The Impeachable Phone Call

Many Americans, Democrats, Republicans and independents, are confused or unsure about whether President Trump violated the law in his telephone conversation on July 25th with Ukrainian President Zelenskiy as noted in Seattle Times, Nation&World (11/2/2019, “Poll: More Americans support than oppose impeachment probe”). While many wonder if – or deny that – he did anything wrong, there really is no room for confusion or uncertainty. Clear legal principles are involved that have clear answers.

The public discourse, however, has lacked any clarity, that is, any coherent substantive explanation of the case from a legal perspective – not even from ardent supporters of impeachment who seem to be satisfied with generalized political conclusions. Without explanation, of course people are confused

President Trump did break the law; he committed a crime when he asked the Ukrainian president to investigate his likely election opponent. Any lawyer, with a career devoted to legal research, analysis and writing on legal issues, knows this.

Most legal questions involve determining the specific elements of a crime, tort or other breach of law that is at issue and then looking to see if each of those elements has been satisfied by the facts. So, let’s look at the law and its elements elements and the relevant facts

Under the Federal Election Campaign laws, 52 US Code §30121,

“It shall be unlawful for… a person to solicit… from a foreign national…a contribution or donation of money or other thing of value … in connection with a Federal, State or local election ”

The requirements of the statute can be broken down into five separate elements. So that if all five of these elements are met:

  1. a person
  2. solicits
  3. something of value
  4. from a foreign national
  5. in connection with an election

that person has committed an unlawful act.   . Applying these elements to the facts we conclude:

First, “a person”: President Trump is a person.

Second, “solicits”: He made a request of Pres. Zelenskiy; he called it “a favor,” According to the ordinary meaning, asking a favor is the same as “soliciting” it.

Third, “something of value”: Trump told Zelenskiy that “I would like you to do us a favour though.” [italics mine] He then asked Zielinskiy to look into questions about the “CloudStrike” matter, involving claims that Ukraine had meddled in the 2016 US election.

Later in the conversation Trump followed up with this request: 

“The other thing, 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.

“The other thing …” (a referral to the earlier request for a favor) he said, “…so, whatever you can do…[to find out] ” is plainly a request for an investigation.

An investigation by a foreign country of an election opponent would be a “a thing of value” under federal election case law. And it certainly would be valuable to the one soliciting it.  The Federal Election Commission (FEC) and many federal court decisions have interpreted the term “thing of value” to constitute such things as voter data or opposition research. An investigation of a political opponent is the same as opposition research.  Opposition research can have considerable value. Take, for instance, that Fusion GPS paid Christopher Steele $168,000 for his dossier on Trump.

Fourth, “a foreign national”: President Velinskiy is a foreign National.

Fifth, “in connection with an election”: Joe Biden was a leading candidate for the Democratic nomination for president at the time. Trump made no other requests for any other investigations. Trump could have no other purpose to single out Biden in soliciting this political favor than to obtain information valuable to his election.

A critical point to notice about the election law is that it does not require a quid pro quo. Under the unambiguous language of the statute all that is required is that a thing of value be solicited. Nor does it require that the request be acted on or fulfilled.  If Democrats in Congress relied entirely on Trump’s clear and undeniable violation of 52 US Code §30121 they could avoid being bogged down in disputed issues of whether there was a quid pro.

 It is widely agreed that foreign The parts of the campaign finance law, quoted above, were designed and intended to put a stop to any of that. Intervention or involvement in our elections is a bad thing.  The main purpose of the provision of the election law, cited above, is to prevent foreign involvement in our elections. This is not a minor technicality. Trump’s telephone call request to Pres. Zielinski strikes at the heart of our election system and if ignored threatens the integrity and independence that is vital to our democracy.

Despite how clear it is that the law applies to the circumstances of the President’s request for Ukraine to investigate Bidens, there is still much legal push back from Republican strategists on this. Justice Department officials said that prosecutors determined there was no campaign finance violation, but they provided little legal authority or analysis to support that conclusion, except to opine that the investigation could not be a “thing of value” because it could not be evaluated.  So the argument would be that it could not be a thing of value if you can’t put a precise dollar value to it.  That flies in the face of numerous court decisions and FEC opinions that did not require a dollar value attributed to the thing of value.

The courts have not yet given an interpretation of these provisions of the campaign finance laws under these particular circumstances. But the critical facts are clear — that the president:

  • requested Ukraine to investigate his chief potential political opponent, thus
  • soliciting a “thing of value,” being, undisputedly, an investigation;
  • such investigation is in the nature of opposition research which the courts have consistently held to be unlawful.

