Month: January 2020

The next (and perhaps last) bit of drama in the impeachment saga is likely to be over whether to allow witnesses. Democrats are pressing to call Trump’s former National Security Advisor, John Bolton, his Chief of Staff, Mick Mulvaney, and two lesser White House officials. Most Republicans strongly resist having any witnesses and threaten to call witnesses of their own if the Democrats prevail on this issue.

The debate over witnesses is somewhat disingenuous on both sides. Democrats chose not to pursue Bolton and the others during their House investigation and the sincerity of their demand for witnesses on the Senate side is open to question. Recognizing that Trump will be acquitted, they insist that the Senate trial is a “sham” and a “cover-up.” Obtaining the right to call witnesses could undermine this key talking point. Democrats also could regret some “reciprocal” witnesses Republicans might call, such as the whistleblower. Lead impeacher Adam Schiff suddenly lost interest in hearing from him when it was revealed that he contacted Schiff’s committee before submitting his complaint.

The Republican side of the debate is equally hypocritical. Trump and his allies emphasize the lack of direct evidence concerning Trump’s involvement and motives. At the same time, they are dead set against hearing from individuals who could supply such evidence.       

There’s a way to sidestep this Kabuki dance and quickly resolve the most important part of the witness issue. As a practical matter, the only proposed Democratic witness who’s likely to provide evidence relating directly to Trump is Bolton. Trump probably would invoke executive privilege to effectively prevent Mulvaney and the other current White House staffers from testifying without a protracted court fight. Bolton, however, is no longer subject to Trump’s direction and he has expressed willingness to testify if subpoenaed. Presumably, this means he would not feel constrained by an executive privilege claim against his testimony. Bolton also has hinted that he can offer valuable insights.

But why wait for a subpoena? It may well never come. Even if it does, Trump’s forces might sue to quash it, thereby causing substantial delay. If Bolton has something to say, he should take the initiative and voluntarily say it now in public for all to hear. There’s no legal obstacle to doing this. Bolton surely has a First Amendment right to speak out. He owes that much to the American people if indeed he has important new information to provide. As Schiff correctly noted in his Senate presentation, whatever Bolton and others know will eventually come out in a book or another form. It would be unconscionable for Bolton to hold off until then.

There are any number of reasons to consider Donald Trump unfit for office. Even many of those who support him, either affirmatively or as the least of available evils, surely recognize his massive character and other flaws. He’s probably the first president in history who strives to be polarizing and divisive.  One of Trump’s negative traits is his knack for bringing out the worst in his opponents and reducing them to his level. Many never accepted his election and have succumbed to the urge to end his presidency by any means necessary. His recent impeachment by the House of Representatives is an example.

Trump’s impeachment was a wholly partisan exercise in the House that is destined to end with a partisan acquittal in the Senate, if it gets that far. After asserting an urgent need to remove Trump from office that couldn’t await the 2020 election, House Democrats are now in no hurry for a Senate trial. They are apparently stalling in order to pressure the Senate to call witnesses and develop additional evidence they chose not to pursue. They may even prefer to delay a Senate trial indefinitely. These tactics reinforce the partisan nature of the impeachment and signal Democrats’ lack of seriousness about it.

One likely reason this effort attracted zero bipartisan support and failed to generate broad public approval is the weakness of the case for impeachment. It rests on very thin evidence and dubious legal grounds. The two most serious charges in the impeachment narrative—that Trump demanded Ukrainian President Zelensky “dig up” or even manufacture “dirt” on Joe Biden and that he conditioned military aid for Ukraine on Zelensky’s agreement to do so—are unsupported by the evidence. The principal legal ground—that Trump abused his power by subordinating the national interest to his personal political interests—is a vague and elastic standard that could apply any time a president is accused of placing politics above the accusers’ version of good public policy.  

The impeachment’s political impact on the 2020 election is hard to predict. Whatever bearing the information it developed has on Trump’s fitness for office will be left, appropriately, for the voters to decide. What’s easier to predict is that this impeachment will do further and perhaps lasting damage to our already fractured national politics. In the short term, it’s sure to drive political polarization and public cynicism above their already high levels. In the longer term, there’s a real danger that impeachment will become the normal recourse in the future for addressing policy disputes when different parties control the presidency and the House. Indeed, if Trump is reelected and Democrats retain the House, there’s a good chance they’ll find a reason to impeach him again. 

