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The Battle of the Impeachment Reports: Do the Parties Disagree About the Facts?

Mikhaila Fogel
Sunday, December 8, 2019, 11:00 AM

Congressional Democrats and Republicans actually agree on a fair bit of the fact pattern at issue in the impeachment inquiry.

Reflection of the Capitol Building (Source: Flickr/Victoria Pickering)

Published by The Lawfare Institute
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To listen to the noise, rancor and confusion on display between the parties in the impeachment hearings, you might think there is a great deal of dispute about what happened in L’Affaire Ukrainienne. The president’s allies complain of unfair process and foregone conclusions. Democrats accuse their colleagues of peddling conspiracy theories and ignore Republican complaints altogether.

Most of the yelling, however, has relatively little to do with disputes about the factual record—that is, the record of what the president actually did. Members of Congress can’t seem to agree on whether the president had corrupt intent, whether Ukraine interfered in the 2016 election, or whether Trump’s actions warrant impeachment. But much of the record is not in dispute.

By comparing the facts alleged in the so-called Schiff report approved by the House Intelligence Committee and the minority report prepared by Intelligence Committee Ranking Member Devin Nunes, Oversight Committee Ranking Member Jim Jordan and Foreign Affairs Ranking Member Michael McFaul, we get a window into some important questions: How much of the factual record is really disputed by the two sides? And how much do the Republicans concede in their defense of the president?

The answers, respectively, are not much and quite a lot. Beneath the noise lies a substantial amount of agreement about the actions the president took. And once the noise is stripped away, it may be easier for those who are undecided on impeachment to evaluate the president’s conduct. Below, I’ve lined up the key factual findings of the Schiff report—which appear below in bolded italics—and held them up against relevant discussions in the Republican report. It is important to note that I am not evaluating or confirming the veracity of any facts or interpretations below but merely trying to identify where those alleged facts and interpretations are not in dispute. (See my colleagues’ article here on preventing the spread of disinformation.)

Donald J. Trump, the 45th President of the United States—acting personally and through his agents within and outside of the U.S. government—solicited the interference of a foreign government, Ukraine, in the 2020 U.S. presidential election. The President engaged in this course of conduct for the benefit of his reelection, to harm the election prospects of a political opponent, and to influence our nation’s upcoming presidential election to his advantage. In so doing, the President placed his personal political interests above the national interests of the United States, sought to undermine the integrity of the U.S. presidential election process, and endangered U.S. national security.

The Republican report insists that “the evidence does not support the accusation that President Trump pressured President Zelensky to initiate investigations for the purpose of benefiting the President in the 2020 election.” And it insists that the call summary does not reflect pressure: “President Zelensky has said publicly and repeatedly that he felt no pressure. President Trump has said publicly and repeatedly that he exerted no pressure.” The Republican document, however, does not dispute that Trump asked Zelensky for the investigations of the CrowdStrike matter and of Burisma—and that the Burisma investigation was effectively an investigation of Hunter Biden. Nor does it dispute or even mention that such investigations might have a natural tendency to help Trump electorally. Rather, the Republicans contend that there was “nothing wrong with asking serious questions about the presence of Vice President Biden’s son, Hunter Biden, on the board of directors of Burisma, a corrupt Ukrainian company, or about Ukraine’s attempts to influence the 2016 presidential election.”

Indeed, the document insists the president’s concerns were “valid.” The Republican report reads, “Although Democrats reflexively criticize President Trump for promoting ‘conspiracy theories’ about Hunter Biden’s role on Burisma’s board or Ukrainian attempts to influence the 2016 election, evidence suggests there are legitimate questions about both issues.” The Republicans describe “indisputable evidence that senior Ukrainian government officials opposed President Trump’s candidacy in the 2016 election.” In the Republican reading, “President Trump was not asking President Zelensky to investigate his political rival,” when he asked for his infamous “favor,” “but rather [was] asking him to assist in ‘get[ting] to the bottom’ of potential Ukrainian involvement in the 2016 election.”

The Republican report does not dispute State Department official David Holmes’s account of U.S. Ambassador to the EU Gordon Sondland’s July 26 call with Trump. It assumes that Sondland told Trump, as Holmes testified, that Zelensky “loves your ass,” and that Zelensky would do anything the president asked and would announce “the investigation.”