Unfortunately, this case will never reach the courts because impeachment is a political process and it is entirely within the jurisdiction of Congress to decide whether this law applies to these facts. Nevertheless, my legal opinion is that if, hypothetically, this matter was presented to a court it would be a slam dunk decision that the president violated the law.

But, does impeachment actually require that a crime be committed? Probably not. An impeachable offense is almost anything Congress says it is. Congress is given the exclusive right and duty to pursue impeachment. Whether conduct is impeachable under the Constitution is entirely up to Congress and is beyond the jurisdiction of the courts. So, for example, if Congress determined that lying under oath about a sexual encounter is impeachable, why would Congress be limited to any legally technical definition of high crimes and misdemeanors? As Lindsey Graham (R.SC) said from the House floor in the 1999 impeachment of Bill Clinton, “You don’t have to be convicted of a crime to lose your job in this Constitutional Republic.” He opined that a president could be removed if Congress decides “your conduct as a public official is clearly out of bounds.”

Consistent with that are the writings of Alexander Hamilton in Federalist No. 65, So, making a fair interpretation of the meaning and intent of the constitutional grounds for removal of the president, the president’s violation of his oath of office or conduct determined to be an abuse of power is impeachable even though not a crime or misdemeanor under a criminal code.

Republicans nevertheless continue to argue that Trump’s request must be coupled with an express price or condition, that is, there must be a quid pro quo. But no one seems to ask them hypothetically what if there was an explicit quid pro quo? What if the president had expressly stated that military support was contingent on Ukraine conducting an investigation? What would be their position then? It seems any reasonable person would have to concede that an express condition for receiving military aid or other consideration would be wrongful. 

That then raises the question: What if the condition (a quid pro quo) is not stated expressly but is implied? The fact that the president had held up military aid a week prior to this phone conversation is circumstantial evidence that such a condition was intended by the president and arguably so understood by Ukraine. Wasn’t Trump’s request under the context and circumstances of the conversation, an implied condition for continued military support? Trump made that very clear when he said, “We’ve been very good to you.” It also has come out that a visit to the White house was dangled as an inducement to Zelenskiy to investigate Bidens. The circumstances are similar to your rich uncle who is helping to pay your way through college asking you for a favor for his personal benefit. Isn’t there some kind of implied condition or element of coercion there? Ukraine is totally dependent on and beholden to the US for military support. They are in desperate straits. They are at war. Half the country is occupied by Russian military or Russian-backed separatists. No explicit quid pro quo was necessary. Trump simply made a request in Mafia-like innuendo that Ukraine could not refuse. The fact that Pres. Zelenskiy understandably now says he did not feel “pushed” doesn’t matter. Trump’s intent to pressure Ukraine is all that matters.

The attached official memorandum of the July 25 telephone conference between Trump and Zelenskiy makes the intended connection obvious, especially considering the parts that I have highlighted and annotated.

The inference that some form of quid pro quo was intended is now confirmed by text messages among U.S. diplomats and Ukrainian officials that definitively show that not only did the Trump administration seek to extract Ukrainian promises of political probes in exchange for a summit meeting, but also they spent weeks negotiating the deal both before and after the Trump-Zelenskiy phone call. There was no lack of clarity on either side. “Heard from the White House,” a top aide to Mr. Zelenskiy ‘texted on July 25, just ahead of the call. “Assuming President Z convinces trump he will investigate/ ‘get to the bottom of what happened’ in 2016, we will nail down date for a visit to Washington.”

The President’s supporters have argued that evidence of Trump’s wrongdoing is hearsay. And they continue to contend that strict court rules of procedure and legal principles as apply in lawsuits should be applied in impeachment proceedings. But impeachment is not a lawsuit. It is a special constitutional remedial process granted exclusively to Congress. The House is vested with the authority to investigate and draw up charges (the “indictment” if you will)  and the trial takes place before Senate. There are no statutes or congressional rules of procedure governing impeachment procedure in any detail. There are no binding precedents.

Still the Republicans argued strenuously that the whistleblower’s statement is hearsay, which it is, but now they have changed tactics and want the whistleblower to testify in the impeachment inquiry.  The House Impeachment panel need not rely on whistleblower testimony.  . What seems to be lost in all of this is that no one is questioning the substantial accuracy of the official transcript of the telephone conversation. It is not hearsay. It is direct evidence that Trump, in that call, did urge Pres. Zelenskiy to investigate the Bidens — which, as we have seen, is impeachable on its face. So hearsay arguments are beside the point.

