By Stephen Meister
Under Article I, Section 3 of the U.S. Constitution, conviction on an impeachment resolution requires a two-thirds vote of the Senate—today, 67 of 100 senators.
Even if all 45 Democratic senators were to vote in favor of articles of impeachment against President Donald Trump, 22 of the 53 Republicans and two independents would have to join them for the effort to succeed. Since 12 Democratic senators have already come out against impeachment, that would put the number of Republican (or Independent) senators who must be flipped at 34.
Given the political impossibility of success in a Senate trial, the question must be asked: Why did House Speaker Nancy Pelosi (D-Calif.) hold a press conference announcing an “impeachment inquiry”? Indeed, why did she do so without calling for a vote on a resolution to impeach, and without identifying a single crime that Trump may have committed? More enigmatically, why did she do so before she had even read the transcript of Trump’s July 25 call with Ukrainian President Volodymyr Zelensky, and before the anonymous whistleblower’s complaint was released?
For historical context, consider that then-House Speaker Newt Gingrich waited for Ken Starr’s four-year-long investigation of President Bill Clinton to conclude before beginning an impeachment process against Clinton. Despite Starr’s findings of Clinton’s crimes, including perjury and suborning perjury, senators refused to vote to impeach Clinton, although his felonies did result in the suspension of his Arkansas law license for five years and a $25,000 fine.
Right-leaning pundits have opined that Pelosi’s move was reckless in the extreme: the result of a partisan feeding frenzy fueled by advanced-stage “Trump Derangement Syndrome” and her kneeling to the relentless pressure of the AOC-led radical “Squad,” which, they posit, is now in control of the Democratic Party.
Pelosi may be one of the most partisan politicians alive but she’s not inexperienced or ignorant (as is the Squad); it’s fair to posit that there may be some rationale, not readily apparent, to her actions (besides just yielding to radical left pressure).
The “crime” of which the Democrats implicitly accuse Trump is codified under 50 USC 30121—a campaign finance law headed “Contributions and Donations by Foreign Nationals.” That statute makes it unlawful for a foreign national to “donate or contribute” money or a “thing of value” in connection with a federal or state election, or for any person, including a U.S. citizen, to “solicit” such a foreign “contribution or donation.”
Democrats are saying that by asking Zelensky to investigate Joe and Hunter Biden, Trump has solicited aid to his 2020 reelection campaign, in violation of 50 USC 30121, and abused his power.
As a threshold matter, by the phrase “thing of value,” it would seem the drafters meant to cover in-kind donations that take the form of real or personal property, not a government investigation.
But even if “thing of value” is read so broadly that it includes a government investigation, still there’s the question of criminal intent—which would be defeated if Trump sought the investigation for some legitimate reason.
Clinton wasn’t fulfilling any legitimate executive function when he lied under oath about his affair with Monica Lewinsky, and suborned perjury to the same end; he was simply trying to save his own political hide.
In contrast, Trump had perfectly appropriate executive motives for discussing corruption in Ukraine: The United States gives foreign aid (for military defense against Russia) to Ukraine, and if Ukraine is corrupt, the U.S. taxpayer dollars given to Ukraine may end up lining some oligarch’s pocket. Indeed under Article II of the Constitution, Trump, as president, is the executive branch, and as such has an obligation to faithfully carry out the laws of the United States, which arguably required Trump to ask Zelensky to investigate Biden.
As noted by Peter Schweizer in his book, “Secret Empires”—Hunter Biden in April 2014 took a job for $50,000 a month “consulting” for Burisma Holdings, a Ukrainian natural gas company. At the time, Hunter Biden’s father, Joe Biden, was vice president.
Prior to Hunter Biden taking the rich consultancy with Burisma, President Barack Obama had put Joe Biden in charge of his administration’s investigation into corruption in Ukraine. Hunter Biden’s move to accept a consulting job with a company under investigation by his father created at least the perception of a conflict of interest, which was only heightened by the younger Biden’s lack of qualifications for any genuine consultancy in the energy business. That apparent conflict reportedly led John Kerry’s stepson, Chris Heinz, to end his business partnership with Hunter Biden.
