That fast-moving investigation that House Democrats launched in September to build a case for the impeachment of Donald Trump is about to be radically revised, due to the recognition by House Speaker Nancy Pelosi that the secretive way in which the probe has been conducted so far has undermined its credibility.
Until this week, Pelosi had steadfastly refused to call for a formal House vote to authorize the impeachment procedure. Even though Pelosi had enough Democrat votes to get such a resolution passed by the House, she was reluctant to expose House Democrats from districts that voted for Trump in 2016 to the political risks of openly voting for his impeachment. She also was well aware that Democrats did not yet have nearly enough evidence to convince a large majority of the American people, including both Republicans and Democrats, that Trump’s impeachment was justified.
The latest House Democrat impeachment initiative was launched in September, shortly after the media reported on a whistleblower’s complaint that Trump had delayed the delivery of $391 million in US military aid to Ukraine and had demanded in a July 25 call with Ukraine’s newly elected president, Volodymyr Zelensky, that he launch a corruption investigation into suspicions that former Vice President Joe Biden’s son Hunter was involved in the corrupt practices of a notorious Ukrainian natural gas company which had hired Biden’s son.
DEMOCRATS SEIZE A SECOND CHANCE TO IMPEACH TRUMP
Democrats realized that, if proven to be true, the complaint could provide new justification for their longstanding efforts to remove Trump from office. But since the information in the whistleblower’s complaint was sketchy, and based entirely upon second-hand information, Pelosi decided that Democrats would need to provide convincing evidence that Trump deserved to be impeached for abusing his presidential authority by asking Ukraine to provide dirt on Biden, who was his leading Democrat opponent for re-election in 2020.
Previously, Pelosi had agreed with House Judiciary Chairman Jerrold Nadler that to succeed in impeaching Trump, Democrats needed to build an ironclad case against the president that would be convincing enough to persuade even Senate Republicans that Trump had to be removed from office. For more than two years following Trump’s 2016 election, Democrats had expected that an FBI investigation or the probe led by Special Counsel Robert Mueller would eventually find sufficient evidence that Trump colluded with Russia during the 2016 election, and then obstructed the investigation of that collusion to justify his impeachment. But in the end, Mueller and the FBI were unable to produce any evidence of a Trump election conspiracy with the Russians, nor proof of the allegation that Trump had obstructed justice by interfering with the investigation.
This left Democrats, and their supporters in the mainstream media, bitterly disappointed and angry that they had waited in vain for more than two years. While Mueller’s report said that it could not exonerate Trump of the charge of obstructing justice, it also failed to meet Justice Department standards for bringing such a charge against a sitting president.
Pelosi and other Democrat leaders were unwilling to give up on their effort to force Trump’s removal from office, but they were also reluctant to risk the public humiliation of another failed impeachment effort. Pelosi was also under tremendous pressure from the extreme left-wing activists, who dominate today’s Democrat party, to take action towards the goal of Trump’s impeachment, so she hastily announced that the House Intelligence committee, under the leadership of its Democrat chairman Adam Schiff, would lead a secret investigation whose guidelines were carefully designed to gather evidence justifying Trump’s impeachment, while denying the president and his Republican supporters the opportunity to refute the accusations.
A CLOSING WINDOW OF OPPORTUNITY
Pelosi and Schiff also realized that their window of political opportunity to impeach Trump was closing as the 2020 presidential campaign steadily gathered momentum. Democrats had been trying to force Trump’s removal from the White House ever since the morning after the 2016 election. Originally, their case for Trump’s impeachment was based on the Trump-Russian collusion theory. After that theory was discredited, Democrats claimed that Trump deserved to be removed from office for trying to hinder the Russian collusion investigation by firing FBI Director James Comey, and then trying to discredit Special Counsel Robert Mueller’s investigation.
Soon after the credibility of the Special Counsel’s probe totally collapsed this summer, with Mueller’s deeply unsatisfying testimony before Congress, disappointed Democrats were quick to latch onto an entirely new reason to impeach Trump: His alleged abuse of presidential power by withholding congressionally approved military aid for Ukraine subject to President Zelensky’s agreement to launch a corruption investigation in Ukraine involving former Vice President Joe Biden and his son, Hunter.
