The Articles of Impeachment Are Very Weak
Democrats rolled out two articles of impeachment against President Trump on Tuesday, alleging abuse of power and obstruction.
As noted over the weekend, I had to correct myself when writing that the impeachment inquiry that led to this point was a “rush to judgment.” The judgment was made long ago. The president has been Impeached Man Walking for “The Resistance” since before he took the oath of office. The House proceedings have been a matter of rushing the process until it catches up to a judgment of three years’ standing.
The two impeachment articles were produced by the House Judiciary Committee, chaired by Jerry Nadler (D., N.Y.), cribbing from the report spearheaded by Intelligence Committee chairman Adam Schiff (D., Calif.). The abuse-of-power allegation is confined to the Ukraine episode, a kerfuffle that emerged three months ago and was promptly magnified into a scandal. The claim of obstruction relates to the president’s refusal to cooperate with the partisan impeachment inquiry, the outcome of which was foreordained even as Democrats refused for weeks to conduct a vote endorsing it — for fear of antagonizing voters, which, of course, would not be a fear if there were an obvious, egregious impeachable offense.
It was the lack of an identifiable crime that settled Democrats on “abuse of power,” taking advantage of the fact that the Framers did not require a penal offense for impeachment . . . but ignoring the Framers’ caution against an ambiguous standard that would invite politicized impeachments based on trifling misconduct. Here, Democrats say the abuse involves Trump’s converting of presidential power to his “personal political benefit” — recall the mantra of placing “self above country,” which was chanted throughout Monday’s farcical Judiciary Committee hearing (an often catty partisan duel, mainly between staff attorneys, with no testimony from actual fact witnesses).
ABUSE OF POWER
Trump’s abuse of power is said to have three components: The president (a) exploited his foreign-relations power to pressure a foreign nation to meddle in American domestic politics; (b) undermined our democratic elections; and (c) endangered national security. Each is problematic.
A. Pressuring a Foreign Power to Meddle in U.S. Politics
Democrats maintain that Trump pushed for Ukrainian investigations of the Bidens and Ukrainian involvement in the 2016 election solely for his personal political gain. Even accepting (as I do) that Trump’s main motivation on the Bidens was damage to a likely political foe, the argument is still flawed.
1. There Were (and Are) Legitimate Grounds for Investigations
It’s not like the president was asking Ukraine to make up corruption evidence out of whole cloth — as Schiff disingenuously claimed in his “parody” performance of the Trump–Zelensky call. There is, for example, more reason to suspect Biden-family self-dealing in Ukraine (among other places) than there was to suspect a Trump cyberespionage conspiracy with Russia — which our government zealously investigated for years, complete with surveillance warrants, confidential informants, and a special counsel probe.
Furthermore, Trump’s request for Kyiv’s help in investigating Democratic collusion with Ukraine in the 2016 campaign is not, as the impeachment article implies, limited to the debunked theory that Ukraine, rather than Russia, hacked the DNC. There is also significant evidence of Ukrainian government officials’ working with Democrats to harm Trump’s campaign. The fact that this election interference was not as “systematic” as Russia’s (as Democrats and their media note-takers point out) does not erase the fact that it was meddling. Furthermore, even the discredited theory that Trump mentioned to Zelensky is best understood as Trump’s effort to dispel suspicions that he colluded with Russia in 2016, not an effort to get a leg up in the 2020 race.
2. Nothing Happened
The claims that Trump pressured Ukraine to interfere in our domestic politics and thus undermined our elections bump up against the stubborn fact that, in the end, nothing of consequence happened. Yes, Trump delayed defense aid and a coveted White House visit for Ukrainian president Volodymyr Zelensky. Yet Kyiv got its aid and barely noticed any delay. Trump correctly points out that he did not pressure Zelensky in their July 25 conversation, Zelensky says he never felt any pressure, and Trump gave Zelensky an audience — albeit in New York City at the high-profile U.N. meeting, not yet at the White House.
With such sparse evidence of wrongdoing, Democrats try inflating it with three dubious claims.
a. Trump Transferred Aid Only Because He Got Caught
Democrats insist that Trump transferred the aid only because he got caught — i.e., the “whistleblower” complaint purportedly prompted Trump to abandon the scheme. But this is anything but clear. Trump had other reasons, besides pushing for investigations, to delay aid to one of the world’s most corrupt countries, and he was getting pushed by Russia hawks in the administration and on Capitol Hill to make the transfer.
It could be that his well-founded reservations about aid for Ukraine were overcome by persuasive arguments. It could be that the whistleblower complaint influenced him. It could be both. Or neither. Regardless, what matters is that he transferred the aid. The rationale for doing so is less important than the act. On that score, Schiff’s claim that merely delaying the $391 million is just as bad as denying it would have been is self-evidently absurd.
b. Trump Cared Only about an Announcement, Not an Investigation
Democrats further maintain that Trump did not care whether Ukraine actually conducted a Biden investigation as long as Zelensky announced one. This purportedly puts the lie to Trump’s claim that he was motivated by anti-corruption concerns.