Trump brings many problems on himself through his impulsive, reckless and selfish behavior. Members of Congress of both parties also deserve much blame as they regularly engage in either knee-jerk support or opposition concerning all things Trump. Other institutions that are important to the health of our democracy are complicit as well.

Many in the media have foregone journalistic principles of objectivity when it comes to Trump. After spending more than two futile years flogging evidence-free conspiracy theories about Trump and Russian election interference, they jumped enthusiastically to the Ukraine impeachment bandwagon.  Throughout the impeachment process, reporters and opinion writers have behaved like group-thinking cheerleaders, providing an uncritical echo chamber for any and all allegations against Trump. In typical fashion, a December 14 New York Times editorial called the case for impeachment “short, simple and damning,” relying on key allegations that have no support in the evidence:

“President Donald Trump abused the power of his office by strong-arming Ukraine, a vulnerable ally, holding up hundreds of millions of dollars in military aid until it agreed to help him influence the 2020 election by digging up dirt on a political rival.”

Such reflexive anti-Trumpism deprives the public of much-needed impartial reporting and thoughtful commentary. It also further undermines the media’s already abysmal credibility with the public. 

Anti-Trump lawyers have likewise abandoned sound constitutional analysis and basic concepts of due process in their zeal to undermine Trump’s legitimacy. One notable example is Harvard law professor Laurence Tribe. (See here and here.) Lawyers selected by House Democrats to testify at the impeachment hearings advocated sweeping grounds for impeachment that have no clear limits or objective standards. Like the media, they took liberties with the facts and engaged in ridiculously exaggerated rhetoric. One of them, Michael Gerhardt, testified:

“The president’s serious misconduct, including bribery, soliciting a personal favor from a foreign leader in exchange for his exercise of power, and obstruction of justice and Congress are worse than the misconduct of any prior president, including what previous presidents who faced impeachment have done or been accused of doing. * * * If Congress fails to impeach here, then the impeachment process has lost all meaning and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil.”

Trump is hardly a sympathetic figure and it may be tempting to lower the impeachment bar for him. Ultimately, however, this is an exercise in futility that will accomplish nothing positive and threatens to seriously harm the Nation in the long run. Exactly what constitutes adequate grounds for impeachment is subject to legitimate debate in individual cases. Nevertheless, there should be one overriding test that applies to Trump as well as any other president: Impeachment should not be pursued without significant bipartisan and broad-based public support. Any impeachment that cannot meet this test is almost sure to fail and result only in more political discord.

Republicans should have applied this test to the Clinton impeachment and paid a price for not doing so. It’s a test that House Speaker Nancy Pelosi wisely embraced until recently, observing “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path.” It’s too bad she reversed herself, apparently caving to pressure from her left flank. Our Nation would be better served if Democrats and their allies dropped their flawed impeachment effort and instead concentrated on finding a way to oust Trump at the ballot box in 2020.

Democrats claim to have an overwhelming case for impeaching President Trump. Much of the media agree, enthusiastically supporting impeachment more as cheerleaders than objective journalists.  Trump’s reaction is unhinged and mean-spirited even by his usual abysmal standards. He spews obvious falsehoods, levels scurrilous personal attacks, and spouts other nonsense. Trump’s supporters in Congress and elsewhere focus primarily on perhaps justified but still overwrought objections to the impeachment process. Largely missing in all this sound and fury is dispassionate, fact-based analysis of the case against Trump. What does the evidence really prove and does it clearly establish valid legal grounds for Trump’s impeachment and removal from office? Importantly, would any other president be impeached on this record?

The case for impeachment is based largely on second-hand testimony and inferences drawn from ambiguous facts.

