New Evidence Reaffirms: Donald Trump Fails the Fitness Test
His back-channel diplomats to Ukraine were a virtual traveling Mos Eisley cantina.
On the eve of Trump’s impeachment trial, there’s a pile of new evidence. Lev Parnas, a man who looks like he stepped off the set of The Sopranos, is dropping dimes on former Mafia prosecutor Rudy Giuliani. What does it all mean? Also, do you ever wonder how reasonable people become snarling radicals? Let’s sort out the very human way in which people lose perspective. Today’s French Press:
New impeachment evidence reaffirms everything we already suspected.
How public apathy feeds political polarization.
New evidence chips away at Trump’s already-weak factual defense.
One consequence of the House Democrats’ decision to move quickly to vote on articles of impeachment is that it was almost certain that new impeachment evidence would emerge before, during, and potentially even after the Senate impeachment trial. On the one hand, the evidence of the basic substantive charge against Trump—that he tried to coerce a desperate, dependent ally into investigating a domestic political opponent and a bizarre conspiracy theory—was so overwhelming that the Democrats could feel confident in their basic factual case even without all the evidence.
On the other hand, they were obviously going to the Senate without the best evidence and the best case they could make. Events this week made that reality plain.
Let’s first talk about Lev Parnas. Since the first days after this scandal broke, I’ve been shouting from the mountaintops that the Ukraine affair isn’t just about corruption, it’s about fitness. The president of the United States was conducting diplomacy in one of the most sensitive and volatile regions of the world in part motivated by an utterly baseless, frequently debunked conspiracy theory—namely that there exists an (entirely mythical) Crowdstrike server in Ukraine that could debunk the entire narrative of Russian interference in the 2016 election. While there are aspects of Ukrainian involvement in 2016 that are worthy of investigation and inquiry, Trump’s belief is faked-moon-landing level nonsense, and he explicitly linked it to military aid in his conversation with Volodymyr Zelensky.
That is not the action of a man who has a grasp on facts or a grasp on the responsibilities of his office.
But fitness questions are about more than Trump’s obsession with conspiracy theories. There are additional questions about his basic judgment. Rudy and his “team” (including Lev Parnas) were a virtual traveling Mos Eisley cantina of crooks, grifters, and amateurs. They were broadcasting to anyone who would listen that they were operating on behalf of the actual president of the United States, and they were interacting with an ally locked in a shooting war with arguably our nation’s chief geopolitical foe.
Parnas’s documents don’t just provide additional evidentiary support for the narrative that Trump was focused on pushing Ukraine to investigate Joe Biden (one of Parnas’s notes helpfully states, “Get Zelensky to announce that the Biden case will be investigated), they also paint the picture of an utterly slapdash clown-car version of international diplomacy. For example, a WhatsApp exchange with a Republican activist and congressional candidate named Robert Hyde implies that Hyde was tracking the movements of then-U.S. ambassador to Ukraine Marie Yovanovitch. But Parnas himself says he doesn’t believe this was true. Why? Because Hyde was “drunk all the time.”
America, meet your back-channel diplomats.
In addition to raising the fitness question once again, the documents undermine a key Trump substantive defense. Trump’s advocates have maintained that there is no real, direct link between the president himself and the real-world multi-pronged effort to coerce Zelensky to announce an investigation of the Bidens. A key part of Parnas’s document dump includes what appears to be a copy of a signed letter from Rudy Giuliani to President Zelensky. Giuliani requests a meeting with Zelensky and states that he is not only acting as Trump’s personal attorney, he’s also acting “with his knowledge and consent.” Was Rudy going rogue? Not according to Rudy.
Ordinarily, an assertion from counsel that he’s acting with his client’s knowledge and consent would be virtual slam-dunk evidence that his client was aware of and directing his lawyer’s actions. But Rudy is no ordinary lawyer, and his behavior is erratic enough for Trump’s defenders to cling to a shred of hope that Rudy had gone rogue. Except, of course, let’s remember Trump’s own words in his “perfect” call with President Zelensky. After Zelensky promises to look into Trump’s Crowdstrike conspiracy theory, Trump says this:
Good because I heard you had a prosecutor who was very good and he was shut down and that's really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor of New York City, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. 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 former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. 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. (Emphasis added.)
So, Rudy says he is acting with his client’s knowledge and consent. His client tells Zelensky to talk to Rudy about his requested investigations. It’s growing harder and harder to argue that Rudy went Rogue.
But that’s not all the new, relevant evidence. Today the Government Accountability Office issued a finding that the Trump administration violated the law when it temporarily withheld security assistance from Ukraine:
In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.
Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.
The GAO’s conclusion undermines the Trump team’s assertion that Trump did “nothing illegal.” Multiple politicians and journalists have floated the idea that Trump had violated a number of potentially relevant statutes, but the GAO is an independent, nonpartisan congressional agency, not a partisan politician or an outside expert. Its words carry special weight. . Its ruling is not dispositive (the GAO is not the last word on federal law), nor do violations of the ICA carry criminal penalties, but it inserts an explicit legal element into the president’s overall misconduct. ..
You’ll note that my analysis did not include any real discussion of Parnas’s allegations in his interview last night with Rachel Maddow. I don’t actively disbelieve Parnas when he speaks, but I don’t believe him, either. Some of his comments seem sound, others stretch credulity (like his contention that William Barr was in the loop). Long years of legal experience have taught me to credit contemporaneously -created documents far more than unsworn interview answers when there are strong incentives to tell the audience what it wants to hear.
But independently of Parnas’s words, his documents (combined with the GAO opinion) help further paint the picture of an unfit, rogue president abusing his power and (likely) breaking the law.
