The recent whistleblower complaint has, once again, prompted Democrats in Congress to call for his impeachment. The allegations in the recently released complaint appear to deal with one or more telephone conversations between President Trump and Volodymyr Zelensky, the president of Ukraine. On Wednesday, a transcript of the telephone call between Trump and Zelensky was released. While some in Congress appear to view the president’s alleged conduct as impeachable, this conclusion is unsupported and can lead to risky precedent.
The push for impeachment amongst Democrats stems from a telephone conversation that Trump had with Zelensky. As reported by NBC News:
The recent impeachment drive follows days of revelations surrounding Trump’s apparent push to have the Ukrainian government investigate former Vice President Joe Biden’s son Hunter, who had business dealings in the country.
On Monday, The Washington Post and other media outlets reported that Trump instructed his chief of staff to place a hold on about $400 million in military aid for Ukraine in the days before a late July phone call with Ukrainian President Volodymyr Zelensky.
In other words, Democrats appear to believe that Trump used his position as president to force/pressure Zelensky into investigating Biden by threatening to withhold funds to the country. However, the recently released transcript fails to support this conclusion. More particularly, the transcript fails to provide any compelling evidence that the president engaged in any quid pro quo arrangement with Zelensky, or that he conditioned payment/funding on Zelensky’s decision to investigate Biden (or for any other purpose). As a matter of fact, Foreign Minister Vadym Prystaiko denied that there any pressure was exerted, as did Zelensky.
Moreover, the recently released Declassified Whistleblower Complaint makes it clear that the “Whistleblower” was not a direct witness to most of the events described in the Complaint. In other words, the Complaint relies on hearsay allegedly derived from “U.S. officials” and/or public reporting.
According to Article 2, Section 4 of the Constitution, a president can be impeached if he/she commits treason, bribery or other high crimes and misdemeanors. While the impeachment process is fairly straightforward, the House should only impeach a president if there is an impeachable offense. As Trump’s alleged conduct did not amount to treason (contrary to what some have alleged) any articles of impeachment would likely be brought under the bribery and/or high crimes and misdemeanors categories.
The federal bribery statute makes it a crime for a public official to demand anything of value in exchange for performing an official act. A statute known as the Hobbs Act defines extortion as obtaining property from another, with his consent, under color of official right. “Property” is defined to mean anything of value, tangible or intangible. The essence of both crimes is a demand by a public official to obtain something for himself to which he is not entitled in exchange for performing an official act of his office.
Democrats have argued that Trump committed bribery and/or extortion by using the power of his office to demand information on Biden in exchange for funding/aid. Of course, there is no proof that Trump conditioned funding on the receipt of information about Biden, and the recently released transcript appears to debunk this theory. Of particular relevance, the transcript reveals the following exchange between the two leaders:
“There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it…It sounds horrible to me.”
“He or she will look into the situation specifically to the company that you mentioned in this issue, the issue of the investigation of the case is actually the issue to restore the honesty so we will take care of that and we will work on the investigation of the case.”
“I will have Mr. Giuliani give you call and I’m also going to have Attorney General Barr call and we will get to the bottom of it. I’m sure you will figure it out.”
In addition to this exchange, the two leaders briefly discussed Crowdstrike and Ukraine’s possible role. What is notably absent from this discussion is any mention of funding, let alone the threat to withhold funding, or any other type of promise (apparently, Barr never called Zelensky, as Democrats were trying to push the theory that Trump improperly promised to help Zelensky by offering Barr’s services). This goes against the Democrats’ argument that Trump engaged in a quid pro quo exchange.
There is also no compelling evidence that Trump pressured Zelensky to re-open the Biden investigation. As a matter of fact, the investigation into Biden started years ago and was subsequently re-opened at the request of the current Ukrainian prosecutor general, not at Trump’s request. Moreover, according to Fox News legal analyst, Gregg Jarrett:
“The president is duty-bound under the ‘take care’ clause of the Constitution, if he knows of a potential corrupt act by a vice president trying to extort a foreign country to shut down a probe that involves his son, that’s bribery, honest services fraud,” Jarrett claimed, pushing a baseless claim. “If he doesn’t do it, it is a dereliction of his Constitutional duty.”
Whether or not the “take-care” clause applies under these circumstances is debatable and depends, in part, on how broadly or narrowly a court interprets this clause.
In addition to bribery, Democrats allege that the president’s conduct amounts to a high crime or misdemeanor. The term high crimes and misdemeanors is not easily defined. However, former president Richard Nixon’s case helped to define the types of crimes within this category:
During the Nixon impeachment process, the House Judiciary Committee staff argued that “high crimes and misdemeanors” historically meant offenses like “misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust.” They added that in Britain, impeachable offenses “had no roots in the ordinary criminal law.”
