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.