How public apathy helps makes the reasonable man radical.
I speak and write quite a bit about American political polarization. I’m alarmed by the extent of mutual partisan loathing and enmity. It’s terrible, it’s getting worse, and I’m convinced that—unchecked—it’s a threat to our national existence. There is no law of nature that says that a diverse, continent-sized, multi-ethnic, multi-faith democracy will always remain united.
To understand the reality of our political polarization, I highly recommend diving into More in Common’s outstanding research on America’s “hidden tribes.” They dive deep into American political attitudes and find that much of America’s polarization is driven by roughly one-third of the population—the “devoted conservatives” and “traditional conservatives” on the right, and the “progressive activists” on the left. “Traditional conservatives” (16 percent of the population) are defined as people who are religious, patriotic, and highly moralistic. They also “believe deeply in personal responsibility and self-reliance.” The “devoted conservatives” (6 percent) are “deeply engaged with politics” and tend to “perceive themselves as the last defenders of traditional values that are under threat. “Progressive Activists” are “deeply concerned with issues concerning equity, fairness, and America's direction today. They “tend to be more secular, cosmopolitan, and highly engaged with social media.”
The devoted devoted conservatives and progressive activists in particular are people with a disproportionate amount of wealth and who spend a disproportionate amount of time on politics as a hobby. They have resources, they’re engaged, and they’re angry. They’re a minority, but they tend to dominate public discourse—even as an “exhausted majority” retreats from political engagement and longs for an alternative.
The rage of the “wings” is well-known. We can see it every day on social media. We can see and hear the fury at many political rallies and events. The reasons for that rage are complex, but let me advance an under-appreciated reason why red-pilled Uncle Karl and his woke niece Alice hate each other so darn much.
The story starts with public apathy.
I haven’t been a writer all my life. I spent most of my professional career (21 years!) as a litigator, and for most of that time I worked for public-interest law firms. My practice focused on the First Amendment, and it required that I focus not just on the court of law, but also on the court of public opinion. I wasn’t just a lawyer, I was a legal activist, and I saw firsthand how hard it was to motivate the public to actually care about important constitutional concerns.
If you try to raise awareness (much less money) from people with busy lives and multiple family responsibilities, the first thing you learn is that it is extraordinarily difficult to break through to the public with a proportionate, measured message. If your message implies, “I’m working on something important, but there is no true emergency.” Or, “I’m concerned, but there’s no crisis,” then prepare to face indifference.
No, the tried and true activist message is simple—“The threat is dire, and we’re the last line of defense.”
None of this is new. “Scare grandma with direct mail” has funded much of the conservative movement for a generation (or more). But technology has made the experience much, much more intense. Sign one online petition, and you magically find yourself on a dozen new mailing lists. Start clicking on alarmist social media posts, and you start to tell the algorithm that’s what you want to see. It’s hard to merely put your toe in the water politically. Test the temperature with a small donation, and within days, five scam PACs, nine breathless email messages, and four Facebook ads are deluging you with some variation of the same message, “They hate you! They want to destroy you! Only I can save you!”
There are Americans who recoil from this like they’ve touched a boiling cauldron. “Just stop,” they say, and they furiously unsubscribe, ignore political posts, and go back to talking about the Tennessee Titans, the Memphis Grizzlies, and the utter dominance of SEC football (ideally, anyway). But there are millions of other Americans who have a very different reaction.
“I had no idea things were so terrible!”
As the messages flood your inbox, and the posts flood your feeds, concern grows to alarm, and alarm turns into rage. And if you’re looking for things to be angry about, there’s always a fresh outrage, somewhere. The immediate nationalization of every volatile local event means that a politically engaged American can know within hours (sometimes minutes) after someone punches a kid wearing a MAGA hat in Des Moines, or if a busybody white woman calls the cops on black kids who are innocently grilling in a Sacramento park.
Instantly, each incident becomes emblematic of the other side’s perfidy. It’s as if the scales fall from the eyes, and you see the world anew. You’re “woke.” You’re “red-pilled.” You’re not simply “Jane” anymore. You’re “Deplorable Jane,” and it’s your mission in life to own the libs.
But the strange thing is that this new life doesn’t actually awaken you to reality, it deceives you. It distorts the truth. One of the most fascinating aspects of the hidden tribes research is its finding that Americans on the “wings” have the most twisted views of the other side. The wings are far more likely to believe that political opponents are more extreme than they really are. In crucial ways their political engagement is increasing not just their political extremism, but also their political ignorance. They consistently accept opposing extremism as the norm, when it is not.
There’s no simple solution to this problem. I routinely tell people that the two types of pieces I write that cause the most dramatic negative reaction either 1) criticize Donald Trump; or 2) argue that a particular problem is a concern and not a crisis. It’s as if an argument that a problem isn’t an emergency is viewed as detrimental to the cause of public mobilization and public activism. And they’re probably right. When was the last time 10,000 people flooded the streets of a state capital chanting, “We’re concerned! We’re concerned!”?
Leadership does matter, however. And partisans respond to winning politicians. If someone can turn down the temperature and win while doing it, perhaps we can chip away at the culture of permanent outrage.
One last thing ...
My Grizzlies are in the midst of a six-game winning streak, sit in the last playoff slot in the West, and they’re now officially and inarguably the most exciting young team in the NBA. Ja Morant is a bad, bad man. Enjoy:
Photograph of Lev Parnas and his wife Svetlana Parnas arriving at the Southern District of New York Courthouse on December 2, 2019 in New York City by Scott Heins/Getty Images.