The Republican report contends, however, that this is “not definitive evidence that President Trump pressured President Zelensky to investigate his political rival.” The Republicans contend that, according to Sondland, “it was not clear that President Trump meant an investigation into the Bidens.” The report does not engage with Sondland’s assertion that Trump “only cares about the big stuff”—stuff like, as Holmes recalls Sondland saying, “the Biden investigation that Mr. Giuliani was pitching.”

The points in dispute, in other words, involve not whether Trump sought investigations involving Biden and Burisma but only whether Trump’s requests amounted to pressure and whether Trump made them for his own electoral benefit.

In furtherance of this scheme, President Trump—directly and acting through his agents within and outside the U.S. government—sought to pressure and induce Ukraine’s newly-elected president, Volodymyr Zelensky, to publicly announce unfounded investigations that would benefit President Trump’s personal political interests and reelection effort. To advance his personal political objectives, President Trump encouraged the President of Ukraine to work with his personal attorney, Rudy Giuliani.

This allegation substantially overlaps with the first, and the facts are disputed in roughly similar fashion. The Republican document does not dispute that Trump empowered an alternative policymaking apparatus toward Ukraine. It merely asserts that it was within his reasonable authority to do so. “To the extent that some unelected bureaucrats believed President Trump had established an ‘irregular’ foreign policy apparatus, it was because they were not a part of that apparatus. There is nothing illicit about three senior U.S. officials—each with official interests relating to Ukraine—shepherding the U.S.-Ukraine relationship and reporting their actions to State Department and NSC leadership.” The document also insists that “[t]here is nothing inherently improper with Mayor Giuliani’s involvement as well because the Ukrainians knew that he was a conduit to convince President Trump that President Zelensky was serious about reform.”

The Republican report also concedes that “[e]vidence suggests that Mayor Giuliani’s negative assessment of President Zelensky may have reinforced President Trump’s existing skepticism about Ukraine.” The Republicans, however, say repeatedly that “the Ukrainians did not see [Giuliani] as speaking on behalf of the President” but instead saw him merely as acting as a conduit for information. Their emphasis on this point seems to suggest there might be issues of propriety if Giuliani were, in fact, speaking for Trump or representing U.S. government action.

In other words, there is no dispute as to whether Trump empowered an alternative policymaking apparatus with respect to Ukraine that included his personal lawyer. There is a dispute about whether Giuliani was acting on behalf of the president and, in doing so, leveraging Trump’s official position for the benefit of his 2020 campaign. But there also appears to be little daylight between the two sides regarding Giuliani’s influence over the president’s perception of Ukraine and whether the former mayor’s actions, if executed at the wishes of the president, would be problematic.

As part of this scheme, President Trump, acting in his official capacity and using his position of public trust, personally and directly requested from the President of Ukraine that the government of Ukraine publicly announce investigations into (1) the President’s political opponent, former Vice President Joseph R. Biden, Jr. and his son, Hunter Biden, and (2) a baseless theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 U.S. election. These investigations were intended to harm a potential political opponent of President Trump and benefit the President’s domestic political standing.

There is no dispute that the July 25 call between Trump and Zelensky took place and that these requests were made. As described above, the Republicans dispute whether these requests were intended to harm Biden and benefit the president’s political standing, and they dispute whether the call memo reflects pressure. But there is no factual dispute about what was said—only an interpretive disagreement over how to understand the conversation.

President Trump ordered the suspension of $391 million in vital military assistance urgently needed by Ukraine, a strategic partner, to resist Russian aggression. Because the aid was appropriated by Congress, on a bipartisan basis, and signed into law by the President, its expenditure was required by law. Acting directly and through his subordinates within the U.S. government, the President withheld from Ukraine this military assistance without any legitimate foreign policy, national security, or anti-corruption justification. The President did so despite the longstanding bipartisan support of Congress, uniform support across federal departments and agencies for the provision to Ukraine of the military assistance, and his obligations under the Impoundment Control Act.

