Now For Your Moment Of Zen From The Trump Impeachment Hearings

Below is my column in The Hill on the unfolding impeachment hearings. As I have stated, the hearings have proved damaging for President Donald Trump — damage that was bizarrely magnified by Trump himself with an attack on Ambassador Marie Yovanovitch. The move only pushed many Republicans on the Committee to avoid aggressive questioning of the diplomat. The tweet was unfair and remarkably self-defeating. As with the attacks by Trump on Taylor and Kent as “never Trumpers,” the tweet was wildly off base. While I have raised concerns over these allegations as a basis for impeachment, these diplomats strike me as people who have served our country with distinction and dedication. They are indeed the type of professionals that we need in our foreign posts.

That does not change the difficult questions that lie ahead. Perhaps this week’s testimony will materially change the zen-like questions discussed in this column.

Here is the column:

The first week of hearings in the Trump impeachment inquiry presented a dizzying array of names and dates from the Ukrainian scandal for the public to digest. However, one Zen like question seemed to be left at the conclusion of the testimony. If a quid pro quo was uttered in Washington but no Ukrainians heard it, did it make an impeachable sound?

After all of the atmospherics and personalities, that may be the question given to the Senate for a trial in 2020. It comes down to timelines that both parties seemed eager to construct. Despite their different points of emphasis, we now have a clearer picture on a couple of points. House Democrats succeeded in presenting a compelling case that a quid pro quo was conveyed to various American players. However, it also seems clear that it was not conveyed to the Ukrainians until a few days before American military aid was actually released by the White House.

Ambassador William Taylor offered a key piece of information when he recalled with certainty that Ukrainian officials did not appear to know about any quid pro quo until after a Politico article on August 29. As soon as they learned of the possible condition of an investigation in exchange for aid, they contacted him. Thus, despite the desire of President Trump for investigations into the Ukrainian role in the 2016 election and the Hunter Biden controversy, we have a firm date for when the Ukrainian officials presumably knew about the precondition for aid.

For Republicans, this date is reinforced by the fact that there were at least three meetings with the Ukrainian president over 55 days without mention of a precondition or a quid pro quo. A second date, September 11, is equally important. That is when the aid was released by the White House. That means there was less than two weeks between the Ukrainians raising an alleged quid pro quo and the release of the aid. Democrats on the House Intelligence Committee like Joaquin Castro of Texas insisted this is just like attempted murder, unsuccessful, but still a crime. However, the law of attempt is based on clearly defined attempted crimes. It is far from established that a request or even a demand for investigations is a criminal or impeachable offense in this context.

Witnesses established that Trump requested an investigation into both 2016 election interference and the Hunter Biden contract. The first request is not and cannot be an impeachable offense. After all, United States Attorney John Durham is already leading an investigation into those allegations, including the involvement of Ukrainian figures cited as the source for information in the dossier from Chistopher Steele. It is not uncommon for presidents to encourage other heads of state to assist in such probes. Durham, a respected career prosecutor, recommended recently that his investigation be elevated to a criminal inquiry.

The references to the Biden investigation, in contrast, do raise legitimate questions for Congress. But this would be a stronger case if Trump was demanding a particular result or criminal charge from any investigation. The United States had previously asked for such investigations, and George Kent considered the Hunter Biden contract to be serious enough to raise at the State Department and directly with the office of Vice President Biden at the time. If one concludes that the Hunter Biden contract was indeed corrupt influence peddling, then the demand for an investigation takes on a slightly different cast, even if many of us view that demand as inappropriate, given its focus on a political rival.

It also would be a stronger case if American aid had been withheld until Ukrainian fulfillment of any preconditions. Instead, less than two weeks after raising the matter, the aid was released. Democrats raise a good point that the aid was released 48 hours after the intelligence community inspector general referred a whistleblower complaint to Congress, and the White House knew the issue would blow up in. However, we still do not know if the aid would have continued to be withheld if the Ukrainians failed to meet the alleged demand by Trump for investigations.

That conjectural element would create a dangerously low standard for impeachment. Transcripts of presidential conversations, from Lyndon Johnson to Ronald Reagan to Barack Obama, would indeed likely show discussions of political considerations with heads of state. Impeaching a president over asking for investigations into alleged corruption would expose future presidents to similar scrutiny. The timing or substance of actions by other countries often benefit presidents. When would such conversations be subject to review and possible impeachment?

