Favorable witness faces credibility crisis

Trump’s most favorable witness faces credibility crisis

Other witnesses have contradicted the ambassador’s testimony, but proving in court that he deliberately lied to Congress could be difficult.

By KYLE CHENEY and NATASHA BERTRAND

Though Democrats are more confident than ever in their growing impeachment case against President Donald Trump, they're also setting their sights on a top Trump ally: Ambassador Gordon Sondland.

Some Democrats have begun to raise the specter that Sondland, a Republican donor who is Trump's representative to the European Union, perjured himself during his closed-door testimony to impeachment investigators earlier this month.

Testimony from other witnesses has put the credibility of Trump’s most favorable witness into serious doubt as the White House struggles to define a response to the House’s ongoing impeachment inquiry beyond simply refusing to cooperate with it.

Democrats have cited Sondland’s repeated memory lapses pertaining to central events surrounding Trump's pressure campaign to get Ukraine to investigate a political rival, Joe Biden.

They raised similar questions about Sondland’s truthfulness following the testimony last week of acting U.S. ambassador to Ukraine William Taylor, who said Sondland had conveyed to Ukrainian President Volodymyr Zelensky that the release of U.S. military assistance aid was predicated on Zelensky publicly committing to the investigations Trump demanded.

But it was the opening statement made public late Monday by Lt. Col. Alexander Vindman, Trump's top National Security Council adviser on Ukraine, that had Democrats questioning Sondland's testimony most pointedly.

Sondland testified that “neither Ambassador Bolton, Dr. Hill, nor anyone else in the NSC staff ever expressed any concerns to me about our efforts … or any concerns that we were acting improperly,” referring to former national security adviser John Bolton and former NSC senior Russia director Fiona Hill, who gave her own testimony last week.

Sondland added that if Bolton, Hill, “or any others harbored misgivings about the propriety of what we were doing, they never shared those misgivings with me, then or later.”

According to Vindman, that is not true. In his opening statement, Vindman wrote that he and Hill confronted Sondland on July 10 after a meeting with Ukraine's top national security official. And, according to Hill and Vindman, Bolton abruptly ended a meeting with Ukraine’s top national security official, Oleksandr Danylyuk, because he was disturbed about Sondland’s comments.

Vindman said he and Hill subsequently accused Sondland of "inappropriate" remarks to the Ukrainians that seemed to condition a potential White House visit for Zelensky on a promise to open Trump's desired investigations.

“I stated to Amb. Sondland that his statements were inappropriate, that the request to investigate Biden and his son had nothing to do with national security, and that such investigations were not something the NSC was going to get involved in or push," Vindman told lawmakers, according to his statement. He noted that he took his concerns to the NSC's top lawyer after the meeting.

Hill testified earlier this month that she met with NSC lawyer John Eisenberg twice, at Bolton’s urging, to relay concerns about the conversations. Both Vindman and Hill met with NSC lawyers on the same day, July 10, after Bolton cut the Danylyuk meeting short.

Sondland was careful to say in other areas of his opening statement that he did not “recall” certain incidents, rather than stating categorically that they never happened. He told lawmakers, for example, that he didn’t remember discussing the vice president or his son, or efforts to investigate them, with any State Department or White House official.

But the damage has been done. On Monday night, Rep. Joaquin Castro, a member of the House Intelligence Committee, wrote on Twitter that “based on all the testimony so far, I believe that Ambassador Gordon Sondland committed perjury.”

Sondland's attorney declined to comment on Vindman's remarks and Castro's perjury accusation.

Though Castro is the first impeachment investigator to directly accuse Sondland of perjury, other Democrats have questioned his retelling of the events surrounding his interactions with Ukrainians, which have been described by multiple witnesses as inappropriate.

Sondland, who had a direct line to Trump, assured fellow ambassadors in September text messages obtained by lawmakers that Trump was not attempting to coerce Ukraine to do his bidding by withholding a White House visit or military aid.

Sondland visited the Capitol on Monday to review the transcript of his testimony, a routine step for witnesses in congressional probes. Typically, witnesses are given the opportunity to provide supplemental testimony if they wish to add to the record or offer any clarifying or corrective statements -- though they may not alter the substance of their earlier testimony.

Perjury cases against congressional witnesses are famously difficult to prosecute. The testimony has to be shown not only to be incorrect, but also intentionally false. It has to be demonstrated that the false testimony had a material impact on an investigation.

“The conventional wisdom is that perjury is tough to prove,” said constitutional law scholar Louis Michael Seidman, who teaches at Georgetown Law. “There needs to be proof that the statement is false, that there was an intent to mislead, and that people were misled. When a witness says ‘I don’t remember,’ it’s very hard to prove that they did.”

Additionally, Seidman said, a witness can claim they were confused, misunderstood the question, or remembered incorrectly.

Ryan Goodman, a law professor at NYU, said “this kind of perjury may be easier to prove,” however.

“It sounds like Vindman’s specific recollection of events, especially including his direct confrontation with Sondland, had multiple witnesses, and is backed up by his reporting it to the National Security Council’s Legal Adviser,” Goodman said.

False statement cases are not unprecedented. Just this year, Trump associate Roger Stone was indicted on charges including obstruction of an official proceeding and five counts of false statements to Congress related to his conversations during the campaign about WikiLeaks. And last year, Trump’s former personal lawyer Michael Cohen pleaded guilty to lying to Congress about efforts to build a Trump Tower Moscow in 2016.

Those charges, however, were brought by special counsel Robert Mueller—it’s unlikely that the Justice Department would take action on a criminal referral by Democrats from an impeachment inquiry that the White House has deemed invalid.

“Would the Trump administration ever prosecute Sondland for perjury?” Seidman said. “I think you know the answer to that question!”

Still, a criminal referral from Congress “could itself do serious damage” to Sondland’s reputation, Goodman said, “even if this Justice Department does not pursue it.”

The House could also wait to make the referral until after the 2020 election, when a new administration could be taking the reins, Goodman added. And a new administration could reopen the case if it were shut down by Barr’s DOJ.

After Mueller’s probe ended, House Intelligence Chairman Adam Schiff sent a criminal referral to DOJ for Blackwater founder Erik Prince, who Schiff alleged "willingly misled" the panel during testimony in 2017 with “manifest and substantial falsehoods that materially impaired the committee's investigation.” So far, nothing has come of the referral.