The Republican report concedes that “U.S. security assistance was temporarily paused” and asserts that “President Trump was skeptical of Ukrainian corruption and his Administration sought proof that newly-elected President Zelensky was a true reformer.” Importantly, the Republican report does not dispute that the order to place a hold on the aid came from Trump himself. In fact, the Republican defense of the pause in aid—that it was to allow Trump to alleviate his anti-corruption concerns about the new Ukrainian president—tends to reinforce the claim that the orders to freeze and later unfreeze the aid came directly from the president.

The Republican report does insist, however, that the U.S. government did not convey the pause to the Ukrainians because U.S. officials believed the pause would get worked out and were concerned that, if publicized, the hold might be mischaracterized as a shift in U.S. policy toward Ukraine. The document reiterates that U.S. officials said that the Ukrainian government in Kyiv never knew the aid was delayed until the Ukrainians read about it in the U.S. media in late August. While the Republican report allows that, as Defense Department official Laura Cooper testified, some Ukrainian officials in Washington were aware of the hold by July 25, they contend that “the evidence does not show that the senior leadership of Ukrainian government in Kyiv was aware of the pause until late August.”

The Republican report does not address legal questions about the pause under the Impoundment Control Act.

In short, there is no real dispute that Trump himself ordered the hold on the aid.

President Trump used the power of the Office of the President and exercised his authority over the Executive Branch, including his control of the instruments of the federal government, to apply increasing pressure on the President of Ukraine and the Ukrainian government to announce the politically-motivated investigations desired by President Trump. Specifically, to advance and promote his scheme, the President withheld official acts of value to Ukraine and conditioned their fulfillment on actions by Ukraine that would benefit his personal political interests:

  1. President Trump—acting through agents within and outside the U.S. government—conditioned a head of state meeting at the White House, which the President of Ukraine desperately sought to demonstrate continued United States support for Ukraine in the face of Russian aggression, on Ukraine publicly announcing the investigations that President Trump believed would aid his reelection campaign.
  2. To increase leverage over the President of Ukraine, President Trump, acting through his agents and subordinates, conditioned release of the vital military assistance he had suspended to Ukraine on the President of Ukraine’s public announcement of the investigations that President Trump sought.
  3. President Trump’s closest subordinates and advisors within the Executive Branch, including Acting Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, Secretary of Energy J. Richard Perry, and other senior White House and Executive Branch officials had knowledge of, in some cases facilitated and furthered the President’s scheme, and withheld information about the scheme from the Congress and the American public.

The Republicans seem to confirm both that Trump was unwilling to provide Zelensky with a White House meeting and, again, that he directed the freeze of the military aid. They do dispute Trump’s intent: “Understood in this proper context, the President’s initial hesitation to meet with President Zelensky or to provide U.S. taxpayer-funded security assistance to Ukraine without thoughtful review is entirely prudent.”

In support of the president’s “no quid pro quo” mantra, the Republican report states that “Ambassador Sondland was the only witness to allege a quid pro quo with respect to a White House meeting.” The Republicans concede, however, that according to Sondland’s testimony, “a meeting was conditioned on a public statement about anti-corruption” and that Sondland raised “investigations” at the July 10 White House meeting between U.S. and Ukrainian officials. The fact that Special Envoy to Ukraine Kurt Volker and Sondland pressured Ukraine for some kind of public statement tied to corruption does not appear to be in dispute. The Republicans do not seem to dispute that both the meeting and security assistance were conditioned on certain actions. However, they contend, “Ultimately, President Zelensky took decisive action demonstrating his commitment to promoting reform, combating corruption, and replacing Poroshenko-era holdovers with new leadership in his Administration.” After Zelesnky took those steps, says the Republican reports, Trump released the aid and met with Zelensky in New York.

There also is no dispute that Mulvaney, Pompeo and Perry facilitated or had knowledge of the president’s actions. And there is agreement that the security assistance was of paramount importance to Zelensky, especially once he realized after Politico’s Aug. 28 story that the aid was on hold. The minority’s document quotes vice presidential aide Jennifer Williams in her description of Mike Pence’s meeting with Zelensky on Sept. 1. “Once the cameras left the room,” Williams said, “the very first question that President Zelensky had was about the status of security assistance.”

The bottom line is that the Republican report disputes that there was a quid pro quo but does not dispute that Trump withheld both the meeting and the security assistance in exchange for something from President Zelensky.

