Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART V]

Note the date…

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:

C.  Extortion.

 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. Continue reading

I KNEW He Could Do It! As Impeachment Plans A-Q Look Like Losers, Rep. Adam Schiff Invents Plan R!

It should be obvious what the Democratic Party’s game plan is now, especially since Robert Mueller’s testimony yesterday dashed hopes that he would blow wind into the limp sails of the SS Overthrow The Republican. Instead, the ostensible Special Prosecutor  made the case for “high crimes and misdemeanors” look weaker and more contrived than before. One by one, the weak, weaker and weakest “resistance” plans to remove President Trump have fallen into various states of hopelessness and ruin, and the bitter-enders are now resorting to denial or impeachment rationalizations unmoored to anything at all, like this guy, who says that “history demands” an impeachment. [Pointer: Zoltar]

The Democrats will just keep the impeachment fires burning until the election, hoping that 1) one of the horrible candidates Democrats get to choose from will defeat Trump, which looks like a Hail Mary at this point (but who knows what the President will tweet next) or 2) the Democrats will take control of the Senate, and 3) the public will tolerate them spending another 4 years trying to overthrow an elected President without getting disgusted and turning the House back over to the GOP.  Does this sound rational and responsible to you? I wonder why it sounds reasonable to Democrats.

Meanwhile, I was beginning to think the Ethics Alarms list of coup theories had maxxed out at Q, plan #17. [ The most recent  updated list is here] But somehow I knew, deep in my heart, that Rep. Adam Schiff, who has lied, puffed, exaggerated and grandstanded all manner of impeachment justifications that didn’t exist in fact or law, but somehow isn’t walking around Washington D.C. with his head in a bag, would be equal to the daunting task of coming up with a new plan. And so he has.

Perhaps anticipating the  Mueller Meltdown,  Schiff unveiled Plan R in his opening statement as Chair of the House Intelligence Committee.  His theory? President Trump was “disloyal”:

“Disloyalty to country. Those are strong words. But how else are we to describe a presidential campaign which did not inform the authorities of a foreign offer of dirt on their opponent, which did not publicly shun it, or turn it away, but which instead invited it, encouraged it, and made full use of it? That disloyalty may not have been criminal. But disloyalty to country violates the very obligation of citizenship, our devotion to a core principle on which our nation was founded, that we, the people, not some foreign power that wishes us ill, we decide, who shall govern, us.”

Continue reading

And The Flag Is Still There: Goodbye To Plan K!

[Reps. Alexandria Ocasio-Cortez (N.Y.), Ilhan Omar (Minn.), Ayanna Pressley (Mass.) and Rashida Tlaib (Mich.) probably hate that unrestrained video, and Megan Rapinoe would walk out on it.  And that, in the end, is why they and their supporters are going to lose]

From the The Complete Presidential Impeachment or Removal Plans A-Q (Updated 7/18/2019) below:

Plan K: Election law violations in pay-offs of old sex-partners

Now from the New York Times today:

“Federal prosecutors signaled in a court document released on Thursday that it was unlikely they would file additional charges in the hush-money investigation…. that ensnared members of Donald J. Trump’s inner circle and threatened to derail his presidency. In the document, the prosecutors said they had ‘effectively concluded’ their inquiry, which centered on payments made during the 2016 presidential campaign to buy the silence of two women who said they had had affairs with Mr. Trump…. The president’s former lawyer, Michael D. Cohen, was convicted in the case. He has said he helped arrange the hush money at the direction of Mr. Trump, and prosecutors have repeated the accusation in court papers. Mr. Cohen is serving a three-year prison sentence.”

It’s fun watching the anti-Trump media try to spin this. Here’s AOL:

“The FBI believed then-candidate Donald Trump was closely involved in a scheme to hide hush-money payments to adult film star Stormy Daniels, who claimed an affair with Trump, court documents from the closed campaign finance case against former Trump-fixer Michael Cohen show.

