The President’s Best Ukraine Defense: Not an Impeachable Offense

Editor’s Note: This is the second of a two-column series this weekend, dealing with recent developments in the impeachment inquiry House Democrats are conducting in connection with President Trump’s dealings with the government of Ukraine.

Yesterday, in part one of this two-part series, I reiterated my argument that it has been a strategic error for President Trump and his supporters to claim that there was no quid pro quo in his administration’s dealings with the government of Ukraine. That is not just because quid pro quo terms are a staple of negotiations between sovereigns; nor is it just because the evidence is strong that President Trump did pressure Ukraine by seeking investigative assistance in exchange for what Ukraine’s president sought — the release of $400 million in foreign aid and an Oval Office visit.

The “no quid pro quo” claim is misguided because it is largely irrelevant to an impeachment inquiry. As explained in part one, we are not here talking about a criminal court prosecution in which a prosecutor must prove a crime beyond a reasonable doubt. If a majority of the Democratic-controlled House was satisfied (or at least said they were satisfied) that an egregious abuse of power occurred, they could vote an article of impeachment even if a corrupt quid pro quo could not be proved to criminal-law specifications.

More important, the president’s camp should stick with and relentlessly argue his best point: The president’s actions in conducting Ukrainian relations do not establish an impeachable offense under the circumstances. Let’s consider the relevant issues.

1. No harm, no foul. The president’s hold on defense aid was temporary, and Ukraine got all of it. The Zelensky government did not have to commence or assist any investigations to get it. The delay caused no material harm.

It is certainly fair to contend that, in the absence of some vital, emergent American interest, a president should not put a hold on aid to a friendly and strategically significant nation that Congress has directed in legislation and the president himself has signed into law. The Constitution, however, gives the president sweeping foreign-affairs authority, so Trump would arguably have had the power to decline to deliver the aid altogether. This, by contrast, was merely a temporary delay that was of no consequence to Ukraine’s defense. If we were talking about any other president, some criticism would be in order. To portray what happened as an impeachable offense is just the next stage in a tireless political campaign. It trivializes impeachment.

2. The Democrats and Ukraine. It is precious indeed to hear Democrats complain that Ukraine was imperiled by the hold on defense aid. President Obama refused to provide Ukraine with any lethal defense aid after Russia began attacking it and seizing territory in 2014. President Trump has been providing it and has imposed tough sanctions on Russia. The Democrats sudden obsession over Ukraine’s well-being, like their newfound angst over the geopolitical challenge posed by Russia, is political posturing.

3. Assistance to U.S. investigations. Most of the assistance the president sought from Ukraine was unobjectionable. It is common for presidents to ask their foreign counterparts to assist Justice Department investigations. House Democrats will not acknowledge this because they seek to delegitimize the Barr/Durham probe as a Trump 2020 campaign initiative; but it is not.

To be sure, it is irregular for a president to seek a foreign government’s investigative assistance absent a request from the attorney general. Reportedly, AG Barr did not ask the president to intercede with Ukraine. Though not unlawful, it was unwise for the president to do so unilaterally. With Democrats already disparaging the Barr/Durham investigation (soon, it may even achieve “witch hunt” status), the president has just given them more ammunition to argue that the probe is politicized. This makes the prosecutors’ job more difficult — Barr and Durham will need to have strong evidence to overcome the inevitable claims that any case they bring is based on presidential pressure, not proof. Nevertheless, there is nothing illegal or improper in principle about a president’s asking another country to assist an ongoing U.S. investigation.

4. Investigating Vice President Biden’s influence over Ukraine. It was not improper for Trump to seek information about Joe Biden’s squeezing of Kyiv to fire the prosecutor. That could plainly be relevant to the Barr/Durham investigation. Though we do not know, we assume that prosecutors are examining whether Obama-administration agencies pressured Ukrainian authorities to investigate Paul Manafort, Trump’s former campaign chairman. If so, Biden’s capacity to extort Kyiv into firing a prosecutor would be probative of the Obama administration’s influence over Ukrainian law enforcement. That kind of evidence is routinely admitted in conspiracy prosecutions.

5. Investigating Hunter Biden and Burisma corruption. More problematic is the president’s pressure for a Ukrainian investigation of potential corruption in Hunter Biden’s relationship with Burisma, and in Joe Biden’s motive to push for the prosecutor’s firing.

There is no known Justice Department corruption investigation of the Bidens. Since the president was apparently not requesting assistance in an ongoing U.S. investigation, it is reasonable to deduce that he was primarily hoping for information — and, potentially, a Ukrainian prosecution — that might help his 2020 campaign in the event the Democrats nominate Biden to run against him.

