By Michael J. Cozzillio and Craig N. Moore
June 1972 was relatively unremarkable as news goes—at least, everyone thought so. On June 17, however, police arrested five men who had broken into the Watergate building in Washington, D.C.
And, unbeknownst to the public, on June 23, in an oval office meeting with his chief-of-staff, President Richard Nixon agreed to use the CIA to help cover-up the real story behind what had been characterized as a “third-rate burglary” by apologists for the president.
By June 1973, a Senate committee investigating the break-in and its aftermath found itself trying to untangle an underground labyrinth of political deceit and corruption unmatched in our history.
U.S. Sen. Howard Baker, R-Tenn., persistently asked two questions: “What did the president know? And when did he know it?” While Baker may have posed this question thinking that it might promote the president’s exoneration, the responses eventually led to Nixon’s undoing.
By July 1974, everyone knew the answer.
The U.S. Supreme Court had finally rejected all arguments that the president’s legal team had contrived to prevent revelation of taped conversations recorded in the oval office—including the one on June 23, 1972. Soon afterward, the House Judiciary Committee approved three articles of impeachment. And rather than face the House vote, Nixon resigned.
He had no choice. The country would not— and refused to — tolerate such illegal conduct by its chief executive.
Have we changed that much?
A generation later, on August 13, 2018, Congress passed a military funding bill that included about $400 million in aid to Ukraine in its fight against the Russian invasion of Crimea.
Without telling Congress, President Donald Trump decided to withhold disbursal of the funds. During a July 25, telephone call with President Trump, Ukrainian President Volodymyr Zelenskiy said he wanted to buy more Javelin missiles from the United States.
Trump responded with a conditional acquiescence: “I want you to do us a favor, though.”
Trump wanted Zelenskiy to open an investigation into former Vice President Joseph Biden, a potential Trump opponent in the 2020 presidential election.
According to Trump, Biden had stopped a Ukrainian prosecution of his son Hunter Biden, alleged conduct that had started “a lot of people” talking, and had provoked a need for further investigation.
Trump also told Zelenskiy that “Biden went around bragging that he stopped the prosecution,” so Zelensky should look into it. Credible witnesses have soundly refuted all of Trump’s allegations.
By the end of August, Zelenskiy had learned that Trump had frozen the funding. Moreover, Ukraine was advised that it could not obtain that congressionally sanctioned aid unless Zelenskiy publicly committed to investigate Biden. Before Zelensky could do so, a whistleblower, concerned that people responsible for the transcript of the call were mishandling it, shared his information and misgiving with Congress.
On Sept.11, only after the public became aware of what he had done, Trump lifted the hold on the military aid.
It is indeed odd. In June 1972, the word “détente” had only just entered the American lexicon. In a small southeast Asian country, some of the 58,000 young Americans killed there were still facing death because we were so fearful of countries falling under the brutal heel of Soviet domination.
Even as recently as ten years ago, the United States distrusted Russia at least as a very unfriendly adversary. Many Americans still saw Russia as an enemy so wicked that it deserved the moniker, bestowed by a Republican president, the “Evil Empire.”
Now, Russia occupies the position of sacred cow, even as our Cold War rival pursues its interests by interfering with, and trying to influence, the outcome of our free and fair elections?
“Better dead than Red” has morphed into “Better corrupt than Out-of-Office.”
The military aid in question was and remains vitally important to Ukraine. But it is also an integral and profound component of United States foreign policy.
As explained by every U.S. diplomat who testified in the current impeachment hearings, with praise from members of both political parties alike, the United States has a compelling interest in supporting young democracies.
Such support is especially important to countries like Ukraine — with a fledgling, freely elected government, seeking to rid itself of corruption and, to that end, looking to the United States as an ally.
The United States, endeavoring to serve as a check on an expansionist Russia, has provided military aid to Ukraine every year without fail since Russia first invaded the Crimean peninsula in 2014.
The legal issues are hardly taxing.
The president takes an oath of office and promises to see that the laws are faithfully executed. Violation of that oath is an impeachable offense.
And it is illegal for any public official to extort — or attempt to extort — from someone, anything of value “under color of official right.” The conduct must affect commerce, for example, an international transaction involving $400 million in military assistance.
Such extortion, implicating foreign policy and interference with an election, undoubtedly satisfies the “bribery … and other high crimes and misdemeanors” impeachment standard.
Congress appropriated money by passing a bill—which Trump signed into law—to provide military aid to Ukraine. Trump, however, did not execute that law as he had promised. Instead, Trump withheld the funding until the fiscal year had almost expired, and the money would no longer be available.
He had no intention to disburse it unless and until Zelensky publicly announced that Ukraine was investigating Biden. Trump used his office to blackmail Zelensky into doing what he wanted solely for his personal gain and benefit.
The answers to Baker’s two questions, posed in the case of Trump half-century later, are every bit as clear now as they were in June 1972.
Just like Nixon, Trump knew what he was doing when he did it! Like every autocrat, he thinks he can get away with anything because he always has. He is amoral. No one has ever told him, “No!” and survived the repercussions. And he has never learned the meaning of the word or appreciated its significance.
The issue here is not one of disagreement, dislike, or even partisanship. It is a simple matter of right and wrong. Trump has betrayed the highest office the American people have to offer.
He has trampled all over his oath. He has broken faith with the people who voted for him. He promised all Americans — even the ones who did not vote for him — that he would defend the nation and he has breached that promise as well.
To date, Congress has blatantly abdicated its responsibilities. To be sure, Democrats have initiated the impeachment inquiry. But much of what we are seeing is in stark contrast to the principled legislative approach to that other self-possessed, prevaricating demagogue of 50 years ago.
One need only compare the dignified, insightful, probing examinations by Howard Baker with the “buy a thought/buy a jacket” tag team of U.S. Reps. Devin Nunes, R-Calif., and Jim Jordan, R-Ohio, on the House Intelligence Committee.
In the face of overwhelming incriminating evidence, their approach has been to attack the integrity of public servants with no political or partisan interests.
They have posed questions—or statements—containing false information, wrapping it in a sheep’s clothing of purported veracity.
They have tried to defend the indefensible with a pathetic grandstanding exhibition of obfuscation and amateurish, pseudo-advocacy.
They have disgraced themselves, their office, and the Republican party. Most tragically, unlike Howard Baker and his colleagues when faced with the evidence, they have failed to place constitution and country over partisanship.
Enough is most definitely enough.
Michael J. Cozzillio is a former member of the faculty at Catholic University School of Law and Widener Commonwealth Law School in Harrisburg, where he has served as Emeritus and Distinguished Professor of Law. Craig N. Moore is a criminal defense attorney in Washington D.C.
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