SINS OF THE SON VISITED UPON THE FATHER
After the Obama administration made Vice President Biden responsible for handling US relations and foreign aid for Ukraine, Biden’s son, Hunter, accepted a position on the board of the notoriously corrupt Ukrainian gas corporation, Burisma. The position paid the younger Biden at least $50,000 a month, even though he had no relevant experience in the gas industry or Ukraine. Hunter Biden’s only apparent qualification for the job was his position as the son of the US official then in charge of US aid to Ukraine. While he and his father insist that there was nothing wrong with the arrangement, nobody has ever explained what the younger Biden did to justify his salary, and Hunter recently admitted in an interview that accepting the position was a mistake.
The renewed impeachment effort was ignited by leaks to the media reporting that Trump administration officials had illegally withheld from Congress a credible complaint against the president which was filed by an anonymous whistleblower to the inspector general of intelligence community. The complaint reportedly said that Trump abused his presidential power during his phone call with President Zelensky by offering him an illegal quid pro quo, making the release of the withheld $391 million in military aid that Congress had approved for Ukraine conditional on Zelensky launching a corruption investigation involving the Bidens.
While Democrats enthusiastically welcomed word of the whistleblower’s complaint, they also knew that they would have to complete the impeachment process before their self-imposed deadline – the end of 2019 – which would mark the start of the 2020 presidential primary and caucus voting season.
But the shortcuts in the tightly-controlled accelerated evidence-gathering process designed by Pelosi and Schiff meant that the investigation could not be conducted the same way as previous impeachment procedures, and would lack the constitutional authority that those probes had enjoyed to compel testimony and collect evidence against the president.
REPUBLICAN RESISTANCE GROWS
After getting the cooperation of diplomats and other officials opposed to Trump’s decision to withhold aid from Ukraine, House Intelligence committee investigators began to encounter increased resistance from senior Trump administration officials to requests for their testimony against the president regarding his motives for ordering a delay in the delivery of the military aid to Ukraine, and his conditions for releasing that aid.
Former Republican House Speaker Newt Gingrich argued that if the Democrats had a good case against Trump, they “would be proudly putting it out in the open so all Americans could learn the facts that would convince them to support impeaching the duly elected president of the United States.”
Gingrich claimed that the fact that Democrats had refused to open up the investigation, and made every effort to restrict media reports to carefully selected portions of the testimony in their closed-door hearings that tended to reflect badly on Trump, meant that Democrats had something to hide. Gingrich then suggested that “every House Democrat should be asked: “What are you afraid of that you can’t let the American people see the facts and decide for themselves?”
House Republicans started to conduct public protests against Schiff’s secret hearings. They began comparing Schiff’s secret impeachment probe to the notorious Star Chamber proceedings in England during the 16th and 17th centuries, which consisted of politically motivated trials without juries, in which defendants had no right of appeal and were subject to swift and severe punishment.
Republicans on Schiff’s committee complained that they were being denied the due process safeguards which had been observed in all three previous presidential impeachment efforts. They were denied full access to committee documents, the right to cross-examine witnesses, or to call witnesses of their own to offer rebuttal testimony on Trump’s behalf.
CONTROLLING THE MEDIA
The same Democrats who just a few months earlier had demanded the immediate release to the public of the unredacted Mueller report refused to permit the public to view the non-secret testimony of witnesses before Schiff’s committee or read the transcripts. Media coverage consisted entirely of leaks by committee Democrats carefully selected to support the case for Trump’s impeachment, while any effort by committee Republicans to respond in Trump’s defense was restricted by the committee’s strict rules of confidentiality.
The net effect of these procedures was to confirm charges by Gingrich and other Republicans that the Democrats did not have a convincing case against Trump. The unfair process was beginning to generate sympathy for the president as the victim of a Democrat kangaroo court proceeding in which the final verdict against the president had been pre-determined long before any evidence had been gathered.
PELOSI OPENS UP THE INVESTIGATION
To rescue the deeply-flawed investigation, Speaker Pelosi announced in a letter to House Democrats on Monday that she will call for a vote to formally authorize the House impeachment inquiry against Trump. She promised that next phase of the investigation will have clear rules for the public presentation of impeachment evidence, and due process rights enabling President Trump and his allies to respond to charges and cross-examine witnesses testifying against him.
“We are taking this step to eliminate any doubt as to whether the Trump administration may withhold documents, prevent witness testimony, disregard duly authorized subpoenas or continue obstructing the House of Representatives,” Pelosi wrote, adding, “Nobody is above the law.”
