In his final section before concluding, Professor Turley covers other theories being floated as justification for impeachment, and finds them startlingly weak and contrived.
The Hill has Turley’s lament regarding the the Alliance of Unethical Conduct’s attacks on his thorough and objective dismantling of their coup efforts. (The AUC—that’s the Ethics Alarm shorthand for the Democratic Party-“resistance”-mainstream media alliance to remove Trump from office by any means possible, not Turley’s.) He writes,
Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”
But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached….
In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts…. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments…. … Democrats have argued that they do not actually have to prove the elements of crimes…. In the Clinton impeachment, the crime was clearly established and widely recognized…. [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger….
Writes Ann Althouse in a post yesterday, “it seems to me that the real impeachable offense has always been that Donald Trump got himself elected.”
I wish Prof. Turley had dealt with that, the real justification, in their minds, for the House’s impeachment push.
Back to the professor:
As noted earlier, extortion and bribery cases share a common law lineage. Under laws like the Hobbs Act, prosecutors can allege different forms of extortion. The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.”85 Even if one were to claim the loss of military aid could instill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined.
Instead, it would presumably be alleged as extortion “under color of official right.” Clearly, both forms of extortion have a coercive element, but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations. The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.”87
As shown in cases like United States v. Silver, extortion is subject to the same limiting definition as bribery and resulted in a similar overturning of convictions. Another obvious threshold problem is defining an investigation into alleged corruption as “property.” Blackstone described a broad definition of extortion in early English law as “an abuse of public, justice which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.”89 The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.90 In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.
The theory advanced for impeachment bears a close similarity to one of the extortion theories in United States v. Blagojevich where the Seventh Circuit overturned an extortion conviction based on the Governor of Illinois, Rod Blagojevich, pressuring then Sen. Barack Obama to make him a cabinet member or help arrange for a high- paying job in exchange for Blagojevich appointing a friend of Obama’s to a vacant Senate seat. The prosecutors argued such a favor was property for the purposes of extortion. The court dismissed the notion, stating “The President-elect did not have aproperty interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”’ In the recent hearings, witnesses spoke of the desire for “deliverables” sought with the aid. Whatever those “deliverables” may have been, they were not property as defined for the purposes of extortion any more than the “logrolling” rejected in Blagojevich.
There is one other aspect of the Blagojevich opinion worth noting. As I discussed earlier, the fact that the military aid was required to be obligated by the end of September weakens the allegation of bribery. Witnesses called before the House Intelligence Committee testified that delays were common, but that aid had to be released by September 30th. It was released on September 11th. The ability to deny the aid, or to even withhold it past September 30th is questionable and could have been challenged in court. The status of the funds also undermines the expansive claims on what constitutes an “official right” or “property”:
“The indictment charged Blagojevich with the ‘color of official right’ version of extortion, but none of the evidence suggests that Blagojevich claimed to have an ‘official right’ to a job in the Cabinet. He did have an ‘official right’ to appoint a new Senator, but unless a position in the Cabinet is ‘property’ from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not ‘property’ in the hands of a public agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”
A request for an investigation in another country or the release of money already authorized for Ukraine are even more far afield from the property concepts addressed by the Seventh Circuit.
The obvious flaws in the extortion theory were also made plain by the Supreme Court in Sekhar v. United States, where the defendant sent emails threatening to reveal embarrassing personal information to the New York State Comptroller’s general counsel in order to secure the investment of pension funds with the defendant. In an argument analogous to the current claims, the prosecutors suggested political or administrative support was a form of intangible property. As in McDonnell, the Court was unanimous in rejecting the “absurd” definition of property. The Court was highly dismissive of such convenient linguistic arguments and noted that “shifting and imprecise characterization of
the alleged property at issue betrays the weakness of its case.”94 It concluded that “[a]dopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. That we cannot do.”95 Nor should Congress. Much like such expansive interpretations would be “absurd” for citizens in criminal cases, it would be equally absurd in impeachment cases.
To define a request of this kind as extortion would again convert much of politics into a criminal enterprise. Indeed, much of politics is the leveraging of aid or subsidies or grants for votes and support. In Blagojevich, the court dismissed such “logrolling” as the basis for extortion since it is “a common exercise.” If anything of political value is now the subject of the Hobbs Act, the challenge in Washington would not be defining what extortion is, but what it is not.
D. Campaign Finance Violation
Some individuals have claimed that the request for investigations also constitutes a felony violation of the election finance laws. Given the clear language of that law and the controlling case law, there are no good-faith grounds for such an argument. To put it simply, this dog won’t hunt as either a criminal or impeachment matter. U.S.C. section 30121 of Title 52 states: “It shall be unlawful for a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”
On first blush, federal election laws would seem to offer more flexibility to the House since the Federal Election Commission has adopted a broad interpretation of what can constitute a “thing of value” as a contribution. The Commission states “’Anything of value’ includes all ‘in-kind contributions,’ defined as ‘the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.’” However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation. This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a “thing of value” under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors. Such a decision would highlight the danger of claiming criminal acts, while insisting that impeachment does not require actual crimes. The “close enough for impeachment” argument will only undermine the legitimacy of the impeachment process, particularly if dependent on an election fraud allegation that itself is based on a demonstrably slipshod theory.
