitly designed to yield potentially damaging information on one of the president’s a top 2020 challengers.[6]

Or this May 12th article in the Washington Post:

A person close to Zelensky, who spoke on the condition of anonymity because of the sensitivity of the matter, said the president-elect’s team viewed Trump’s interest in the investigations as a domestic U.S. matter and was determined not to let it distract from his agenda.

“This is definitely not our war,” the person close to Zelensky said. “We have to stay away from this as much as possible.”

The person said Zelensky would rule out using political pressure to lean on Ukrainian law enforcement to achieve any White House aims.

One investigation that has attracted Trump and Giuliani’s interest involves a Ukrainian gas company on whose board Hunter Biden served while his father was vice president.

Or an article from July 27th, quoting Oleg Voloshin, a former spokesman for Ukrainian foreign minister, showing that the Ukrainian media and political establishment had full awareness of what Trump was seeking in Ukraine:

“For the first time, the name of Gordon Sondland suddenly surfaced in the context of US-Ukrainian relations in early June, when, as part of a visit to Brussels, Vladimir Zelensky suddenly found himself in the [EU] Ambassador’s residence at a dinner at the same table with Trump’s son-in-law Jared Kushner. In the Trump administration as a whole, important issues are often handled by the President’s trusted proxies, regardless of the formal positions they occupy. Volker is not one of Trump’s confidants, and therefore, obviously, sensitive issues in the dialogue with Kiev have now been assigned to [Sondland] instead. I admit that Sondland appeared in Kiev for a reason: this is a hint from the American administration that they want to see a follow-up on the so-called Biden case.” …

Voloshin says that the Biden case has gained serious weight in relations between official Kiev and Washington. “Even in our official message about Zelensky’s conversation with Trump, the American president’s wish was conveyed that the new government in Ukraine will be able to quickly improve the country’s image and complete the investigation of corruption cases that interfere with relations between Ukraine and the United States. This refers clearly to the story of Biden. Zelensky was made clear that until Washington sees progress on this matter, Zelensky’s visit will not take place,” Voloshin says.

Or an article from August 5th, again confirming Ukrainian media’s knowledge that Trump was pressuring Zelensky to open a Biden investigation:

However, Kolomoisky and Zelensky have a subject for bargaining with the White House. As Ukrainian publications wrote, along with Volker on July 26, it was no coincidence that the US ambassador to the EU, Sondland, who is considered Trump’s confidant. According to Ukrainian media, he was supposed to discuss a sensitive topic with Zelensky about the “Biden case.” … And given that it is probably Joe Biden who will be Trump’s main rival in the 2020 elections, it can be assumed that the current owner of the White House will need reinforced concrete evidence of Biden’s misconduct. And he can get them only from the official authorities of Ukraine. This enables Kolomoisky and Zelensky to bargain with Trump’s team.

Or an August 23rd editorial from the Kyiv Post, titled “Get Lost, Giuliani”, denouncing Kurt Volker for assisting Giuliani’s efforts to coerce Ukraine into providing assistance to Trump’s 2020 campaign:

Let’s make it clear what’s happening here: Giuliani is trying to predicate a long-awaited meeting between Zelensky and U. S. President Donald Trump on Ukraine pursuing these politically motivated investigations. And with the next U.S. presidential election rapidly approaching in 2020, he is trying to make Ukraine choose between the Republicans and the Democrats.

More broadly, Giuliani is using his fluid status — a private individual speaking for a head of state — to say things the Trump Administration cannot.

Giuliani should butt out of Ukraine’s affairs, where he poses a danger to the country’s relations with the U.S. And Ukraine should no longer give an audience to this political charlatan. And, if what Giuliani tells the Times is true, shame on the U. S. State Department and Special Representative Kurt Volker for assisting him to get meetings in Kyiv.

Or finally, this prescient August 30th article from Ukrainian media, predicting that President Trump’s interest in “the Biden case” could lead to his impeachment:

Bondarenko says that we can only guess if Bolton spoke to See about the Biden case, of course, there will be no official confirmation, otherwise it would have threatened Trump with big problems – opponents could to spin up the case worse than the failed Russiagate.

If there was at least some kind of document, then in America the question of Trump’s impeachment could arise, because it would be considered as a dishonest game,” says Bondarenko.

