The “smoking gun” in the Trump impeachment inquiry explained

Why hide a perfect call?
Why hide a perfect call?
Image: Reuters/Carlo Allegri
We may earn a commission from links on this page.

The impeachment inquiry into US president Donald Trump’s Ukraine dealings continues today, with Army lt. col. Alexander Vindman, director of European affairs for the National Security Council (NSC), scheduled to testify.

But the “smoking gun” in this case, Trump’s July 25 phone call with Ukrainian president Volodymyr Zelensky eliciting “a favor,” is already out and has been for months. Robert Litt, former general counsel for the Director of National Intelligence, spoke to Quartz about the critical phone call, how it was stored, and why it’s so important.

Litt says that the Trump administration’s decision to store the call record on national security servers, rather than following the usual communications protocols for such exchanges, is suspect because it is unusual. In criminal law parlance, Litt says, it shows “consciousness of guilt,” an awareness on the administration’s part that the president’s statements during the call were problematic and must be hidden.

Vindman’s previous closed-door House testimony on Oct. 29, the transcript (pdf) of which has already been released, supports Litt’s conclusion.

What we already know

On July 25, Trump spoke on the phone with Ukrainian president Volodymyr Zelensky and asked him to “do us a favor” by investigating his political rival, former US vice president Joe Biden, a 2020 Democratic presidential candidate. Specifically, Trump wanted Ukraine to inquire into whether Biden used his political influence on behalf of his son, Hunter, who was then a board member of Ukrainian gas company Burisma.

A “transcript” of this call, based on notes compiled by people in the White House Situation Room who listened in, was released by the Trump administration on Sept. 25 after a whistleblower in the intelligence community reported concerns that the call was part of a plan to condition previously-appropriated military aid to Ukraine on a personal favor to the president. The report and transcript triggered the impeachment inquiry.

As part of the inquiry process, Vindman told lawmakers last month that he found Trump’s request worrisome. Vindman listened in on the call with Zelensky when it happened, along with colleagues from the NSC and office of the vice president. He testified in October:

I was concerned by the call. I did not think it was proper to demand that a foreign government investigate a US citizen, and I was worried about the implications to the US government’s support of Ukraine. I realized that if Ukraine pursued an investigation…into the Bidens and Burisma, it would likely be interpreted as a partisan p1ay, which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained. This would undermine US national security.

Vindman reported his concerns to the NSC’s legal counsel, John Eisenberg. Specifically, he worried about the president making a personal request of the Ukrainian president, one which would have national security implications for the United States and Ukraine. Eisenberg then directed that the record of this call be stored on a restricted server, rather than following the usual storage protocols.

This move, Litt says, is highly suspect. Eisenberg was clearly trying to hide what he knew to be a problematic “transcript” with a request that could be deemed improper. “The purpose was obviously to prevent discovery,” Litt said. “There is no coherent argument attempting to defend the national security storage issue.”

By taking steps to conceal the record, Eisenberg vindicated Vindman’s conclusion and showed “consciousness of guilt.” Litt notes that the lawyer didn’t clearly violate any laws by storing the transcript on the restricted server. Instead, Eisenberg simply provided strong circumstantial evidence of Trump’s wrongdoing, acknowledging with his actions that he, like Vindman, found the American president’s request problematic.

The president’s supporters have defended the phone call with Zelensky, saying it shows no evidence of an impeachable offense, an improper “quid pro quo” as alleged. Still, Eisenberg reportedly directed Vindman not to talk about the call after he raised concerns about it. And that is the White House strategy for now. Neither administration representatives nor Eisenberg will respond to questions about his role in storing the call record on national security servers. 

And it might not matter to Republicans or their supporters even if they did illuminate the reasoning behind the decision.

On the record

Litt doesn’t think many Americans are likely to be convinced by much of anything the impeachment inquiry uncovers if they haven’t been swayed so far. Republicans and Democrats are interpreting the same set of facts differently, each constructing a narrative that suits them, he says. So though he considers the storage issue indisputable evidence of awareness of wrongdoing on the president’s part, he suspects that Republicans will remain steadfast in their defense of Trump while Democrats keep on preaching to the converted.

“Two halves of the country are seeing different realities,” Litt laments.

Similarly, New York Times columnist Frank Bruni recently opined that Republicans are spinning fantastic yarns around the impeachment inquiry while Democrats deluge the public in too much tiresome context—so much evidence that no one can be bothered to understand all the facts being presented.

Meanwhile, Bruni contends Democrats may be “inadvertently downgrading” the importance of the July call that he deems a  “definitive piece of evidence,” by introducing so many witnesses to testify about the events leading up to and surrounding the damning exchange and its handling. He argues that an investigation like this is usually about finding a smoking gun, whereas “this process began with the smoking gun.”

Focusing on the smoking gun might be wiser than what Democrats have planned for the week ahead, Bruni suggested.

Up next

Indeed, it is a busy week in the inquiry. After Vindman, Jennifer Williams, a foreign service aide detailed to vice president Mike Pence’s office, will testify. On Tuesday afternoon, we’ll hear from Kurt Volker, the former special envoy to Ukraine, and Tim Morrison, a former National Security Council aide.

On Wednesday, US ambassador to the EU Gordon Sondland testifies. Tasked by Trump to help handle Ukraine policy, Sondland has already testified and filed an amendment to his prior private disclosures, now admitting he personally told a top Zelensky aide that the release of US military aid to Ukraine was linked to conducting Trump’s requested investigations.

Following Sondland will be Laura Cooper, a deputy assistant secretary at the Defense Department, and David Hale, the undersecretary of state for political affairs at the State Department. On Thursday, Fiona Hill, formerly the top Russia specialist on the National Security Council, will answer questions.

Hill may be the final witness before the Intelligence Committee writes its report on the inquiry, which will be released to the public. The report then goes to the House Judiciary Committee, which will determine whether to draft articles of impeachment and, if so, which ones. If it does and the House votes to move forward, the Senate must hold a trial and then a final vote on impeachment.

In other words, Democrats and Republicans will be spinning the facts for months. We won’t know how this story ends until well into 2020. Though it will no doubt be tiresome, Litt insists that individuals must pay attention to the evidence and examine what’s now known themselves. “People need to pay attention and try to understand what’s actually going on,” he said.