What We Learn From the Ugly Dual Loyalty Slander Against Lt. Col. Vindman

by Michael C. Dorf

Donald Trump's tweet in response to the testimony of Lieutenant Colonel Alexander S. Vindman on Tuesday was despicable; yet remarkably, it was not nearly as outrageous as comments by Trump-friendly talking heads. Below I'll connect the smear by former Congressman Sean Duffy, FoxNews host Brian Kilmeade and others to controversy over statements by Congresswoman Ilhan Omar as well as to the nature of partisanship in our current era.

Let's begin with Trump's tweet. He wrote:
Supposedly, according to the Corrupt Media, the Ukraine call “concerned” today’s Never Trumper witness. Was he on the same call that I was? Can’t be possible! Please ask him to read the Transcript of the call. Witch Hunt!
Put aside the perfunctory "Corrupt Media" and "Witch Hunt" branding. There are three main problems here. First, there is no evidence that Vindman is a "Never Trumper" beyond the fact that he testified in a way that is harmful to Trump. I'll have more to say about this point below.

Second, the "Transcript of the call" does not exist. The White House has released a "rough transcript" of the call, which includes ellipses. As the NY Times reported on Wednesday, the rough transcript leaves out Trump's specific references to supposedly damning recordings of Joe Biden and a reference by Ukrainian President Zelensky to Burisma Holdings, the company for which Hunter Biden worked. These omissions are important because their inclusion would have made even clearer that Trump was single-mindedly focused on getting Zelensky to dish dirt on Biden, rather than simply pursuing his (equally debunked) conspiracy theory that Ukraine, not Russia, meddled in the 2016 election. Moreover, according to the Times story, Vindman's efforts to correct the rough transcript to add omitted references were rebuffed.

Third, even taking the rough transcript at face value, Trump is simply peddling his latest big lie, hoping that repeated assertions that he didn't say anything problematic will carry enough weight with Republican primary voters to prevent a supermajority of Senators from voting to remove him. And the rough transcript does not stand alone. By now the House Intelligence Committee has heard from a collection of witnesses who have stated that the phone call was part of a larger pressure campaign--including the withholding of appropriated funds. With the latest House action, much of this will soon be public, but what is already public is more than sufficient evidence that, in keeping with everything we know about his character, Trump misused US government power and subverted the national security interest for private political gain.

Still, Trump's enablers have done worse. Duffy, Kilmeade, and others argue that because Vindman immigrated to the US from Ukraine, he cannot be trusted--even though he was brought here by his parents as a toddler and despite the Purple Heart he earned fighting for the US in Iraq. Duffy sought to obscure the libel by applying it to himself: his own Irish heritage, he said, would create a similar problem for himself. But one does not lessen a calumny by admitting one's own sins.

Republicans (and a great many Democrats too) were quick to criticize Rep. Omar earlier this year for her suggestion that American Jews place the interests of Israel above the interests of the United States. They roundly agreed with the view that the dual loyalty charge is anti-Semitic. And that's because the charge of dual loyalty is actually a charge of disloyalty to the US. Based on a religious/ethnic stereotype, the dual loyalty charge asserts that Jews aren't patriotic Americans. If that's odious--and it is--then it is also odious to charge that because someone is a Ukrainian American, he cannot be a patriotic American. And therefore any Republicans (or others) who criticized Omar for the dual loyalty charge but are untroubled by the claims when made against Vindman have demonstrated that they were not actually bothered by Omar's use of an antisemitic trope; they're just opportunistic hypocrites.

Meanwhile, the dual loyalty charge against Vindman is not just defamatory. It's also a distraction. In a Fox News segment hosted by Laura Ingraham featuring Professors Alan Dershowitz and John Yoo, Yoo opined that Vindman might have committed espionage because he reportedly advised the Ukrainians how to deal with Rudy Giuliani even while he was serving on the White House national security team. That's an explosive and reckless charge, but at least one could say on Yoo's behalf that he based it on what Vindman reportedly did, not based on where Vindman was born. But that's also all one can say on behalf of Yoo here, because Yoo's wild speculation that Vindman was somehow a double agent for Ukraine (planted in the US as a toddler when Ukraine was part of the Soviet Union) is that it really has nothing to do with the underlying question whether Vindman is now telling the truth about what he heard Trump say. The only apparent reason why Ingraham brought up what she called the "interesting" fact that the Ukrainians were so baffled by Giuliani's machinations that they turned to Vindman was apparently to cast aspersions on Vindman, thereby distracting the audience from what Vindman actually reported.

Put differently, the White House and its apologists have two go-to moves: (1) Complain that the impeachment inquiry lacks due process because it follows different rules from a criminal trial (about which more in the future); and (2) Declare that anyone who says anything damaging to Trump is ipso facto a Never Trumper, Deep Stater, closet Democrat, or otherwise an anti-Trump partisan, even if that person was praised and then named by Trump to the very position in which she or he had a chance to witness Trump's misdeeds. And that brings me to a final point about partisanship more broadly.

In my Verdict column this week, I discussed a proposal by Professors Daniel Epps and Ganesh Sitaraman to change the size and selection method for justices of the SCOTUS. To depoliticize the Court, they would have Congress enact legislation providing that the Court consist of five Republican appointees, five Democratic appointees, and five "neutrals" chosen by the other ten. I explain that politicization of the Court is hardly a new problem and that to the extent that it has gotten worse in recent years, that's a function of polarization in our political system rather than the appointments process itself.

The attack on Vindman provides another window into why the Epps/Sitaraman proposal would likely fail: even assuming the ten political appointees could agree on five "neutral" justices, as soon as the neutrals issued opinions, they would be perceived and denounced as partisans. An 8-7 ruling against Trump by, say, five Democrats plus three neutrals would quickly lead to Trump denouncing the majority as "Eight angry Democrat so-called judges" or Never Trumpers. Mere disagreement would itself be taken and then offered as proof of partisan bias.

Might that dynamic subside in a post-Trump world? One would hope, but Trump did not invent polarization, and the fact that so many people are willing to deploy the tactic of accusing anyone who says something they don't like of bias and partisanship suggests that the post-truth era will outlast Trump.