Pelosi’s Nightmare: The Democrats Stumble Over Potentially Impeachable Offense

Below is my column in the Hill on the implications of the controversy over the call of Donald Trump to the President of the Ukraine. Trump has now admitted to asking for the investigation of Joe Biden and his son, Hunter. As predicted in this column, the Democratic leadership has struggled to dampen calls for an impeachment, including the effort of Nancy Pelosi to call for legislation on indicting a sitting president. Of course, not only do many of us believe that you can indict a sitting president, but the legislation is utterly irrelevant to question of impeachment. Not surprisingly, the pressure is building after years of claiming the desire, but not the grounds, for such an impeachment.

Here is the column:

“One of the biggest political scandals in history” and “bigger than Watergate.” Those were the words that Donald Trump used to describe allegations that an American president used his office to investigate the expected nominee of the opposing political party in 2016.

Of course, three years ago, it was the investigation of Trump campaign associates for alleged foreign business deals and Russian influence. Now, President Trump faces the same condemnation for allegedly pressuring the Ukrainian president to investigate former Vice President Joe Biden and his son Hunter Biden, a request made when the United States was deciding whether to give $250 million in military aid to Ukraine.

Scandals involving everything from paying off strippers to self-dealing have swirled around Trump for three years. I have challenged many of these allegations, given obvious defenses that would make prosecution or impeachment difficult. The latest scandal, however, could prove more damaging not just to Trump but to the Democrats.

First, to state the obvious, if the president used his office to force another country to investigate a political opponent, it is just as serious as Trump previously described. That is why it was important to investigate the Obama administration allegedly targeting Trump associates, while also supporting the special counsel investigation of Trump.

This latest allegation could be the basis for an impeachable offense as an abuse of power, as was done in the second article of impeachment against President Nixon. Yet much has to be established and, as usual, many in the political arena are dispensing with the need to see actual evidence, as in former secretary of Housing and Urban Development and Democratic presidential candidate Julian Castro already declaring Trump a “criminal” and demanding that he “be impeached immediately.”

In the most recent disclosures published by the Wall Street Journal, Trump is accused of pressing the Ukrainian president eight times to work with his attorney Rudy Giuliani to investigate Biden. There is no allegation of an express promise of money in exchange for such an investigation. Such a quid pro quo could be the basis for a criminal charge, but the current allegations are short of the “quid” in the “pro quo.”

While one could legitimately say that an express promise was hardly necessary, with a quarter of a billion dollars on the table, it still is not a crime for a president to ask a foreign leader to investigate crimes in another country. Trump can claim that the Biden controversy related to his own belief that Obama and Clinton associates used foreign interests to influence the 2016 presidential election.

A still greater problem will be obtaining the evidence to show a criminal or impeachable offense. While the inspector general concluded that this allegation fell within the whistleblower law, the Justice Department has a good faith basis to reject his interpretation. That law is intended to address mismanagement, waste, abuse or a danger to public safety by intelligence officials. The president is the ultimate intelligence authority, and there is little support to argue that a discussion between world leaders should be viewed as a subject of this law. After all, any intelligence official could claim that a president undermined national interests in discussions with another world leader. Trump has been denounced, perhaps correctly, for disclosing classified information to foreign figures, but he has total authority to declassify information for a good reason, a bad reason, or no reason at all.

Even if the law is viewed as covering these allegations, there would be a massive potential court fight over executive privilege. A conversation between two presidents is the ultimate example of a privileged communication. Indeed, the first assertion of executive privilege by George Washington concerned foreign relations communications underlying the Jay Treaty. Executive privilege, however, is not absolute. Indeed, in Nixon v. United States, the Supreme Court rejected the argument of the president after recognizing the privilege.

So where does this leave us? While the claim that such a conversation falls under the whistleblower statute is challengeable, Congress is now formally informed of a serious allegation of abuse of power. It could start to subpoena documents and witnesses, including a transcript of the conversation. Congress should be able to read such a transcript in light of the serious allegations. Ironically, the best hope for Trump remains the Democrats and, specifically, House Speaker Nancy Pelosi.

Ever since before the 2018 midterm election, I have written that the impeachment push was a bait and switch on voters. Democratic leaders never had any actual intent to impeach Trump. They wanted him anemic but alive for the election. However, I noted that the great danger of pretending to want to impeach is that they accidentally stumble into an actual impeachment. Now, they may have stumbled over precisely such an offense while continuing to reassure their voters that, if they only had a clear case, they would move forward aggressively.

It is a nightmare for Pelosi. The only thing worse would be succeeding in such an effort. A removed Trump would leave millions of enraged and energized Trump voters and an undamaged Republican nominee for the 2020 presidential election.

