‘A Conspiracy to Conceal’: Legal Experts Say Gordon Sondland’s Texts Suggest ‘Consciousness of Guilt’

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Gordon Sondland is the U.S. Ambassador to the European Union and President Donald Trump‘s unlikely though apparent patsy in the slowly unraveling Ukraine aid controversy, which has tilted public opinion toward removing Trump from office.

The political press was set ablaze on Tuesday when Sondland did not appear for his scheduled testimony before a joint committee of the U.S. House of Representatives investigating potential leads as part of the impeachment inquiry focused on the 45th president. The Trump Administration directed Sondland not to testify about the president’s “perfect” phone call. Trump claimed that was because Sondland would have been “testifying before a totally compromised kangaroo court, where Republican’s (sic) rights have been taken away, and true facts are not allowed out for the public to see.”

Buried amid the news of Sondland’s no-show are text message exchanges between Sondland and other members of the U.S. diplomatic corps that various legal experts say are evidence “consciousness of guilt” — due to the content of those messages and the way they were being shared. Others say Trump’s own characterizations of the call are also evidence of consciousness of guilt.

The relevant messages begin on September 1 when former U.S. Ambassador to Ukraine and current chargé d’affaires for Ukraine William B. Taylor asks Sondland: “Are we now saying that security assistance and WH meeting are conditioned on investigations?”

More than 30 minutes later, Sondland replies: “Call me.”

Then, on September 8, Taylor describes a worst-case scenario where Ukrainian officials meet with U.S. officials and still don’t receive aid.

Taylor tells Sondland and now-former U.S. special representative for Ukraine Kurt Volker: “The nightmare is they give the interview and don’t get the security assistance. The Russians love it. (And I quit.)”

The next day, on September 9, Taylor and Sondland are seemingly still unclear about how to get their story straight.

Taylor tells Sondland: “The message to the Ukrainians (and Russians) we send with the decision on security assistance is key. With the hold, we have already shaken their faith in us. Thus my nightmare scenario.” A follow-up message ups the ante: “Counting on you to be right about this interview, Gordon.”

Sondland appears personally affronted and replies: “Bill, I never said I was ‘right’. I said we are where we are and believe we have identified the best pathway forward. Lets hope it works.”

Taylor responds–apparently referencing his September 1 phone call with Sondland: “As I said on the phone, I think it’s crazy to withhold security assistance for help with a political campaign.”

Sondland stops responding. Then he has a conversation with President Trump and around four hours later messages Taylor back:

Bill, I believe you are incorrect about President Trump’s intentions. The President has been crystal clear no quid pro quo’s of any kind. The President is trying to evaluate whether Ukraine is truly going to adopt the transparency and reforms that President Zelensky promised during his campaign I suggest we stop the back and forth by text If you still have concerns I recommend you give Lisa Kenna or S a call to discuss them directly. Thanks.

The New York Times originally noted a few of the above exchanges in their article “Trump Envoys Pushed Ukraine to Commit to Investigating Biden” but later excised the information and moved their reporting to the article, “Texts From Top Diplomat Described ‘Crazy’ Plan to Keep Aid From Ukraine.”

Prominent legal personality and occasional journalist Luppe B. Luppen (@nycsouthpaw) tweeted about the lede-burying at work:

It baffles me why this fact isn’t treated as more significant and you have to go spelunking in news stories for it. To me, it shows consciousness of guilt regarding withholding the military assistance and the president’s personal involvement in concocting a cover story.

The legal term of art “consciousness of guilt” amounts to circumstantial evidence introduced in a court proceeding–typically by a prosecutor–which tends to support the theory that the criminal defendant knew they were guilty or otherwise doing something wrong, immoral, unethical, illegal, etc.

For example: a defendant’s false statements about where they were at the time a crime was committed would be the sort of evidence introduced to show their consciousness of guilt.

Here, the argument seems to be that Sondland was taking an inordinate amount of time to respond to Taylor’s characterization and that Sondland was only making an effort to set the record a certain way after he spoke with President Trump about the issue — Trump, of course, being the person directly implicated by the initial statement Taylor made about preconditioning aid on the Ukraine’s electoral interference.

But that’s not all.

The method by which Sondland, Taylor and Volker were discussing the Ukrainian aid scandal is also garnering scrutiny from legal experts. As it turns out, the diplomats in question weren’t taking part in a group chat using State Department-authorized devices. They were chatting on Whatsapp using their personal cell phones.

The Guardian notes:

The late night call came after Sondland handed over WhatsApp messages and other communications from his personal devices to the state department, which was refusing to provide them to the House committees holding the impeachment hearings.

And such custodial measures are a series of alarm bells in and of themselves.

“This fact is a big deal,” tweeted former assistant U.S. Attorney Christopher Alberto. “Government business is required to be conducted solely on secured government issued devices. I am almost certain – from my DOJ days – they all had government issued cell phones with them. This is consciousness of guilt evidence – a conspiracy to conceal.”

Luppen also hoisted a crimson flag in the direction of Sondland’s past efforts to conceal his political activities.

According to OregonLive, the recently-minted diplomat has no prior diplomatic or foreign policy experience. So, how did he manage such a high-profile presence in the Trump White House and land such a cushy diplomatic gig? Follow the money: “Sondland donated $1 million to the inauguration of President Donald Trump, records show, but didn’t use his own name. The donations to Trump’s inauguration were made through four Oregon and Washington companies connected to Sondland.”

[image via MANDEL NGAN/AFP/Getty Images]

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