This theory has become conventional wisdom. Republicans not only failed to rebut it; at times, they tried to argue it as a point in Trump’s favor (see, he didn’t mean Biden any real harm!). Nonetheless, the theory misstates the evidence. Trump was not saying he didn’t care whether the corruption investigation happened; he was saying he would not release the defense aid until Zelensky made the announcement of the investigation. Plainly, his calculation was that a public commitment would ensure that Zelensky would feel compelled to follow through with an investigation — hence Ambassador Gordon Sondland’s testimony that Trump wanted Zelensky “in a public box.”
In any event, Trump stood down, the defense aid was transferred, and no Ukrainian announcement was required. Again, much ado about nothing.
c. Trump Emboldened Russia
Third, and most speciously, Democrats claim that delaying the aid emboldened Russia — with some Democrats even suggesting that Trump’s delay may be responsible for Ukrainians’ being killed in the thrumming border conflict.
In truth, the Ukrainians barely knew that there was an aid delay, and there is no evidence that the holdup caused matériel shortages on the battlefield (aid is released to Ukraine in stages over years of time). Moreover, Democrats and their “policy community” allies refuse to come to terms with the fact that, for better or worse, the elected president makes foreign policy. If the president decides to revisit foreign-aid grants, that’s his call, even if Washington’s beloved, selfless, progressive — and unelected — policy professionals think doing so is harmful. Finally, while President Obama dithered as Russia seized Crimea in 2014, his successor has increased the lethality of Ukrainian defense aid over what Obama provided. The Democrats’ pearl-clutching over Ukraine — even as they accuse Trump of pearl-clutching over corruption — is something to behold.
B. “Corrupting Democratic Elections”
Democrats allege not only that Trump was attempting to undermine the 2020 election by soliciting foreign interference, but that he remains a continuing threat to do so — the latter being their rationale for the supposed imperative of impeaching him now rather than letting the American people decide his fate in the election less than eleven months from now.
1. Nothing Happened . . . and Biden Does Not Have Immunity
The flaws in this claim are obvious. As already recounted, Trump dropped the matter: Ukraine got its aid, Zelensky got a POTUS meeting, and no investigations (or announcement thereof) were required. Plus, the Democrats’ claim hinges on such fictions as the assertion that Trump was asking Ukraine to fabricate a case against Biden.
Running for president does not give Joe Biden immunity from inquiry into colorable suspicions of corruption, even if, as a collateral political consequence, the inquiry could help Trump and hurt Biden. If “high crimes and misdemeanors” now includes factoring domestic politics into dubious foreign-policy decisions (see, e.g., Obama’s withdrawal of troops from Iraq), maybe, to save time, we should start impeaching presidents before they take office — because every one of them will surely be impeachable.
2. Ukraine-gate Does Not Hold a Candle to Russia-gate
Even with the media cover they enjoy, the Democrats’ audacity in lodging this claim of corrupting elections against Trump is remarkable. Each new Russia-gate revelation elucidates that the Obama administration, in collusion with foreign governments, used the executive branch’s investigative powers in the service of the Democrats’ 2016 campaign. The Ukraine misadventure is amateur hour compared with the Trump-Russia investigation — to which Democrats reacted not by condemning interference in our elections but by demanding a special counsel to straitjacket Trump’s administration.
3. The Risible ‘Continuing Threat’ Claim
Finally, Democrats claim President Trump poses a continuing threat to facilitate foreign interference in elections due to what they portray as a pattern begun in 2016. That’s when candidate Trump purportedly encouraged Russia to hack Hillary Clinton. The inanity of this suggestion has not stopped it from being investigated by the special-counsel staff that Robert Mueller stacked with partisan Democrats, nor from being repeated ad nauseam by Democrats, their media allies, and anti-Trump pundits.
It is a silly allegation, no matter who feigns serious concerns about it. Trump did not encourage Russia to hack former secretary of state Clinton. In a palpably tongue-in-cheek effort to call public attention to his opponent’s biggest political vulnerability — viz., her astounding use of a non-government, non-secure email system for her sensitive (often classified) State Department correspondence, and her purging of over 30,000 emails that she falsely claimed were wholly unrelated to government business — Trump quipped that he hoped Russia found the missing Clinton emails because they would titillate the media.
Obviously, Trump was not calling for Russia to hack Clinton’s emails. He couldn’t have been. As everyone knew, the FBI had Clinton’s decommissioned servers, offline and under lock and key. Indeed, the Bureau strongly suspected that Clinton’s emails had long ago been hacked by hostile foreign actors, potentially including Russian intelligence services. Trump was not sending a signal to his purported Russian confederates; he was campaigning. He was hammering Clinton over her recklessness and dishonesty, major election issues. Furthermore, the “collusion” narrative held that Putin was the master and Trump the puppet; even in that fantasyland, Trump did not give orders to Russian intelligence; he took them.
