Opening Statement of Stephen R. Castor before the House Committee on the Judiciary December 9, 2019 Good morning Chairman Nadler, Ranking Member Collins, and members of the Committee. Thank you for the opportunity to testify about the evidence gathered during the Democrats’ impeachment inquiry in the House of Representatives. At the outset, let me say that the evidence does not support the allegations that my Democrat colleagues have made, and I don’t believe the evidence leads to the conclusions as they suggest. I’m hopeful to add some important perspective and context to the facts under discussion here today. The chief allegation that the Democrats’ impeachment inquiry has been trying to assess over the last three months is this: Whether President Trump abused the power of his office—through a quid pro quo, bribery, extortion, or whatever a focus group decides to call it—by withholding a meeting or security assistance as a way of pressuring Ukrainian President Volodymyr Zelensky to investigate the President’s political rival, former Vice President Biden, for President Trump’s political benefit in the 2020 election. The secondary allegation that has been 1 levied is whether President Trump obstructed Congress during this impeachment inquiry. The evidence obtained during the impeachment inquiry does not support either of these allegations. The Republican report of evidence lays out the reasons in more detail, but I will summarize the key points in my testimony. I. Abuse of Power I will begin with the substantive allegation about an abuse of power. The impeachment inquiry has returned no direct evidence that President Trump withheld a meeting or security assistance in order to pressure President Zelensky to investigate former Vice President Biden for the President’s political benefit. Witnesses who testified in the impeachment inquiry denied having awareness of criminal activity or an impeachable offense. On the key question of the President’s state of mind, there is no clear evidence that President Trump acted with malicious intent. Overall, at best, the impeachment inquiry record is riddled with hearsay, presumptions, and speculation. There are conflicting and ambiguous facts throughout the record—facts that could be interpreted in different ways. To paraphrase Professor Turley from last 2 week, the impeachment record is heavy on presumptions and empty on proof. A. July 25th Phone Call So let me start with the best direct evidence of any potential quid pro quo or impeachable scheme. This is President Trump’s phone call with President Zelensky, for which the National Security Council and the White House Situation Room staff prepared a call summary. According to testimony from NSC Senior Director Timothy Morrison, this summary was an “accurate and complete” summary of the call. NSC staff member LTC Alexander Vindman testified that any omissions in the summary were not “significant” and that editing was not done “maliciously.” President Trump has declassified and released the call summary, so the American public can review it and assess it for themselves. But I’ll simply make a few points that seem to have gone under-noticed: 1. The call summary reflects no pressure or conditionality and President Zelensky vocalized no concerns with the subject matters discussed. There is no indication of bribery, extortion, or other illegal conduct on the call. 3 2. The call summary shows that President Trump and President Zelensky exchanged pleasantries and cordialities. The call summary even shows laughter. Simply put, the call is not the sinister “mob shake down” that some Democrats make it out to be. 3. President Trump raised his concerns about European allies paying their fair share in security assistance to Ukraine—a concern that President Trump would continue to raise both in public and in private. 4. There is no discussion on the call about the 2020 election or security assistance to Ukraine. Beyond the call summary, the next best pieces of evidence are statements from the two participants of the call: President Zelensky and President Trump. President Zelensky has said he felt no pressure on the call. On September 25, President Zelensky said “we had, I think, good phone call. It was normal. . . . [N]obody pushed me.” On October 6, President Zelensky said: “I was never pressured and there were no conditions being imposed.” On October 10, President Zelensky said there was “no blackmail” and “[t]his is not corruption. It was just a call.” In a Time Magazine interview published on 4 December 3, President Zelensky said: “I never talked to the President from the position of a quid pro quo.” Because President Zelensky would be the target of any alleged quid pro quo scheme, his statements denying any pressure should carry significant weight. Other senior Ukrainian government officials confirmed President Zelensky’s statements. Ukrainian Foreign Minister Vadym Prystaiko said on September 21, “I know what the conversation was about and I think there was no pressure.” Oleksandr Danylyuk, who was then Secretary of Ukraine’s National Security and Defense Council, told Ambassador Taylor on the night of the call that the Ukrainian government was not disturbed by anything on the call. President Trump has also said that he did not pressure President Zelensky. On September 25, President