One does not need a crime for impeachment, but without a criminal allegation there is a heightened burden to clearly define the scope of impeachable “abuse.” Otherwise, every communication with a head of state could be challenged as touching on actions that would benefit a president politically. In the impeachment of Bill Clinton, Democrats said that a president lying under oath was not impeachable because it did not “rise to the level of impeachable offenses.”

Now Democrats argue that some noncrimes constitute impeachable offenses as “abuses,” but they have yet to offer a clear limiting principle for future presidents. Since presidents often act or seek actions that benefit them politically, a “bright line” needs to be established if we do not want to reduce impeachment to simply a discretionary power of the majority. Of course, Republicans face their own challenges over defining lines. Taylor and Kent made compelling cases in their testimony for why the withholding of military aid was wrong and dangerous. Rather than defending the indefensible, most Republicans are not supporting the withholding of American military aid but are citing the fact that it was eventually released. That is hardly a moral high ground.

Listening to the Republicans reminded me of a case related to me by the Irish ambassador to the United States and a former defense lawyer. It seems that an Englishman accused an Irishman of stealing a pair of boots. The guilt of the defendant was abundantly obvious, but the Irish jury ruled against the Englishman. On the acquittal form, however, they added a line, “We do believe O’Brien should give the Englishman back his boots.” In a strange sense, the jury felt justice had been done.

In declaring Trump innocent, some Republicans seem to be adding that they are glad he eventually handed over the aid. That nuanced ethical position is likely to be lost on most voters. However, “contemptible” is not synonymous with “impeachable” in this context. The simply fact is that presidents often commit abuses. Reagan was accused of delaying the release of Americans held hostage by Iran until he was elected. Clinton pardoned a Democratic Party donor and his own half brother.

So what abuses of power are impeachable rather than contemptible? Congress soon will be meditating over the “Trump Impeachment Zen.” The difference is that, unlike real Zen, no one expects wisdom to follow the contemplation of this paradoxical constitutional question.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He 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.

29 thoughts on “Now For Your Moment Of Zen From The Trump Impeachment Hearings”

  1. Turley: “The difference is that, unlike real Zen, no one expects wisdom to follow the contemplation of this paradoxical constitutional question.”

    If wisdom was a goal then Schiff would have ensured that the hearings were conducted fairly in order to ensure that all sides of the issue were aired.

    1. “the hearings have proved damaging for President Donald Trump”

      What Turley is saying is that he wouldn’t vote for Trump under any circumstances but the recent damage has made it so that he would not vote for Trump under any circumstances X2. That doesn’t move the needle. Turley has been very disappointing on the subject of Trump.

  2. For gods sake NO! These are not REPUTABLE people.

    Myriads of people and ALL of the career diplomats TESTIFIED that they were aware and troubled by Biden’s son’s conduct in Ukraine. Not one of them did a damn thing about it.

    Further they ALL testified that after Trump’s election efforts were made to thwart Ukrainian investigations that might lead to Biden, or democrats of Sorros.

    There is some dispute over whether each of them was merely aware of those efforts or whether they actively participated.

    At the very least all of them are guilty in multiple counts of turning a deliberately blind eye to american efforts to further corrupt Ukraine.

    Not one of these people are admirable.

    Maybe, just maybe they are not crooks themselves, But they are not good people.
    They are not people this country should be proud of having as representatives.

    Ukraine played a significant role in the faux Trump/Russia nonsense.

    Had one of these people spoken up publicly – or files a “whistle blower complaint”

    Maybe Joe Biden would not have been part of the purported efforts to “clean up” Ukraine which increasingly appear to be more efforts to shift Ukraine from Russian Corruption to American corruption. Even if some of the mess in Ukraine would have continued – maybe just maybe Joe Biden would not have been the one to demand Shokin’s firing.
    Or maybe no one would have, and we might have gotten to the truth earlier.

    Maybe if one of them had spoken up – the country would have been spared three years of Trump/Russia delusional nonsense.

    Sorry, I have no sympathy for them.

    As to JT’s impeachment delusions.

    Republicans erred in fixating on Quid Pro Quo.

    I have no idea whether There was or was not an actual threat or QPQ.
    I do not think that has been credibly established.

    But then again I do not care.

    That is NOT the relevant standard.

    All that matters is whether the request to Zelensky for investigations was justified.

    This is the same question that matters with respect to DOJ/FBI’s investigations into Trump/Russia collusion.