Pelosi predicted that the new rules of the investigation will undermine Republican claims that the House impeachment inquiry “lacks the necessary authorization for a valid impeachment proceeding.” She also pointed to a federal court ruling last week which confirmed Pelosi’s contention that the House is not required to hold a formal vote on impeachment, a ruling which the Trump administration expects to overturn in an appeal to a higher court.
Pelosi claimed that the Trump administration made up the need for a formal House impeachment vote “in order to justify its unprecedented cover-up, withhold key documents from multiple federal agencies, prevent critical witnesses from cooperating, and defy duly authorized subpoenas.”
She said that the new resolution that House Democrats will approve “establishes the procedure for hearings that are open to the American people, authorizes the disclosure of deposition transcripts, outlines procedures to transfer evidence to the Judiciary Committee as it considers potential articles of impeachment, and sets forth due process rights for the President and his Counsel.”
Democrats hope that by making the impeachment inquiry public, they will be able to avoid long delays in court from witnesses who decide to fight subpoenas calling on them to testify against President Trump, enabling them to complete the impeachment process before the nation’s political attention is overtaken by the 2020 presidential primary campaign. Some Democrats also realize that pushing the impeachment process now so close to another presidential election risks creating voter resentment at an apparent effort to prevent them from exercising their right to re-elect Trump.
REPUBLICANS CONDEMN “SHAM IMPEACHMENT”
For the same reasons, Trump administration officials called to testify can be expected to do whatever they can to slow down the House investigation. Speaking on behalf of the members of his caucus, Republican House Minority Leader Kevin McCarthy responded to Pelosi’s letter with a tweet which declared, “We will not legitimize the Schiff/Pelosi sham impeachment.”
White House Press Secretary Stephanie Grisham also said that in her Monday letter, Speaker Pelosi was “finally admitting what the rest of America already knew – that Democrats were conducting an unauthorized impeachment proceeding, refusing to give the president due process, and their secret, shady, closed door depositions are completely and irreversibly illegitimate.”
ROADBLOCK IN THE SENATE
Even if the House Democrats do succeed in passing articles of impeachment against Trump by their self-imposed Thanksgiving target date, the impeachment process is likely to face another roadblock in the Republican-controlled Senate. It remains highly unlikely that enough Republican senators will vote against Trump to provide Democrats with the required 2/3 majority needed to remove Trump from office. Even if they fail to convict Trump, Democrats hope that conducting a credible impeachment process will discourage enough voters to defeat him in next November’s election.
But that is a calculated political risk. The last time that an impeachment trial in the Senate failed to convict a sitting president, Bill Clinton, congressional Republicans paid a heavy political price in the next election.
REPUBLICANS SUPPORT US AID FOR UKRAINE
Most Republican senators had initially opposed Trump’s decision to hold up military aid to Ukraine, a pro-Western European country. They wanted the US to support a country that has been fighting to protect its sovereignty against military aggression since 2014. Russian President Vladimir Putin launched the attacks on Ukraine after pro-Western democracy advocates took to the streets of Kiev to oust Ukraine’s pro-Russian president, Viktor Yanukovych, from power.
Out-of-uniform Russian troops invaded the Crimean Peninsula, where the Russian Navy had long maintained the home naval base for its Black Sea fleet. A few weeks later, Putin announced Russia’s annexation of Crimea in clear violation of international law. Russian troops then launched and supported an armed insurgency against the government in Kiev in Ukraine’s eastern Donbas industrial region. Over the past five years, the fighting in the Donbas region has cost the lives of up to 13,000 people.
While the Obama administration publicly condemned the Russian invasion of Ukraine and levied some economic sanctions against Putin and his oligarchs in retaliation, Obama repeatedly refused Ukraine’s requests for Javelin anti-tank missiles with which to defend itself against the constant threat of an incursion led by heavy Russian tanks. While congressional Democrats joined in the condemnation of Putin’s aggression, very few publicly complained about Obama’s refusal to enable the Ukrainians to effectively defend itself against the heavily-armed Russian invaders.
TRUMP REVERSED OBAMA’S ARMS EMBARGO ON UKRAINE
It was not until 2018 that the Trump administration reversed Obama’s policy and sent Ukraine the 210 Javelin missiles and launchers it had requested.