Trump said “there was no pressure.” When asked if he wanted President Zelensky to “do more” to investigate former Vice President Biden, President Trump responded: “No. I want him to do whatever he can. . . . But whatever he can do in terms of corruption, because the corruption is massive.” Several witnesses attested to the President’s concerns about Ukrainian corruption. The initial read-outs of the July 25 call, from both the Ukrainian government and the State Department, raised 5 no concerns. Although LTC Vindman noted concerns, those concerns were not shared by the National Security Council leadership, including LTG Keith Kellogg, who listened in on the call. LTG Kellogg said in a statement: “I heard nothing wrong or improper on the call. I had and have no concerns.” LTC Vindman’s superior, Tim Morrison, testified that he was concerned the call would leak and be misused “in Washington’s political process,” but he did not believe that anything discussed on the call was illegal or improper. B. Burisma and 2016 Election Influence Much has also been made about President Trump’s reference on the July 25 call to Hunter Biden’s position on the board of Burisma, a corrupt Ukrainian energy company, and to the actions of certain Ukrainian officials in the 2016 election. Democrats dismiss these as conspiracy theories to suggest that President Trump has no legitimate reason—other than his own political interests—to raise these issues with President Zelensky. The evidence, however, shows that there are legitimate questions about both issues. With respect to Burisma, Deputy Assistant Secretary Kent testified that the company had a reputation for corruption. The company was founded by Mykola Zlochevsky, who had served as Ukraine’s Minister of 6 Ecology and Natural Resources. When Zlochevsky served in that role, his company, Burisma, received oil exploration licenses without public auctions. Burisma brought Hunter Biden on to its board of directors, according to the New York Times, as “part of a broad effort by Burisma to bring in well-connected Democrats during a period when the company was facing investigations backed not just by domestic Ukrainian forces but by officials in the Obama administration.” Hunter Biden reportedly received between $50,000 and $83,00 per month as compensation for his position on Burisma’s board. At the time that Hunter Biden joined Burisma’s board, his father, former Vice President Biden, was the Obama Administration’s point person for Ukraine. The Washington Post wrote at the time that Hunter Biden’s appointment to Burisma’s board looked “nepotistic at best, nefarious at worst.” According to the Wall Street Journal, anti-corruption activists in Ukraine also raised concerns that former Vice President Biden’s son received money from Zlochevsky and worried that it would mean Zlochevsky would not be prosecuted. Witnesses in the impeachment inquiry noted how Hunter Biden’s role on Burisma’s board presented, at a minimum, a conflict of interest. LTC Vindman testified that Hunter Biden did not appear qualified to serve on Burisma’s board. Witness testified that Hunter Biden’s role on Burisma’s board was a legitimate concern to raise. 7 In fact, Deputy Assistant Secretary George Kent explained that in 2015, he raised a concern to the office of former Vice President Biden that Hunter Biden’s role on Burisma presented a potential conflict of interest. However, Hunter Biden’s role did not change and former Vice President Biden continued to lead U.S. policy in Ukraine. On this record, there is a legitimate basis for President Trump to have a concern about Hunter Biden’s role on Burisma’s board. The prospect that some senior Ukrainian officials worked against President Trump in the 2016 election draws an even more visceral reaction from Democrats. Let me say very clearly that election influence is not binary. I am not saying that it was Ukraine and not Russia; I am saying that both countries can work to influence an election. A systemic, coordinated Russian interference effort does not mean that some Ukrainian officials did not work to oppose President Trump’s candidacy. Ambassador Volker testified in his public hearing that it is possible for more than one country to seek to influence U.S. elections. Contemporaneous news articles in 2016 noted how President Trump’s candidacy led “Kyiv’s wider political leadership to do something they would never have attempted before: intervene, however indirectly, in a US election.” In August 2016, the Ukrainian ambassador to 8 the U.S. published a op-ed in an American paper criticizing candidate Trump. Other senior Ukrainian officials called candidate Trump a “clown,” a “dangerous misfit,” and alleged that he “challenged the very values of the free world.” One prominent Ukrainian parliamentarian explained that the majority of Ukraine’s political figures were “on Hillary Clinton’s side.” A January 2017 Politico article lays out in more detail efforts by Ukrainian government officials to oppose President Trump’s candidacy. The article notes how Ukraine worked to “sabotage” the Trump campaign by “publicly questioning his fitness for office.” The article detailed how a woman named Alexandra Chalupa, a Ukrainian-American contractor paid by the Democratic National Committee and working with the DNC and the Clinton campaign