No Crimes or Misdemeanors

So much balderdash has been thrown at us about impeachment in recent weeks that I thought a fair-minded analysis by an experienced constitutional litigator who voted for Ron Paul as a write-in in 2016 and who co-wrote a book about actual high crimes by Obama and Hillary, would be useful.

Since the day he was sworn in, opponents of President Trump have been trying to impeach him.  Ironically, they had accused him of being unwilling to accept the results of the election. All such efforts had failed until Trump made a phone call to the President of the Ukraine and all hell broke loose.  The Deep State, the MSM, and the Democratic Party collectively said, “We got him! Trump abused his power to withhold aid in exchange for dirt on a political opponent.”  This was, they believed, a violation of the Constitution, a breach of trust, and a violation of several criminal statutes as well.  Trump was toast, they thought.  On September 24th, Speaker Pelosi, without waiting to see the transcript of the call, announced the commencement of an impeachment inquiry, by fiat without a vote.

Pelosi stated in part: Progressivism: A Prime... James Ostrowski Best Price: $8.99 Buy New $10.95 (as of 08:30 UTC - Details)

“[P]ress reports began to break of a phone call by the president of the United States calling upon a foreign power to intervene in his election. This is a breach of his constitutional responsibilities. The facts are these: The intelligence community inspector general, who is appointed by President Trump, determined that the complaint is both of urgent concern and credible. And its disclosure relates to one of the most significant and importance of director of national intelligence responsibility to the American people. . . . the Trump administration’s actions undermine both the national security and our intelligence and our protections of whistleblowers. The acting DNI will appear before the House Intelligence Committee and must turn over the full complaint to the committee. He will have to choose whether to break the law or honor his responsibility to the constitution. . . . The actions taken by the president have seriously violated the Constitution, when the president says “Article 2 says I can do whatever I want. . . . this week, the president has admitted to asking the president of Ukraine to take actions which would benefit him politically. The actions of the Trump presidency revealed dishonorable facts of betrayal of his oath of office and betrayal of our national security and betrayal of the integrity of our elections. Therefore, today I’m announcing the House of Representatives is moving forward with an official impeachment inquiry and directing our six committees to proceed with their investigation under that umbrella of impeachment inquiry.”

Pelosi did not cite any legal authority for her unilateral action and House rules don’t seem to provide for her authority to do so.  She is allowed to appoint a committee created by the House.  House Rule I-11.  The House had created no such committee.  As a mere member, Pelosi has just one vote and her announcement does not even constitute a vote!  So, as of today, no member of the House has voted for an impeachment inquiry.  It is true that the Constitution itself does not mandate such a vote but when officials seek to enforce the law, they should be expected to follow their own rules.  Even if those rules are vague on impeachment, Pelosi also failed to follow prior precedent in the Nixon and Clinton instances.

Why does the lack of a vote matter?  Because it is a Freudian slip.  Obviously, Pelosi is ducking a vote to protect Democrats in pro-Trump districts from going on the record and thereby losing the election next year.  But why would she be concerned if this is a slam dunk as they all say it is?  Of course, the MSM, which could also be described as the DNC MSM, has completely ignored this point.

One of the benefits the Democrats derive from failing to vote on impeachment is avoiding the task of specifying the charge(s) against Trump.  This is an obvious due process violation which has also been ignored by the MSM.  One has to do a Google search for possible charges and a few media reports pop up.  If this process had been followed in a criminal prosecution, the “charges” would be laughed out of court, but, Orange Man Bad.  This was not a point emphasized in the otherwise fine letter to Pelosi from Trump’s lawyer, Pat Cipollone.  Thus, in the Star Chamber proceedings in the Intelligence Committee, Trump supporters are handicapped in asking questions without knowing what the specific accusations are.  In the law, the relevance of questions is determined by the issues specified in the pleadings.  Here, there are no pleadings!

One of the few lawyers to go on the record with a theory of impeachment is law professor Frank O. Bowman, III, who has an expansive view of Congress’s impeachment powers.  He told Reuters: “Trump has already admitted the essentials – he called a foreign leader and asked him to use the legal engines of a foreign government to produce dirt on Trump’s American political rival.” This seems to be the main theory of impeachment in the absence of any specific charges brought by the House and one endlessly repeated by the media: Trump tried to bribe Ukraine to provide “dirt” on a political opponent.  Contrary to the conventional wisdom, this is an exceedingly weak argument.