During a videotaped Council on Foreign Relations panel in January 2018, Joe Biden bragged that he got Ukraine prosecutor Victor Shokin fired by threatening to withhold $1 billion in U.S. aid unless Shokin—who was then investigating Burisma—was fired. At the time, the elder Biden claimed Shokin was corrupt and omitted who was being investigated.
Trump’s lawyer Rudy Giuliani has obtained a copy of an affidavit signed by Shokin on behalf of Dmitry Firtash, a Ukrainian businessman who funneled money to pro-Russian Ukrainian politicians, in a legal case now pending in Austria. Shokin stated in the sworn affidavit that Joe Biden got him fired because he was conducting a “wide-ranging” investigation into Burisma, of which Hunter Biden was a board member.
Separately, even more serious allegations of corruption by Joe and Hunter Biden arise from dealings with China. On Dec. 4, 2013, Hunter Biden joined his father on Air Force Two on a trip to China, where his father met with Chinese leader Xi Jinping. Hunter arranged for Xi to shake hands with his father in the lobby of the U.S. delegation’s hotel.
“Less than two weeks later, Hunter Biden’s firm closed a $1 billion private equity deal with a subsidiary of the Chinese government’s Bank of China,” according to Schweizer. “The deal was later expanded to $1.5 billion. In short, the Chinese government funded a business that it co-owned along with the son of a sitting vice president.”
Trump’s legitimate interest (if not constitutional duty) in rooting out corruption of U.S. politicians taking place in U.S. aid-assisted foreign countries doesn’t cease to exist because the U.S. politician happens to be a potential political rival. That is especially so for Trump, who was elected on a campaign promise to “drain the swamp.”
Trial Within a Trial
The potential for a legitimate motive means the Senate’s impeachment trial must include a “trial within a trial.” To impeach Trump, the prosecutor must prove that Joe and Hunter Biden weren’t acting corruptly, because if they were, Trump had a legitimate interest (independent of his own reelection) in seeing Ukraine investigate that matter, which defeats any criminal intent on Trump’s part.
In that case, Trump wasn’t seeking “dirt” on Biden but he was asking for a legitimate investigation of Biden’s actions, as is his duty as chief executive.
Revelations From Call Transcript
As if that weren’t bad enough, the call transcript shows that Trump was simply responding to Zelensky’s overtures, and not that Trump “solicited” aid for his campaign. Zelensky, not Trump, brought up draining the swamp. In response, Trump brought up CrowdStrike, the Democratic National Committee (DNC) server and Attorney General William Barr—not Joe Biden or Giuliani.
CrowdStrike is the private cybersecurity firm that investigated the alleged hacking of the DNC server, concluding that the hacking was done by Russian operatives. Some have suggested that U.S. intelligence agencies should have examined the DNC server themselves. Trump’s initial response—to Zelensky’s opening the door—had nothing to do with Joe (or Hunter) Biden.
And, it’s only in this segment of the conversation that Trump says “Do me a favor.” The favor being requested concerned solely the 2016—not the 2020—election.
Then, in response to Trump mentioning CrowdStrike and the DNC server, Zelensky brings up Giuliani, who Zelensky knows is investigating Joe Biden’s demand for Shokin to be fired.
It’s only in response to Zelensky mentioning Giuliani, that Trump says “good, because I heard you had a prosecutor … [who got fired].” Trump continues: “Biden went around bragging that he stopped the prosecution, so if you can look into that. It sounds horrible to me.”
Zelensky assures Trump that all the investigations will be done “openly and candidly.”
After the call, under public questioning, Zelensky assured that he didn’t feel “pushed” by Trump.
There was no discussion on the call of the U.S. aid. Trump did mention that he didn’t think the U.S.–Ukraine relationship was “reciprocal,” but this took place early on in the call, when the leaders were discussing CrowdStrike and the DNC server.
Although Trump had, before the call, ordered the temporary withholding of the aid, it’s now reported that Zelensky had no idea at the time of the call that the aid had been withheld. He only learned of the temporary halt on the aid a month after the call, by which time the funds had already been paid.
Given that no investigation, as far as we know, was opened by Zelensky into the Bidens and Burisma, the release of the aid before this story broke strongly suggests Trump’s motives were legitimate; otherwise, he would have continued to withhold the aid until an investigation had been opened.