traded information and leads about the Trump campaign with staff at the Ukrainian embassy in Washington. Chalupa explained how the Ukrainian embassy worked “directly with reporters” to “point them in the right directions.” Witnesses in the impeachment inquiry testified that the allegation of Ukrainian influence in the 2016 election was appropriate to examine. Ambassador Volker tesitifed that he thought it was “fine” to investigate allegations about 2016 influence. Ambassador Taylor said, for example, that the allegations surprised and disappointed 9 him. On this record, I do not believe that one could conclude that President Trump had no legitimate basis to raise a concern about efforts by Ukrainians to influence the 2016 election. C. Meeting between President Trump and President Zelensky Let me now turn to the first assertion—that President Trump withheld a meeting with President Zelensky as a way of pressuring him to investigate former Vice President Biden for President Trump’s political benefit in the 2020 election. Here, it is important to note Ukraine’s long, profound history of corruption. Several witnesses in the impeachment inquiry testified to Ukraine’s endemic corruption problems. Ambassador Marie Yovanovitch, for example, said that in Ukraine “corruption is not just prevalent, but frankly is the system.” Witnesses testified to having firsthand knowledge that President Trump is deeply skeptical of Ukraine due to its corruption—dating back years—and that this skepticism contributed to President Trump’s initial hesitancy to meet with President Zelensky. Ambassador Kurt Volker testified: “So I know he had a very deeprooted skeptical view. And my understanding at the time was that even though he agreed in the meeting that we had with him, say, okay, I’ll invite him, he didn’t really 10 want to do it. And that’s why the meeting kept being delayed and delayed.” Another relevant set of facts here is the effort of some Ukrainian officials to oppose President Trump’s candidacy in the 2016 election, as I explained earlier. Some of these Ukrainian politicians initially remained in government when President Zelensky took over. Witnesses testified that these Ukrainian efforts in 2016 colored how President Trump viewed Ukraine. It is also important to note that President Zelensky was a relatively unknown quantity for U.S. policymakers. Ambassador Yovanovitch called him an “untried politician.” Dr. Hill testified that there were concerns within the NSC about President Zelensky’s relationship with Igor Kolomoisky, a controversial oligarch in Ukraine. Although President Zelensky ran on a reform platform, President Zelensky appointed Kolomoisky’s lawyer, Andriy Bohdan, as his chief of staff. Both Ambassador Volker and Senator Ron Johnson noted that this appointment raised concerns. These facts are important in assessing the President’s state of mind in understanding whether President Zelensky was truly committed to fighting corruption in Ukraine. The evidence shows that President Trump invited President Zelensky to meet at the White House on three 11 occasions—all without any conditions. The first was April 21, during the presidents’ initial congratulatory phone call. The second was via letter on May 29. This letter followed an Oval Office meeting on May 23 with the U.S. delegation to President Zelensky’s inauguration. During this meeting, President Trump again expressed skepticism about Ukraine. Ambassador Volker recalled the President saying, “these are terrible people, this is a corrupt country.” Ambassador Sondland similarly testified that Ukraine “tried to take me down” in the 2016 election. Senator Johnson confirmed this testimony in his submission to the impeachment inquiry. Finally, the third time that President Trump invited President Zelensky to meet, again without any conditions, was during the July 25 phone call. Although some time passed between May 2019, when President Trump formally invited President Zelensky to meet, and September 25, when the presidents met, the evidence does not show that the Ukrainian government felt additional pressure due to this delay. To the contrary, Ambassador Volker testified that the Ukrainian regime felt “pretty good” about its relationship with the Trump Administration in this period. During those four months, senior Ukrainian government officials had at least nine meetings or phone calls with senior U.S. officials—including meetings or calls with President 12 Trump, Vice President Pence, Secretary Pompeo, National Security Advisor Bolton, and U.S. ambassadors. The evidence does not support a conclusion that President Trump conditioned a meeting with President Zelensky on President Zelensky investigating former Vice President Biden. Andrey Yermak, President Zelensky’s close adviser, said that explicitly in an August 2019 New York Times article, which was published before the beginning of the impeachment inquiry. In this article, Yermak said that he and Mayor Giuliani did not discuss a link between a presidential meeting and investigations. Witness testimony confirms Yermak’s statement. Ambassador Volker testified “there was no linkage” between a potential meeting and investigations. Although Ambassador Sondland testified that he believed there was a quid pro quo, his testimony is not as clear as it has been portrayed. In his deposition, he testified that he believed the meeting was conditioned on a public anti-corruption statement—not on investigations themselves, a distinction that he was keen to note. He said then that “nothing about the request raised any red flags” for him. In his public testimony, Ambassador Sondland clarified that he had no firsthand knowledge of any linkage coming from the President and never discussed any preconditions with the President—he merely presumed that there were preconditions. 