The effort to pound these facts into an election law violation would require some arbitrary and unsupported findings. First, to establish a felony violation, the thing of value must be worth $25,000 or more. As previously mentioned, we do not know if the Ukrainians would conclude an investigation in the year before an election. We also do not know whether an investigation would offer a favorable or unfavorable conclusion. It could prove costly or worthless. In order for the investigation to have value, you would have to assume one of two acts were valuable. First, there may be value in the announcement of an investigation, but an announcement is not a finding of fact against the Bidens. It is pure speculation what value such an announcement might have had or whether it would have occurred at a time or in a way to have such value. Second, you could assume that the Bidens would be found to have engaged in a corrupt practice and that the investigation would make those findings within the year. There is no cognizable basis to place a value on such unknown information that might be produced at some time in the future. Additionally, this theory would make any encouragement (or disencouragement) of an investigation into another county a possible campaign violation if it could prove beneficial to a president. As discussed below, diplomatic cables suggest that the Obama Administration pressured other countries to drop criminal investigations into the U.S. torture program. Such charges would have proven damaging to President Obama who was criticized for shifting his position on the campaign in favor of investigations. Would an agreement to scuttle investigations be viewed as a “thing of value” for a president like Obama? The question is the lack of a limiting principle in this expansive view of campaign contributions.
There is also the towering problem of using federal campaign laws to regulate communications between the heads of state. Any conversation between heads of state are inherently political. Every American president facing reelection schedules foreign trips and actions to advance their political standing. Indeed, such trips and signing ceremonies are often discussed as transparently political decisions by incumbents. Under the logic of this theory, any request that could benefit a president is suddenly an unlawful campaign finance violation valued arbitrarily at $25,000 or more. Such a charge would have no chance of surviving a threshold of motion to dismiss.
Even if such cases were to make it to a jury, few such cases have been brought and the theory has fared poorly. The best-known usage of the theory was during the prosecution of former Sen. John Edwards. Edwards was running for the Democratic nomination in 2008 when rumors surfaced that he not only had an affair with filmmaker Rielle Hunter but also sired a child with her. He denied the affair, as did Hunter. Later it was revealed that Fred Baron, the Edwards campaign finance chairman, gave money to Hunter, but he insisted it was his own money and that he was doing so without the knowledge of Edwards. Andrew Young, an Edwards campaign aide, also obtained funds from heiress Rachel Lambert Mellon to pay to Hunter. In the end, Mellon gave $700,000 in order to provide for the child and mother in what prosecutors alleged as a campaign contribution in violation of federal campaign-finance law. The jury acquitted Edwards and the Justice Department dropped all remaining counts.
Although the Edwards case involved large quantities of cash the jury failed to convict because they found the connection to the election too attenuated. The theory being advanced in the current proceedings views non-existent information that may never be produced as a contribution to an election that might occur before any report is issued. That is the basis upon which some would currently impeach a president, under a standard that the Framers wanted to be clear and exacting. Framers like Madison rejected “vague” standards that would “be equivalent to a tenure during pleasure of the Senate.” The campaign finance claim makes “maladministration” look like the model of clarity and precision in the comparison to a standard based on an assumption of future findings to be delivered at an unknown time.
E. Abuse of Power
The Ukraine controversy was originally characterized not as one of these forced criminal allegations, but as a simple abuse of power. As I stated from the outset of this controversy, a president can be impeached for abuses of power. In Federalist #65, Alexander Hamilton referred to impeachable offenses as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Even though every presidential impeachment has been founded on criminal allegations, it is possible to impeach a president for non-criminal acts. Indeed, some of the allegations contained in the articles of impeachment against all three presidents were distinctly non-criminal in character. The problem is that we have never impeached a president solely or even largely on the basis of a non-criminal abuse of power allegation. There is good reason for that unbroken record. Abuses of power tend to be even less defined and more debatable as a basis for impeachment than some of the crimes already mentioned. Again, while a crime is not required to impeach, clarity is necessary. In this case, there needs to be clear and unequivocal proof of a quid pro quo.
That is why I have been critical of how this impeachment has unfolded. I am particularly concerned about the abbreviated schedule and thin record that will be submitted to the full house.
Unlike the other dubious criminal allegations, the problem with the abuse of power allegation is its lack of foundation. As I have previously discussed, there remain core witnesses and documents that have not been sought through the courts. The failure to seek this foundation seems to stem from an arbitrary deadline at the end of December. Meeting that deadline appears more important than building a viable case for impeachment. Two months have been wasted that should have been put toward litigating access to this missing evidence. The choice remains with the House. It must decide if it wants a real or recreational impeachment. If it is the former, my earlier testimony and some of my previous writing show how a stronger impeachment can be developed.
