Below is my column in the Hill newspaper on the prospect of a Senate impeachment trial for President Donald Trump. While Speaker Nancy Pelosi said Sunday that she is “heartbroken” and “prayerful” over the prospect of impeaching Trump. Whether those are crocodile or heartfelt tears, Pelosi may have to worry more about another possibility: this could be the trial that Donald Trump has long wanted, including the prospect of calling Joe Biden as his first witness.
Here is the column:
In the movie “Lord of War,” arms dealer Simeon Weisz tells his competitor and the film’s central character, Yuri Orlov: “The problem with gun-runners going to war is that there is no shortage of ammunition.”
The problem with politicians going into impeachments is that there is no shortage of scandals. And that danger may soon be realized, as momentum builds to impeach President Donald Trump.
The only way for Democrats to remove Trump from office would be to hold a trial that highlights the controversial business dealings of Hunter Biden, son of their potential presidential nominee, Joe Biden. The result could be a mutually assured destruction that only a lord of political war (and, possibly, Biden rival Elizabeth Warren) would love.
On one side of that trial is a deeply disturbing allegation involving Trump’s withholding of roughly $400 million in military aid — a national security concern. Using such powers to pressure another nation to investigate a political opponent can be a crime as well as an impeachable offense. Thus far, the evidence against Trump is damaging but not decisive on a quid pro quo. At the same time, the point of a defense is mitigating conduct that would be otherwise criminal.
The assumption by many Trump critics is that the greatest risk in an impeachment trial is that he is likely to be acquitted and the trial would galvanize Republican voters. Yet, that may be the least of the dangers if one thinks of the likely – indeed, the only – viable defense.
Trump will argue that he asked for Ukraine’s investigation of a corrupt relationship that was used to secure U.S. aid during the previous administration. The strength of that defense will depend greatly on the merits of the underlying corruption allegation.
If Hunter Biden’s business contracts were entirely appropriate, Trump’s actions would be difficult to justify. Seeking an investigation of, say, Pete Buttigieg by Malta clearly would be abusive, since there is no credible claim of a criminal act. But Trump will argue that Hunter Biden’s profiteering was ignored by the Obama administration and, largely, by the media.
In Washington, this pattern is all too familiar. I have written for years in criticism of Democratic and Republican politicians whose spouses or children received enormous salaries or contracts from companies with interests in legislation. Even newspapers like the New York Times have described Hunter Biden’s deals as conflicts of interest.
Biden has insisted that he never, ever discussed his son’s foreign dealings. According to Biden, even on the long flight to China on Air Force II, Hunter never mentioned that he was going to be put on an advisory board for a Chinese investment management company or his ten percent minority interest. Yet, according to the New Yorker, Hunter Biden arranged for his father to shake hands with Jonathan Li, who one of the key partners with the company. The problem is that Hunter Biden has said he did tell his father about the Ukrainian deal. Strangely, the Washington Post has insisted that Biden did not lie when he categorically denied ever speaking to his son about any foreign business, because, after being told about the Ukrainian deal, Biden curtly left it to his son and “that’s not much of a discussion.”
So here is a simple defense narrative:
In April 2014, Hunter Biden is curiously put on the board of a Ukrainian energy company, Burisma Holdings, despite a glaring lack of relevant experience. According to the New York Times , that was just weeks after Joe Biden was asked to oversee U.S.-Ukraine relations and aid. Burisma is owned by oligarch Mykola Zlochevsky, accused of systemic corruption and a close associate of Ukraine’s prior pro-Russian president.
In 2016, Biden forced the firing of Ukraine’s chief prosecutor and later bragged how he made clear to the Ukrainians that he, not President Obama, would determine if the country received $1 billion in aid. Biden then claimed — falsely, according to his son — that he never spoke to his son about his dealings in Ukraine.
The problem for Democrats? They cannot presume a criminal intent in Trump’s calls while rejecting any such presumption in Biden’s dealings. They point out that the Ukrainians found no violations under their laws — a curious spin for a country with notoriously lax anti-corruption enforcement. But the question is how these deals are viewed in the United States.
Few people seriously believe Hunter Biden stood out in Ukraine, China or elsewhere for his transnational business acumen. Yet, while Democrats pursue every Trump deal in foreign countries (and even foreign guests in Trump hotels), there is a striking lack of interest in money that went to a member of the Biden family while Joe Biden handed out billions in U.S. trade and aid.
An impeachment trial also is likely to feature another investigation. Justice Department Inspector General Michael Horowitz, a widely respected figure, is close to releasing his report on the origins of the Trump-Russian investigation. His report is expected to be comprehensive and damning in its findings, including documenting highly questionable representations and decisions by federal officials during the Obama administration.
It is likely to rekindle objections that Hillary Clinton’s campaign sought evidence against Trump from Russian and other foreign sources. That information was then used by the Obama administration to target Trump campaign associates. Ultimately, not only were targets like Carter Page never charged but special counsel Robert Mueller found no evidence the Trump campaign knowingly worked with the Russians.
In other words, Horowitz’s report could blur any bright line separating the conduct of Trump and his critics.
Ironically, a Senate trial might give Trump what he has long demanded: A hearing of his allegations against Democrats, from the matters in the Horowitz report to the Biden controversy. Impeached presidents are, historically, allowed fairly wide leeway to call witnesses — so Trump could turn any Senate trial into a showcase of countervailing Democratic scandals. Trump could even call Joe and Hunter Biden. It just might be the trial that Trump wants: leaving him in office, damaging the Democratic nominee, and (while not improving his own image) making others look just as bad.
The one positive aspect in such a trial would be to give Americans a true glimpse into the subterranean level of corruption and self-dealing that runs just beneath the surface in Washington. Yet, that is why public corruption cases are notoriously difficult to prove: All politicians engage in some degree of self-dealing or using their offices for political advantage. History is replete with allegations of presidents engineering foreign or domestic “October surprises” to win elections.
Of the three most famous public corruption cases in recent decades, two failed. Gov. Robert McDonnell (R-Va.) was found guilty but his conviction was overturned by the Supreme Court, and the case against Sen. Bob Menendez (D-N.J.) ended in a hung jury and mistrial — even though both men delivered on the favors alleged in their quid pro quo arrangements.
To complete the sordid optics, Menendez actually would vote as a juror in any Senate trial of Trump, who is accused of suggesting a quid pro quo as opposed to the completed acts in return for lavish gifts charged against Menendez.
Frankly, both sides deserve this ignoble moment.
As the “Lord of War” character Yuri Orlov said, “There are only two tragedies in life. One is not getting what you want, the other is getting it.” Both Democrats and Republicans could soon get the trial they want and deserve.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified during the Clinton impeachment and served as the last lead defense counsel in an impeachment trial in the United States Senate.