Below is my column in the Hill newspaper on the implications of the still developing Ukraine story. The testimony yesterday and release of the information on the complaint still lacks the critical nexus needed for a public corruption crime. If you establish the basis for such a crime, then the use of the separate server becomes a serious problem as covering up a crime. But you still need a crime. Otherwise, Trump can argue that he had been the victim of leaks about diplomatic calls and they took the step to better control access to such information. So, if you want impeachment, find the quid.
Here is the column:
The transcript of the call from President Trump to Ukrainian President Volodymyr Zelensky is enough to make Edwin Edwards blush. The infamous Louisiana governor once bragged, “The only way I can lose this election is if I’m caught in bed with either a dead girl or live boy.”
Even after the July appearance of Robert Mueller before Congress to discuss his findings as the special counsel, Trump apparently felt no qualms about calling Zelensky the following day to press him about investigating his main political opponent, Joe Biden, and son Hunter Biden. It is breathtaking to read Trump trying to convince Zelensky to do him a “favor” by going after the Bidens and suggesting meetings with Attorney General William Barr and his personal lawyer Rudy Giuliani.
Yet for those hoping to find a dead promise or a live Russian in the transcript, they will be disappointed again. The transcript lacks a critical element needed for impeachment, which is evidence of a quid pro quo. Trump never connects the investigation with the roughly $400 million in military aid. While he discusses the aid, he never suggests he will not send it. That does not mean a case for impeachment or criminal prosecution cannot be made. Unlike the prior impeachable offenses suggested by Democrats, this allegation of self-dealing could be both an impeachable offense and a federal crime, though neither would be easy to prove.
Past suggested impeachable offenses either have been facially ridiculous, like the comments Trump made about Charlottesville or his criticism of national anthem protest kneelers, or legally flawed, like the Russia intervention or obstruction theories. The closest viable claims are his payments to alleged former mistresses that are in the criminal plea agreement of his former personal lawyer Michael Cohen.
This is different. If a quid pro quo was proven, it would be self-dealing and an abuse of public office, and that can be a crime. Just ask disgraced former Illinois Governor Rod Blagojevich. He was convicted after calling other political figures to leverage the appointment of a new United States senator, to replace the newly elected President Obama, for his own political gain. While some of us were highly critical of that prosecution, because politicians routinely use such decisions to their own benefit, Blagojevich was found guilty and his conviction was later upheld.
Yet such cases have a mixed record. Former Virginia Governor Robert McDonnell was convicted of using his office to benefit a businessman who gave him and his wife various gifts. I was also critical of that prosecution, and it was later overturned by the Supreme Court. Then there was the prosecution of Senator Robert Menendez, who helped a wealthy doctor and donor with various government problems. The doctor in turn spent lavishly on Menendez, who actually pressured officials in cases benefiting the doctor, and helped him secure visas, yet Menendez was acquitted.
So what would Congress need to establish a strong case in light of this transcript? Some have argued that it does not matter if Trump never raised the military funding as leverage with Zelensky, but it does matter. There is nothing illegal in a president complaining about the lack of an investigation into corruption, even by a political opponent. The transcript does not show Trump demanding a political charge but an investigation.
The transcript has material that will help Trump, who has maintained that he held back the aid to try to get other countries to pony up in support of Ukraine. In the call, Trump tells Zelensky, “We spend a lot of effort and a lot of time. Much more than the European countries are doing, and they should be helping you more than they are.” He speaks at length about the need for those countries to contribute, and Zelensky agrees.
Trump further asks for access to a computer server and references Crowdstrike, a cybersecurity company related to the Russia hacking investigation. Former FBI director James Comey referenced Crowdstrike as one of the critical elements in the investigation, and that investigation is being reviewed by United States Attorney John Durham. A computer server and other information connected to the Russia hacking evidence would likely assist Durham in his investigation. The references to Barr in the transcript could be defended on that basis.
The quid may still be out there, but it will not be found in this transcript. The most obvious place to look is with witnesses who may have heard Trump make the linkage. The most intriguing of those possibilities would be former national security adviser John Bolton, who Trump recently fired and then maligned. Bolton reportedly was irate over the freezing of Ukrainian military aid, and he could have the knowledge and motivation to supply information. It also is reasonable for Congress to say that, with a half billion dollars on the table, it is hardly necessary to state the connection. Yet presidents often have such leverage over countries.
The references to Barr can be defended, but they are still a matter of legitimate concern for Congress. Trump repeatedly says he will have Giuliani and Barr call Zelensky, and Zelensky says a new prosecutor is set to look into the matter. Yet the problem for potential prosecution is that nothing came from those referrals. The Ukrainians never contacted Barr, and Barr never had anything to do with the Biden controversy. Barr was also unaware of the call and of Trump making references to him.
Trump is a recidivist in the law of attempt. He often proposes ridiculous actions, like firing a special counsel, but what follows is nothing. Advisers like Barr and Secretary of State Mike Pompeo have become masters of listening to his tirades and then going about their business. The chances that Barr would work with Ukrainians to hunt down the Bidens is about as likely as Trump suggesting he would be a shoo in for the Nobel Peace Prize “for a lot of things” if the system was not rigged against him.
As shown by McDonnell and Menendez, these types of cases are difficult to prove, even when actions are taken. This would be an attempt to perform an act that is itself a controversial basis for a criminal charge. Zelensky says the Ukrainians were already looking at all such matters, and Barr was never told, let alone enlisted, to help out. It would be like the McDonnell case in which the Supreme Court rejected the notion that the governor took “official acts” in calling Virginia officials on behalf of the business except, in this instance, the calls to Barr never took place.
Absent a clear quid pro quo, a Senate impeachment trial could be a grotesque scene. The Trump team would certainly point out that the Obama administration directly used a secret court to investigate his political opponents on claims that were based in part on opposition research paid for by the Clinton campaign. The trial would highlight the dubious money given to Hunter Biden by Chinese and Ukrainian interests while his father negotiated financial and political agreements.
While many in the media have chosen to focus on the narrow question of whether Joe Biden pressured Ukraine to fire its corruption prosecutor to protect his son, there is a more important question of whether the family profiteered during his term in the White House. Few people believe the Chinese and Ukrainians searched the world for a financial or energy genius and came up with Hunter Biden. He happened to be the son of the vice president, who reminded the Ukrainians that he would decide whether they received over a billion dollars in loans and support. Hunter Biden has contradicted his father denying he had no knowledge of and never spoke to him about the Ukraine dealings. That would be a painful Senate trial, culminated by Menendez voting as one of the jurors.
Despite efforts of critics to downplay the underlying allegations, the Biden affair would be relevant to the merits of such a trial. If Trump simply picked up the phone and asked a foreign leader to investigate Elizabeth Warren without any outstanding allegations of corruption, it would be impossible to defend. The problem here is that the Biden contracts do appear to involve corruption, precisely the type that Biden lambasted when he bragged about getting the Ukrainian prosecutor fired.
If one agrees that the windfall contracts secured by Hunter Biden were obvious influence peddling, then Trump pushing for an investigation into that possible crime becomes more defensible. It does not, however, make it right. Trump clearly tripped another wire for possible impeachment, immediately after the special counsel made his final report on prior controversies. Congress is justified in investigating, and the transcript is not the entirety of the evidence that might show the intent or act or corruption. All this is why House Democrats still need to find the quid.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.