His observations about intent are also important.
Posted on 09/29/2019 8:18:04 PM PDT by SeekAndFind
There’s nothing wrong with a U.S. official asking a foreign leader for help in investigating possible criminal acts by Americans committed in, or relating to, the foreign leader’s country. There’s nothing wrong with a U.S. president asking a foreign leader to speak to and work with a U.S. official conducting such an investigation.
This is true regardless of whether the person being investigated is a political opponent of the president. As long as the investigation is legitimate, there’s no problem. Opposing a president doesn’t shield one from being investigated.
But suppose the person doing the investigating is a lawyer for the campaign committee of the U.S. president. Nothing wrong yet. Campaigns do opposition research all the time.
But now, suppose the U.S. president asks a foreign leader for a favor. He asks that the foreign leader speak to and work with the lawyer for the president’s campaign committee regarding possible wrongdoing by the president’s campaign opponent (or potential opponent).
I think most objective observers (if any could be found) would say that this is improper. I think all hyper-partisan observers (who are easy to find) would scream bloody murder if the president seeking such foreign help were from the party they oppose.
Put simply, the president should not use his influence with foreign leaders to induce them to help with opposition research in support of the president’s campaign. If the researcher is a lawyer on the president’s campaign team, there is little doubt that this is what’s going on. If the researcher is a government official conducting a legitimate investigation of possible criminal conduct, there’s no reason to so suspect.
This brings us to Rudy Giuliani. He is not a U.S. official. He is also not a lawyer for the president’s reelection campaign. He was not investigating the Bidens dealings with Ukraine in either capacity.
In what capacity was he investigating the Bidens? Giuliani apparently has claimed that the State Department asked him to become involved in the investigation.
According to Giuliani, Kurt Volker, the U.S. special representative for Ukraine, helped secure his discussions with a Andriy Yermak, a top aide to Ukraine’s president. But according to the Washington Post, quoting a State Department official, Volker helped set up the meeting at Yermak’s request only after Trump had requested that the president of Ukraine speak with Giuliani (in the now famous July telephone call).
Assuming that the Post’s reporting is accurate, Giuliani was not injected into the Biden investigation by the State Department. Rather, he was injected into it by Trump. Indeed, the Post’s reporting aside, any other scenario seems highly implausible. And Giuliani’s relationship to Trump is that he’s Trump’s personal lawyer.
It appears, then, that Giuliani was investigating the Bidens in his capacity as Trump’s personal lawyer. To me, this seems a lot more like a quest for dirt by a lawyer for the president’s reelection campaign than an official investigation into possible criminal behavior.
As such, I believe it was improper for Trump to ask, as a favor, that Ukraine’s president speak with Giuliani. Again, there’s nothing wrong with Trump asking his personal lawyer to perform opposition research. The president can seek this kind of help from anyone he chooses. Thus, had Giuliani merely poked around on his own, that would have been fine, as I see it.
The problem arises because Trump used the power of the presidency to persuade Ukraine to cooperate with his private attorney in digging up dirt on a political opponent. When the president asks a foreign leader for a favor, the favor should be furtherance of American objectives, not the president’s personal (or political) ones. That’s why it’s easy to understand that the president shouldn’t ask foreign leaders to collaborate with an attorney from his reelection campaign.
Because Giuliani was acting as Trump’s private attorney, the strong presumption should be that he was representing Trump’s personal interests. Indeed, Giuliani’s attempt to characterize his work as at the behest of the State Department suggests that he understands this.
The presumption is reinforced by the fact that Trump’s personal interest in digging up dirt on the Bidens exceeds any national interest. From the standpoint of American interests, Hunter Biden is just another sleazy businessman using connections to get ahead. It’s only from the standpoint of Trump’s personal interest that Hunter Biden, by virtue of who his father is, becomes particularly important.
Joe Biden is another matter. He’s a major political figure and the former vice president. However, he had already admitted — indeed, bragged — that he conditioned U.S. aid to Ukraine on the firing of the Ukrainian prosecutor who was investigating his son. How much more was there to investigate regarding Joe? The key for Trump was to keep the matter alive and to embarrass the Bidens as much as possible.
To say that it was improper for Trump to ask as a favor that Ukraine’s president talk with Giuliani about possible crimes by the Bidens is not to say that doing so comes close to being an impeachable offense. I don’t think it does — certainly not on the facts that have come to light so far.
However, Trump shouldn’t have done it. I’m not surprised that he did, though.
The statute in question reads as follows:
§30121. Contributions and donations by foreign nationals
(a) Prohibition
It shall be unlawful for-
(1) a foreign national, directly or indirectly, to make-
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
So there’s several layers of questions to be worked through before we can say that the president is guilty of a violation of this “high crime.”
The first thing that leaps out is the statutory language, “or other thing of value,” which unless it is to have no meaning because it means everything must be limited to that which can be quantified or at least identified as something akin to an “expenditure” or a “disbursement.”
I have not had time to chase down whether there are any cases or regulations further defining “or other thing of value” but one can certainly understand that a statue could be void for vagueness for being too broad, as this certainly is.
No president would ever be able to negotiate with any foreign entity because a partisan majority in Congress might regard that to be “a thing of value.” No executive agreement could be undertaken by the president. No conversation can safely be had with any representative of a foreign government. Every diplomatic action of the United States would be subject to review by the Congress, not by drafting legislation or withholding legislation or assent to treaties, but by impeachment.
The result? The United States would have virtually no effective foreign policy. This goes far beyond the mere executive privilege necessary for the president to conduct foreign policy in secret, this goes to the immunity of the president of the United States in conducting that policy.