13 I would also like to address the July 10 meeting in Ambassador Bolton’s office with two senior Ukrainian officials. Allow me to submit that, here too, there is conflicting evidence about the facts. Both Dr. Hill and LTC Vindman testified that Ambassador Sondland raised investigations during this meeting, leading Ambassador Bolton to abruptly end the meeting. Dr. Hill testified that she confronted Ambassador Sondland over his discussion about investigations. Ambassador Sondland’s testimony about this meeting is scattered. In his closed-door deposition, he testified that no NSC staff member ever expressed concerns to him that he was acting improperly and he denied that he raised investigations during this meeting. In his public testimony, Ambassador Sondland acknowledged—for the first time—that he raised investigations but he denied that the meeting ended abruptly. He maintained that Dr. Hill never raised concerns to him and that any discussion of investigations did not mention any specific investigations. Let me lastly address the allegation that President Trump directed Vice President Pence not to attend President Zelensky’s inauguration as another way of pressuring Ukraine to investigate former Vice President Biden for the President’s political benefit in the 2020 election. Jennifer Williams, a senior adviser in the Office of the Vice President, testified that a colleague told her 14 that President Trump had directed Vice President Pence not to attend the inauguration; however, Williams had no firsthand knowledge of any such direction or the reasons given for any such direction. If indeed such a direction was given, it is not clear from the evidence that it was done for improper reasons because the Vice President’s Office was juggling other potential trips during that time and the Ukrainian parliament scheduled the election on a very short timeline. Williams explained that there were three dates—May 30, May 31, and June 1—during which the Vice President could attend the inauguration, and that “if it wasn’t one of those dates it would be difficult or impossible to attend the inauguration.” Separately, the Office of the Vice President was also planning an unrelated trip to Canada to promote the USMCA during that same window. The USMCA was—and still is—a significant priority for the Trump Administration, and Vice President Pence had done a number of public events in support of it. President Trump was also planning foreign travel for the same period and, as Dr. Hill testified, both the President and Vice President cannot both be out of the country at the same time. Williams explained that these factors created a “narrow window” for the Zelensky inauguration. Dr. Hill testified that she had no knowledge that the Vice President was directed not to attend the inauguration. 15 On May 16, the outgoing Ukrainian parliament scheduled the inauguration for May 20—only four days later. May 20 was not one of the three dates that the Vice President’s Office had provided for his availability to attend the inauguration. Williams testified that this early date surprised the Vice President’s Office “because we weren’t expecting the Ukrainians to look at that timeframe.” Deputy Assistant Secretary of State George Kent said that this short notice from the Ukrainians forced the State Department to “scramble” to find a U.S. official to lead the delegation, finally settling on Secretary of Energy Rick Perry. On May 20, the day of President Zelensky’s inauguration, Vice President Pence was in Jacksonville, Florida, for an event promoting the USMCA. Finally, on September 25, President Trump and President Zelensky met during the United Nations General Assembly in New York. The two met without Ukraine ever taking action on investigations. According to Ambassador Taylor, there was no discussion of investigations during this meeting. D. U.S. Security Assistance to Ukraine I will turn now to the second assertion—that President Trump withheld U.S. taxpayer-funded security assistance to Ukraine as a way of pressuring President 16 Zelensky to investigate former Vice President Biden for President Trump’s political benefit in the 2020 election. Here too, context is critically important. President Trump has been skeptical of foreign assistance in general and believes quite strongly that our European allies should share more of the financial burden for regional defense. That’s an assertion he made on the campaign trail as a candidate, something he raised on the July 25 phone call with President Zelensky, something he raised on his August 31 phone call with Senator Johnson, and something that he noted just last week when he was in London for the NATO conference. It is also important to note that U.S. security assistance is conditioned to countries around the world and that U.S. aid—including aid