    If there was reasonable suspicion to investigate the items Trump asked Zelensky to investigate – then Trump’s request was justifiable.

    All one has to do is listen to Biden’s public remarks and the reasonable suspicion standard was clearly met.

    Every single thing a president does is either politically beneficial or harmful.
    Poltical gain is ALWAYS a presumed motive for anything a president does.

    Though at the core this entire farce is just one more example of the EVIL and idiocy of presuming that one’s motive alters whether an action is legitimate or criminal.

    We seek to know motive to understand why a crime was committed.
    We seek motive because it is more likely that a known crime was committed by someone with a motive than someone without. But a crime is a crime – even if there is no motive.
    and a legal act does not become a crime because of suspect motives.

    This is quite important and today it corrupts our entire legal system.

    Prosecutors Judges politicians are ALL certain that their motives are good and pure and those of their opponents are evil.

    Once you decide that an act is legitimate or illegitimate based on motive, you justify the use of the legal system as a political weapon.

    Which is exactly what we are seeing.

    Is there someone here – after hearing these diplomats testify that thinks that there is not a stench emanating from the acts of Americans in the Ukraine in 2016 ?

    If you can not perceive that stink you need your senses checked.
    And if you can, then this entire inquiry ends.

    If Americans actions in Ukraine in 2016 stink, then Trump is fully justified in asking them to be investigated, demanding that they be investigated, threatening to get them investigated.

    Next in Ukraine we must distinguish between the actions of employees of the federal government, and private citizens. Rudy Guiliani was not a government actor.
    Obviously he spoke as someone with the confidence and ear of Donald Trump.
    But he still spoke with no actual authority.

    I do not know precisely what Guiliani did in the Ukraine.
    Except for the fact that the stench of 2016 corruption is sufficient that Guilliani excursions into the Ukraine look far more reasonable than Steele manufactured dirt on Trump, from a legal perspective they are the same. Guilliani is the Perkins Coi or Glenn Simpson or Christopher Steele of the Ukraine.

    If Hillary Clinton’s efforts to smear Donald Trump with lies about ties to Russia were not a crime – and though they too stank, they were not a crime, then Rudy Guiliani’s efforts to expose the misconduct of americans in the Ukraine in 2016 was by far less of a crime.

    I am revolted by this double standard that is applied all over here.

    Biden’s conduct is excused, Obama can tell the Russians to give him a break during his election – that is OK. Numerous people in the Obama administration – including Hillary and Rice can knowingly lie about a terrorst attack in order to hide the embarrassing truth during an election. The DOJ/FBI can spy on americans without probable cause during an election for political reasons.

    I can go on and on and on – and none of this troubles you ? None of this warrants investigation, or impeachment, and threatening Ukraine to get an investigation of inarguable misconduct by VP Biden is something that does bother you ?

    If you are more bothered by the worst possible version of Trump’s actions than the best possible version of Biden’s – you have a serious problem with your moral compass.

    If you think that these public servants deserve our respect – you have no moral judgement.

  3. Got to love libs granting permission to lie to a grand jury if committed to avoid prosecution for habitually sexually harassing females including subordinates in the workforce, if you are a governor.Your and my fanny would be doing time. So much for the libs and their support of the little guy.

    Trump wanted an investigation into corruption involving Hunter. Since the libs have assured the world there is nothing nefarious there, how can they say Trump was seeking something which would benefit him politically? According to the libs, he must have been trying to clear Hunter’s behind.
    Put that in your pipe, Nancy, and meditate.

  4. Quid-pro-quo . . ? ( too fancy ) . . . Extortion! Yeh! That’s it! . . . . . Oh WAIT! That’s not mentioned in the Constitution . . . . AH HA ! Bribery! . . Bribery IS mentioned as an impeachable offense. Let’s call it BRIBERY from now on !!!

    BUT there was no bribery. Zelensky didn’t even know that the $ 400K worth of lethal aid had been held up . . . he made no attempt at investigating Biden . . . they got their aid . . . and the House Intelligence Committee ( oddly mis-labeled ) continues on their Snipe Hunt.

  5. “So what abuses of power are impeachable rather than contemptible? Congress soon will be meditating over the “Trump Impeachment Zen.” The difference is that, unlike real Zen, no one expects wisdom to follow the contemplation of this paradoxical constitutional question.”
    *************************
    Here’s a moment of true Zen – true enlightenment — with a side of fettuccine courtesy of Chaz Palminteri. Oh, and true wisdom did follow — for the bikers. at least:

  6. Taylor and Kent made compelling cases in their testimony for why the withholding of military aid was wrong and dangerous.

