Teri Kanefield Trump impeachment inquiry bombshells imperil Republicans' circumstantial evidence defense

The law doesn’t distinguish between direct and circumstantial evidence. Both are admissible and can be used to prove wrongdoing.
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By Teri Kanefield, attorney and author

Did President Donald Trump abuse his power when he pressured Ukraine into announcing investigations that would benefit him personally? This, in a nutshell, is the question at the heart of the impeachment inquiry.

Democrats say Trump wanted Ukraine to announce an investigation into the company Burisma, which would allegedly implicate political rival Joe Biden and his son Hunter, and to investigate (debunked) allegations that Ukraine, not Russia, interfered in the 2016 election in order to help Hillary Clinton.

Conservatives in the House are trying to persuade the American people that unless Trump is caught on video, there is no case against him.

On Wednesday, Gordon Sondland, the American ambassador to the European Union, backed up this assessment, clearly and repeatedly explaining Trump’s role in this scandal. Even Ken Starr said that it was “one of those bombshell days." But Republicans have yet to budge from their line of attack. The GOP has been trying to rebut a stream of increasingly compelling evidence by arguing — absurdly — that the case against Trump falls apart if no witnesses actually heard Trump say he himself intended to pressure the Ukrainians to launch the investigation, or if no witnesses personally watched Trump pressure the Ukrainians.

In other words, conservatives in the House are trying to persuade the American people that unless Trump signs a confession or is caught on video actually telling someone to commit an impeachable act, there is no case against him. This, of course, is absurd. People are often found to have committed wrongful acts without having confessed or without, say, the act being caught on video. Indeed, most of the time, people don’t confess or mention to someone that they intend to commit a wrongful act.

So how are these cases proven?

With circumstantial evidence. We make inferences from the facts. If a person is holding a smoking gun, and another a person is lying dead on the floor, we assume that the person with the gun shot the person on the floor — unless there is a compelling reason, backed up with facts, to believe otherwise.

In the case against Trump, there is an abundance of circumstantial evidence. In fact, in each day of impeachment inquiry testimony, more smoking guns appear.

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On Tuesday afternoon, for example, a former National Security Council official, Tim Morrison, testified that Sondland informed him Sept. 7 that a hold on Ukraine military aid would be released if Ukraine President Volodymyr Zelenskiy announced investigations into Biden and the 2016 election. Morrison stated that he got a "sinking feeling" and reported his concerns to then-national security adviser John Bolton — who told him to notify White House lawyers.

How did Republicans on the committee respond to that testimony?

Rep. Mike Turner, R-Ohio, asked the witnesses a series of questions including, “Did [Trump] ever say to you that he was not going to allow aid to go to Ukraine unless there were investigations into Burisma, the Bidens, or the 2016 elections?”

When the witness said “no,” Turner said, “You just took apart their whole case.”

Rep. Devin Nunes, R-Calif., asked both Morrison and Kurt Volker, the former U.S. envoy for Ukraine negotiations: “Did anyone ever ask you to bribe or extort anything from anyone at any time during your time in the White House” Both witnesses answered “No.”

Following up on the logic that unless someone heard Trump utter a confession or specifically order someone to commit bribery or extortion there is no case against Trump, the White House tweeted quotations from the witnesses: "I have never met the President." "I don’t know what the President was thinking." “I've never had any contact with the President of the United States.”

To take yet another example, while taking the deposition of David Hale, the undersecretary of state for political affairs, Rep. Mark Meadows, R-N.C., asked Hale whether he was aware of any connection between the aid to Ukraine being delayed and anything else.

Hale said no.

“And to your knowledge,” Meadows asked, “you’re not aware of Secretary Pompeo having any direct knowledge of a connection between investigations and the aid being held up. Is that correct?”

Hale responded by saying, “he never discussed it with me.”

Afterward Meadows tweeted that Hale “made a compelling case that there was absolutely no linkage between suspension of military aid and political investigations.”

The logic here seems to be: If these witnesses didn’t see the crime actually happen, we can absolutely conclude that it didn’t happen — even though it was clear to those carrying out Trump’s orders that Trump was placing preconditions on a White House meeting and the release of the security aid. On Wednesday, Sondland testified that “everyone was in the loop,” and “it was no secret” that the president was placing such preconditions. Sondland further testified that “Mr. Giuliani conveyed to Secretary Perry, Ambassador Volker, and others that President Trump wanted a public statement from President Zelenskiy committing to investigations of Burisma and the 2016 election.”

Sondland went on to say that Giuliani also “expressed those requests directly to the Ukrainians,” and “we all understood that these prerequisites for the White House call and White House meeting reflected President Trump’s desires and requirements.”

How did the Republicans respond to this testimony? By latching on to Sondland’s statement that he never heard directly from the president that the aid was conditioned on investigations.

Steve Castor, attorney for the Republicans, opened his questioning of Sondland by asking, “Did the President ever personally tell you about any preconditions for anything?” Sondland responded by saying, “Personally, no.” Sondland then launched into an explanation of how he knew from conversations with both Trump and Giuliani that there were indeed preconditions.

The GOP selectively edited out that second part, though. They heard only that Sondland never heard directly from the president that the aid was conditioned on investigations.

The law doesn’t distinguish between direct and circumstantial evidence. Both are admissible and can be used to prove wrongdoing. For many wrongful acts, an actual confession or direct evidence linking the culprit to the act simply doesn’t exist.

So we make reasonable inferences. The only reasonable inference from the facts is that Trump and Giuliani conducted a monthslong pressure campaign on the Ukrainians to get them to open investigations that would benefit Trump personally.

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