to Ukraine—has been temporarily paused in the past for various reasons and even for no reason at all. Ambassador Volker testified that the 55-day pause on security assistance did not strike him as uncommon and that the pause “was not significant.” Dr. Hill and Catherine Croft both testified that security assistance to Ukraine, specifically, had been temporarily paused in the past. In fact, Ambassador David Hale, the Under Secretary of State for Political Affairs—the third most senior official at the State Department—testified that the NSC had launched a review of U.S. foreign assistance across 17 the world to make sure U.S. taxpayer dollars were spent in the national interest and to advance the “principle of burden sharing by allies and other like-minded states.” Dr. Hill testified that as she was leaving the NSC in July, “there had been a directive for a whole-scale review of our foreign policy assistance and the ties between our foreign policy objectives and the assistance.” She said “there had been more scrutiny” on security assistance as a result. Another important data point is President Trump’s willingness to take a stronger stance in supporting Ukraine against Russian aggression and occupation than the previous administration. Several witnesses testified that President Trump’s willingness to provide Ukraine with lethal defensive assistance—Javelin anti-tank missiles—was a “substantial improvement,” a “stronger” policy, and “significant” decision. When we discuss Democrat allegations that President Trump withheld “vital” security assistance dollars from Ukraine, we should also remember that it was President Trump—and not President Obama or former Vice President Biden— who provided Ukraine with lethal defensive weapons. I make all of these points at the outset here because there are relevant pieces of information that bear on how the House should view the evidence in question. 18 Although the security assistance was paused in July 2019, the evidence is virtually silent on the reason for the pause. In fact, the only direct evidence of the reasons for the pause comes from OMB official Mark Sandy, who testified that he learned in September that the pause was related “to the President’s concern about other countries contributing more to Ukraine.” He explained how OMB received requests for information on what other countries were contributing to Ukraine, which OMB provided in the first week of September. The aid was released, of course, on September 11. Several witnesses testified that the security assistance was not linked to Ukraine investigations. Ambassador Volker’s testimony is particularly relevant on this point, because he was a key intermediary with the Ukrainian government and someone who they trusted and sought out for advice. Ambassador Volker testified that he was aware of no quid pro quo and the Ukrainians never raised concerns to him about a potential quid pro quo. When Ambassador Taylor raised the possibility of a quid pro quo to Ambassador Volker, Ambassador Volker said that he replied “there is no linkage here.” During his closeddoor deposition, Chairman Schiff tried to pin him down on this point, but Ambassador Volker was clear there was no connection. In his public testimony, Ambassador Volker reiterated there was no linkage. Similarly, Deputy Assistant Secretary Kent said he did not “associate” aid to 19 investigations and he relayed how Ambassador Taylor told him that Tim Morrison and Ambassador Sondland also believed the two were not linked. Ambassador Sondland’s testimony, as we have seen already, is a bit more scattered. In his deposition, he said that he was “never” aware of preconditions on security assistance or that the security assistance was tied to investigations. Ambassador Sondland then later provided a written statement supplementing his deposition, in which he explained for the first time that in the absence of any clear explanation, he presumed a link between security assistance and an anti-corruption statement. Ambassador Sondland also attested in his written supplement that he likely voiced this connection to Andrey Yermak, a close adviser to President Zelensky, on September 1 in Warsaw. Yermak, however, in a subsequent Bloomberg interview published on November 22, disputed Ambassador Sondland’s account and said that he “doesn’t remember any reference to military aid.” In his public testimony, Ambassador Sondland reiterated that his testimony was based on a presumption, acknowledging that “no one on this planet” told him that the security assistance to Ukraine was conditioned on investigations. Ambassador Taylor is the other relevant actor here. He testified in his deposition that he had a “clear 20 understanding” that Ukraine would not receive the security assistance until President Zelensky committed to investigations. However, in his public testimony, Ambassador Taylor acknowledged that his clear understanding came from Ambassador Sondland, who was merely presuming that there was a link between security assistance and investigations. President Trump, too, rejected any linkage between security assistance to Ukraine and investigations. The President’s statements in this regard ought to be particularly persuasive because he made the same statement in two separate private conversations with two separate senior U.S. officials