    Actually the withholding of military aid to Ukraine would have been the correct decision.

    There are zero US national security interests at stake in Ukraine – which was up until 1991 a constituent part of the USSR (and had been part of Russia going back over 200 years before the US colonies declared their independence).

    A major reason behind the Trump administrations desire to provide weapons to Ukraine stems from the non-stop Russia, Russia, Russia mantra that has unfoundedly declared Trump a Russian stooge.

    What better way (in his mind) for Trump to dispute the unfounded allegations than to arm Ukraine.

    As the Obama administration wisely avoided in order to lessen the chances of a military miscalculation with Russia which does actually have national security concerns in Ukraine amongst a myriad of other concerns.

    Italicized/bold text was excerpted from foreignpolicy. com a report titled:

    Trump Resisted Sale of Javelins to Ukraine

    “The strong support came with this administration, not the Obama administration,” said Republican Rep. Brad Wenstrup during the first public hearing on Wednesday. Giving Ukraine lethal weapons had been a red line for Obama, who feared that it could cause Russia to escalate conflict.

    https://foreignpolicy.com/2019/11/15/trump-resisted-ukraine-sale-javelin-antitank-missile/

    What is wrong and dangerous is US involvement in Ukraine which is Uncle Sam’s way of thanking Russia for helping to end the US/Israeli/NATO/Turkish jihadi/terrorist regime change efforts in Syria.

    The US providing weapons to Ukraine is analogous to the Russians providing weapons to Mexican drug cartels.

    Would the US government stand for it?

    1. When we discuss foreign policy I think one should understand history. On the one hand the left claims Trump should have supported the Kurds when there was no treaty or formal agreement with them. Their response was who will believe the US after seeing our withdrawal of a few men from one area of Iraq, but on the other hand those same people forget about a formal agreement with Ukraine that Obama didn’t see fit to recall.

      “When the Soviet Union collapsed in 1991, Ukraine had the world’s third largest nuclear arsenal on its territory. When Ukrainian-Russian negotiations on removing these weapons from Ukraine appeared to break down in September 1993, the U.S. government engaged in a trilateral process with Ukraine and Russia. The result was the Trilateral Statement, signed in January 1994, under which Ukraine agreed to transfer the nuclear warheads to Russia for elimination. In return, Ukraine received security assurances from the United States, Russia and Britain;…”

      I’m not saying one position is right or wrong on Ukraine or even Iraq. I am only saying that the Democrat’s position is based on political considerations rather than agreements or benefits to the US and its people. The left is dishonest and we can see that time and time again.

      I wonder if those from the left would like to comment on the Trilateral Statement of 1994 with regard to their most recent claims in both Iraq and Ukraine.

      https://jonathanturley.org/2019/11/19/now-for-your-moment-of-zen-from-the-trump-impeachment-hearings/comment-page-1/#comment-1899784

  7. While I have raised concerns over these allegations as a basis for impeachment, these diplomats strike me as people who have served our country with distinction and dedication. They are indeed the type of professionals that we need in our foreign posts.

    We’ll see about that. The reports into the missing half of the investigation of foreign interference of our 2016 election have not been released. I have no doubt they will reveal who served the national security interests of our country and who served other interests.

    With Vindman being an expert in all things Ukraine, was he ever asked about the details behind the $1 billion Biden threatened to withhold if the prosecutor wasn’t fired? That would seem to be a significant foreign policy issue the NSC had advice on. What was the prosecutor doing (or not doing) that justified the US demanding he be fired?

    1. Let’s not be surprised if some of the interagency figures now testifying in the House impeachment probe turn out to be just as dishonest, self-dealing, and contemptuous of the president’s authority to set U.S. foreign policy in Ukraine and determine what’s in the national interest.
      https://thefederalist.com/2019/11/18/lets-stop-pretending-every-impeachment-witness-is-a-selfless-hero/?utm_source=The+Federalist+List&utm_campaign=f7880792a0-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-f7880792a0-79248369

  8. From Turley article: “”Everywhere Marie Yovanovitch went turned bad,” Mr Trump wrote. “She started off in Somalia, how did that go?” Asked for her response, Ms Yovanovitch called it “very intimidating”. Mr Trump later hit back, arguing his tweets were not intimidating “at all”.”