There are, quite literally, dozens more articles in both American and Ukrainian media that were published between March and September of 2019 which detail the political nature of Giuliani’s pursuit of the “Burisma” and “2016” investigations. It is difficult to believe that anyone with a passing interest in Ukrainian foreign affairs would not have been aware of what Giuliani was doing in Kyiv – and it is impossible to believe that the U.S.’s top diplomats in Ukraine didn’t know about it.

As Fiona Hill testified:

REP. MALONEY: I thought it was obvious to you that – that Burisma meant Bidens.

HILL: Yes, it was.

REP. MALONEY: And you actually treated that as a pretty easy thing to understand. In fact, Mr. Morrison figured it out with a single Google search. But is it credible to you that Mr. Sondland was completely in the dark about this all summer? I mean he had an argument about it. Didn’t he say what are you so worried about?

HILL: It is – it is not credible to me that he was oblivious.”

Given the obviousness that the only importance of “Burisma” was in its equivalency to “the Bidens” it is not a defense, as the minority report alleges, that in Volker’s text messages, the word “Biden” is never used in discussing plans to demand that Ukraine announce an investigation—it is more incriminating, not less, that Volker, Sondland, and Giuliani found it necessary to speak in the code of “Burisma.” They knew they had something to hide.

In sum, the minority report relies on the lie told by Volker and Sondland in testimony, and ignores the fact that Volker and Sondland were so obviously lying. The minority report itself may be truthful when it describes the statements Sondland and Volker made, but just as it is impossible to believe that Sondland and Volker actually didn’t know what “Burisma” meant, it is impossible to believe that the House Republicans didn’t recognize Sondland’s and Volker’s denials for the perjury it was.

7. “Indisputable evidence shows that senior Ukrainian government officials sought to influence the 2016 election in favor of Secretary Clinton and against then-candidate Trump.” (Minority at 86)

This claim from the minority report is a lie. But it’s worse than just a lie – as Dr. Hill explained in her testimony, it’s a false narrative promoted by Russia with the aim of harming Ukraine, undermining American democracy, and obscuring Russia’s responsibility for the 2016 attack on our elections.

House Republicans ignored Dr. Hill’s warning. Their report embraces Russian propaganda and argues that it would be appropriate for President Trump to investigate whether both Russia and Ukraine independently interfered in the 2016 election: “Russian interference in U.S. elections does not preclude Ukrainian officials from also attempting to influence the election.” (Minority at 86) The minority report goes on to argue that Ukraine “interfered” in the 2016 election because a handful of Ukrainian government officials and former officials expressed concern over the Republican candidate’s statements of support for Russia’s invasion and annexation of Ukrainian territory.

But this is not the investigation President Trump has been pursuing in Ukraine. The investigation that President Trump wanted was an investigation into whether Ukraine and not Russia was responsible for interference in the 2016 election. As President Trump told President Zelensky in their July 25th call:

  • “I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike. … The server, they say Ukraine has it.”
  • “[T]hat 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.”

This isn’t an investigation into “whether senior Ukrainian government officials worked to oppose President Trump’s candidacy and support former Secretary Clinton during the 2016 election,” as the House Republicans pretend. (Minority at 85) It’s an investigation into whether Ukraine hacked the DNC server, and then framed Russia for it in order to induce the Mueller investigation.

It’s an investigation aimed at exonerating Russia.

And the president’s personal attorney had been pursuing this same end. In April 2019, following the arrest of Julian Assange, Rudy Giuliani told the Washington Examiner, “Maybe it will shed light on the plot to create an investigation of President Trump based on a false charge of conspiracy with the Russians to affect the 2016 elections. Keep your eye on Ukraine.”

Although the minority report argues that it is “undisputed” that Ukrainians interfered in the 2016 election due to “senior Ukrainian officials ma[king] negative and critical comments about candidate Trump,” this talking point comes from House Republicans only, not from President Trump. (Minority at 78) Neither Giuliani nor President Trump have ever expressed an interest in an investigation into whether Ukraine “interfered” in the 2016 election because of what some Ukrainians officials wrote in op-eds or on social media. The idea that this is what Trump wanted to investigate is a fiction that House Republicans invented to give themselves something they were willing to defend. The only investigation into the 2016 election that President Trump has expressed interest in – both in interviews in Fox News, and in his July 25th call with Zelensky – is an investigation aimed at proving Ukraine was behind the DNC hack.