The Obama administration had defended its passive policy of enabling Russian aggression against Ukraine to continue by pointing out that, unlike Poland and the three Baltic states, Lithuania, Latvia and Estonia, Ukraine never joined the NATO alliance, so the US is not legally obligated to go to war to defend Ukraine against a Russian military invasion. However, since 2014, the Kiev government has continued to deepen Ukraine’s economic and political times with the European Union.
The Trump administration has taken a much more confrontational stance in reaction to Putin’s aggressive tactics towards Russia’s Eastern European neighbors than the Obama administration did. In June, the White House announced that it would add 1,000 US troops to the 4,500 already stationed in Poland to serve as a trip wire against a possible Russian invasion. The US has also criticized Germany’s decision to expand its dependence on Russian natural gas conveyed through the Nord Stream pipelines which run from Russia to Germany underneath the Baltic Sea. The US is also challenging Russia’s position as the main natural gas supplier to Eastern and Central Europe.
REPUBLICAN SENATORS RALLY BEHIND TRUMP
These are the reasons why many Republicans were disappointed to learn that Trump had ordered a delay in the delivery of US military aid to Ukraine. But when GOP senators, led by Lindsey Graham, realized how Democrats were trying to use the Ukraine aid issue to renew their push for Trump’s impeachment, they rallied behind the president, and accused Democrats of using unfair tactics to deny Trump an opportunity to defend himself.
Upon further reflection, many Republicans realized the US support for the independence of Ukraine had always been tempered by serious concerns over the rampant corruption in Ukrainian politics and government. This included, for example, the corrupt relationship which started in 2004 between former Trump campaign manager Paul Manafort, and the Ukrainian political party headed by Yanukovych. That relationship had led to millions of dollars in illegal payments to Manafort for his services as a well-connected political fixer, for which he has been convicted on federal tax and bank fraud charges.
Former Vice President Biden also publicly boasted last year about how quickly Ukrainian leaders responded after he had threatened to cut off a billion dollars in US aid unless they immediately fired a Ukrainian prosecutor accused of corruption. Biden’s critics claim that he really wanted that Ukrainian prosecutor fired because he was investigating corruption at the Burisma corporation, which was paying his son Hunter a lavish salary for serving on its board.
TRUMP’S OTHER REASON FOR DELAYING AID TO UKRAINE
Trump mentioned those general corruption concerns in his July 25 conversation with President Zelensky. He also asked why other European nations which are much closer to Ukraine have not joined the United States in coming to its aid. The transcript shows that Trump’s request to launch an investigation that might touch on the Bidens had been mentioned only once in the half-hour conversation between the two presidents.
Yet that was not the impression conveyed by the detailed written complaint submitted several weeks later by the anonymous whistleblower to Michael Atkinson, the Inspector General of the Intelligence Community. Prior to filing his complaint, the whistleblower had consulted with staff members of Schiff’s committee, who may have helped him to draft the complaint over the next several weeks.
WHISTLEBLOWER’S CREDIBILITY PROBLEMS
The whistleblower’s identity has not been disclosed, but he is known to a registered Democrat, with a strong dislike for Trump, and he did work for then-Vice President Joe Biden in the White House. In violation of previous procedures followed by the inspector general governing such complaints, the whistleblower’s accusations were based entirely on second-hand and hearsay information from other members of the foreign policy and intelligence community who had an ax to grind against the Trump administration. The whistleblower himself had no direct knowledge of what transpired during the Trump-Zelensky phone call. Several of the factual assertions the whistleblower made in his complaint were exposed as false by the transcript of the call.
According to former House Speaker Newt Gingrich, the whistleblower’s accusations are now so discredited that congressional Democrats would not dare to call upon him to testify publicly or even disclose his identity.
In fact, Democrats still cannot prove that Trump is guilty of “treason, bribery or other high crimes and misdemeanors,” to quote the Constitution’s definition of an impeachable offense. Even if Trump did attempt to hold military aid to Ukraine hostage to his request for the launching of a fraud investigation against the Bidens and a public statement by the Ukrainian president, in the end, neither the investigation nor the statement took place, and Trump did release the withheld Ukrainian aid within the legally specified time limit.
A MESSY SITUATION
But that still doesn’t justify what took place. Certainly, Burisma was a corrupt business entity that needed to be investigated, and its decision to hire Joe Biden’s son was suspicious, to say the least. But Trump’s request to the president of Ukraine to launch a corruption investigation of the Bidens was neither appropriate nor politically smart.
