As the public impeachment hearings concluded Thursday, National Security Council official Fiona Hill’s testimony echoed and reinforced the concerns that have been raised by other members of the foreign service who have testified about how the president diverted from official administrative channels in dealing with foreign leaders. But that testimony from current and former members of the administration risks pulling Democrats away from what should be the focus of their inquiry, namely the president’s unprecedented withholding of foreign military aid to try and compel a foreign power to investigate a domestic political foe.
The hearings instead often seemed to focus on Donald Trump’s shadow diplomacy, as witnesses stressed their concerns about how the “official foreign policy” of the U.S. could have been undercut through the use of “irregular” and unofficial channels that cut out the foreign service staff and contradicted official policy. Even coverage of the impeachment hearings in legal circles often seems to frame the impeachable act as the president’s attempts to communicate with the foreign leaders “outside of the regular channels of the government,” and in contravention of “normal policy process.”
Thursday’s concluding testimonies highlighted the Democrat’s members’ eagerness to pursue this line of attack, as their counsel, Daniel Goldman, poked and prodded witnesses: Which members of the diplomatic staff were excluded from one-on-one meetings with the Ukrainian president and his aides, and why? Did the president routinely disregard the advice of his senior officials in favor of following Rudy Giuliani’s advice? What internal protocols were ignored in scheduling and carrying out discussions with Ukrainians?
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While all that may resonate with Americans who have long been disturbed by the undue influence of Trump’s family, business clients, and close confidants, those developments, which have many precedents in our history, are not a sound legal basis for impeachment.
Past presidents have routinely resorted resorted to shadow diplomacy, at times driven by an escalated need for secrecy or by pure paranoia and mistrust of their own staff. There are enough examples of past presidential conduct that closely resemble President Trump’s approach in this case to exonerate him in an area of law where history often dictates the legal standards.
Contentious relationships between presidents and their foreign service staff are as old as America. During his presidency, George Washington preserved his unofficial line of communication with many foreign officials and friends, in some instances even asking them for favors that would have benefited him financially in his personal capacity. For example, in writing to Arthur Young, an agricultural official in England, Washington solicited his help to find tenants for his real estate in America, and urged Young to keep the communication private knowing that some might find “impropriety” in the communication.
The extensive record of early U.S. presidents reaching out to and relying on contacts outside of their own administration to conduct foreign policy is not surprising. The Founders wrote a Constitution for early administrations they knew were to be made up of political rivals. (Until 1804, the vice presidency was reserved for the runner-up of each presidential election, effectively ensuring that infighting and disagreement resided at even the highest rungs of the state). The first administrations immediately following the ratification of the Constitution were overrun by a sense of distrust and heated disagreements, closely resembling President Trump’s dislike of what he derides as the “deep state” within his own administration. The founders did not view it as unusual for even the topmost secretaries in the cabinets to openly solicit assistance from outside the administration to undermine internal policies endorsed by the president.
No other president’s approach to foreign policy exemplified the notorious aspects of shadow diplomacy more so than that of John Adams. His affinity for secret diplomacy blossomed when he was vice president to Thomas Jefferson, and continued into his presidency. As conflict between France and the U.S. was intensifying, President Adams circumvented Secretary of State Timothy Pickering to establish an unofficial diplomatic channel to France and continued to maintain his secret channels during his presidency. Adams’ secret private network was made up of personal friends, business clients, and family members—many of whom had commercial and business interests in the issues they consulted on for the administration. By advising John Quincy Adams, at the time a diplomat in Europe, to “write freely to [him] and cautiously to the office of state,” the president effectively encouraged his son to conceal the information he wished to communicate from the officials in the State Department. Adams went on to accentuate his point by expressing his distrust and lack of faith in the trustworthiness of his official diplomatic corps. For most of Adams’s presidency foreign policy continued to be dictated by the “shadow state department” made up of Adams’s personal friends and informants abroad.
Other presidents, including Jefferson, also circumvented the State Department by setting up an alternative system of private correspondence and holding private and confidential letters in their own personal custody as opposed to State Department files. In all instances, communications with the secret members of a “shadow cabinet” served two distinct purposes: it satisfied the president’s desire to corroborate the information he’d receive from a cabinet of would-be political opponents, and it provided more flexibility in concealing information and records from congressional inquiry.
This practice endured. FDR relied on his personal friend Harry Hopkins so heavily for conducting foreign negotiations, that to the chagrin of his State Department, Hopkins came to be known as “Roosevelt’s own personal foreign office.” One of President Truman’s most significant foreign policy decisions—the recognition of the state of Israel—was achieved through shrewd use of shadow diplomacy. Truman’s State Department, under Secretary George Marshall, was against the establishment of the State of Israel, and when Truman gradually changed his mind, he heavily relied on his old business partner, Eddie Jacobson, to communicate with Zionist leaders and organizations through private channels. President Nixon’s close adviser Henry Kissinger constructed an intricate web of back channels to Moscow that shaped the foundation of the Administration’s Soviet policy.
The historical record makes clear that our founders did not envision the president’s use of a secret cabal to conduct foreign policy as an impeachable offense. While Democrats have devoted time and energy to that line of inquiry, it does directly relate to what should be the key issue here: the use of that secret channel to try and force another nation to undermine the president’s domestic political opponents.
The task of defining the exact conduct that Congress views as impeachable will prove as critical as piecing together the story.