In all the ongoing and upcoming impeachment proceedings hearsay evidence will abound without limitation. Those who complain of a lack of “due process,” and insist on strict rules of evidence and legal procedure fail to recognize that impeachment is not an ordinary legal process as in cases brought in our courts. Congress, in any impeach¬ment proceeding, defines the rules and procedures. It has complete authority to decide what evidence is relevant, what is its probative value and what conduct merits impeachment.

The President’s supporters also say that he was just interested in rooting out corruption in Ukraine generally. But, if that were so, why did his corruption investigation request only mention the Bidens?

Besides that, technical court hearsay rules are not always rational or practical in every day circumstances. Think, for example, about what you know about facts important to your everyday life. Most of what you know about the world around you, etc. is from hearsay. Hearsay in real life is very largely reliable and is relied on, so the hearsay objection is a bogus objection.

Rudy Giuliani has made the argument on Fox News and in other television interviews that under Article 2 of the Constitution the president has complete authority to make whatever deals he wants with foreign countries. The exact words of Article 2 relied on, are that “The executive Power shall be vested in a President…“ That’s it. There are no other words in Article 2 supporting Giuliani’s position. What this argument fails to recognize is that there is no way that the framers of the Constitution, who had just freed themselves from the bonds of an autocratic British monarch, intended to make the president another king of any kind. No one at Fox News ever asked Giuliani if the president’s authority was boundless or whether the president could make any kind of a corrupt political deal with a foreign country and be guiltless. 

It is often said that making deals between countries is a routine part of international affairs. True, but still there are rules and legal limitations to the president’s authority to do that. The argument that the president’s deal was simply a part of regular foreign policy interaction neglects the essential distinction here, which is, the president can’t ask for political help from a foreign government as a part of his foreign-policy prerogatives. It’s unlawful and it threatens the independence of American democracy.

Moreover, if everything in Trump’s phone conversation was okay and within his authority, why did the President go to such lengths to hide it? He put the transcript of the telephone conversation in a highly secured server, usually intended for secret matters of national security? Why was there an initial hesitation of the government to release the transcript and the whistleblowers report? Obviously, without the whistleblower’s report this telephone incident would have never come to light. Whether or not this was a covering up it doesn’t matter because it is clear evidence that there was premeditated intent and an actual attempt to hide it from public disclosure even though the administration relented.

There is much noise and distraction coming from allegations that Joe Biden and his son Hunter committed fraud and benefited financially during the time Biden was Vice President and the Obama administration’s point man for Ukraine. There is much debate about whether actual evidence of Bidens’ wrongdoing exists. So far nothing specific has been presented or even alleged for that matter. A web search of investigative reporting on the issue comes up empty-handed of any specifics and Fox News’ claims rely entirely on rumor and conjecture. The Bidens’ wrongdoing, if any, is indeed beside the point. Biden is not being impeached; Trump is. The matter at hand is Pres. Trump’s wrongdoing. Biden’s conduct is irrelevant because, whatever it was, it does not excuse, lesson or justify the President’s wrongdoing. It is the president’s wrongdoing that is at the heart of the current impeachment investigation and is all that matters.

Anyway, if Bidens were or are criminally liable the Justice Department, which is under the control of Trump appointee, Atty. Gen. William Barr, is free to launch a criminal prosecution of Joe Biden in which it could require him and his son Hunter to produce records and evidence and could legally obtain evidence by its own investigators at home and in Ukraine — as it did in the case of the prosecution of Paul Manafort, who went to prison based on his work in the Ukraine and the work of Justice Department investigators and lawyers here. Atty. Gen. Barr has not taken any steps to prosecute Joe Biden or his son despite Pres. Trump urging him to do so. Wonder why?

Among other irrelevant noises are the legal and political opinions, conclusions and summaries or characterizations of evidence by “the whistleblower,” Nancy Pelosi, Adam Schiff, Rudy Giuliani or any other politician, government officeholder, political pundit or legal scholar. Most of this is just political posturing and can and should be disregarded. The ultimate conclusion is up to Congress. The members of the House and the Senate are the arbiters and deciders of everything. They need not rely on the opinions of government officials. Members of the House and Senate will have to make up their own minds based on the evidence as they see it and disregard the noise.