Problems With Whistleblower Complaint
The whistleblower complaint is a blockbuster. First, the anonymous filer had no first-hand knowledge; he or she didn’t hear the Trump–Zelensky conversation. What’s more telling is that agency regulations and the whistleblower form required the accuser to swear, under penalty of perjury, that he had first-hand knowledge; the form was since changed to eliminate that requirement.
Second, the complaint is highly polished and professionally written—clearly by a lawyer or team of lawyers. These two facts strongly suggest that the whistleblower complaint was a highly coordinated effort by anti-Trump actors. It isn’t unreasonable to presume that Pelosi, being a heavyweight Washington insider among the anti-Trump ranks, had advance knowledge of this pre-planned effort and the filing.
Some commentators have asked why Trump said he would have both Barr and Giuliani contact Zelensky’s people, which Giuliani answered when interviewed by Fox News host Laura Ingraham. He said he has proof the State Department asked him to get involved in Ukraine, and also that Trump is entitled to be defended against false information being leaked by certain Ukraine actors about him.
Even if one assesses that Trump mentioning to Zelensky that Ukraine ought to investigate Biden is “corrupt,” because Biden could be a political adversary of Trump’s, that’s not enough to justify impeachment. Article II, Section 4 of the U.S. Constitution sets a high bar for impeachment: “treason, bribery or other high crimes or misdemeanors.” The Founding Fathers didn’t want a handful of lawmakers to be able to overturn the will of the millions of voters who elect a U.S. president.
U.S. lawmakers can’t oust the president by a “no-confidence vote” as can the UK’s Parliament.
In sum, impeachment stands no chance of success—the number of Republican senators whose votes are needed can’t be secured, there’s no precedent for classifying a requested foreign investigation into a political rival as a campaign contribution, and regardless, Trump didn’t possess criminal intent because Zelensky, not Trump, raised the issue of corruption in Ukraine. Trump initially responded by raising a concern about the 2016 election, not 2020. There was no quid pro quo, and as the nation’s chief executive, Trump is obliged to carry out our laws and ensure that U.S. aid isn’t corruptly diverted.
The process, however—both the investigation and Senate trial—will go forward, and both will place under public scrutiny Joe and Hunter Biden’s dealings in Ukraine, including a taped overt admission that Biden, as vice president, demanded a quid pro quo for not blocking U.S. aid to Ukraine—the firing of the prosecutor who was conducting an investigation into Burisma.
Pelosi’s Strategic Decision?
It’s reasonable to assume that Pelosi knows all this. What follows, in my opinion, is that Pelosi made a strategic decision to sacrifice Biden’s candidacy. The question we ought to ask is why.
The Democratic Party’s continuing success is irrevocably tethered to the Obama legacy. Obama had ordered an investigation into Ukrainian corruption and put his vice president, Joe Biden, in charge of that matter, before Hunter Biden took the consulting contract with Burisma. Obama hasn’t endorsed Biden’s current candidacy even as he is the leading Democratic candidate and served as his vice president; indeed, Obama has shown he doesn’t favor Biden’s candidacy, reportedly having said, “Joe, you don’t have to do this.”
While Pelosi’s “impeachment inquiry” won’t result in Trump’s impeachment, it does accomplish two things: one, it sinks Biden’s candidacy now; two, it creates a ready excuse for Democrats when Biden’s alleged corrupt dealings come out. They can call that a distraction to the real issue: Trump’s corruption, even as exactly the reverse is true.
Plus, it’s reasonable to assume that Pelosi knew that one of the Southern District’s most skilled and tenacious anti-corruption investigators, Rudy Giuliani, was on the Biden matter, and that Biden’s dealings in Ukraine would be exposed no matter what.
Pelosi must have assessed that Obama’s legacy (and perhaps the Democratic Party itself) couldn’t have withstood the attack ads and tweets that Trump would have waged against Biden had he secured the nomination.
The impeachment inquiry, seen in that light, has nothing whatever to do with impeachment; rather, it’s a tactical and Machiavellian countermeasure designed to mitigate the political damage to the Obama legacy grounded in Obama’s failure to stop Biden’s actions in Ukraine.
Stephen B. Meister is a founding partner of Meister, Seelig & Fein LLP, a law firm headquartered in New York City, a published author, and opinion writer. Twitter: @StephenMeister.
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