To make matters worse, any impeachment proceeding would highlight the dubious business deals of Hunter Biden, reportedly had a penchant for making huge profits in countries where his father was conducting official government business. This included Hunter accompanying the former vice president on Air Force Two on an official trip to China. Shortly thereafter, Hunter signed a $1 billion private equity deal with a subsidiary of the Bank of China, a deal that was later expanded to $1.5  billion. Hunter also was asked to be a director of a Ukrainian natural gas company, Burisma Holdings, owned by a government minister and close associate of bloodsoaked former president and Russian stooge Viktor Yanukovych. That is the same Yanukovych represented by disgraced Trump campaign chairman Paul Manafort in his own seedy international business deals.

Critics have long pointed to the role Joe Biden played in getting the Ukrainian chief prosecutor fired after he threatened to investigate Burisma Holdings. Biden later bragged that he held up more than $1 billion in loan guarantees and gave the Ukrainians just hours to fire the prosecutor. In fairness to Biden, the United States and many countries were clamoring for Ukraine to act on its rampant corruption, including the need for a more aggressive prosecutor. Yet many experts, even the New York Times, have agreed that the business dealings of Hunter pose a serious conflict of interest for his father. Few people believe the Chinese or Ukrainians embraced Hunter because of his financial brilliance.

Nevertheless, media interest has been remarkably light compared to the interest in Trump family dealings. Democratic leaders have to deal with the misfortune of stumbling upon the very thing they claimed to be desperately seeking. A trial featuring Hunter Biden and windfall business agreements is hardly enticing. That is the problem with playing a shell game with voters. Occasionally, someone turns over the right shell.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

65 thoughts on “Pelosi’s Nightmare: The Democrats Stumble Over Potentially Impeachable Offense”

  1. It should be noted that the conversation between Trump and the Ukrainian president is only part of the whistleblowers reported evidence, which also included a “promise”. Before we begin thinking – well some already have and Trump probably likes it that way – that a release of a transcript of that conversation is the end of the story, let’s indeed wait for all the evidence.

    If it is as the Trump appointed IC IG found “serious and urgent” and confirms a quid pro quo stated or clearly implied, impeach the mfer. He won’t be convicted by the Senate since the GOP has been castrated, but what’s right is right and as demonstrated here almost daily, most Americans don’t know all the crap the Mueller report unearthed on Trump and need to get those headlines in an impeachment hearing. Jt is dreaming about Joe Biden – the clear facts support his actions as western world and US policy, not special pleading – and his son is not his responsibility, unlike the dos dummies Trump has running his businesses.

    Let’s watch the next week, then do the right thing. If he hides the evidence or is shown again to be a lowlife selfish p…k acting in his own interest, not America’s, impeach – win, lose, or draw.

  2. GDit JT, there was no bait and switch. GET YOUR FACTS STRAIGHT. Neither Pelosi or the Democrats in general or specifically ran on impeachment. Your premise is once again BS.

    “…If the Democrats are planning to impeach Trump if they win control of the House, they are doing a really great job of hiding it. Congressional Democrats aren’t talking about impeachment.

    On Wednesday, for example, House Democratic leader Nancy Pelosi, a leading candidate for speaker of the House if Democrats win control, again all but ruled out an impeachment push, saying that Democrats would use congressional power to oversee the Trump administration and make sure the president does not interfere with special counsel Robert Mueller’s investigation. Rep. Jerry Nadler of New York, the top Democrat on the House Judiciary Committee, where any impeachment resolutions would likely be introduced, spent Wednesday pushing a bill he sponsored that would make it harder for Trump to fire Mueller. Nadler has suggested that the party will only pursue impeachment if they think they can get the 67 Senate votes they’d need to remove Trump from office — a very high bar, since that would mean something like 17 Senate Republicans would agree to vote out a Republican president.

    And it’s not just Democratic leaders who aren’t talking about impeachment. As part of FiveThirtyEight’s project looking at what types of Democrats are doing well in primaries for Senate, House and governor this year, we looked at the campaign website for each of the 811 people who, as of Aug. 7, had appeared on the ballot in Democratic primaries for races with no Democratic incumbent. Only one candidate (Nate Kleinman, running for a House seat in New Jersey) featured a call for impeaching Trump on his website. …”

  3. Enough hysteria, incoherence, chaos, anarchy and nascent insurrection.

    “Crazy Abe” Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald J. Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

  4. Lawyers are nothing, if not wordsmiths. For instance, when referring to Trump’s campaign associates, it is only “alleged” foreign business deals and Russian influence that was investigated. Read the Mueller Report. There’s nothing “alleged” about this any more. The Mueller investigation yielded guilty pleas and guilty verdicts. Trump was trying to do deals with Russians. Trump bragged that he borrows money from Russians. Trump has deferred to Vladimir Putin, and publicly sided with his version of facts and against American intelligence in Helsinki. Trump fired Dan Coats when Coats told the truth about Russian interference. It boggles the mind how any of these established facts that supported criminal prosecutions can be downplayed as “alleged”.