Nevertheless, Democrats insist that the president (a) was pushing Russia to meddle; (b) has now pushed Ukraine to meddle; and (c) has more recently pushed China to meddle, also by investigating the Bidens. This last stems from still more presidential bloviating: When criticized for calling Kyiv to investigate Joe Biden, Trump (being Trump) doubled down by encouraging Beijing to do so, too. It was a noxious remark — suspects are tortured in the Communist Chinese “justice” system, so an American president should never even joke about Chinese investigation of an American. Still, Trump was talking nonsense. It warrants criticism, but to take it seriously is just as nonsensical. China does not take orders from Trump, and it plainly has no incentive to probe suspicions of corrupt ties between the Bidens and . . . itself.
C. Endangering National Security
Just as frivolously, Democrats maintain that Trump’s “abuse of power” includes endangering American national security. Here is the theory: Our noble (if pervasively corrupt) ally Ukraine is in a border war with Russia, a hostile foreign power, so we supply defense aid to Kyiv so they can fight Moscow’s mercenaries over there, lest we have to fight the Russian army over here. Yes, Jerry Nadler would have us believe that Ukraine — its armed forces threaded with neo-Nazis and jihadists — is the only thing preventing Putin from laying waste to everything from the Upper West Side down to Greenwich Village.
This, from the same Democrats who yawned when Russia annexed Crimea, and when Obama denied Kyiv the lethal defense aid Trump has provided. This, from the same Democrats who swooned when Obama mocked Mitt Romney for observing that Russia remains our most worrisome geopolitical foe. This, from the same Democrats who cheered when Obama struck a deal, including cash ransom payments, to give Iran, the world’s leading state sponsor of anti-American terrorism, an industrial-strength nuclear program that, in the absence of meaningful monitoring, could be converted to a nuclear-arms program in nothing flat.
It is perfectly reasonable to contend that arming Ukraine against Russian aggression is in American interests — especially after prior U.S. administrations of both parties encouraged Ukraine to disarm on the loopy theory that post-Soviet Russia posed no threat. But the claim that Trump’s dealings with Ukraine have put our national security at risk is fatuous.
OBSTRUCTION OF CONGRESS
The second article of impeachment alleges that President Trump has obstructed Congress. That is, he has unilaterally decided what executive-branch information will be revealed to House investigators, directing relevant witnesses to withhold testimony and agencies to withhold documents.
Consequently, an episode at Monday’s House hearing is worth pondering.
Daniel Goldman, the Intelligence Committee’s top majority counsel and investigator, was being questioned by the Judiciary Committee’s ranking member, Doug Collins (R., Ga.). At issue was the majority’s decision, in composing its report, to issue telephone-records subpoenas and then publicize the resulting phone records of its political piñatas — Trump lawyer Rudy Giuliani, journalist John Solomon, and Intelligence Committee ranking member Devin Nunes — as if they were engaged in a nefarious conspiracy. The phone-records exposition did not advance the case that Trump pressured Zelensky to meddle in U.S. elections; it was a smear job.
Collins wanted to know, Who decided to do that? Who made the call not only to issue the subpoena but to publicize the relevant names rather than refer to them anonymously, as would typically be done in intelligence reporting (e.g., Lawyer No. 1, Journalist No. 1, Congressman No. 1)?
Goldman’s response? Essentially: None of your business. He refused to answer the questions. That is, the Democrats’ chief legal beagle told an elected member of the People’s House that he (the lawyer) had unilaterally determined he need not provide information if he had what he regarded as a worthy reason to protect the confidentiality of communications.
The story is worth rehearsing so you understand: The Democrats’ position is that the president of the United States does not have the same right to decline House requests for information — based on legally recognized executive privilege and attorney-client privilege — as an unelected bureaucrat who obeisantly answered every question posed by his fellow Democrats.
Mind you, I am a believer in political resolution of inter-branch disputes between the political parties. Unlike many conservatives and Trump supporters, I’m not particularly impressed that some Trump-administration officials have offered to litigate privilege issues in court. After all, in other cases, the Trump administration tells the court that it should stay out of political-branch squabbles. To be sure, I don’t think it’s reasonable for the House to impeach under circumstances where the executive is willing to litigate privilege issues in court; but I think it’s completely reasonable for the House to counter that the Constitution does not require the Article I branch to rely on the Article III branch to get compliance from the Article II branch. Theoretically, the House may tell the executive, “If you don’t comply with our information demands, we’ll impeach you.”
I also think it’s fine for the president to tell Congress to take a walk if it demands evidence protected by executive privilege or other legal confidentiality claims. These inter-branch battles are meant to be resolved by politics, not judges. As a practical matter, disputes get worked out. It would be rash to go to DEFCON 1 when other arm-twisting can work; in the end, House members who seek impeachment over thin gruel and presidents who contemptuously flout legitimate congressional inquiries know the voters will punish them if they push unreasonable positions too far.
On the politics, the president is banking on the public’s conclusion that the Democrats are engaged in a partisan crusade to impeach him, and he’s not going to cooperate. That leaves it to Democrats to convince the public that they are engaged in a good-faith inquiry into a matter of grave executive malfeasance, which the president is impeding.
I don’t think we need a judge to figure this out. I do think it’s worth noting, though, that when Daniel Goldman told the committee he would not answer any questions that he did not wish to answer, no Democrat objected.
In impeachment, selective outrage is not a good look. I’m almost tempted to call it an abuse of power.
