The House is considering three articles of Impeachment. The Constitution is at issue in questions of Obstruction of Justice, Contempt of Congress and the form of the Senate Trial. Comity and Corruption are at issue as to the Bidens and Abuse of Power. And is this is an unlawful attempted coup?
The House is considering three Articles of Impeachment, one of which is expected to be for contempt of Congress. The House claims that Donald Trump refused to honor lawful subpoenas for testimony and documents as pertains to the Ukraine. Was Trump within his rights to do so? That is wholly a Constitutional question. It is also closely related in at least one relevant part to a likely Second Article of Impeachment, namely Obstruction of Justice as to the Russian Hoax inquiry.
The only vote the House of Representatives has held to authorize an impeachment inquiry of Donald Trump was defeated overwhelmingly in January, 2017. In response to the Ukraine IC IG matter, Nancy Pelosi, as Speaker, unilaterally declared an “impeachment inquiry” on September 24, 2019, and the House immediately began issuing subpoenas for witnesses and documents. As to the latest vote held a week ago to formalize the procedures being used in the ongoing Star Chamber, Speaker Nancy Pelosi was adamant that the Resolution was not an authorization of an “impeachment inquiry.”
Can anything less than a vote by the entire House of Representatives to authorize an “impeachment inquiry” be considered Constitutionally valid? As I’ve discussed before, this is far from mere form. If the House of Representatives approves a resolution for an impeachment inquiry, the House gains a power that it, by the explicit terms of the Constitution, does not otherwise possess — the judicial power to enforce subpoenas and requests for documents on matters outside its Art. I, Sec. 8 enumerated powers. Without that power, the White House was acting lawfully when it refused to cooperate. Tellingly, the House, rather than take those subpoenas to a Court to enforce them — and risk having a Court declare their proceeding unconstitutional — appears to be simply rolling all but one of their refused “subpoenas” into an contempt of Congress charge.
Then there is Part II of the Mueller Report. We can expect the House to adopt Part II virtually in toto as an obstruction of justice charge. There is a twist on this, however, and it is where this overlaps with the Contempt of Congress charge. Without the judicial power of an impeachment inquiry, the House has no power to subpoena the Grand Jury testimony that Mueller referenced in his report. The House subpoenaed the Department of Justice for that information and got the matter heard before an Obama judge (yes, John Roberts, there are progressive judges who rule by ideology, not the law) who ruled that the House was authorized to receive the material — and thus that their current “impeachment inquiry” was constitutionally sufficient. The White House made an emergency appeal to the D.C. Circuit Court, which granted a stay, and the matter is now to be heard on November 12 before the D.C. Circuit. If the D.C. Circuit affirms the lower court’s ruling, the Trump administration will assuredly bring it to the Supreme Court, but there is no guarantee that the Supreme Court will take up the case.
All of this brings up a huge, core Constitutional issue: Which branch of government has the power to determine the meaning of the Constitution — specifically in this case, when the question is whether the House may claim judicial powers without a vote of the House of Representatives to authorize an impeachment inquiry? There is no doubt that Articles of Impeachment (other than Contempt of Congress) that the House votes upon would be facially constitutional. So this question applies only to whether the President may be validly held in contempt of Congress for failing to cooperate with an impeachment inquiry that was never authorized by a vote of the full House of Representatives.
The Judicial Branch long ago claimed for itself the power to definitively interpret the Constitution, but that right to do so appears nowhere in the text of the Constitution. Can the Senate summarily dispense with any claim for Obstruction of Justice as to this “impeachment inquiry” because the Senators believe that the House acted “unconstitutionally?” Can the Senate do so in the face of a D.C. Circuit Court opinion to the contrary? Could the Senate do so in the face of a Supreme Court refusal to hear an appeal from the D.C. Circuit? And lastly, could the Senate do so even if the Supreme Court hears an appeal and concludes that the obscene House Star Chamber proceeding meets the standards for constitutionality? Those are all valid questions that I believe should be answered in the affirmative, but that could have long term ramifications for how our nation operates.