Impeachers maintain that there is a mountain of uncontroverted incriminating evidence against Trump. This is far from true. Considerable uncontested evidence provides background and context for the impeachment charges. However, evidence directly relevant to Trump’s guilt or innocence is quite limited. It’s clear that Trump asked Ukrainian President Zelensky to conduct two investigations, one of which involved a potential 2020 opponent, Joe Biden. Beyond this, evidence of his involvement is sparse and key factual assertions are contested or open to different interpretations. This applies to the “quid pro quo” issues. There is no direct evidence that Trump imposed a quid pro quo of any kind. He denied this publicly and in at least one conversation with a subordinate. Zelensky says no quid pro quo existed from his perspective. The summary of the July 25 phone call between Trump and Zelensky falls short of demonstrating a quid pro quo, which probably explains why lead impeacher Adam Schiff chose to embellish what Trump actually said in that conversation. Finally, no quid pro quo materialized.  

Impeachers rightly point out that Trump refused to permit testimony by some close associates who might be able to supply direct evidence concerning his role. On the other hand, the House elected to proceed without pursuing their testimony. In any event, the fact remains that such evidence is lacking.

Many key assertions by impeachers are not supported by the evidence or run counter to the available evidence.

Impeachers base much of their case against Trump on drawing the most negative inferences possible from ambiguous evidence. Sometimes they go further and reach conclusions that contradict the weight of the evidence or make assertions that are wholly unsupported by the evidence.

Trump’s motivation in requesting the investigations was all about benefiting his 2020 reelection prospects. Determining Trump’s motives is speculative. However, one of the investigations concerned 2016 election interference and is essentially irrelevant to the 2020 election. This investigation arguably was more important to Trump than the one involving Biden since it was the specific “favor” he initially asked for in his July 25 conversation with Zelensky. While benefiting his reelection may have been part of Trump’s motivation, it was clearly not the only part and perhaps not even the primary part.

Trump asked for an investigation of Ukrainian 2016 election interference in order to promote the “discredited” theory that Ukraine rather than Russia was responsible for it. Trump did reference “CrowdStrike” in his July 25 phone call with Zelensky. At the same time, Trump clearly believed that Ukrainian forces worked against his 2016 election and disliked and distrusted Ukraine for this reason. Thus, he may well have been more concerned over what Ukrainians did or didn’t do in 2016 than anything involving Russia.   

Trump asked Zelensky to “dig up” or even fabricate “dirt” on Biden. Schiff launched this false narrative in his embellished version of Trump’s July 25 phone call with Zelensky: “I want you to make up dirt on my political opponent, understand? Lots of it.” Democrats and the media seized upon this narrative and have echoed it ever since. Trump may have hoped the investigation would produce “dirt” on Biden, but he never asked for it. There’s no evidence that Trump or anyone acting for him voiced any demands or expectations concerning the conduct or outcome of either investigation.  

Trump didn’t care whether the investigations were actually conducted; he viewed a public announcement by Zelensky that he would investigate Biden as sufficiently damaging. This is inconsistent with the previous assertion that Trump demanded dirt on Biden. In any event, it misrepresents the testimony on which it is based. The testimony (by Gordon Sondland) clearly indicates that a public announcement was considered important to ensure that Zelensky would in fact follow through and conduct the investigations.

Trump solicited foreign election interference. The impeachment articles allege that Trump “solicited the interference of a foreign government” in the 2020 presidential election. This is hyperbole that doesn’t remotely fit the facts. Foreign interference in U.S. elections conjures up notions of Russians hacking into email accounts of American politicians and political organizations and orchestrating stealth propaganda campaigns through internet trolling. What Trump asked Zelensky to do bears no resemblance to this. The requested investigations had no preordained agendas, would have been conducted in Ukraine, and focused primarily on Ukrainian citizens and organizations. Under the impeachers’ theory, any presidential request for a foreign government to take any action that could benefit the president’s reelection prospects could constitute soliciting foreign interference in the election.    

Trump’s withholding of military aid posed a major threat to national security. There is no evidence that the Trump Administration intended to let the military aid go unspent. A president can’t unilaterally cancel funds appropriated by Congress; this requires the submission of a “rescission” proposal to Congress under the Impoundment Control Act (ICA). The Administration took no steps to rescind the Ukrainian military aid. Likewise, there’s no evidence that the delay in releasing the aid funds had a significant adverse national security impact. However, as the Government Accountability Office has concluded, the temporary hold did constitute an unauthorized “policy impoundment” that violated the ICA.

