Dems trot out new charge as initial focus of impeachment hearings falls flat
By Andrew McCarthy, New York Post, November 13, 2019
President Trump . White House photo.
Wednesday’s first impeachment hearings showed Democrats have shifted the focus to bribery. There is a strategy here.
Most of the debate over President Trump’s dealings with the Ukrainian government have centered on whether his pressure on President Volodymyr Zelensky for an investigation of Joe and Hunter Biden was an abuse of power rising to high crimes and misdemeanors.
But the Constitution’s standard for impeachment is broader. The Framers made the sanction of impeachment and removal from power available not just for high crimes and misdemeanors, but also for bribery and treason.
That is, if bribery can be proved, it is theoretically not necessary to establish high crimes and misdemeanors.
The latter is a complicated issue. There is an abstract definition of high crimes and misdemeanors, best articulated by Alexander Hamilton in “The Federalist Papers.” It doesn’t necessarily call for a criminal offense; rather, such offenses are “political” in nature, involving an egregious abuse of the trust reposed in holders of high office.
There is profound debate, though, over whether particular abusive conduct rises to this level. As a practical matter, it often comes down to what might persuade a two-thirds supermajority of the Senate. That is why impeachment proceedings are so rare.
By contrast, bribery is cleaner as a proof proposition. It is a federal felony with settled, well-understood offense elements. And, contrary to popular belief, proving guilt doesn’t require showing an actual, completed bribe. What’s necessary is to establish that, with corrupt intent, a public official demanded “anything of value” in exchange for the performance of an official act.
That, then, is the Democrats’ theory. They want to frame the focus of the negotiations narrowly: The official acts by the president sought by Ukraine were the delivery of nearly $400 million in congressionally authorized defense aid and a White House visit for the newly elected Zelensky; the thing of value demanded by Trump was a Ukrainian investigation of Hunter Biden, son of Joe Biden, whom the president feared as his most likely 2020 Democratic opponent.
This came into sharp relief in the first day’s testimony. Former Ambassador to Ukraine William Taylor, for example, testified in response to Democratic counsel’s question that it was “crazy” to make aid conditional on assistance in American domestic politics — as if the matter were that simple.
Republicans are at a disadvantage. Under the heavy-handed rules fashioned by majority Democrats, the president and Intelligence Committee Republicans have been denied the right to call their own witnesses and present a defense. That will come later, they are told.
For now, though, there is already plenty of ammunition to fight the bribery theory.
Most significantly, all negotiations between sovereign nations involve mutual exchange — that is not corruption or bribery, it is foreign relations.
And this negotiation, like most, was more complex and multifaceted than Democrats portray it.
In the conversation with his Ukrainian counterpart, Trump made two different requests. They were not demands in the context of the Trump-Zelensky conversation. They were framed as requests. As Republicans repeatedly stressed, Zelensky never felt threatened, although it is fair to say there is evidence that the president’s subordinates signaled to Ukrainians that the official acts they sought were conditioned on their reciprocity.
The first request involved Ukrainian assistance in the investigation into the origins of the 2016 election. While Democrats frame that as purely in Trump’s interests for 2020 election purposes, there is actually a formal Justice Department investigation underway, under the direction of Attorney General William Barr and Connecticut US Attorney John Durham.
It is entirely legitimate for a president to ask another head of state for assistance in a US investigation. There has been in place for two decades a treaty between Washington and Kiev that requires each side to provide such assistance upon request.
Trump also asked for Ukraine to look into potential corruption on the part of the Bidens. Hunter Biden had been lavishly paid to sit on the board of Burisma, an energy company that has long been linked to, and investigated by the Ukrainian government for, corruption. At the same time, his father, Vice President Biden, was the point person for the Obama administration’s Ukraine policy. The elder Biden had extorted Kiev — by threatening to withhold $1 billion in desperately needed financial aid — into firing a prosecutor. Democrats say it was because the prosecutor was corrupt; Republicans say it was because he was investigating Burisma.
Democrats say this can be understood only as a bribe: a demand for assistance in Trump’s 2020 campaign in exchange for official acts.
Yet to establish a bribe, corrupt intent must be established. While it would obviously have been preferable if Trump hadn’t singled out the Bidens, it is nevertheless permissible for presidents to encourage countries receiving American aid to investigate and root out corruption. Indeed, the legislation authorizing aid for Ukraine actually directs the executive branch to certify that Ukraine was making such efforts.
Republicans spent much of Wednesday trying to put the president’s requests in context — pressing Taylor and State Department official George Kent on Ukrainian corruption and on the suspicious circumstances of Hunter Biden’s association with a corrupt company. They emphasized that defense aid to Ukraine has been significantly increased by Trump, compared to what it was under his predecessor, President Barack Obama.
The battle lines are drawn around the issues of whether the president had corrupt intent and risked the security of an important ally solely to better his political prospects. But the Democrats’ approach indicates that the issue behind the battle lines will be: Was there a bribe?
Andrew McCarthy, a former chief assistant US attorney, is a contributing editor of National Review.
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