A “Lovely, Knotty Problem”: Is The House Impeachment Case On A Collision Course With The Law of Attempts?

Below is my column in Washington Post on a little discussed issue lingering in the hundreds of pages of briefing in the Trump Senate trial: what to do with an attempt to abuse power. Many of us have been discussing whether abuse of power is an impeachable offense. The White House maintains that it is not because articles of impeachment must be based on criminal acts. Many of us have criticized that theory as untenable and unsupportable in the history of English and American impeachments. However, the more interesting question is not what to do with an abuse of power but an attempted abuse of power.

Here is the column:

With the start of the impeachment trial, the Senate (and the country) will soon be faced with what the late Yale professor Arthur Leff described as one of the law’s most “lovely, knotty problems.”

Leff was speaking of what is loosely called “the law of attempts,” a category of crimes where someone is accused of contemplating, but not actually carrying out, an unlawful act. The Trump trial could be the first time the Senate considers charges that amount to allegedly conceiving, but then abandoning, an abuse of power. While it is certainly true that there was a temporary act of “nonfeasance” in withholding the aid to Ukraine, it was ultimately released over two weeks before the deadline under federal law.

The Trump administration will argue that there was no quid pro quo between the president of the United States and the president of Ukraine; that the military aid to Kyiv, though authorized by Congress, was never withheld; and that the White House always intended to release the aid by the end of September. (It was released on Sept. 11, two days after a whistleblower complaint about the alleged bargain sparked congressional inquiries and, according to critics, was the reason that Trump decided to release the aid.) The question for the Senate is whether an attempt to cut the deal qualifies as a high crime or misdemeanor.

The law of attempts has long been debated, and has often favored defendants in securing lesser punishments or outright acquittals. When, in 1879, an Alaska man sent an order for 100 gallons of whiskey from California, he was charged with illegally attempting to “introduce spirituous liquors” into Alaska. A court dismissed the charge, writing, “There are a class of acts which may be fairly said to be done in pursuance of or in combination with an intent to commit a crime, but are not, in a legal sense, a part of it, and therefore do not, with such intent, constitute an indictable attempt.”

That helps explain why such attempted crimes are generally punished less severely. The California Penal Code Section 664 stipulates, for example, that most attempted offenses are punishable, at most, at a level half that for a completed offense. Of course, the Senate cannot “half-remove” a president. But one of the more knotty problems facing the Senate is whether a president can be saved by what Leff called the “luck” of an alleged plan that never actually played out.

If so, the whistleblower complaint could strangely prove the luckiest break Trump ever got from the House. If Trump’s critics are right, it was the complaint that stopped an attempt from becoming a completed abuse of office.

Not everyone sees a foiled attempt as a reason to acquit. This perspective came up in the House impeachment hearing when Harvard Law professor Noah Feldman declared, “If the president of the United States attempts to abuse his office, that is a complete impeachable offense.” (I also testified at the hearing.)

Another witness, University of North Carolina law professor Michael Gerhardt, attempted to explain it this way: “Imagine a bank robbery. The police come and the person’s in the middle of a bank robbery. The person then drops the money and says, ‘I am going to leave without the money.’ Everybody understands that’s robbery.”

The analogy highlights the problem of what some courts call “abandonment” cases. Even if the intent of a robbery is proved, Trump never took the loot. Police do not arrest people parked in front of a bank and charge them as bank robbers based on their contemplated or thought crime.

All impeachment trials present a mixed question of both the guilt and the gravity of an alleged offense. Senators often disagree with the House about whether an act is impeachable or, if guilt is proven, whether the gravity of the act warrants removal.

This issue came up in the first impeachment trial of a federal judge, when the House charged Judge John Pickering in 1803 for “unlawful rulings” and intoxication on the bench. These were noncriminal acts. The Senate voted to separate the votes on guilt and removal, but still the judge was removed from office. Later, in 1936, in the impeachment trial of Judge Halsted L. Ritter (for bribery), the president pro tempore ruled that, if the underlying offenses are found to have occurred, removal should be automatic.

That brings us back to the Trump trial. Today, senators cast a single vote for different reasons. Some based on guilt; some based on gravity with only God able to sort them out. Indeed, some senators of both parties have already reached their decision based merely on the allegations. For example, Sen. Kamala D. Harris (Calif.) declared, “I don’t really think this impeachment process is going to take very long, because, as a former prosecutor, I know a confession when I see it!” Assuming that most senators missed that Perry Mason moment, they will still be left not simply weighing the evidence but the act in terms of the removal of an American president.

Withholding the aid in the hopes of an investigation into a political opponent would be improper if proved. But the aid, in the end, was not withheld. The Senate might now have to decide whether an attempted abuse constitutes a removal offense for an American president.

Jonathan Turley is the chair of public interest law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge Thomas Porteous. He is also a CBS and BBC legal analyst.

202 thoughts on “A “Lovely, Knotty Problem”: Is The House Impeachment Case On A Collision Course With The Law of Attempts?”