President Trump’s desire for an investigation that would exonerate Russia is undeniable – it’s right there in the transcript of that “perfect” July 25th call – and it’s also indefensible. And so the minority report makes no attempt to try; instead the report concocts an alternative account that does not match the record.

– – – – – – – – – – – – – – – – – – – – – – – –

[1] See also Kent at 305 (“[N]one of us could understand why [there was a hold]. Since there was unanimity that this was in our national interest, it just surprised all of us… I believe that it is a factually correct statement to say that there’s broad support among both parties in Congress, both Houses in Congress, and among the State Department, the Defense Department, Joint Chiefs, and other elements of the U.S. Government for the security assistance programs.” ); Morrison at 264 (“[T]hey were all supportive of the continued disbursement of the aid. It was the unanimous position of the entire interagency.”); Vindman at 184 (There “was unanimous consensus that the security assistance should be provided to Ukraine” from the “State Department, Defense, the Intelligence Communities, [and] Treasury.”); Cooper at 53 (“[A]ll of the senior leaders of the U.S. national security departments and agencies were all unified in their [ ] view that this assistance was essential.”); Taylor at 28 (“There followed a series of NSC-led interagency meetings starting at the staff level and quickly reaching the level of Cabinet Secretaries. At every meeting, the unanimous conclusion was that the security assistance should be reassumed, the hold lifted.”)

[2] Other attempts to satisfy Trump’s after-the-fact explanations for the hold had a similar results. As Ambassador Taylor described, “[a]t one point the Defense Department was asked to perform an analysis of the effectiveness of the assistance. Within a day, the Defense Department came back with the determination that the assistance was effective and should be resumed.” (Taylor at 28) (emphasis added) Nevertheless, the hold was not lifted.

[3] See also Volker at 38 (an Oval Office meeting “was important to show support for the new Ukrainian President. He was taking on an effort to reform Ukraine, fight corruption, a big sea change in everything that had happened in Ukraine before, and demonstrating strong U. S. support for him would have been very important.”); Anderson at 50 (“The goal was a White House visit, because that also led that has the largest significance. … [I]n sort of the scale of meetings, the best would be an Oval Office visit for president Zelensky. … Because it is the best show of support and it has the greatest pomp and circumstance, and so that has the most impact, both in Ukraine but also in Moscow.”).

[4] See also Homes public testimony (“[O]n September 13th, an embassy colleague received a phone call from another colleague who worked for Ambassador Sondland. My colleague texted me regarding that call that, quote, ‘Sondland and Zelensky interview’ – ‘Sondland said the Zelensky interview is supposed to be today or Monday, and they plan to announce that a certain investigation that was on hold will progress.’”).

[5] After the public announcement on September 12th that the security assistance had been released, Ambassador Taylor reached out to President Zelensky to inform him of the news, and to tell him that he should “not get[] involved in other countries’ elections.” (Taylor at 40-41) At that time, Ukrainian National Security Advisor Alexander Danylyuk told Taylor that Zelensky would not go ahead with the CNN announcement. (Taylor at 41) Ambassador Taylor testified that his goal was to stop the Ukrainians from carrying out their agreement with President Trump: “I was trying to be sure that the things from the other channel that had been put in place, like the CNN interview, didn’t happen.” (Taylor at 234)

[6] In a May 10th interview with Politico, President Trump was asked about Giuliani’s efforts to open investigations in Ukraine, and Trump confirmed he had communicated with Giuliani about the issue. Trump also confirmed his interest in an investigation into Joe Biden.

Photo: (L-R) Ranking member Rep. Devin Nunes (R-CA), minority counsel Steve Castor and Rep. Jim Jordan (R-OH) confer as Lt. Col. Alexander Vindman, National Security Council Director for European Affairs, and Jennifer Williams, adviser to Vice President Mike Pence for European and Russian affairs testify, Nov. 19, 2019 (Drew Angerer/Getty Images)

 

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About the Author(s)

Susan Simpson

Susan Simpson is a host of the Undisclosed and 45th podcasts, and of counsel to Clinton & Peed PLLC in Washington, DC. Follow her on Twitter (@TheViewFromLL2 ).