The test cannot be whether or not there is “something of value” the test must be whether or not the president’s act constitutes an intrinsic crime.
Every president uses leverage in negotiation with foreign powers, that’s why he is called the commander-in-chief, that’s why he is known as our chief diplomat, that is why he is the chief executive. Therefore, the test cannot be the application of pressure of some kind, including the granting or withholding of carrots, as to whether or not there is an intrinsic crime.
Nor can the test be whether there is “something” of value running to the president. That is entirely too subjective for the reasons cited above and because it would lead to shackling the foreign policy of the United States to the very whim of Congress, a situation in which the constitutional debates unequivocally demonstrate was not to be an element of impeachment. To say that impeachment is whatever the House of Representatives says it is, does violence to the text of the Constitution and should be firmly rejected at every turn.
The rule must be that so long as the president operates under colorable or plausible motive to further the interests of the United States, he is immune, not from political censure but from legal or impeachment liability even if his actions benefit himself either personally or politically, providing there is no intrinsic and commonly understood crime involved. This is essentially the ruling rendered by the government which already said there is no improper campaign contribution rendered or demanded in this conversation.
The need for this closely defined rule is also evident in the campaign contribution situation in which the Democrats insist that the president improperly failed to report a campaign contribution, or expenditure in this case when he paid Stormie Daniels out of his own funds. The rule there was that if the president had a plausible personal interest quite apart from a campaign interest in securing his deal with Stormy, he was not obligated to report.
This is not to say that a president could not be liable to both legally and by impeachment if he were to say, I want Ukraine to be protected against Russia and I will authorize delivery of armaments to you providing you put $1 million into my personal account. Here, even though personal gain is coupled with colorable national interest, the crime is quite obvious.
But there is no crime here because the president sought to have Ukraine investigate corruption not to corruptly stop investigation of corruption. There is no intrinsic crime in fighting corruption or even implying that a carrot might be granted or withheld to secure investigation of corruption. That’s why the founders drafted a constitution with separation of powers
There is no inherent crime in fighting corruption at home or abroad and the president is entitled to use all the tools and is his diplomatic pouch to do so.
I believe these arguments apply, or should apply even if the statutory provision “thing of value” is so defined that a contribution could be inferred in the exposure of a political opponents corruption in a foreign land. Of course, the question of whether such inference can be factually supported from the verbiage of the transcript is open and, in my view, a leap that cannot be supported by the words out of the president’s mouth.
“Jack Webb would nab Joe Biden.”
Nab him for what? Problem here is that Webb doesn’t have anything unlawful on him. At the time of his actions he was acting as a diplomat for the US under the position of a VP. Diplomatic law is that area of international law that governs permanent and temporary diplomatic missions. A fundamental concept of diplomatic law is that of diplomatic immunity, which derives from state immunity.
Was his act questionable as to its intent? Without a doubt. Was it stupid and immoral? Positively. Did it make the US look bad? You betcha. Was it illegal? Nope.
Demanding a foreign country to do something using with holding tactics is a common practice. And as long as it doesn’t create a crime, it is legal even if it has the impropriety of looking like it was a personal act. But that’s why people get voted out of office for doing things like this to cover his own a$$. And they get fired from their position if the next one up the chain does it. We hire people, by vote in this case, to do a job in the best interest of the people. If they break the law, they can be impeached and removed. (Maybe, see B Clinton) But again, there’s no law for being a crooked a$$. That doesn’t reach the levels of impeachment. Wish it did.
rwood
Good post.
Yes, the President’s duty under the “Take Care” clause overrides any attempt to impeach him for asking assistance to investigate corruption involving his political opponent.
Obama did similarly and cannot be prosecuted for it for the same reason. It is a presidential duty, not a political option.
Hillary Clinton on the other hand can be prosecuted as the “Take Care” clause pertains specifically to the President and not cabinet posts.
Never assume/presume
the actual, for real “whistleblower” in this whole circumstance is the President and this retributive show trial being orchestrated in the House is about Federal retribution upon a whistleblower (President Trump) for having shone the light of day upon their treasonous, seditious conniving
I agree and I also don’t think there’s a FEC case to be made here.
On the other hand I have to chuckle at some of the legalistic defenses I see.
We’re adults. There’s a reason Trump wants Ukraine to investigate Biden. It’s because Biden is a significant political rival.
Yeah, the Hunter thing was unquestionably sleazy but it was over years ago and there aren’t even any crimes being alleged. Hardly the stuff to be discussed in a meeting between heads of state.
Everyone admires Trump’s blunt abandonment of PC but very few are willing to embrace the spirit and state the obvious - of course he’s trying to screw Biden any way he can and that’s what the base loves and respects about him.
you missive is twisted.
President Trump pushed for justice at most, and in
fact was helping US and US-Ukraine interests per Agreement.
Biden pushed for obstruction of justice AND
removal of the Official investigators (with $$$$$$$).
Only one is criminal.
Right you are.
Whatever Biden did he did openly, with the full blessing of the Administration, our European allies, and with the knowledge and presumed support of Congress.
That’s why no one raised any objections to it for years.
My guess is that politics is playing a role.
His observations about intent are also important.
Schiff is a total a hole. That tweet was a poor attempt at a joke.
The tweet is just a short summary of what was an official reading into the record which becomes a part of American history.
Schiff stood on the House Floor and read from what he called a copy of the transcript of the President’s phone call with President Zelensky and then he Schiff proceeded to make up an entire set of lies that he said showed President Trump ‘shaking down’ as in extortion the President of Ukraine.
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