ten days apart, and there would be no reason for the President to be anything less than completely candid in these conversations. On August 31, President Trump spoke by phone with Senator Ron Johnson, who was traveling to Ukraine in the coming days and sought the President’s permission to tell President Zelensky that the security assistance would be forthcoming. President Trump responded that he was “not prepared” to lift the pause on aid, citing Ukrainian corruption and burden-sharing among European allies. When Senator Johnson raised the potential linkage between security assistance and investigations, President Trump vehemently denied any connection, saying: “No way. I would never do that. Who told you that?” In 21 closing the call, President Trump told Senator Johnson that “we’re reviewing it now”—referring to the security assistance—“and you’ll probably like my final decision.” This statement strongly suggests that President Trump was already leaning toward lifting the pause as of August 31. Separately, on September 9, President Trump spoke by phone with Ambassador Sondland. Ambassador Sondland asked the President, “what do you want from Ukraine?” President Trump responded: “I want nothing. I want no quid pro quo. I want Zelensky to do the right thing,” meaning “I want him to do what he ran on.” President Zelensky had, of course, ran on an anticorruption platform. In addition, senior Ukrainian government officials denied any awareness of a linkage between U.S. security assistance and investigations. These denials are persuasive because if there was, in fact, an orchestrated scheme to pressure Ukraine by withholding security assistance, one would think that the pause on security assistance would have been clearly communicated to the highest levels of the Ukrainian government. The Ukrainian Foreign Minister, Vadym Prystaiko, told the media in November—following news of Ambassador Sondland’s written supplemental testimony—that Ambassador Sondland never linked security assistance to 22 investigations. Minister Prystaiko said: “I have never seen a direct relationship between investigations and security assistance.” Although there is some testimony that Ukrainian officials from the embassy in Washington made informal inquiries to the State Department and Defense Department about the “issues” with security assistance in July and August, the evidence does not show that President Zelensky or his senior advisors in Kyiv were aware of the pause until it was publicly reported by Politico on August 28. The two U.S. diplomats closest to the Ukrainian government—Ambassador Volker and Ambassador Taylor—both testified that the Ukrainian government in Kyiv did not know of the pause until it was publicly reported. A subsequent news article explained the conflicting testimony that embassy officials in Washington had made informal inquiries about “issues” with the aid while senior officials in Kyiv denied awareness of the pause. The article explained that the then-Ukrainian Ambassador, who was appointed by President Zelensky’s predecessor, went “rogue” and did not inform President Zelensky there was any issue with the security assistance. According to the article, President Zelensky and his senior team only learned of the pause when it was reported on August 28 in Politico. As Ambassador Volker testified, because senior 23 Ukrainian officials were unaware of the pause on security assistance, “there was no leverage implied.” The actions of senior Ukrainian government officials while the security assistance was paused reinforces a conclusion that they did not know the aid was paused. In the 55 days during which the security assistance was temporarily paused, President Zelensky had five discussions with senior U.S. officials. On July 25, he spoke with President Trump. On July 26, he met with Ambassador Volker, Ambassador Taylor, and Ambassador Sondland. On August 27, he met with Ambassador Bolton. On September 1, he met with Vice President Pence. And on September 5, he met with Senator Johnson and Senator Murphy. In none of these meetings did President Zelensky raise any concern about linkage between security assistance and investigations or about pressure to investigate the President’s political rivals. In particular, the September 5 meeting with Senator Johnson and Senator Murphy is notable because they are not part of the Trump Administration and President Zelensky could be completely candid with them. What did occur within those 55 days were historic efforts by Ukraine’s parliament, called the Rada, to implement anti-corruption reform. Among other initiatives, the parliament removed parliamentary 24 immunity, which witnesses testified had long been a source of corruption in Ukraine. Vice President Pence had pressed President Zelensky about these reforms during their September 1 meeting. In their depositions, Ambassador Taylor lauded President Zelensky’s rapid reforms and NSC official Tim Morrison testified that during a meeting in Kyiv he noted that “everybody on the Ukrainian side of the table was exhausted, because they had been up for days working on, you know, reform legislation.” On September 11, President Trump discussed the matter with Vice President Pence, Senator Rob Portman, and Chief of Staff Mick Mulvaney. According to Tim Morrison’s testimony, they discussed