A second Constitutional question that touches on this and all of the Articles of Impeachment concerns whether Donald Trump will be afforded the same due process rights at trial (rules of evidence, right to bring definitive motions, etc.) that are afforded all Americans in court? As Supreme Court Justice Story said, in 1833 when remarking on impeachment:
It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes.
Under current Senate Rules, the President does not explicitly have those protections. Under the modifications suggested here, he would gain them. Assuming that the Senate does adopt those changes then before trial begins President Trump should move to dismiss Contempt of Congress Charges for failing to state a legal claim — i.e., the House did not vote to authorize an impeachment inquiry, and thus the President did not obstruct a lawful process. As to the obstruction of justice charge, President Trump should make a motion to dismiss the claim on the grounds that, even assuming all of the facts alleged in the Mueller Report to be true, it does not as a matter of law show a violation of the law or a political offense for which impeachment is warranted. President Trump committed no underlying crime. President Trump substantially complied with the investigation and he committed no act that resulted in the investigation being hindered.
Corruption & Comity
A third Article of Impeachment, according to Breitbart, will be for Abuse of Power. The House’s Star Chamber proceeding is likely to result in a claim that President Trump abused his power by withholding aid from Ukraine subject to them investigating Joe and Hunter Biden for corrupt practices.
This is yet another Article that should be dealt with on a motion to dismiss. The President’s practice and authority to negotiate with foreign countries for the aid they may receive from America is a well-established power of the Presidency, one that has been exercised by numerous other Presidents. Thus negotiating foreign aid with the Ukraine cannot itself, be grounds for impeachment. It is axiomatic that, to again quote Justice Story, impeachment may not be used to “make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.“ And in fact, the aid was ultimately released in full to the Ukraine in September, 2019, so there is no Constitutional concern with Congress’s power of the purse, nor any legal concern with the Impoundment Control Act of 1974.
That leads to the next question, whether what Trump was negotiating for — the facts surrounding Joe and Hunter Biden in the Ukraine and whether it involved corruption — was an improper purpose. (It should be noted that Trump never in the transcript explicitly said that Ukraine’s receiving the money hinged on looking into the Biden matter. Indeed, it’s a stretch even to read into the transcript his having said such a thing implicitly.) As a textual matter, Article II § 3 of the Constitution requires the President to “take care that the laws be faithfully executed.” So when the President looks into possible legal violations, he is acting in fulfillment of his Constitutional duties.
That leaves the last question: Did President Trump have reasonable grounds to suspect that Joe Biden violated federal rules of ethics, and perhaps American laws, regarding corrupt practices? That is a factual matter. Trump does not need to show actual guilt. But he needs to be able to show that, based on the facts as he knew them, a reasonable person would suspect that there was enough evidence of corruption that further investigation was warranted.
As a threshold matter, the Joe and Hunter show went far beyond Ukraine. It was both foreign and domestic. As to the former, when Daddy became Vice President and was given control of foreign affairs in certain countries, Hunter Biden became Joe Biden’s little lamb. With apologies to Sarah Hale and a hat tip to the poetess Bookworm:
Joe Biden had a little Hunter,
That filled its nose with snow,
And everywhere Joe Biden went
Hunter was sure to go;
He followed Joe to Ukraine,
Romania & China too;
He sold his daddy’s name there,
But saying so sparked a coup.
Hunter Biden’s escapades are well documented in the Ukraine, Iraq, China and Romania, for we know that he followed his father into those countries (sometimes flying into them with his father on Air Force Two) and immediately struck lucrative deals with corrupt politicians or, in the case of China, the government itself. Standing alone, these undisputed facts stink to high heaven. The mere appearance of corruption is an ethical problem for Joe Biden. It becomes a legal problem for Joe Biden if he used his position as Vice President to further his son’s enrichment or to protect him from investigation. And to be clear, based on the facts as we know them, if Trump and Trump’s children had done what Joe and Hunter Biden did, the call to impeach and jail him would be deafening.
