Since they realized insulting an army officer isn't a good look, Republicans are changing their impeachment strategy

Alexander Vindman was a firsthand witness to the phone call between Trump and Ukrainian President Zelensky, and many Republicans had felt as uncomfortable as their Democrat counterparts about the idea of smearing him

Andrew Feinberg
Washington DC
Tuesday 29 October 2019 21:16
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Liz Cheneyn on questioning the patriotism of Alexander Vindman: 'It is shameful to question their patriotism, their love of this nation'

As the impeachment inquiry rumbles on, Trump's defenders in the House Republican caucus have decided to try out a few new defenses.

No longer are they criticizing Democrats' failure to hold a vote to "authorize" an impeachment inquiry — partly because that argument lost its teeth last week after a federal judge ruled that there is no legal or constitutional requirement that an impeachment probe be authorized by a vote of the full House.

Also gone the way of the dodo are arguments about how Democrats' entire impeachment case is based on hearsay, thanks to the emergence of a firsthand witness who listened to Trump's infamous phone call with Ukrainian President Volodmyr Zelensky. That firsthand witness is Lieutenant Colonel Alexander Vindman.

Vindman emigrated from the former Soviet Union at the age of three and is a combat-wounded Iraq veteran who speaks Ukrainian and Russian fluently. When word leaked that he would largely confirm testimony from other witnesses, some of Trump's TV allies tried to smear the Purple Heart recipient as somehow disloyal to the United States.

One Democrat on the House Oversight Committee, Florida congresswoman Debbie Wasserman Schultz, told me she found the attacks on Vindman "revolting," and said they reveal the weakness of the Republicans' case: ”They've got nothing, so they either have to focus on process or try to undermine the credibility of someone who's defended the United States of America and kept us safe."

California Democrat Rep. Ted Lieu, an Air Force Reserve Colonel, similarly called the attacks "disgraceful."

"[Vindman] risked his life, he spilled his blood… people who attack his loyalty should apologize," he said. "It makes me sad for America that they're willing to attack a patriotic American soldier simply because he's about to tell the truth."

Trump seems to think that the president of the Ukraine is Russian

Republicans may have gotten the message that smearing a combat veteran isn't going to fly in middle America. At their weekly leadership press conference, House Republican Conference Chair Rep. Liz Cheney pushed back against Trump allies' attacks on Vindman.

"It is shameful to question their patriotism, their love of this country," Cheney said of attacks on witnesses like Vindman and Ambassador William Taylor, a Vietnam veteran and career foreign service officer.

Instead, Republicans are trying another tack. They're now arguing that the lack of a vote that wasn't legally necessary to begin with has tainted all the evidence gathered by the House Foreign Affairs, Intelligence and Oversight Committees over the past four and a half weeks.

"A due process starts at the beginning. It doesn't affirm a miss, sham investigation all the way through," House Republican leader Kevin McCarthy said on Tuesday. "If you were in the legal term, it'd be the fruit from the poisonous tree."

McCarthy also added a new twist to the "no quid pro quo" line which he and his fellow Trump defenders have been chanting like a mantra lately. No longer do he and compatriots argue that there was no quid pro quo because Trump never held up military aid. Instead, McCarthy now argues that there was no quid pro quo because the White House eventually released the military aid after inquiries from Senate Republicans.

"We all have the transcript. We are all able to see there was no quid pro quo — the money was released, Ukraine did nothing and no action was taken," he said. "Where's the crime? Where's the impeachable offense?"

"If you ask scholars, nothing in that phone call is impeachable," he added.

I decided to take McCarthy up on his challenge by asking some scholars about his latest attempts to find a defense for President Trump.

The scholars were not impressed.

When I asked University of Missouri law professor Frank Bowman about McCarthy's "fruit of the poisonous tree" argument, he immediately began laughing.

He continued laughing for at least 10 seconds, then calmed himself long enough to ask if I wanted a more...scholarly answer.

"It's just comical," said Bowman, who is the author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. "Their demand was for a resolution, and now the resolution isn't good enough.

"It doesn't matter what the Democrats do or don't do, certain members of the House Republicans are going to complain… they're not talking about substance at all. The evasion is so transparent as to be pretty comical."

When I asked him about McCarthy's suggestion that there was "no quid pro quo" because the military aid which the White House had held hostage was eventually released, his answer was similar to how he'd reacted to my first question.

"Wrong," he exclaimed. "If I hold a gun to your head and say 'give me money or I'll blow your brains out,' and the police happen to arrive before I've either blown your brains out or you've given me the money, that doesn't mean I haven't committed a crime."

I decided I needed to check in with another impeachment scholar, this time one with practical knowledge of how to investigate a rogue president.

That scholar — former deputy Watergate special prosecutor Nick Akerman — was just as blunt as Bowman had been when I asked him about McCarthy's "fruit of the poisonous tree" defense.

"That is the dumbest argument I've ever heard," he said, adding that this latest Trumpworld defense was "nonsense."

"The fruit of the poisonous tree doctrine only applies when someone's constitutional rights have been violated," said Akerman, now a partner at Dorsey and Whitney. "That's like saying every indictment issued by a grand jury has to be dismissed because the defendant didn't have a chance to be in the grand jury room to defend himself. I mean, that is just off the wall, it comes from outer space."

When I told Akerman about McCarthy's other argument — that there had been "no quid pro quo" because the White House eventually released Ukraine's military aid — Akerman was equally candid in his assessment of the defense's legal merit.

"Oh my god, it's just dumb and dumber," he said.

Akerman noted that the only reason the money was released was because of the demands made by Congressional leaders: ”The fact is, they caught [Trump] right in the middle of the thing. If they hadn't found out about this, Trump would've been pounding away at Ukraine to this day."

"If you take it in the context of the criminal law, an attempted bribe is bribery, you still can convict somebody for the attempt. One is just as culpable for the attempt as for committing the actual crime itself.

"They're grasping at straws. They have no idea what they're talking about and every defense they've come up with is just dumber than the next — I mean literally, it's so stupid it defies belief that this is all they can come up with."

Akerman said the "insane" arguments Republicans have made in defense of Trump so far underscore the fact that Trump has no defense.

"The Republicans have no defense here and Trump has no defense. If this goes to a trial in the Senate, this kind of stuff is going to go absolutely nowhere, and they're going to be made to look awfully foolish.

"You either vote to convict or you look like a fool.”

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