The outcome of the Ukraine brouhaha parallels, in some respects, the Special Counsel’s investigation. Trump may have wanted Robert Mueller to be fired, but in the end, it didn’t happen, enabling the investigation to effectively clear the president of wrongdoing and emerge as the winner. In the end, Trump’s delay in turning over military aid to Ukraine was unwise, but it broke no laws and did no lasting damage to the security of the US or the Ukraine. No harm, no foul, and insufficient justification for Trump’s impeachment.
UKRAINE’S LEADERS WERE UNAWARE OF THE DELAY
In his July conversation with Ukrainian President Zelensky, Trump never mentioned the delay he had ordered in the release of the military aid funds Congress had approved. Other Ukrainian officials were also unaware of the delay until it was reported by the American media in August. The delay was then widely criticized by both Republican and Democrat lawmakers, leading to the release of the aid by the administration on September 11, with no action required from Ukraine in return.
Trump’s critics complained that the delay could have endangered Ukraine’s security, and had shaken that country’s faith in American support. But in fact, there were no practical consequences due to the delay, and all the promised aid was delivered to Ukraine.
The complaint was ultimately shelved by Joseph Maguire, the acting director of National Intelligence, because he determined that presidential actions are not legally subject to the authority of the intelligence community. Maguire therefore refused to notify Congress of the contents of the whistleblower’s complaint.
Word of the complaint was then leaked by frustrated Democrats to the media, leading to demands for full disclosure and the launching of an impeachment investigation of Trump’s alleged efforts to hold the aid to Ukraine hostage to his re-election strategy.
TRUMP SURPRISED DEMOCRATS BY RELEASING THE EVIDENCE
In response to the media-fueled uproar, the Trump White House promptly released a rough transcript of the July phone conversation and a summary of the complaint, which directly contradicted several of the whistleblower’s most sensational accusations.
For example, the transcript makes clear that there was no explicit offer of a quid pro quo made by Trump to the Ukrainian president regarding the release of the frozen US aid money. Trump’s accusers claim that Trump implicitly applied undue pressure to the Ukrainian president by simply requesting an investigation of the Bidens, even though President Zelensky has since publicly stated that he felt no such pressure at the time.
In the end, the delayed military aid was released to Ukraine by the Trump administration several weeks before the September 30 end of fiscal year deadline, even though Ukraine’s president never launched the corruption investigation into the Bidens that Trump had requested. The allegedly corrupt, politically-motivated quid pro quo with Ukraine never materialized, just as there was never any collusion between the Trump campaign and the Russians in 2016.
When the transcript of the phone call was released, the conversation between the two leaders turned out to be much less incriminating than media reports had suggested. Nevertheless, several career diplomats and other lower-ranking administration officials did testify before Schiff’s committee that they had expressed concerns about what they believed were the political motives behind Trump’s decision to delay the delivery of the aid to Ukraine. Others witnesses also suggested that Trump’s response to the Ukrainian president’s request for a face-to-face meeting may have also been contingent on his agreement to Trump’s request for an investigation of the Bidens.
INTERNAL DIVISIONS OVER UKRAINE POLICY
Emails, text messages and conversations within the Trump administration during that period also made it clear that opinion was sharply divided over the wisdom of delaying the delivery of the military aid to Ukraine. The delay was strongly opposed by then-National Security Advisor John Bolton, and other administration officials who agreed with Bolton. They were confident that the aid would soon be released without the need for any “payback” from Ukraine’s government because of the strong bipartisan support for the aid in Congress.
Bolton was strongly opposed to Trump putting any conditions on US military aid to Ukraine. He compared linking the release of the aid to Trump’s request for a corruption investigation to a “drug deal,” and warned that a phone conversation between Trump and Zelensky “would be a disaster,” which turned out to be the case.
AN EMBITTERED DIPLOMAT
The most damaging testimony against Trump was delivered by William B. Taylor, Jr., who had served, starting in 2006 during the George W. Bush administration, as the US Ambassador to Ukraine and was reappointed on an interim basis in June of this year as the interim US charge d’affaires for Ukraine by President Trump. In Taylor’s secret opening statement to the Schiff committee which was somehow leaked, in its entirety, to the anti-Trump media, the diplomat said that he had become convinced in mid-July, before Trump’s conversation with Zelensky, that release of the aid for Ukraine and approval of his requested meeting with Trump would not take place unless Ukraine’s president agreed to Trump’s demands, as conveyed by Trump’s private lawyer, former New York City Mayor Rudy Giuliani, that the Bidens be investigated for corruption.