In directing and orchestrating this scheme to advance his personal political interests, President Trump did not implement, promote, or advance U.S. anti-corruption policies. In fact, the President sought to pressure and induce the government of Ukraine to announce politically-motivated investigations lacking legitimate predication that the U.S. government otherwise discourages and opposes as a matter of policy in that country and around the world. In so doing, the President undermined U.S. policy supporting anti-corruption reform and the rule of law in Ukraine, and undermined U.S. national security.

To the extent that this finding involves allegations of pressure on Ukraine, it is addressed above. Specifically, the Republican report concedes that Trump was directing the so-called “Three Amigos” (although the document does not use this appellation) and Giuliani to a certain extent in their Ukraine-related activities, but the Republicans assert that this conduct was proper given the president’s authority over foreign policy. And they assert that there was no pressure put on Ukraine—just reasonable requests.

To the extent the finding alleges that Trump was not pursuing anti-corruption objectives, the point is disputed in the Republican report, which contends that the president was motivated by “a deep-seated, genuine, and reasonable skepticism of Ukraine due to its history of pervasive corruption.”

By withholding vital military assistance and diplomatic support from a strategic foreign partner government engaged in an ongoing military conflict illegally instigated by Russia, President Trump compromised national security to advance his personal political interests.

The Republicans disagree with this finding, asserting that the lethal defense aid authorized by the Trump administration demonstrates the president’s “steadfast” support of Ukraine in its fight against Russian aggression. They do acknowledge, however, that the withheld aid was of vital importance to Zelensky and his administration.

Faced with the revelation of his actions, President Trump publicly and repeatedly persisted in urging foreign governments, including Ukraine and China, to investigate his political opponent. This continued solicitation of foreign interference in a U.S. election presents a clear and present danger that the President will continue to use the power of his office for his personal political gain.

In the minority’s report, there is no mention of president’s Oct. 3 statement, in which he said the following in response to a question about what he hoped Zelensky would do about the Bidens:

Well, I would think that, if they were honest about it, they’d start a major investigation into the Bidens. It’s a very simple answer. They should investigate the Bidens…. And, by the way, likewise, China should start an investigation into the Bidens, because what happened in China is just about as bad as what happened with—with Ukraine. So, I would say that President Zelensky—if it were me, I would recommend that they start an investigation into the Bidens.

Using the power of the Office of the President, and exercising his authority over the Executive Branch, President Trump ordered and implemented a campaign to conceal his conduct from the public and frustrate and obstruct the House of Representatives’ impeachment inquiry by:

  1. refusing to produce to the impeachment inquiry’s investigating Committees information and records in the possession of the White House, in defiance of a lawful subpoena;
  2. directing Executive Branch agencies to defy lawful subpoenas and withhold the production of all documents and records from the investigating Committees;
  3. directing current and former Executive Branch officials not to cooperate with the Committees, including in defiance of lawful subpoenas for testimony; and
  4. intimidating, threatening, and tampering with prospective and actual witnesses in the impeachment inquiry in an effort to prevent, delay, or influence the testimony of those witnesses.

In so doing, and despite the fact that the Constitution vests in the House of Representatives the “sole Power of Impeachment,” the President sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own misconduct, and the right to deny any and all information to the Congress in the conduct of its constitutional responsibilities.

On the obstruction issue, there appears to be complete disagreement between the Democrats and Republicans, but the disagreement is largely optical. The minority report insists that all of what the Democrats describe as obstruction is “a legitimate response to an unfair, abusive, and partisan process, and does not constitute obstruction of a legitimate impeachment inquiry.” The Republican report, however, does not address or dispute the factual claims the Democrats make as to the president’s conduct.


In short, the disagreements between the parties are not primarily factual but interpretive. The record is, with a few important gaps, relatively clear. The question that divides the Republicans from the majority is only how offended to be by the president’s behavior and how credulous to be of his asserted interest in combating corruption in Ukraine.

Mikhaila Fogel was an associate editor at Lawfare and a research analyst at the Brookings Institution. She previously worked as a legislative correspondent for national security and foreign affairs issues in the Office of Sen. Susan Collins. She holds a bachelor’s degree from Harvard College, where she majored in history and literature and minored in government and Arabic.

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