There would be little U.S. national interest in asking another country to investigate one of that country’s own companies for violations of its own laws. Generally speaking, moreover, we expect the United States government to protect American citizens from potentially aggressive or arbitrary treatment by foreign governments. Like Paul Manafort, Hunter and Joe Biden are our citizens — even if their political rivals, in their zeal, seem to forget such things from time to time. That is why it was so wrong for President Trump to suggest that Communist China should also investigate the Bidens — even allowing that China would have no motive to do so, that China does not take marching orders from U.S. presidents, and that the president’s foolish remark may have been tongue-in-cheek.

All that said, the president does have a legitimate interest in policing corruption, particularly potential U.S. government corruption, in countries to which we provide significant aid. On that score, it is fair to point out (as I have done myself) that Trump supporters’ depiction of the president as a scourge of global corruption is not very convincing. He is known to overlook far worse corruption than Ukraine’s in seeking warmer relations with despicable regimes — Russia, China, North Korea, Turkey, and Saudi Arabia spring to mind.

Nevertheless, the president campaigned on the need for the United States to stop bearing the financial burden of other countries’ security challenges, particularly Europe’s. Since he is predisposed against this kind of foreign aid, it is logical for him to demand some policing of corruption in the countries getting it. You may think his position on this is shortsighted, but being wrong on policy is not an abuse of power. If you think his anticorruption stance was just a pretext for hurting Biden, you may be right, but it’s not a baseless pretext.

In any event, it is not like President Trump concocted the Biden self-dealing scenario out of whole cloth. There is plenty of evidence to support corruption suspicions that should be explored by our government. (Note that Obama supporters are wont to say that there was no impropriety in the administration’s prodding of Ukraine to investigate Manafort because there was plenty of corruption evidence.) Moreover, it is not clear that Ukraine will actually renew investigative interest in Burisma, much less that the Bidens will be affected.

Bottom line: It was inappropriate for the president to point the Ukrainians specifically and explicitly at the Bidens. A more polished president would simply have said, “We want you to root out corruption, no matter how high up it goes, even in our own government” — the Ukrainians would have gotten the point and there would be nothing to criticize. Trump went about it crudely. Commendable? Of course not. A valid reason to vote against him in 2020? Surely. But it’s not impeachable.

6. The Shadow State Department. Democrats and many Republicans share former ambassador Bill Taylor’s concerns about President Trump’s use of nongovernment officials as emissaries. In Ukraine, specifically, the concerns center on Rudy Giuliani, the president’s private lawyer (and many years ago, my boss — and someone for whom I have respect and affection). These concerns are also shared by many Trump-administration officials, and not just because it diminishes their roles.

A so-called shadow State Department can cause disruption, especially if the emissary is wearing two hats, as Rudy was: 1) a private lawyer helping the president and his campaign; and 2) designee of the president for dealing with top Ukrainian officials. Such arrangements can undermine government officials as they attempt to carry out what they understand to be administration policy. Taylor’s testimony, for example, describes the government’s regular foreign-policy channel (the National Security Council, State and Defense Departments, etc.) pursuing the standing U.S. agenda for Kyiv (security, economic stability, anti-corruption), while simultaneously, the “irregular” channel focused on assistance in investigations pertaining to the 2016 election and the Bidens.

Yet it is simply a fact that presidents occasionally deploy influential nongovernment officials as their envoys. Far from being a uniformly bad practice, it can further American interests in the cloak-and-dagger realm foreign relations can often be. It is also a fact that the Obama administration colluded with elements of the bureaucracy — particularly the law-enforcement, intelligence, and diplomatic agencies — to undermine Trump’s campaign and presidency. The president has contributed to the toxicity, but let’s not pretend that the progressive governing establishment’s insubordinate machinations have not occurred. If President Trump believes the unaccountable federal bureaucracy works against him because it thinks it knows better, that is not merely a figment of his admittedly active imagination.

While there is no legal bar to the president’s using trusted outside advisers as envoys, it is obviously fair to ask whether the Giuliani deployment has done more harm than good.