It is clear from his testimony that Taylor resented the Ukraine-related policy role that was being played by Giuliani, who had long been pursuing his own efforts to track down reports of Ukrainian interference in the 2016 US presidential election on behalf of Hillary Clinton. He complained that Giuliani’s efforts had created confusion and doubt about America’s policy toward Ukraine and was steering it in the wrong direction. This suggests the possibility that Taylor and other diplomats who testified against Trump’s policy in Ukraine may have acted out of a desire for payback in response to Giuliani’s amateur encroachment on their professional turf.
TRUMP’S UKRAINE POLICY SIDE CHANNEL
In his testimony, Taylor also complained about interference in US policy-making with respect to Ukraine by then-Special Envoy Kurt Volker, US Ambassador to the EU Gordon Sondland, and Secretary of Energy Rick Perry. Taylor said he was surprised that he never received an official State Department “readout” of the July 25 call between Trump and Zelensky, even though he was the Chief of Mission at the US Embassy in Kiev at the time.
Taylor said he sent text messages to both Sondland and Volker saying, “I think it’s crazy to withhold security assistance for help with a political campaign.” He also said he rejected the argument made by Sondland that Trump was merely acting like a businessman. “When a businessman is about to sign a check to someone who owes him something, he [Sondland] said, the businessman asks that person to pay up before signing a check,” Taylor testified.
Sondland’s lawyer later told reporters that his client doesn’t recall that particular conversation, but he thinks that if Trump did talk about the need for Zelensky to “pay up,” it was with respect to his request for a White House meeting with Trump, not release of the aid. According to Sondland’s lawyer, his client testified before the House committee that Trump had assured him that “There’s no quid pro quo, but Zelensky’s got to get out there and do the right thing,” and that the president “was adamant that President Zelensky, himself, had to ‘clear things up and do it in public.’”
Sondland also reportedly testified that he was not personally involved in the decision to delay the release of the aid to Ukraine, so he was not in a position to comment on whether the release of the aid had been conditioned on a satisfactory response to Trump’s call for an investigation in Ukraine.
Several participants in the House committee hearing said there was some confusion over inconsistencies in Sondland’s congressional testimony when compared to what Taylor had told them, and that both Republicans and Democrats wanted Sondland to return to provide further clarification.
Taylor also testified that he sent a cable to Secretary of State Mike Pompeo complaining that it was “folly” for the US to withhold military aid from Ukraine while it was still actively battling Russian-supported separatists. Taylor said that he later learned that Pompeo had taken that cable with him to a White House meeting which discussed releasing the aid to Ukraine.
TRUMP’S ALLIES DIGGING FOR THE TRUTH
Giuliani has claimed, in response to the criticism, that his private investigation has uncovered new evidence of Ukrainian efforts to influence the outcome of the 2016 US presidential election in favor of Mrs. Clinton, which had previously been suppressed or ignored by anti-Trump US government officials. Both Giuliani and President Trump say they expect that the investigation of FBI and Justice Department misconduct in the 2016 election, launched earlier this year by Attorney General Bill Barr, will throw new light on what actually happened in Ukraine and elsewhere.
Barr’s investigation seems to be making progress. According to the Wall Street Journal, based upon newly-obtained evidence gathered from sources in Italy, Barr’s prosecutor, US Attorney John Durham, has been empowered to launch a full-fledged criminal investigation, including the authority to empanel a grand jury, issue subpoenas compelling witnesses to testify and file criminal charges.
REPUBLICANS SAY THE CASE AGAINST TRUMP IS STILL WEAK
Some Democrats seeking Trump’s removal said that after hearing Ambassador Taylor’s testimony, they had enough incriminating evidence to impeach the president. But Republican House Minority Leader Kevin McCarthy, who also heard Taylor’s testimony and his subsequent cross examination in the closed-door hearing by Texas Republican Congressman John Radcliffe, was not convinced. McCarthy told Fox News that “in 90 seconds, we had John Ratcliffe destroy Taylor’s whole argument,” but that secrecy rules that Democrats had imposed on the testimony meant “we really can’t talk about it.”