But the House Democrats face a difficult dilemma in pursuing impeachment. That is, is it really worth it or advisable for them to pursue impeachment when, are the final arbiters of everything of everything officials

  1. so far, there is not overwhelming public support for impeachment,
  2. it could distract from other important policy issues,
  3. the election is barely a year away and,
  4. most troubling, the chances of Trump being convicted and removed from office by the Senate are very slim to none.

The answer is, Democrats have no choice. This is not something they can in good conscience tolerate or forgive and let go. There can be no tolerance policy when it comes to the president’s abusing his authority. As Trump himself said many times during his campaign for the nomination regarding illegal immigrants, “We must enforce the law. If we don’t follow the law we don’t have a country.” That is true too when applied to the president himself. If Democrats do not enforce the law by impeaching the President for his own lawbreaking we will, as he has said, not have a country. Failure to impeach would set a bad precedent. The Democrats have a moral and ethical duty to enforce the law whether the Senate chooses to ignore it or not.

All of this comes down to this fundamental question:

Is It wrong for the president to use the power of the presidency to put pressure on a foreign government that owes us a big favor to investigate a political rival for the purpose of helping his personal election prospects instead of promoting the interests of the country as a whole?

This question has been put to many Trump loyalists, both in Congress and elsewhere and they all refuse to answer it. They duck, weave and evade answering this simple, basic question — avoiding the issue of whether the president can lawfully use his authority over the vast military and economic power of the United States to extract a personal political favor from a dependent country. Incredibly, this is the kind of political shenanigans we typically see from corrupt tinpot dictators, that is, accusing a political rival of graft, corruption or other wrongdoing to maintain political control. Republicans who avoid condemning the president’s conduct lack integrity because we know that if Clinton or Obama had done anything like this Republican leadership would BE OUTRAGED and would condemn it. Republican lawmakers who think this is okay are hypocrites and gutless captives of blind loyalty to Trump. 

In the final analysis it is okay for a political candidate to investigate an opponent; he/she just cannot ask a foreign government to do it for him/her.

Jerome R. Cronk, Shoreline, WA  November 10, 2019

A few other miscellaneous comments or questions are worth considering.

First, in case of impeachment proceedings doesn’t the claim of executive privilege go away? How can the president claim executive privilege when his own allegedly wrongful conduct is at the heart of the controversy? If he in fact has committed high crimes and misdemeanors he can’t possibly defend by saying you can’t prove it because all the evidence must be excluded under the protections of executive privilege.

Was any actual electronic recording made of the telephone conversation between the president and Zelenskiy? If so, where is it? If it doesn’t exist why doesn’t someone in the administration say so. If these conversations are not recorded, why not? Or, couldn’t they have a court reporter to take down an exact verbatim transcript?

Did Ukrainian president Zelenskiy consent to the release of the transcript of his telephone conversation with President Trump? Had he objected it seems that Trump would be precluded from releasing it.

I am wondering, too, is there any evidence that president Zelenskiy or anyone in the Ukraine actually undertook any steps to carry out the investigation of Bidens as requested by Trump? Not that that matters, just asking? Why hasn’t Ukraine investigated the alleged Biden scandal? Why isn’t anyone asking this?

President Trump, Rudy Giuliani and Fox News have harped incessantly on the supposed wrongdoing of Joe Biden and his son Hunter. But we have yet to see any specific allegations of wrongdoing. This is not just a matter of there being no evidence. It is a matter of there being no specific claim or allegation. What we see now are simply rumors. The only thing they are contending is that Joe Biden, as vice president, pressured Ukraine to remove an (ineffective) Ukrainian prosecutor in order to protect his son from any corruption investigation in his duties as a board member of a Ukrainian gas company. No facts or evidence has been produced to support this claim. Besides, it does not amount to a campaign-finance law violation because it was not done “in connection with an election.” Moreover, if all of this is so terrible why can’t they say exactly what they think it was and produce the evidence?

Fox News has obsessed over the fact that the so-called mainstream media has not tracked down Hunter Biden to interview him. But, wait a minute, Fox News is a news organization so why don’t they track him down and interview him if that is so important?One other interesting speculation is: what if Trump is impeached, convicted by the Senate and removed from office. Impeachment does not disqualify him for running for office again. There is nothing to prevent him from running for president again in the next election. What about that?

One other interesting speculation is: what if Trump is impeached, convicted by the Senate and removed from office. Impeachment does not disqualify him for running for office again. There is nothing to prevent him from running for president again in the next election. What about that?

Posted in Law, Politics.

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