  1. “For example, Sen. Kamala D. Harris (Calif.) declared, ‘I don’t really think this impeachment process is going to take very long, because, as a former prosecutor, I know a confession when I see it!’”

    – Professor Turley
    ______________

    Kamala Harris “confessed” to conspiring to defraud America by attempting to gain an office she was not eligible for, in the same fashion as did Barack Obama, when she submitted her birth certificate and parental lineage. When will Prosecutor Kamala Harris be prosecuted for her supreme act of treason? Shall we consult the Facts and Fundamental Law?

    Kamala Harris will NEVER be eligible to be U.S. president.

    Kamala Harris’ parents were foreign citizens at the time of her birth.

    – A “citizen” could only have been President at the time of the adoption of the Constitution – not after.

    – The U.S. Constitution, Article 2, Section 1, Clause 5, requires the President to be a “natural born citizen,” which, by definition in the Law of Nations, requires “parents who are citizens” at the time of birth of the candidate and that he be “…born of a father who is a citizen;…”

    – Ben Franklin thanked Charles Dumas for copies of the Law of Nations which “…has been continually in the hands of the members of our Congress, now sitting,…”

    – The Jay/Washington letter of July, 1787, raised the presidential requirement from citizen to “natural born citizen” to place a “strong check” against foreign allegiances by the commander-in-chief.

    – Every American President before Obama had two parents who were American citizens.

    – The Constitution is not a dictionary and does not define words or phrases like “natural born citizen” as a dictionary, while the Law of Nations,1758, did.

    ________________________________________________________________________________________________________________________________________________________________________________________________

    Law of Nations, Vattel, 1758

    Book 1, Ch. 19

    § 212. Citizens and natives.

    “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

    ________________________________________________________________________________________________________________________________________________________________________________________________

    Ben Franklin letter December 9, 1775, thanking Charles Dumas for 3 copies of the Law of Nations:

    “…I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…”

    ________________________________________________________________________________________________________________________________________________________________________________________________

    To George Washington from John Jay, 25 July 1787

    From John Jay

    New York 25 July 1787

    Dear Sir

    I was this morning honored with your Excellency’s Favor of the 22d

    Inst: & immediately delivered the Letter it enclosed to Commodore

    Jones, who being detained by Business, did not go in the french Packet,

    which sailed Yesterday.

    Permit me to hint, whether it would not be wise & seasonable to

    provide a strong check to the admission of Foreigners into the

    administration of our national Government, and to declare expressly that the Command in chief

    of the american army shall not be given to, nor devolved on, any but a natural born Citizen.

    Mrs Jay is obliged by your attention, and assures You of her perfect

    Esteem & Regard—with similar Sentiments the most cordial and sincere

    I remain Dear Sir Your faithful Friend & Servt

    John Jay

  2. “A sizable chunk of Trump’s base thinks he has broken the law. Many of those people remain in his corner.”

    https://www.washingtonpost.com/politics/2020/01/22/sizable-chunk-trumps-base-thinks-he-has-broken-law-many-those-people-remain-his-corner/

    By Aaron Blake
    Jan. 22, 2020 at 6:32 p.m. CST

    Excerpt:

    President Trump’s legal team appears set to argue in the Senate impeachment trial that House Democrats haven’t even accused him of a crime, and thus his impeachment is unwarranted.

    As has been noted, this flies in the face of the legal consensus in this country. Among those who have said you don’t need a statutory crime for impeachment are Attorney General William P. Barr, the GOP’s own impeachment witness Jonathan Turley and even Trump’s newly minted impeachment lawyer Alan Dershowitz, who said in the late 1990s that an abuse of power was sufficient. (Dershowitz retracted that evaluation on Tuesday.)

    But here’s the thing: Even if Democrats did accuse Trump of a crime and perhaps even if they proved it, it probably wouldn’t be good enough.

    A new Pew Research Center poll shows the barrier Democrats face in removing Trump from office or even in getting GOP senators to vote with them on new witnesses and evidence. The poll shows 32 percent of Republicans and GOP-leaning voters say Trump has “definitely” or “probably” done illegal things since he launched his campaign for president. But even among that smaller group of more Trump-critical voters, they strongly oppose removing him from office. Fully 59 percent of those who believe Trump has probably committed crimes say he should not be removed, while just 38 percent say he should.

    1. A sizable chunk of Trump’s base thinks he has broken the law. Many of those people remain in his corner.
      _______________________________________________

      Not only do they think Trump is guilty (as evidenced by not wanting to hear from the very witnesses that will exonerate him), they also think Trump is stupid. You would have to believe Trump is really stupid to carry out the actions that Turley is suggesting did not happen only because of dumb “luck”

      There was no plan to get Ukraine to investigate Bidens in exchange for military aid. Such a plan would be profoundly stupid. Believing in such a plan is to believe that Trump and his inner circle have completely lost their marbles.