The documents, released Thursday, describe a “series of calls, text messages, and emails” between Cohen, Trump, Trump campaign aide Hope Hicks, Keith Davidson — an attorney for the woman, porn star Stormy Daniels — and David Pecker, an executive of the company that published the National Enquirer.”

Oooh, “scheme.” That sounds sinister and illegal, but paying off old adultery-enabling sex partners who are threatening to embarrass you when you’re a public figure is business as usual for people like Donald Trump (and Jack Kennedy, and Bill Clinton, and so on) and it isn’t illegal. Nor is lying about whether such relationships ever existed, unless it’s under oath or to investigators.

The reason charges aren’t going anywhere is because the theory that this was an election law violation, or that if it was, it was sufficiently dire to be impeachable, was always a ridiculous stretch. Michael Cohen, who promised to be the worst and most unreliable witness of any lawyer in history if this ever reached trial, had been persuaded to plead guilty to a non-crime as part of his plea deal, purely to assist the quixotic effort to make the politically motivated case that an individual running for President doing exactly the same thing that he would have done had he not been running for President was violating federal elections laws despite the fact that no law prohibits that act. Continue reading

Enlighten, Impress And Depress Your Friends! Explain Why The President’s Alleged Election Law Violation Was Not One, Much Less A Justification For Impeachment

When Trump lawyer/crony/fixer/slimeball Michael Cohen was first arrested, multiple lawyers, legal experts and commentators who principles and integrity had not been melted by “the resistance” pointed out that paying hush money to a an old sexual partner threatening disclosure couldn’t possibly be an election law violation. Oh, details, schmetails: the point is to get Trump; what does the law have to do with it? After all, Representative Al Green, who has entered an impeachment resolution twice already, now says his next try will be based on “bigotry.” Hey, most Democrats in the new House would probably vote for impeachment based on “covfefe.

Sure enough, when Cohen, trying to save his own neck, was bullied into pleading guilty to a non-crime, the media and social media hills were alive with the sounds of impeachment. The celebrants, however, are just wrong. Cohen’s plea shows a cowardly, disgraceful unethical lawyer; it shows that his lawyer, Lanny Davis, may be more interested in getting Trump than representing Cohen; it shows that the prosecutors in the case are unethical, and that the judge should not have accepted a plea to something that was not and cannot be a crime. It does not show that the President violated the federal election laws.

Attorney Bradley Smith, a former head of the FEC, explains why clearly, concisely, and decisively, here.

Of course, all the logic, facts and law in the world won’t put a dent in Stage 4 Trump hate. (To be fair, the news media and pundits aren’t helping them any by refusing to cover the issues and law straight.) But at least you will have given them a chance. It is Christmas time, after all.

Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie”

No, I wasn’t just looking for an excuse to post a photo of Stormy. This is an ethics blog!

Chris Marschner authored a Comment Of The Day this morning, which reminded me that another of his Comments Of The Day had been waiting on the runway for almost a month.

I’m glad of this, because the topic has nothing to do with the Kavanaugh hearings. Chris was writing about the then-popular impeachment plan–Plan K-— raised by Michael Cohen’s fixing activities. Would I rather think about Michael Cohen or Christine Blasey Ford? Would I rather be kicked in the head by a Clydesdale or a musk ox?

Here is Chris Marschner’s Comment of the Day on the post, Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie:

In your post regarding Gulliani’s quote “the truth is not the truth.” I opined that the truth was what one wishes to believe.

The entire question of whether a payment made by or on behalf of another to obtain an NDA for acts that may be embarrassing is an election law violation begs the question regarding taxpayer funded settlements made to congressional staffers to settle harassment claims by members of Congress. These settlements appear to have similar codicils for non disclosure for the express purpose of avoiding personal embarrassment that could influence their reelection bid.