First, Trump never asked Ukraine to provide dirt on the Bidens.  Trump stated, according to the official notes:

“The other thing, there’s a lot 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. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”

This actual language is rarely or never quoted or even paraphrased by the media or by impeachment advocates.  The request appears to be reasonable and within the scope of the President’s vast Article II powers to execute the laws and to deal with foreign relations:

“The executive power shall be vested in a President of the United States of America. . . . The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. . . He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.”

As Professor Lawrence Tribe has written: “In the area of foreign affairs . . . the President is vested with great power.” American Constitutional Law, (1978), p. 163.  This view is buttressed by a treaty of mutual cooperation between the two countries with respect to law enforcement.  Nowhere in the call does the President ask for “dirt” or ask the Ukraine to fabricate allegations against the Bidens as has been alleged in the media.  (Nor is it clear how fabricated allegations against the Bidens would help Trump.)  The fact that Trump’s accusers cannot even bear to accurately quote what he asked for is a confession of the weakness of their position.

But surely it can’t be denied that Trump did ask for an investigation of a political opponent.  That, however, is not what he did.  He asked for an investigation in coordination with the Attorney General of the United States of the actions of a federal official—the Vice-President and Obama’s representative to the Ukraine–for what he did in 2015.  Once again, this is a request fully within the President’s Article II powers.  No argument has been posited as to why Biden choosing to run for President two years later, retroactively immunizes him from scrutiny, negates the treaty of mutual cooperation or retroactively shrinks the President’s Article II powers.  The President cannot step aside and recuse himself from a particular matter when there might be a conflict of interest as can a federal judge.  He can only step aside completely when unable to perform his duties for medical reasons under the 25th Amendment.  Thus, Biden does not get a retroactive free ride from scrutiny because he chose to run for President after the fact.  Also, since Biden was by all accounts acting under orders from President Obama, Obama is also not free from scrutiny in the matter.

Let’s look at the withholding of funds from the Ukraine.  Since the prevailing theory of impeachment is—Orange Man Bad—they have neglected to examine the relevant documents.  That being the case, and in the absence of any specific charges, documents or citations, it is not clear which appropriation act the President is accused of violating.  However, no one has accused the President of violating the actual terms of any appropriation bill.  (Note that many foreign aid bills mention the importance of the reducing corruption in the recipient state.) Under Article II, the President has a large measure of discretion in distributing military aid.  The President has credibly maintained that his decisions with respect to aid to the Ukraine were based on concerns for ensuring that the new regime there was committed to fighting Ukraine’s legendary corruption and making sure that other allies in Europe contribute to Ukraine’s defense as well.  (Both factors were campaign themes of Trump’s—American First; Drain the Swamp.) Thus, Trump’s discretion in delaying appropriations appears to be within his authority whether or not there was a quid pro quo and there is no clear evidence of such a deal in any event.

Since there is no clear ground for impeachment based on what is known today, what is the motive for the inquiry?  Several plausible motives have been discussed.  First, the Democrats lack a strong challenger to Trump.  As predicted by many including this writer, this controversy has hurt Biden by focusing on the sums paid to his son for no apparent reason.  Senator Sanders has health issues.  Senator Warren has credibility issues and is far to the left.  No second tier candidate has shown the ability to defeat Trump in the general election.  Second, the new inquiry continues the fishing expedition that has gone on for years.  They just know that Trump must have done something wrong somewhere and if they keep subpoenaing witnesses and documents, they hope they will find something.  It is a monstrous injustice to make frivolous allegations to commence legal proceedings in the hope of finding dirt later about unrelated issues, but the ruthless and power-hungry Democrats just don’t care. Other cynical motives can be conjured but the larger point is, the impeachment inquiry is purely political and lacks any reasonable or constitutional basis and is rooted in Trump Derangement Syndrome and the deep-seated fear that, against all odds, Trump will crush their hopes and dreams for power by winning once again.