The principle problem with proving an abuse of power theory is the lack of direct evidence due to the failure to compel key witnesses to testify or production of key documents. The current record does not establish a quid pro quo. What we know is that President Trump wanted two investigations. The first investigation into the 2016 election is not a viable basis for an abuse of power, as I have previously addressed. The second investigation into the Bidens would be sufficient, but there is no direct evidence President Trump intended to violate federal law in withholding the aid past the September 30th deadline or even wanted a quid pro quo maintained in discussions with the Ukrainians regarding the aid. If Trump encouraged an investigation into the Bidens alone, it would not be a viable impeachment claim. The request was inappropriate, but it was not an offer to trade public money for a foreign investigation. President Trump continued to push for these investigations but that does not mean that he was planning to violate federal law.
Indeed, Ambassador Sondland testified that, when he concluded there was a quid pro quo, he understood it was a visit to the White House being withheld. White House visits are often used as leverage from everything from United Nations votes to domestic policy changes. Trump can maintain he was suspicious about the Ukrainians in supporting his 2016 rival and did not want to grant such a meeting without a demonstration of political neutrality. If he dangled a White House meeting in these communications, few would view that as unprecedented, let alone impeachable.
Presidents often put pressure on other countries which many of us view as inimical to our values or national security. Presidents George W. Bush and Barack Obama reportedly put pressure on other countries not to investigate the U.S. torture program or seek the arrest of those responsible. President Obama and his staff also reportedly pressured the Justice Department not to initiate criminal prosecution stemming
from the torture program.Moreover, presidents often discuss political issues with their counterparts and make comments that are troubling or inappropriate. However, contemptible is not synonymous with impeachable. Impeachment is not a vehicle to monitor presidential communications for such transgressions. That is why making the case of a quid pro quo is so important – a case made on proof, not presumptions. While critics have insisted that there is no alternative explanation, it is willful blindness to ignore the obvious defense. Trump can argue that he believed the Obama Administration failed to investigate a corrupt contract between Burisma and Hunter Biden. He publicly called for the investigation into the Ukraine matters. Requesting an investigation is not illegal any more than a leader asking for actions from their counterparts during election years.
Trump will also be able to point to three direct conversations on the record. His call with President Zelensky does not state a quid pro quo. In his August conversation with Sen. Ron Johnson (R., WI.), President Trump reportedly denied any quid pro quo. In his September conversation with Ambassador Sondland, he also denied any quid pro quo. The House Intelligence Committee did an excellent job in undermining the strength of the final two calls by showing that President Trump was already aware of the whistleblower controversy emerging on Capitol Hill. However, that does not alter the fact that those direct accounts stand uncontradicted by countervailing statements from the President. In addition, President Zelensky himself has said that he did not discuss any quid pro quo with President Trump. Indeed, Ambassador Taylor testified that it was not until the publication of the Politico article on September 31st that the Ukrainians voiced concerns over possible preconditions. That was just ten days before the release of the aid. That means that the record lacks not only direct conversations with President Trump (other than the three previously mentioned) but even direct communications with the Ukrainians on a possible quid pro quo did not occur until shortly before the aid release.
Yet, just yesterday, new reports filtered out on possible knowledge before that date— highlighting the premature move to drafting articles of impeachment without a full and complete record.
Voters should not be asked to assume that President Trump would have violated federal law and denied the aid without a guarantee on the investigations. The current narrative is that President Trump only did the right thing when “he was caught.” It is possible that he never intended to withhold the aid past the September 30th deadline while also continuing to push the Ukrainians on the corruption investigation. It is possible that Trump believed that the White House meeting was leverage, not the military aid, to push for investigations. It is certainly true that both criminal and impeachment cases can be based on circumstantial evidence, but that is less common when direct evidence is available but unsecured in the investigation. Proceeding to a vote on this incomplete record is a dangerous precedent to set for this country. Removing a sitting President is not supposed to be easy or fast. It is meant to be thorough and complete. This is neither.
F. The Censure Option
Finally, there is one recurring option that was also raised during the Clinton impeachment: censure. I have been a long critic of censure as a part of impeachment inquiries and I will not attempt to hide my disdain for this option. It is not a creature of impeachment and indeed is often used by members as an impeachment-lite alternative for those who do not want the full constitutional caloric load of an actual impeachment.
Censure has no constitutional foundation or significance. Noting the use of censure in a couple of prior cases does not make it precedent any more than Senator Arlen Specter’s invocation of the Scottish “Not Proven” in the Clinton trial means that we now have a third option in Senate voting. If the question is whether Congress can pass a resolution with censure in its title, the answer is clearly yes. However, having half of Congress express their condemnation for this president with the other half opposing such a condemnation will hardly be news to most voters. I am agnostic about such extra- constitutional options except to caution that members should be honest and not call such resolutions part of the impeachment process.