Ratcliffe was somewhat more forthcoming. He told Fox News that in his opinion, any new facts that Taylor’s testimony had brought to light were not “worthy of impeachment.” He also added that most of that testimony was “second-, third-, and fourth-hand information,” that would be unacceptable in any court of law and would not convince the public or the two-thirds majority required in the Republican-dominated Senate to convict Trump and remove him from office.
Democrats have not yet heard from all the administration officials who appear willing to cooperate, and who claim to have at least some knowledge of the process which temporarily delayed the aid to Ukraine. These witnesses may also be able to shed more light on why Trump denied a request by Zelensky for a face-to-face meeting in the White House.
But senior administration officials are already taking legal steps to push back against Democrat demands that they testify that Trump unfairly pressured the president of Ukraine for personal political gain during their phone conversation.
UNDERSTANDING HOW FOREIGN AID WORKS
Perhaps unwisely, White House chief of staff Mike Mulvaney tried to explain to reporters during a press conference two weeks ago that requests by US officials for cooperation from leaders of other governments in return for the timely release of American aid has long been a routine standard procedure in the conduct of White House foreign policy for many years.
Democrats and the media immediately pounced on Mulvaney’s statement as a damaging admission that the president did abuse his power by setting political conditions on the release of aid to Ukraine. Mulvaney was forced to issue a retraction, but longtime Washington observers were forced to admit that his original observation had been correct. Previous administrations had frequently used threats to hold up American aid to wring the desired concessions from foreign leaders.
Foreign aid was always considered to be a legitimate diplomatic tool enabling American leaders to influence the domestic and foreign affairs of other countries, particularly with respect to national security issues. It is also frequently used as part of a carrot-and-stick approach that threatens to punish countries which obstruct American goals, by raising tariffs on their exports, for example, and rewarding them with more foreign aid when they agree to cooperate.
SUBVERTING TRUMP’S POLICIES FROM WITHIN
As a veteran American diplomat, Ambassador Taylor has long been familiar with the process of “conditioning” grants of US foreign aid on the cooperation of its recipients. In 2011, shortly after he was appointed by then-Secretary of State Hillary Clinton as the State Department’s Special Coordinator for Egypt, Tunisia and Libya, Taylor explained to a reporter at a news conference how the US aid would be leveraged using an explicit quid pro quo with foreign leaders. “We will say to the Egyptians, don’t send us that check [you owe the US] for a billion dollars, which is actually 300 million over three years. Keep that there, but we, the United States Government, will agree with you, the Egyptian Government, on how to spend that billion dollars in Egypt,” Taylor said.
While many State Department diplomats like Ambassador Taylor may disagree with President Trump’s foreign policy ideas and strategies, they do not have the legal or constitutional authority to develop and implement their own foreign policies. Their job is to implement the elected president’s foreign policy, whether they like him and his ideas or not. Diplomats who cannot do so are encouraged to resign and offer their foreign policy opinions from outside the federal government, rather than trying to subvert the president’s policies from within.
OBAMA’S PRECEDENT FOR WITHHOLDING FOREIGN AID
On the other hand, in 2013, the Obama administration cut off the bulk of $1.3 billion of mostly military aid that Egypt had been receiving since that country signed the US-sponsored 1979 Camp David peace treaty with Israel.
Over the next two years, Obama withheld from the Egyptian military a dozen F-16 fighter jets, 20 Harpoon missiles and 125 Abrams M1A1 battle tanks, because the Egyptian army’s chief of staff General Abdel Fatah el-Sisi overthrew the unpopular government of Mohamed Morsi, whose main support came from the Muslim Brotherhood, the parent organization of Hamas. The Obama administration restored its military aid to el-Sisi’s government two years later, largely due to Israel’s diplomatic intervention in Washington on Egypt’s behalf, because of their shared hatred of Islamic terrorism.
Obama cut Egypt’s military aid to retaliate against el-Sisi’s crackdown on the Muslim Brotherhood and other Islamic terrorists operating in Egypt. But at that time, no Republican dared to suggest impeaching Obama for his open support for the Egyptian Islamic terrorists who had seized control of that country, albeit through democratic means. That was because Republicans recognized that the Constitution grants presidents virtually unlimited power to set their own foreign policies.