Trump released the military aid only because he got “caught” when the whistleblower exposed his scheme. This evidence-free speculation ignores more plausible explanations for why the military aid was released when it was. News of the whistleblower complaint began seeping out around the second week in September at about the same time the hold on military aid was lifted. Impeachers base their assertion on this timing. However, the military aid funds were scheduled to expire at the end of September and thus had to be released when they were in order to be spent. Furthermore, Trump came under heavy bipartisan congressional pressure to release the funds as soon as the hold was publicized in late August and before the whistleblower complaint.     

The weakest part of the impeachment case concerns the hold on military assistance.

The assertion that Trump used military aid to Ukraine as part of a quid pro quo for the investigations he wanted is the most serious single element in the impeachment case against Trump. It’s also the weakest from an evidence standpoint. The House impeachment inquiry detailed numerous interactions among Trump’s personal attorney, Rudy Giuliani, Trump’s political appointees, career diplomats, and various Ukrainians that occurred over many months. They focused almost exclusively on negotiating a White House meeting for Zelensky. There was ample testimony that Giuliani called the shots in the negotiations. Trump instructed his subordinates to work with Giuliani and even encouraged Zelensky to talk to him. There was testimony that Giuliani participated in drafting a statement by Zelensky announcing the investigations and insisted that the statement include explicit references to both 2106 election interference and Burisma, the Ukrainian energy company that employed Joe Biden’s son as a board member. (There is no indication Giuliani insisted that either of the Bidens be mentioned in the announcement.)

This provides substantial indirect evidence that Trump, acting through his agents, conditioned a White House meeting for Zelensky on the latter’s agreement to do the requested investigations. By contrast, there is no comparable evidence that military aid was part of a quid pro quo. Issues over military aid did not arise until the tail end of the protracted negotiations concerning the White House meeting and lasted only a few weeks. According to a timeline of events, Trump imposed a hold on military aid in mid-July, the hold was first publicly reported on August 28, and the aid was released on September 11.

There is no indication that Zelensky was aware of the hold until it became public in late August. Notably, Trump made no mention of it in his July 25 phone call with Zelensky, although he had imposed the hold shortly before. Perhaps most significantly, Giuliani apparently was unaware of the hold before August 28. Gordon Sondland was very clear in his testimony that the White House meeting was part of a quid pro quo based on instructions coming from Giuliani. However, Sondland said nothing about Giuliani raising the subject of military aid with him. Sondland described his belief that military aid was part of the quid pro quo as only a “guess.”

Trump’s hold on military aid likely had something to do with his perception that Ukraine worked against him in 2016 and his general skepticism toward Ukraine. His Acting Chief of Staff, Mick Mulvaney, said as much in a press conference. However, Mulvaney also said that Trump’s primary reservations were over Ukrainian corruption and the failure of other countries to contribute to Ukraine’s defense. There are indications that Trump imposed the hold in reaction to a newspaper article he read and asked for information on what other nations were contributing to Ukraine. The circumstances relating to the hold on military aid remain murky. Importantly, however, what evidence there is suggests that it operated on a separate track and played no role in negotiations with the Ukrainians pertaining to the investigations Trump wanted. 

The stated grounds for impeachment are nebulous and set a low bar for removal of the president.

The Constitution provides for removal of a president “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Democrats have struggled to define exactly how Trump’s conduct fits this constitutional standard. At first, they emphasized the concept of a “quid pro quo” but that didn’t resonate with the public. Then they argued that Trump’s conduct constituted “bribery.” But this was apparently based more on focus group-tested messaging than legal analysis and has now been abandoned. The impeachment articles don’t accuse Trump of any criminal violation. While impeachment does not require a charge of criminal misconduct, its absence impacts the gravity of the impeachment case and makes it more difficult to specify objective criteria for impeachment.