Indeed, the three articles of impeachment approved by the committee involved offenses in line with this definition: obstruction of justice, abuse of power, and defiance of subpoenas.
In line with this guidance, the most likely argument that Democrats would probably pursue is that the president’s alleged conduct amounted to an abuse of power in that he used his position and the threat of withholding aid/funding to pressure a foreign official to re-open an investigation into a political opponent.
There are several potential obstacles/problems with this argument. The first major obstacle to this argument is that the recently released transcript does not support it in any shape or form, as discussed above. Second, the alleged whistleblower didn’t have direct knowledge of the communications (this was confirmed in the recently released Whistleblower Complaint) and had “indications of “political bias” in favor of “a rival candidate” of the president.” Therefore, the information is based on hearsay and is of questionable reliability and/or admissibility. Third, there is no evidence at the present time that Trump pressured anyone to re-open the investigation into Biden. Rather, “new details about Hunter Biden’s involvement, and a decision this year by the current Ukrainian prosecutor general to reverse himself and reopen an investigation into Burisma, have pushed the issue back into the spotlight just as the senior Mr. Biden is beginning his 2020 presidential campaign.”
In other words, at the present time, there is simply no proof that the president engaged in any impeachable conduct. This is likely the reason why Adam Schiff falsely summarized/made up what Trump allegedly said to Zelensky in his opening remarks during the House Intelligence hearing with acting Director of National Intelligence, Joseph Maguire. There, Schiff stated:
“In essence, what the President Trump communicates is this: We’ve been very good to your country. Very good. No other country has done as much as we have. But you know what, I don’t see much reciprocity here. You know what I mean? I hear what you want. I have a favor I want from you through. And I’m going to say this only seven times, so you better listen good. I want you to make up dirt on my political opponent, understand?”
“And don’t call me again. I’ll call you when you’ve done what I asked.”
The fact that Nancy Pelosi and other congressional Democrats so quickly pushed for impeachment without any shred of evidence and before having read the transcript creates a very dangerous precedent and begs the question as to whether other former presidents and/or public officials did not (or should not) face the same level of scrutiny.
According to John Solomon it was the Democrats who were first to enlist and pressure Ukraine in the US elections. In his recent article in The Hill, Solomon points to several crucial instances where Democrats attempted to pressure Ukraine into interfering in the US elections:
- The pressure beganas early as January 2016, when the Obama White House unexpectedly invited Ukraine’s top prosecutors to Washington to discuss fighting corruption in the country. In reality, the meeting was used to pressure Ukraine’s prosecutors to drop an investigation into the Burisma Holdings gas company. That company employed Hunter Biden.
- During that meeting, the decision was made to search for new evidence in the criminal case against eventual Trump campaign chairman Paul Manafort, a GOP lobbyist. According to Valeriy Chaly, in March 2016, the Ukrainian ambassador to the United States at the time indicated that a contractor for the Democratic National Committee (DNC) pressured his embassy to try to find any Russian dirt on Trump and Manafort that might reside in Ukraine’s intelligence files and to persuade Ukraine’s president at the time, Petro Poroshenko, to disparage Manafort when the Ukrainian leader visited the United States during the 2016 election.
- Joe Biden threatened to withhold $1 billionin crucial U.S. aid to Kiev if Poroshenko did not fire the country’s chief prosecutor. This would have bankrupted the country, so Poroshenko complied on March 29, 2016 and subsequently fired the prosecutor. At the time, Biden was aware that Shokin’s office was investigating Burisma, which employed his son.
- Nellie Ohr testified to Congressthat a Ukrainian parliament member provided some of the dirt she found on Trump during her 2016 election opposition research and that she provided the information to the FBI through her husband.
- During a bipartisan meeting in Kiev earlier this month, Sen. Chris Murphy (D-Conn.) delivered a message to Ukraine’s new president, Volodymyr Zelensky, implying that any Ukrainian investigation into Joe Biden and his son would jeopardize Democrats’ support for future U.S. aid to Kiev.
Assuming that this information is correct (Solomon is a very seasoned and fact-based reporter), it provides a snapshot/timeline of the various, yet blatant, ways that officials have used their positions of power to influence American politics and foreign affairs. Incidentally, all of these incidents occurred before Trump’s telephone call with Zelensky.
According to the information in Solomon’s report, Ukraine’s involvement in the US elections stems back to 2016 (at least) and did not start with Trump. If Democrats in Congress want to impeach the president based on an allegedly partisan/bias whistleblower with no firsthand knowledge of what happened and a transcript that shows no wrongdoing, they are taking a major risk.
If they do, their decision would compel them to look at many other past presidents and public officials against whom the evidence is significantly more compelling. In the meantime, the Senate Intelligence Committee should take a page from the House Judiciary Committee and start issuing the necessary subpoenas.
Mr. Hakim is a political writer and commentator and an attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications.
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