DEMOCRATS SUBVERTING DEMOCRACY
By threatening to impeach President Trump over his foreign policy decisions with regard to Ukraine, Democrats are subverting the president’s constitutional authority to safeguard this country’s national security interests as its lawful commander-in-chief.
According to constitutional law experts David Rivkin and Elizabeth Price Foley, in a Wall Street Journal op-ed piece, the initial refusal of Speaker Pelosi to call an authorizing vote of the House for the impeachment process, and her approval of the Schiff committee’s effort to remove Trump from office without evidence that he committed an impeachable offense, flies in the face of Article 1, Section 9, Paragraph 3 of the Constitution, which specifically prohibits a bill of attainder, the act of a legislature singling out an individual for punishment with the benefit of a trial and due process of law.
Rivkin and Foley argue that Pelosi and Schiff had undermined the legitimacy of their latest impeachment effort, when they refused to follow the accepted procedure for authorizing impeachment proceeding which had been followed in the 1868 impeachment of Andrew Johnson, the 1974 attempt to impeach Richard Nixon, and the 1998 impeachment of Bill Clinton. They also warned that the initial strategy adopted by Pelosi and Schiff actually posed a threat the stability of the American system of government. “Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. . . Thus any attempt to remove the president by impeachment creates unique risks to democracy,” they wrote.
If Pelosi had not changed her mind and agreed to call for a formal House impeachment vote, the two constitutional law experts said that the Senate would not have been under any obligation to conduct an impeachment trial, and the federal courts would have ultimately refused to enforce any of the subpoenas issued by House committees for impeachment-related evidence.
WHEN IS ABUSE OF POWER AN IMPEACHABLE OFFENSE?
Trump’s critics insist that even though his abuse of power by withholding aid from Ukraine to achieve his personal political goals may not have violated any criminal statutes, it still could constitute an impeachable offense. But Rivkin and Foley disagree. They argue that abuse of power can only be considered an impeachable offense in two very limited cases.
The first is a case of the president using powers not granted to him under the Constitution, or which have been assigned by the Constitution to the legislative or judicial branches of the federal government. The second is when a president fails to carry out his constitutional duties, such as enforcing federal laws with which he disagrees. In fact, President Obama was guilty of doing the latter when he refused to enforce the federal statutes which clearly applied to certain groups of illegal aliens, yet the Republicans never tried to launch an impeachment effort against Obama on those grounds.
Yet Democrats now argue that the impeachment of President Trump is warranted because he allegedly committed acts such as “interference with an election,” “collusion” or “receiving political information from a foreign power,” none of which are violations of the federal criminal code. Nor does Trump’s alleged offer of a quid pro quo in his phone call with Ukrainian President Zelensky meet the Supreme Court’s 1999 definition of the crime of bribery, which is “specific intent to give or receive something of value in exchange for an official act.”
BROAD PRESIDENTIAL POWER OVER FOREIGN POLICY
Neither did Trump’s decision to temporarily impound military aid money that Congress had appropriated for Ukraine violate the law. Presidents have been impounding federal funds appropriated by Congress since the days of Thomas Jefferson, and as recently as the Obama administration.
All presidents are also empowered by the Constitution to “take care that the laws be faithfully executed,” making no distinction between ordinary citizens and political rivals, or whether the laws which were violated and the people who violated them were foreign or domestic. There is also no constitutional limitation on presidents who want to adopt policies and take actions that are likely to help them win re-election.
Presidents are also not required to use only experienced diplomats in the conduct of their foreign policy, or to consult only with duly confirmed cabinet officials as policy advisors. President Trump has just as much right to rely on his daughter and her husband for political advice as President John F. Kennedy did to rely on his brother Robert, whom he appointed attorney general. Similarly, JFK relied on ABC reporter John Scali to serve as his go-between with a Soviet diplomat to help negotiate a peaceful end to the 1962 Cuban missile crisis, in much the same way that Rudy Giuliani is helping Trump get to the bottom of Ukrainian interference in the 2016 presidential election.
HOW ABUSE OF IMPEACHMENT COULD UNDERMINE DEMOCRACY
Furthermore, Democrats do not have the right to inaugurate impeachment procedures merely because they profoundly disagree with Trump’s policy positions. The authors of the Constitution considered and rejected maladministration as legitimate grounds for impeachment.
In 1835, Alexis de Tocqueville, the early chronicler of the development of American democracy, predicted that, “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.”
