Jurisprudence

Five Potential Articles of Impeachment From the Trump-Ukraine Call

Nancy Pelosi speaks into microphones.
Speaker of the House Nancy Pelosi on Wednesday in Washington.
Mark Wilson/Getty Images

On Wednesday morning, the White House released a five-page memorandum of a telephone conversation, or TELCON, of President Donald Trump’s call with Ukrainian President Volodymyr Zelensky. In the call, he pressured Zelensky to investigate presidential candidate and former Vice President Joe Biden and his son Hunter. This was the “transcript” Trump promised to release on Tuesday after it was reported that House Democrats were moving toward opening a formal impeachment proceeding.

The call readout—which Trump and his defenders are already claiming exonerates him—is transparently incomplete. It’s full of ellipses, it apparently took place at half of the pace of a normal conversation, and it is missing things that have been previously reported in the press—such as the fact that Trump reportedly urged Zelensky eight times to work with his personal attorney Rudy Giuliani (Giuliani’s name only appears from Trump four times in the readout).

Still, even this incomplete memo is full of leads pointing to potential “high crimes and misdemeanors” that could bolster the newly emboldened House Democrats’ impeachment inquiry.

An investigation that could turn up more evidence is still needed. But as part of that inquiry, the House Judiciary Committee will likely eventually be tasked with writing up articles of impeachment—basically charges against the president—as it has done in previous impeachments. As a favor to any wavering Democratic House members, here is a list of potential candidates for articles of impeachment that could be drawn up from the TELCON alone.

Article I: Extortion

Trump, without explanation, withheld $391 million in aid from Ukraine at the same time he was pressuring Zelensky to take action against former Vice President and potential 2020 opponent Joe Biden. His defenders have noted that there would be no explicit “quid pro quo” in the transcript. But in the call readout, Trump lays the groundwork for a pressure campaign by Giuliani to coincide exactly with the as-yet-unexplained withholding of aid. First, Trump repeatedly hints that the United States is overly generous to Ukraine:

I will say that we do a lot for Ukraine. We spend a lot of effort and a lot of time. Much more than the European countries are doing and they should be helping you more than they are. Germany does almost nothing for you. All they do is talk and I think it’s something that you should really ask them about.

Yeah, we give you plenty of money, unlike those lousy Germans! Trump then directly says that he doesn’t think the United States is getting enough in exchange for all this support:

[T]he United States has been very, very good to Ukraine. I wouldn’t say that it’s reciprocal necessarily, because things are happening that are not good but the United States has been very, very good to Ukraine.

At least in this version of the call, Trump uses somewhat oblique language, but the message is clear: We do a lot for Ukraine, what are you going to do for us?

Article II: Obstruction of Justice

Right after reminding Zelensky how good the United States—and by extension Trump—has been to Ukraine, he asks for a “favor.”

I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I guess you have one of your wealthy people… The server, they say Ukraine has it. There are a lot of things that went on, the whole situation… I think you’re surrounding yourself with some of the same people.

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. As you said yesterday, that 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.

Because the TELCON has been so clearly abridged in this portion (notice three separate ellipses), it’s very hard to figure out precisely what Trump might have been discussing here. CrowdStrike was the company that uncovered and investigated the Russian hack of the Democratic National Committee, which then kicked off the federal investigation of Russian election interference. Obviously, the server that was investigated by CrowdStrike was at the center of that hack, but it is unclear which server Trump might be talking about.

The New York Times reported, though, that this portion of the conversation might involve a conspiracy theory that Ukraine, not Russia, was behind the hack in 2016:

Mr. Trump specifically asked his Ukrainian counterpart to come to the aid of the United States by looking into the unsubstantiated theory pushed by Mr. Giuliani holding that Ukrainians had some role in the emails stolen from the Democratic National Committee.

The TELCON is ambiguous, but the possibility nonetheless warrants further investigation. If Trump was asking Ukraine to help undercut Robert Mueller’s findings that Russia interfered in the 2016 election or any other part of his probe, that would be a whole new round of obstruction of justice.

Article III: Violation of Election Law by Soliciting a Thing of Value From a Foreign Power and/or Abuse of Power

This is the potential charge at the center of the whole affair. Giuliani has said he has pressured Ukraine to investigate Biden and his son. This call seems to have set up an August meeting between Giuliani and representatives for Zelensky, during which Giuliani has said he elicited an assurance from Ukraine that Biden would be investigated. In the call itself, Trump makes clear what he wants:

Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. […] 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.

Here, Trump is directly asking Zelensky to attack his political rival. Even without the dangling of the aid—which did happen—this would constitute a flagrant abuse of power. As Richard Hasen has noted in Slate, it could also violate federal election law that makes it a felony to solicit a “thing of value” from a foreign national. According to the New York Times, a whistleblower referred this phone call to the Department of Justice on the grounds that it might be a campaign finance crime. The Times further reported that the DOJ “concluded that there was no basis for a criminal investigation into Mr. Trump’s behavior.” Given the actions that Attorney General William Barr and his DOJ have taken to try to shield this president in the past, further investigation is warranted here.

Article IV: Abuse of Power by Using the Department of Justice to Investigate Political Rivals

One of the key new facts of this TELCON is that Trump repeatedly pressured Zelensky to work hand in hand with Barr to do Trump’s corrupt bidding, and not just Giuliani. In the previous two potential articles of impeachment, Trump specifically mentions that Ukraine should work with Barr on the apparent attempt to smear Biden and effort to diminish the Mueller probe.

Trump mentions Barr twice more, with Trump saying that he is “going to have Attorney General Barr call and we will get to the bottom of it” after Zelensky noted having his own prosecutor “look into the situation, specifically to the company that you mentioned in this issue” and “the investigation of the case,” apparent references to CrowdStrike and Biden. At the end of the call, Trump again says, “I will tell Rudy and Attorney General Barr to call.”

The DOJ released a statement Wednesday saying that Trump has not personally asked Barr to contact Ukraine or investigate Biden, that Barr has not discussed this with Giuliani or contacted Ukraine in any way. Still, Barr has in past Senate testimony refused to say whether the president or the White House suggested he open an investigation into anyone.

The chairman of the House Judiciary Committee has already demanded that Barr recuse himself from “this mess,” but the attorney general should also be investigated for his own involvement in this affair.

Article V: Violation of the Constitution’s Foreign Emoluments Clause

The Constitution says that “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” By failing to divest from his company, Trump has been in violation of this clause of the Constitution—which the Framers described as enforceable by impeachment—since Day 1.

But the call log is the clearest example yet of a foreign leader directly offering Trump emoluments to curry favor. As Zelensky casually mentions during the call:

Actually, last time I traveled to the United States, I stayed in New York near Central Park and I stayed at the Trump Tower.

Oh, I just stopped by your tower in New York City! No big deal, but I did do that, by the way. This is the precise sort of corruption the emoluments clause was intended to prevent, and here’s a call with a foreign leader openly flaunting it.

There it is: five lines of inquiry from one abbreviated five-page readout of a supposedly exonerating phone call. This impeachment thing should be a breeze.