The author is an attorney who lives in Santa Barbara.
The impeachment of President Donald Trump is wrong, misguided and not substantiated. The House of Representatives, along partisan lines, approved two articles of impeachment: (1) “abuse of power”; and (2) “obstruction of Congress.”
The constitutional Framers in 1787 set up an elaborate matrix in which a president could be impeached and removed from office. They intended that the process of removing a duly elected president would be difficult.
The Constitution requires that “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4). The specific mention of crimes in the Constitution strongly suggests that the Framers felt that the proof of a crime of serious nature was an essential predicate of any article of impeachment.
In a phone call on July 28, 2019, between President Trump and Ukrainian President Volodymyr Zelenskyy, Mr. Trump, in the context of discussing corruption in the Ukraine, expressed concern to Mr. Zelenskyy that he was “surrounding himself with some of the same people.” Mr. Trump then mentioned former Vice President Joe Biden and his son, Hunter Biden, and their involvement with Ukraine prior to 2016.
Even though there was no mention of the 2020 presidential election, Democrats echo the chief complaint by the unnamed whistleblower “that the president of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election.” The alleged whistleblower was not a party to the telephone conversation.
The evidence, to date, establishes no crime. The news media widely reported that Democrats conducted a focus group to determine what actions resonated best with voters. Apparently, the results showed that “bribery” provided the best sound bite.
The Democrats realized that the bribery “glove didn’t fit.” The United States Supreme Court, in McDonnel v. United States (2016), rejected any type of “expansive interpretation of an “official act” under the bribery statute. To do otherwise, the court pointed out that “nearly anything a public official accepts, from campaign contributions to lunch, counts as the quid; and nearly anything a public official does, from arranging a meeting to inviting a guest to an event, counts as a quo.”
The Democrats now claim that an “abuse of power” is a “high crime or misdemeanor.” Professor Jonathan Turley, chair of public interest law at George Washington University, disagrees. He explained in his article in The Wall Street Journal (Nov. 29) that the Framers of the Constitution avoided the use of the broad phase “abuse of power” as a ground of impeachment. He elaborated:
“The Framers rejected terms ranging from ‘corruption,’ ‘obtaining office by improper means,’ ‘betraying one’s trust to a foreign power,’ ‘negligence,’ ‘perfidy,’ ‘peculation,’ and ‘oppression.’ All these were rejected, along with ‘maladministration,’ and kept off the Constitution’s list of impeachable offenses…”
During the Obama administration, Mr. Biden, as vice president, headed up the administration’s oversight of Ukraine policy. At the same time, his son, Hunter Biden, served on the board of directors of Burisma, a Ukrainian gas company known by the State Department to be corrupt. Burisma paid Hunter Biden, who had no experience in the oil and gas industry, at least $50,000 or more per month. This fact alone posed a serious danger to United States policy on Ukraine.
Career diplomats, called by the Democrats, testified that Hunter Biden’s presence on the Burisma board was “inappropriate” and presented the appearance of a conflict. Vice President Biden, at the Council on Foreign Relations, bragged that he threatened to withhold from Ukraine millions of dollars of non-military aid unless the Ukrainian government fired a Ukrainian prosecutor named Viktor Shokin. While the vice president was successful in getting Mr. Shokin fired, he failed to advise his son to resign from the Burisma board.
The House testimony did not show any connection between President Trump’s request for investigation of Ukrainian corruption and the 2020 election. The best evidence (Federal Rules of Evidence 1001 and 1002) of the call was its transcript that shows that there was no mention of the 2020 election. The testimony before the House committees did not reveal any evidence of who, if anyone, discussed the 2020 election and just how President Trump would benefit politically, if at all, from such an investigation. The effect, if any, on the 2020 election is speculative and is based on hearsay and supposition (Federal Rules of Evidence 801-802).
The State Department employees who testified could not point to any specific crime being committed. Ukraine received the aid, after a short delay. Under the Constitution, the president is charged to “take care that the laws be faithfully executed” (Article II, Section 3). There is nothing illegal about a U.S. president requesting an investigation of a country with a history of corruption and particularly when millions of taxpayer dollars are being given to that foreign country. It is consistent with U.S. policy.
Both Bidens inserted themselves in the Ukranian melodrama long before the election of President Trump in November 2016. It is irrelevant if one of the players happens to be running for president or is a United States citizen. No one is above the law.
The next article of impeachment involves “obstruction of Congress,” namely, that President Trump and his lawyers asserted their well-recognized privileges such as attorney-client, executive privilege and immunity. Many past administrations have asserted the same privileges when served with subpoenas from Congress. To argue that the House of Representatives has carte blanche authority ignores the fact that there are three separate and equal branches of government. Congress is not above the law, and its decisions or enactments are subject to judicial review (Marbury v. Madison (1803).
The two articles of impeachment passed by the House of Representatives are flawed and set a dangerous precedent for future presidents, since the threshold for impeachable offenses has been lowered far beyond what the Founding Fathers intended.