    The Geneva Convention to which we are signatories states that foreign diplomats are not supposed to interfere with the internal affairs of the State where they are posted. Yovanovich, “To ensure the integrity of anticorruption institutions, the Special Anticorruption Prosecutor must be replaced.”

    I think we should therefore keep things in perspective and for those that have hero worship towards Obama appointees they should recognize that those employees not only were partisan but didn’t necessarily follow the rules diplomats are supposed to follow.

    1. right Allan but remember this. many Democrat “activists” seem to think rules only apply to their adversaries.

      of course, there are rules, and then there are deeper rules. let them focus on what is superficial if they like.

      from Psalms 7:

      Arise, O LORD, in your anger; rise up against the rage of my enemies. Awake, my God; decree justice.
      7
      Let the assembled peoples gather around you. Rule over them from on high;
      8
      let the LORD judge the peoples. Judge me, O LORD, according to my righteousness, according to my integrity, O Most High.
      9
      O righteous God, who searches minds and hearts, bring to an end the violence of the wicked and make the righteous secure.
      10
      My shield [2] is God Most High, who saves the upright in heart.
      11
      God is a righteous judge, a God who expresses his wrath every day.
      12
      If he does not relent, he [3] will sharpen his sword; he will bend and string his bow.
      13
      He has prepared his deadly weapons; he makes ready his flaming arrows.
      14
      He who is pregnant with evil and conceives trouble gives birth to disillusionment.
      15
      He who digs a hole and scoops it out falls into the pit he has made.
      16
      The trouble he causes recoils on himself; his violence comes down on his own head.
      17
      I will give thanks to the LORD because of his righteousness and will sing praise to the name of the LORD Most High.

  9. The Adminisration never proposed a quid pro quo with Ukraine. It was Politico that informed the country, not the Administration. This fact alone disproves the entire hypothesis.

    There is only one reasons to engage in a 2020 impeachment effort under spurious circumstances. Democrats do not have confidence in their Socialist candidate winning, and are therefore abusing their positions of authority to try to handicap Trump in the next election.

    Will there be a penalty for Demcorats meddling in the 2020 election?

  10. A monk asked Ummon, “What is the kind of talk that transcends Buddhas and Patriarchs?”

    Ummon replied: “Rice cake!”

  11. A quid pro quo requires a mutual understanding.

    What is their premise? That Trump would require a quid pro quo, deliberately not tell the Ukrainians, and hope that the cosmos would fulfill it? Punish the Ukrainians for not reading his mind?

    Apparently, thou shalt not investigate a Democratic Presidential candidate for alleged criminal misconduct or face impeachment.

    Tyrannical and lawless. The motto of the Left.

    I am very disappointed that more moderate Democrats are not coming out in opposition to their abuse of power.

    1. I’ll remember this. Next time I see the writing on the wall, I will jump into a political race to protect myself and my family from investigations.

  12. Leave it to a lawyer, bless his heart, to take fifteen paragraphs to say what could have been said in on sentence: We’re up Schiff’s creek without a paddle.

  13. It is important to remember that Vovanavitch had no clue that President Trump had tweeted about her until Schiff read the tweet. How can that be witness intimidation? Furthermore, there’s nothing in the tweet that’s not true. Yovanavitch, who is Russian by background, had her own agenda and it did not mesh with the President’s wishes. Furthermore, she was at odds with many in the Ukraine government. Many of her actions violated a Geneva Convention policy on diplomatic conduct. At this point, who knows if Democrats will impeach? Politically, probably but not all Democrats are as partisan as Pelosi and Schiff. We won’t know until an actual vote is taken. By the way, the Rasmussen daily presidential tracking poll is showing Donald Trump’s approval rating in the upper 40-50% rank, where it has been since starting off in the 30s at the beginning of his presidency. That means that except for partisan Democrats, Americans are seeing the impeachment “inquiry” as the farce it actually is.

  14. We found out that Kent reported the problem to VP Biden’s team, we found out that the Ambassador had been prepped on questions about Hunter Biden by the Obama WH. We found out the the Wild West and Ukraine have a lot in common.

    1. We found out that besides being predictably boring as we wait for the opening statements to finish that those opening statements consist of firing blanks.

      And still none of them answer questions such as will the left ever offer a provable resourced fact?

      Answer only in your dreams.

      So far….

      they want to raise taxes,
      after cancelling the current tax cut
      and start more wars
      and……
      Ba dip ba dip ba dap that’s all folks

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