Lev Parnas and Igor Fruman, two Giuliani associates who helped Rudy research the activities of the Bidens in Ukraine, are now under indictment. That case (brought by the Trump Justice Department in the Southern District of New York) includes a successful scheme to persuade the president to remove Marie Yovanovitch, the U.S. ambassador to Ukraine. Parnas and Fruman are alleged to have made illegal campaign contributions to acquire political influence, and then to have used that influence to push for Ambassador Yovanovitch’s removal — including by inducing then–Representative Pete Sessions (R., Texas) to write the president a letter urging that the ambassador be fired for exhibiting anti-Trump bias. (I note that Yovanovitch vigorously denies that she was “disloyal” to the president, and she reasons that those who campaigned against her stood to be financially damaged by American anti-corruption efforts in Ukraine.) Parnas and Fruman were allegedly acting at the urging of a Ukrainian government official, who has been identified in press reporting as Yuriy Lutsenko. He is a former Ukrainian prosecutor who is said to have given Giuliani extensive information about the Bidens. (Lutsenko reportedly says the Bidens did not break any Ukrainian laws — which is noteworthy even if it is far from an endorsement of their influence peddling.)

Constitutionally, a president does not need to have a reason to remove an ambassador. Congress, however, is entitled to examine the president’s conduct of diplomacy. Democrats are using their impeachment inquiry to explore whether Yovanovitch was reassigned because she was an obstacle to the president’s push — with Giuliani’s encouragement — for Ukraine to investigate the Bidens.

This is a mess that neither the president nor the country needed. After all, Mueller’s two-year investigation, as well as the pending Justice Department inspector-general and Barr/Durham probes, to some extent all involve collusion with foreign powers in connection with political campaigns. It is fair game for the Trump campaign to explore whether the Bidens cashed in overseas on Vice President Biden’s political influence; and if Giuliani, as the president’s private lawyer, found any evidence of possible U.S. law violations, those would appropriately be referred to the Justice Department. But to entangle that effort in the U.S. government’s foreign relations with Ukraine was inappropriate — particularly when the president is attacking Biden for being insensitive to patent conflicts of interest.

Nonetheless, it is overwrought to portray bad judgment in these circumstances as an impeachable offense. The Bidens’ behavior is highly questionable. The Obama administration liberally enlisted foreign powers in the politicized investigation of Trump, while the Clinton campaign colluded with foreign powers to tar Trump. As president, Trump ultimately stood down from his hold on Ukrainian aid. Kyiv made no commitment to investigate the Bidens and, prudently, wants to stay out of U.S. politics.

Given the lack of actual harm and the indecorous behavior on all sides, this is not an episode over which a national consensus would support the president’s removal. It is inconceivable that two-thirds of the Senate would ever oust Trump over his actions in Ukraine, so House Democrats are clearly pursuing impeachment for 2020 campaign purposes. They are titillating their base at the cost of exacerbating the deep divide in our nation. And they will not be able to govern under the new standards they are forging.

7. President Trump’s fitness. We do not have a platonic ideal of presidential fitness. The constitutional qualifications are minimal, and when the people elect a person, that person is presumptively fit because the sovereign has spoken. After that, we make fitness judgments based on job performance: The president is deemed too unfit to serve if he commits high crimes and misdemeanors so egregious that the House files articles of impeachment and a supermajority of the Senate votes to convict and remove.

Democrats and other Trump detractors are determined to reverse this norm. They have never accepted the voters’ election of Trump. They are not seeking to deduce unfitness from impeachable offenses. They predetermined the unfitness finding and have spent three years looking for some misstep — any misstep — that might pass the laugh test as an impeachable offense. If that approach became our new normal, it would be much more harmful to the country than anything President Trump — under the watchful eye of a hostilely aggressive Congress and a media that has shaken off its eight-year Obama-era snooze — may do.

8. The 2016 precedent. Finally, President Trump’s offense here was, at most, to leverage his power to advance his political ambitions — in a manner that was minor, temporary, and without effect. It does not hold a candle to what Democrats did in 2016, when the incumbent administration placed the intelligence and law-enforcement apparatus of the government in the service of the Democrats’ agenda to win the election and, failing that, to suffocate Donald Trump’s administration — an enterprise that energetically exploited the Obama administration’s conduct of foreign relations. Tellingly, Democrats oppose any investigation of that scheme, let alone accountability or impeachment for any participant.

The president and his supporters are wont to say that the Democrats’ exploitation of presidential powers for partisan political purposes is the worst abuse of power since Watergate. If it is proved, it may well be — we’ll have to see what the Justice Department’s investigations establish. For myself, though, I don’t see how one can condemn what happened in 2016, yet not see any problem whatsoever with President Trump’s handling of Ukraine — even with the caveat that to portray the Ukraine excesses as grist for impeachment is overkill.

That caveat is the president’s best foot forward in opposing impeachment. It is also the best reason for Democrats to stand down. Ukraine seems like an effective campaign issue for them, especially if Joe Biden is not the nominee. As the basis for putting the country through an impeachment crisis, though, it is likely to explode on them.

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