whether Ukraine’s progress on anti-corruption reform was enough to justify releasing the security assistance. Morrison testified that Vice President Pence “was obviously armed with his conversation with President Zelensky and they convinced the President that the aid should be disbursed immediately.” The President decided to lift the hold later that night. Of course, Ukraine never acted to initiate any investigations. In concluding this point, we have considerable evidence that President Trump was skeptical of Ukraine due to its corruption. We have evidence that the President was skeptical of foreign assistance in general and that he 25 believes strongly that our allies should share the burden for regional defense. We know that the White House was reviewing foreign assistance in general to ensure it furthered U.S. interests, and that OMB researched and provided information about which foreign countries were contributing money to Ukraine. President Trump told Senator Johnson on August 31 “we’re reviewing it now” and “you’ll probably like my final decision,” and he told Ambassador Sondland on September 9 “I want Zelensky to do what he ran on.” President Zelensky, who had run on an anti-corruption platform, was an untried politician with ties to a controversial oligarch. Vice President Pence reiterated to President Zelensky on September 1 the need for reform. After President Zelensky passed historic anticorruption reforms, the pause on security assistance was lifted and the presidents met two weeks later. The Ukrainian government never took any action on investigations at issue in the impeachment inquiry. E. “Shadow” Foreign Policy Apparatus Much has been made about a so-called “shadow” or “irregular” foreign policy apparatus that President Trump is alleged to have orchestrated as a mechanism to force Ukraine to initiate investigations. The Democrats’ allegation is that President Trump conspired to recall Ambassador Yovanovitch from Ukraine so that his “agents” could pursue a scheme to pressure Ukraine to 26 conduct political investigations. There are logical flaws with these allegations, which I will address briefly. First, every ambassador interviewed in the impeachment inquiry acknowledged that the President has an absolute right to recall ambassadors for whatever reason because ambassadors serve at the pleasure of the President. It is apparent that President Trump lost confidence in Ambassador Yovanovitch and it simply is not an abuse of power for him to recall her. Beyond that, however, the Trump Administration replaced Ambassador Yovanovitch with Ambassador Taylor, who became one of the first State Department officials to voice concerns about a potential quid pro quo and wound up as the Democrats’ star witness. If President Trump truly sought to remove Ambassador Yovanovitch as part of a nefarious plan, he would not have replaced her with someone as experienced as Ambassador Taylor. Second, the three U.S. officials who comprised the “shadow” foreign policy apparatus—Ambassador Volker, Ambassador Sondland, and Secretary Perry—can hardly be called “irregular.” All were senior U.S. officials with official interests in Ukraine policy. The three kept the State Department and the NSC informed about their activities. 27 Finally, there is evidence that Mayor Giuliani did not speak on behalf of the President. According to a news article on November 22, Yermak asked Ambassador Volker to connect him with Mayor Giuliani because the Zelensky team was surprised by the Mayor’s negative comments about Ukraine and wanted to change his mind. Both Ambassador Volker in his deposition and Yermak in an August New York Times article denied that Mayor Giuliani was speaking on behalf of President Trump as his agent. Instead, as Ambassador Volker explained, the Ukrainian government saw Mayor Giuliani as a conduit through which they could change the President’s mind about Ukraine and convince him that President Zelensky was a true reformer. II. Obstruction of Congress The second allegation at issue is whether President Trump obstructed Congress by not agreeing to all of the Democrats’ demands for documents and testimony. As a 14-year veteran of congressional investigations, I strongly believe in Congress’s Article I authority to oversee the Executive Branch. But this impeachment inquiry departed drastically from past bipartisan precedents for presidential impeachment as well as the fundamental tenets of fair and effective congressional oversight. I do not believe the impeachment record supports an obstruction charge. 