    Yet, when it comes to Hunter Biden, who was not part of a political campaign for the Presidency of the US, who did nothing to interfere with Americans’ choice as to their President, and who was investigated already and found not to have engaged in any illegal conduct, his business deals are called “dubious”. “Dubious” according to whom? There is the comment: “few people believe the Chinese or Ukrainians embraced Hunter because of his financial brilliance.” And? Is this an attempt to argue for equivalence? Another classic Kellyanne Pivot? Red meat for the disciples? Even if Hunter did commit a crime, how could this translate into wrongdoing by his father on any equivalent scale to Trump’s endless lying and illegal conduct? His entire Presidency is wrongful because it was procured by cheating.

    Then there is the soft-pedaling of certain facts. For instance: hard-core porn star Stormy Daniels is now just a “stripper” who allegedly got paid off. No. Melania is a former stripper. Stormy is a famous hard-core porn star and director. Karen McDougal was a porn model, but neither woman was a mere “stripper”, reminiscent of women like Gypsy Rose Lee. Michael Cohen testified under oath that Daniels was paid off. He produced documentary proof.

    Then, there’s the substance of the discussion with the Ukrainian President. “if the president used his office to FORCE” an investigation, this would be bad. Well, no US POTUS could force a foreign leader to do anything. This exaggerated allegation is then compared to the unfounded claim that Obama somehow “spied” on the Trump campaign, which has no proven basis in fact, and which is based on nothing more than Trump’s “belief”. Later, this entire telephone incident is referred to as nothing more than a mere “conversation between two presidents”. Well, that’s not what the whistleblower described, which was an express promise of some sort. The Inspector General found the report to be appropriate for referral to Congress, which the law expressly requires, but somehow, Barr’s DOJ got into the picture, and allegedly has a “good faith” basis to reject the inspector general’s interpretation of the whistleblower statute. Where in the statute does it say that the DOJ gets to vet whistleblower complaints? It simply doesn’t. More of Trump’s attempts to make himself king. He puts syncophants in charge of everything from science to criminal prosecution. It is indeed ironic that the Justice Department protects Trump against being brought to justice.

    Lastly there is the complaint, part of the larger Trump narrative, that the media are unfair because media hasn’t gone after Hunter Biden. Nothing Hunter Biden did or failed to do cheated the American people out of their choice as President, nor does it reflect any criminal conduct by his father. False equivalence.

  5. Sometimes all that’s needed is a good conductor. That would be Sarah Hicks.

    The Good, the Bad and the Ugly – The Danish National Symphony Orchestra (Live)

  6. When a party’s best idea is to socialize everything, especially in a free country in which capitalism has been the driving force behind America’s climb to the top, the only tactic is to employ the Politics of Distraction.

    “We got nuthin’, but, oh look, squirrel!”

    1. Haha. Please. Keep. Posting. Materials. Just. Like. This.

      this is to “does this spiffy tinfoil cap make me look fat?” meister

  7. Joe Biden needs to leave the election process and retire with all his money. He will bring down the Democratic Party if he is nominated. There are a lot of bad Democrat candidates. I do not like any of them. The best would be if Trump got off the ticket and Pence took the Republican nomination. He would beat anyone.

    1. I’m was a Centrist, with left leanings. And I must say, I think I might be a Centrist with right leanings now.

      The Democratic party jumped on the Bernie wagon, post last election. It’s too far left. It’s just ridiculous. They look ridiculous, IMO.

      Someone should bench AOC, permanently. She is not doing the Dem party favors. 2nd and 3rd string the rest of them. Retire Biden.

      And let some business savy Centrist Dems take-over the party. Not the hippie dippie, let’s all hold hands, and be SJW and smoke the PC crackpot together.

      So, with that said…

      As long as the Republicans keep their mouth shut, and stay in their lane, under Trump, whether they like him or not, doesn’t matter—they win, and it will be 2020 Trump.

      Contingent on the Tea Party extreme not getting too involved. The polar opposite of the SJW group in the Dems.

  8. This is more Trump’s nightmare than Pelosi’s and, for the first time, she knows it. The difference is because the charge is simple: plain treason and bribery by the President. NOT as a candidate; he had no power then, but this time he does. Also in the equation is that there are SO MANY republicans who want to impeach if there a good chance Trump loses. They rightly see this as the charge that can do it.