Democrats finally settled on charging Trump with “abuse of power” on the basis that he subordinated the national interest to his personal political interests. There is disagreement over whether abuse of power can be grounds for impeachment. Even if it can, this charge lacks objective criteria or limiting principles. One law professor called by House Democrats testified that if Trump’s conduct here is not impeachable then “nothing is impeachable.” The opposite is closer to the truth. Obviously, presidents regularly take controversial actions and factor in political considerations. If Trump is impeachable based on the charges here, any action by a president that his opponents regard as politically expedient and contrary to the national interest as they see it could potentially constitute an impeachable offense.

Charging Trump with “obstruction of Congress” has potential merit but is premature.

Article II of the impeachment articles charges Trump with “obstruction of Congress.” This second article may have more merit than the first. Trump’s attempt to totally stonewall the House impeachment inquiry surely can’t be legal. On the other hand, a president just as surely has legal privileges that can be raised in response to congressional demands for testimony and documents in an impeachment (or other) investigation. Thus, Trump cannot reasonably be faulted for failing to comply automatically with any and all such demands. Ultimately, only the courts can authoritatively strike the proper balance in these situations.

Since Democrats generally declined to seek enforcement of their demands in court, there is no objective means to draw the line between unjustified obstruction and legitimate privilege claims. The obstruction charge would be much stronger if Trump had defied congressional demands for testimony or documents in violation of a final judicial determination upholding their legitimacy.  

Conclusions

Three bottom line conclusions emerge when the facts developed to date are stripped of exaggeration and hyperbole:

• If simply requesting a foreign leader to conduct an investigation potentially impacting an election opponent is grounds for impeachment, there is uncontroverted, direct supporting evidence.
• If the case for impeachment depends on Trump using a White House meeting for Zelensky as a quid pro quo for the investigations, there is indirect supporting evidence. It’s reasonable to attribute to Trump the actions of his personal attorney and political appointees.  
• If the impeachment case depends on Trump using military aid as a quid pro quo for the investigations, it is unsupported and even undercut by the available evidence. While Trump’s hold on aid may have been based in part on his distain for Ukraine, it was never part of negotiations with the Ukrainians over the investigations.

Turning to the legal grounds, there’s little consensus on exactly what constitutes impeachable “high crimes and misdemeanors.” However, a 1974 bipartisan analysis prepared by the House Judiciary Committee staff in connection with the Nixon impeachment observed that impeachment of a president is “a grave step for the nation.” Clearly, such an extraordinary action requires extraordinary and egregious presidential misconduct.

It’s hard to see how merely requesting an investigation involving Biden could rise to the level of an impeachable offense. There’s nothing inherently wrong with a president requesting a foreign government to conduct an investigation involving an American citizen and no reason why a political rival would be immune from investigation. In this case, a broad-based investigation of Ukrainian corruption would have included Burisma and quite possibly the actions of one or both Bidens as well, which had raised eyebrows. The problem is that Trump singled out Burisma and the Bidens.  This was certainly unwise in the absence of a specific indication that either Biden did anything wrong, but it was not totally unfounded or outrageous.

It’s also hard to see how conditioning a White House meeting on such a request would push it to the level of an impeachable offense. Presidents frequently use state visits and other diplomatic leverage to influence the behavior of foreign leaders. Indeed, Joe Biden threatened to withhold foreign assistance to Ukraine in order to pressure its government to fire a former prosecutor.     

The strongest case for impeachment would be if Trump demanded that Zelensky produce negative information on Biden and used military aid as a quid pro quo to enforce this demand. However, the evidence supports neither of these conclusions.

This is not to suggest that Trump did nothing wrong. Whatever his motives, it’s clear Trump was pursuing a self-serving agenda of his own that had little if any relationship to U.S. policy interests regarding Ukraine, as generally understood, and threatened to undercut those interests. This came at a time when Ukraine was (and still is) vulnerable to Russian aggression and in need of a strong showing of U.S. support. Trump’s investigative requests appear frivolous and perhaps vengeful in the case of 2016 election interference as well as seriously ill-advised in the case involving the Bidens. As such, they deserve criticism and maybe even condemnation. However, the framers of the Constitution made clear that “maladministration” does not constitute grounds for impeachment. Poor judgment, foolishness, selfishness or generally bad behavior are not enough for impeachment. Of course, they are highly relevant to electability.