Michael Avenatti claims his fees are being paid through a crowdfunding site but there appears to be no way to determine if much of those funds that flow through the site are from 10,000 unique people or one person or group. For all anyone knows large sums could becoming from Tom Steyer, George Soros, or even the Russians. Mr. Avenatti does not publicize the fact that he claimed to be the originator of “The Apprentice” and sued Trump years ago. He also does not publicize the fact that he is closely tied to Rahm Emmanuel and the Obamas.

Continue reading

Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie” (#2)

This is the second Comment of the Day on this post, also item #2, regarding the Michael Cohen machinations. The news media is doing a negligent job examining exactly what’s going on so that the average voter with an IQ in three figures has a fighting chance of understanding it. Greg’s comment,  like Michael Ejercito’s before him, helps explicate what the politicized and biased profession that we foolishly trust to inform us does not.

Here is Greg’s Comment of the Day on the post, Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie:

I read the plea agreement and was mystified. It has been known for months that the National Enquirer paid Woman #1 (I forget her real name) for the exclusive rights to her story and that Cohen paid Woman #2 (Stormy Daniels) for a non-disclosure agreement. Democrats have been claiming that these hush money payoffs were illegal campaign contributions, but that theory is tenuous.

The mystifying news in the plea agreement was that before the election, Cohen bought the rights to the non-disclosure portion – not the story rights, which the Enquirer kept – of the Enquirer’s agreement by paying the Enquirer’s back their entire cost for the full agreement. Then after the election, Cohen sold the Enquirer the rights to the non-disclosure agreements of both Woman #1 and Stormy Daniels at his own cost, plus a tax gross-up payment that doubled the price to the Enquirer, plus a substantial fee for himself.

Has anybody offered an explanation for this odd series of payments? Why did the Enquirer sell the Woman #1 rights to Cohen in the first place, since buying them back with a tax gross-up made it much more expensive to them than just keeping the rights to the story? Why did they also buy Stormy Daniels’ NDA from him, again along with a tax gross-up? Why did they pay Cohen a big fixer fee for the trivial amount of work that he performed in buying and selling back the NDA rights? I haven’t yet thought of a good reason why they would do that. The plea agreement says that the buybacks were prearranged before the election, which could arguably be a campaign violation, rather than after the election, which certainly would not be a campaign contribution (although of course we have only Cohen’s word for that). But it never offers any purpose for the buybacks were arranged in the first place. Continue reading

Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie” (#2)

Kudos to Michael Ejercito for flagging an excellent discussion of how election finance laws and the Cohen case intersect. He selected the key section that constitutes the bulk of his Comment of the Day, but by all means, read the whole piece at the link, including this:

The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime. But at a minimum, it is unclear whether paying blackmail to a mistress is “for the purpose of influencing an election,” and so must be paid with campaign funds, or a “personal use,” and so prohibited from being paid with campaign funds.

Normally, given this lack of clarity, we would not expect a prosecutor to charge those involved with a “knowing and willful” violation, which means a criminal charge with possible jail time. Typically, at most a civil fine for an unintentional violation would be the response. But prosecutors may be using a guilty plea from Cohen as a predicate for going after the bigger fish, and our simultaneously vague, sometimes contradictory, and incredibly complex campaign finance laws give them that opening.

Of course, it is unethical for prosecutors to use the law to “go after” any citizen, never mind an elected President.

Here is Michael’s Comment of the Day on the post, Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie:

http://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22

“In the Cohen case, the prosecutors hung their hat on FECA’s definition of “contributions” and “expenditures” as anything spent or contributed “for the purpose of influencing any election.” That’s a pretty broad definition, and certainly it may have been thought that paying hush money to Trump’s old memories would “influence an election.” Thus, they argue, payment of the hush money was subject to limits on the size of contributions used to pay, could not include corporate funds, and had to be reported to the FEC.

“But there is another provision in the statute that prohibits a candidate from diverting campaign funds to “personal use.” “Personal use,” in turn, is defined as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even if they are intended to influence the election. Continue reading