    The outcome? Undecided. Dems will not be afraid to kill Biden’s candidacy – as seems likely – if it means getting rid of Trump. Still, the transcript of the call will only take us to impeachment, but not a guilty verdict. They’ll argue it’s ambiguous. It was never an offer, a bribe or a threat, only superficial conversation. No, what may finally do the job is Guiliani. If Trump is shown to have secretly given his personal lawyer the authority to conduct American foreign policy, such an action can rightly be called treasonous.

  9. What if whistle-blower scandal was orchestrated by Trump? Trump is the evil-genius. He knows Dems will take anything for impeachment and GOP will be behind him. Dems will make this about impeachment and boy they don’t know what’s coming! GOP will have their talking points as see in media interviews – Trump did nothing wrong, there is deep state smearing Trump but what about Joe? Transcript will show ambiguity and GOP will again enforce the hoax by Dems.

  10. I’m guessing Trump is seeing the wisdom of Thomas Jefferson’s words more and more:

    “I had rather be shut up in a very modest cottage, with my books, my family and a few old friends, dining on simple bacon, and letting the world roll on as it liked, than to occupy the most splendid post, which any human power can give.”

    But let’s hope he’s more into Admiral Matthew Glasgow Farragut: “Damn the torpedoes! Jouett, full speed! Four bells, Captain Drayton!”

  11. The impeachment process is a trial. Both the defense and that prosecution will bring a case(ask a lot of questions). A lot of information comes out in a trial. Sometimes, too much.

  12. JT: Is there a reason why you left out the fact that a senior Ukrainian official familiar with the conversation said there was no pressure put on the Ukrainian president?

  13. Dem infighting is fun

    2020 Presidential candidates see Joe’s deals with China & Ukraine as red meat.

    Meanwhile over at the house, the “squad” is looking to neutralize Joe.

  14. How about the time Hunter returned a rental car in Arizona and left his crack pipe and other paraphernalia on the seat? Police swept it all away for Biden. Of course they did.

    But wait! There’s more! Go for it Democrats/fakes news media. Let them all be forced to talk about Hunter Biden’s dealings. And let’s hear more about how the Biden family fortune was made. Can’t wait.

  15. Then this little tidbit was thrown out by CNN. “The whistleblower didn’t have direct knowledge of the communications, an official briefed on the matter told CNN. Instead, the whistleblower’s concerns came in part from learning information that was not obtained during the course of their work, and those details have played a role in the administration’s determination that the complaint didn’t fit the reporting requirements under the intelligence whistleblower law, the official said.”

    1. I finally get it, you are a Trump supporter, I never would have guessed that! I just thought you were misinformed and ignorant as a result, I never would have guessed that you were a true member of a cult! Be careful what you consume, I hear the Koolaid could be deadly!

      There are principles established in the Constitution, like Equality of persons, and the Equal Right to Participate in our Government. But there is nothing in the Constitution that gives the right for individuals or Factions to obstruct, Control, or circumvent the will of the People in their Collective Capacity!

      I think you struggle with the Equality parts of the Constitution, as many who feel they are entitled to more than others in our society have struggled since our Declaration of Independence and the first founding of our Country!

      The President is Supposed to be selected by the people in their collective capacity, not through a 50:50 coin flip election of competing ideological Factions! Then that President is Supposed to serve the People in their Collective Capacity through compliant subordination to the higher Authority of the People in their Collective Capacity! Once that compliant subordination is breached, then the people in their collective capacity have the right and authority to remove that insubordinate Government Official, and Impeachment is the tool to both compel compliant subordination, as well as, remove an noncompliant and insubordinate Government Officer, up to and including the President.

      The Union is and always will be the Supreme Legislative and Government Authority in a properly assembled Confederated Republic, which the United States was established to be by the United States Constitution!

      Maybe we should be getting back to the hierarchical structure established in the Constitution with the people in their collective capacity at the top, and those selected to implement that will of the people necessarily subservient below!

      1. fpr – the President is elected by the electors of the Electoral College. In case of a tie, it goes to Congress. The President is the Executive.

        1. For some reason this blog refuses to post my rebuttal to your comment! But I think it is important to dispel the misconceptions that you have voiced here, because it goes to the basis of what is wrong with our Government and the electoral processes by which it assembled.

          There is no such thing as the Electoral College established in the Constitution! What is established in the Constitution in Article 2 Section 1 and the 12th Amendment are Processes where an intermediate electorate is selected by the people and those Electors vote to select our president and Vice President. We, therefore, select Electors that Vote, we don’t have Electoral College Votes that can be assigned or won through some tangential nomination and general election process!

          Here is a link to my full comment:

Comments are closed.