When it comes to Ukraine, we know Hunter Biden was hired to sit on the Board of Bursima, a Ukrainian energy company owned by a man who is a suspect in billions of dollars of government corruption. We know that Hunter Biden was not qualified for such a seat beyond his familial relationship to Joe Biden. We know that people associated with Bursima then dropped Hunter Biden’s name to lobby the State Dept. in order to quash the corruption probes targeting their client. We know that at least one American official raised this as a problem to Biden’s office. And we know . . .
It is in fact an open question, not yet definitively answered, whether the prosecutor whom Joe brags about getting fired had an active corruption investigation into Bursima — and perhaps Hunter Biden as well. That was the question Trump seemed to be asking the President of Ukraine to find an answer to in his 25 July phone call. If so, there is more to investigate, such as what did Joe Biden know and when did he know it.
But according to Democrats, it is an abuse of power even to ask those questions. They can go pound sand. No one is above the law, not even a Democrat candidate for office. The only thing Trump asked for is information from an investigation. Was that pretextual or warranted? The first might arguably be grounds for impeachment, the second cannot be. Thus the only factual issue to determine whether to proceed to a full impeachment trial on abuse of power grounds is whether Trump was justified in seeking an investigation of Biden’s seemingly corrupt dealings.
Bottom line, we need to hear from Joe Biden and Hunter Biden, under oath at any Senate trial, to determine whether there was sufficient appearance of corruption for a reasonable person in Trump’s shoes to investigate. Indeed, the rule changes I suggested for the Senate’s impeachment trial are in anticipation of precisely that reality.
Democrats are going nuts over that issue. This from the Daily Beast, warning that “comity” in the Senate would be irreparably damaged by forcing the Bidens to testify:
Senate Democrats issued stark warnings on Wednesday that Republicans would severely damage the institution of Congress if they acquiesced to a push from Trump allies to haul former Vice President Joe Biden and his son Hunter for testimony about their actions in Ukraine.
A top Biden ally, Sen. Chris Coons (D-DE), told The Daily Beast that calling the 2020 presidential contender—who served for 35 years in the Senate—and his son for testimony “would be literally rolling a grenade down the aisle of the Senate” that would have “lasting consequences” on the upper chamber’s ability to work together.
“Look, Joe Biden is well known, widely respected, and frankly beloved by many in the Senate on both sides of the aisle,” said Coons. “The impeachment process is already disruptive enough. I think we should be approaching it with seriousness, not by entertaining conspiracy theories that are utterly unfounded. And I think it would be a very unfortunate move.”
Right. As if the left overturning an election and pushing us to the brink of a second civil war over the proposition that they are above the law while the rest of us are below it is not exponentially beyond concerns of “comity” in the Senate. Truly, screw these people.
And finally, here’s a question to pick up after what promises to be a failed impeachment attempt. Mark Zaid, attorney for the whistle blower who orchestrated this Ukraine madness, tweeted in 2017:
— Mark S. Zaid (@MarkSZaidEsq) January 31, 2017
Zaid has since claimed that what he meant only a “legal” coup. There is no such thing. A coup is, by definition, an “illegal seizure of power from a government.” Now, if what Mr. Zaid had in mind was an unlawful abuse of the laws of this nation to effect a coup . . . that is still not legal. It is an act of sedition punishable at law.
We certainly now have evidence of Mr. Zaid’s state of mind. We have reason to suspect that his client was likely previously involved in the leak of classified information to the press in order to damage President Trump and may have spied on Trump on behalf of the FBI, both illegal acts. Then we have long standing ties between the whistle blower and Adam Schiff’s staff and we have Adam Schiff’s own statement that they coordinated filing a whistle blower complaint. Lastly, we have a grossly legally deficient whistle blower complaint that should never have been filed as such, and certainly never should have been addressed to Congress as a finding of urgent concern. The IC IG did not conduct due dillegence in his investigation.
Now, that could all mean nothing. Or, it could mean that certain people were conspiring to effect a bloodless coup. There is enough here to warrant an investigation to determine the truth. And prosecution would be warranted if what we discover is in fact a seditious conspiracy rather than a series of simple errors. That would in fact be an unlawful coup.