28 First, process matters. The bipartisan Rodino/Hyde precedent guaranteed fundamental fairness and due process. It allowed substantive minority participation and participation from the President’s counsel in the factfinding. Neither aspect was present here. Democrats denied us witnesses we asked him to call. Democrats voted down subpoenas we sought to issue for both documents and testimony, and I’ll note Democrats never brought to a Committee vote any of the subpoenas they issued. Democrats directed witnesses not to answer questions posed by me and Republican Members. These sorts of actions delegitimize the inquiry and do not give witnesses—or the President—confidence that the inquiry will be objective and fair. Second, the President or any potential witness to this impeachment inquiry should be allowed to raise defenses without it being used as an adverse inference against him. Courts have held that the Constitution mandates an accommodations process between the branches in this sort of inter-branch dispute. For this reason, the congressional oversight process is a time-intensive endeavor that requires both sides to give in a little. Here, however, the initial letters from the Democrats instructed potential witnesses that if they did not cooperate in full, it “shall constitute evidence of obstruction.” The Democrats wanted all of their demands honored immediately and were unwilling to consider the Executive Branch’s 29 privileges or defenses, and that is just not how the process works. Third, the Democrats’ artificially fast timeline prevented the impeachment inquiry from fully developing all of the facts. It also prevented the House from exhausting all of its options to entice witnesses or agencies to cooperate. The House has not held any witness or individual in contempt of Congress for failing to comply with a subpoena during this inquiry. The House has not pursued any enforcement action in federal district court to enforce subpoenas against witnesses or agencies as part of the impeachment inquiry. These steps are important because, often times, the threat of contempt or civil action incentivizes a party to cooperate. In the one case where a witness sought guidance from a federal court on the competing demands of a congressional subpoena and executive branch directive, the House actually withdrew the subpoena rather than wait for the court to decide and potentially obtain the testimony. Finally, factually, there is no basis for obstruction. The one witness who said he spoke to President Trump about his appearance as a witness—Ambassador Sondland—testified that the President told him to cooperate and to tell the truth. The President has declassified and released the summary of his July 25 and April 21 phone calls with President Zelensky. The White 30 House wrote to Speaker Pelosi that it was willing to cooperate further if the House returned to “wellestablished bipartisan constitutional protections and a respect for the separation of powers.” As we know, the House did not provide such protections. III. Conclusion In closing, I’d like to briefly address the Democrats’ narrative as articulated in their report. The Democrat narrative virtually ignores any evidence that is not helpful to their case. It ignores, for instance, Ambassador Sondland’s testimony that he presumed there was a quid pro quo and it ignores the many public statements made by Ukrainian officials that undercut the Democrats’ narrative. The Democrat report presents a story as if the evidence is clear when in reality it is anything but. The Democrat narrative takes an inherently ambiguous set of facts and tells a story by tying those facts together using assumptions and inferences that are always negative to the President. But under careful scrutiny, there is not solid, direct, firsthand evidence that grounds the Democrats’ narrative in reality. And the Democrats have gone to great lengths to gather information to build their case. Democrats have even obtained and released phone records relating to communications of the President’s personal attorney, 31 Members of Congress, and a journalist. There are additional phone records that Democrats have not yet released. Our Members are concerned that this is an abuse of power. There has been a lot of hyperbole and hysteria over the last three months about this impeachment inquiry and the underlying facts. I believe a lot of this can be traced back to the anonymous whistleblower complaint that sparked this endeavor. The whistleblower acknowledged that he or she did not have firsthand information about most of the facts in question, which caused wild speculation and overstatements about what occurred. Multiple witnesses testified that they disagreed with the whistleblower’s characterization of events. Beyond the evidence, the whistleblower reportedly had a professional relationship with former Vice President Biden—a bias that could taint his or her perception of events. The whistleblower also allegedly provided a secret early account of his or her concerns to Democrat staff on the Intelligence Committee, which also raises concerns. Despite multiple requests, Republicans were denied the opportunity to interview the anonymous whistleblower to assess his or her credibility and potential biases. Finally, some have likened the impeachment inquiry to a special prosecutor’s investigation. If one accepts that comparison, one should accept it in all respects. Special 32 prosecutors testify. Ken Starr testified before this Committee in 1998 and Robert Mueller testified here just this past July. They did not send their staff. Although I am, of course, more than willing to make this presentation to the Committee today under the format presented by the Majority, I am not a principal in this inquiry, and neither is Mr. Goldman. To substitute staff for the elected representatives of the American people, I believe, denies transparency and accountability for the processes and conduct of this impeachment inquiry in the House of Representatives. Thank you for the opportunity to testify. I am happy to answer your questions. 33