  3. It has long been known that saying you’re not racist is clear evidence that you are racist. Now US Rep. Adam Schiff (D-CA) has etched in stone this liberal mantra in regard to impeachment.

    “Let me be very blunt. Right now a great many, perhaps even most, Americans know that defending yourself against baseless accusations is evidence of guilt. And since President Trump is trying to defend himself in this ‘trial’, he is clearly guilty and that means we must remove him from office immediately before the trial,” Schiff said.

    This standard doesn’t apply to Schiff, evidently, who defended himself from accusations of hiding documents, conducting an unfair impeachment inquiry, and fabricating the text of the July 25 phone call between Trump and the president of Ukraine.

    Schiff who was having an affair with the Trump whistleblower during the House impeachment inquiry said that he expects a fair trial.

    “The American people want a fair trial and that can only happen if we win,” Schiff said. “So, it is up to you to do whatever is possible to make sure of that.”

    https://genesiustimes.com/schiff-defending-yourself-against-baseless-accusations-is-evidence-of-guilt/

    1. I truly do not think Schiff has the ability to have write such a script therefore one wonders if one of his staff didn’t rise to the occasion of seizing the opportunity to make him look that tawdry. Either that or he might try the defense of the media made me do it,

  4. What is an abuse of power to the USG? Assange’s lawyers have just received affidavits by this “‘government” that: “We have now learnt from submissions and affidavits presented by the US… that they do not consider foreign nationals to have a First Amendment protection.” (Check out People for Assange to hear that interview w/Haffronson.) Think about that.

    USGinc. is an abuse of power. That is all it is.

  5. The abuse of power is a mischaracterization of Trump’s attempt as President of the United States of America and its Chief Executive officer to attain cooperation from a foreign head of state in investigating a previous administration’s abuse of power. That it was done informally means nothing. It there was a quid pro quo it was in securing justice against the Obama administration in its completed abuse of power in dictating the dismissal of a prosecutor whose investigations could have revealed the improper hiring of unqualified men who were related to the sons of an influential US Senator and the Vice-President of the United States of America in hopes of gaining improper influence over US policy.

    If bribery occurred at all with respect to the Ukraine and US foreign policy, it was Hunter Biden obtaining a peachy job because he was the son of the President of the United States. That Hunter Biden has since told a court in Arkansas under oath that he is insolvent and incapable of supporting his child (by a woman not his present wife) begs the question “What happened to the Burisma money and the money Hunter Biden is alleged to have gotten from China?” If that money is not in Hunter Biden’s bank account, who, then, did it go to.

    That is potentially the crux of the trial, not the shaky prosecution of an act which had been committed by Trump’s immediate predecessor in office without an impeachment, and more besides. Impeachment fever during the Obama administration was dismissed as partisan rancor. It’s time either to do the same now, or to actively prosecute Joe Biden and Barack Obama for their successful shake-down of the Ukrainian government and every other similar abuse of power they committed.

    1. Errata (when will Word Press let us edit our posts?): Middle paragraph should read: “If bribery occurred at all with respect to the Ukraine and US foreign policy, it was Hunter Biden obtaining a peachy job because he was the son of the Vice-President of the United States. That Hunter Biden has since told a court in Arkansas under oath that he is insolvent and incapable of supporting his child (by a woman not his wife) begs the question “What happened to the money Hunter Biden is alleged to have gotten from China and did get rfom Burisma Holdings?”

      If that money is not in Hunter Biden’s bank account, who, then, did it go to? The amount of money Hunter Biden’s alleged to have gotten from China could support many accidental children of Hunter Biden’s. If he is truly poor, where did that money go? Was it ultimately an impermissible political contribution to the Obama administration or his political party? This is a more plausible account of what happened than that Hunter Biden spent all that money on cocaine before his first Navy Reserve drill, or that it went inside the intimate underwear of lap dancers.”

  6. However, the more interesting question is not what to do with an abuse of power but an attempted abuse of power.

    Meh. You would be using your time more efficaciously if you answered the question “how many Angels can dance on the head of a pin?”

    1. Sort of a linguistic double down place the words ‘alleged, unfounded, unsupported, Purported, reportedly’ in front of ‘attempted’ or perhaps inferred or considered.

      Then add the discussion on the use of intentional.

      That should take care of Schiff and Negler’s contribution

      Reminds me of the Alabama situation where to this very day not one one law enforcement officer at any level, not one District Attorney or equal at any level, not one Judge or similar at any level gave the charges of the Albright the play pretend attorney for expensively hire scam backed only by the DNC. And not one shred of evidence was ever offered.

      Not One

      To this very day.

      Now watch the socialists attempt to defend that breach of the judicial system which is when you think about much the same as the current one and all the ones in between.

      Maybe one day one of the Judges will charge them for using words that are best described as false, falsified, untrue, fictional and attach a very healthy fine or in Pelosi’s case misprision of office and violation of oath of office.

      Just how many of her flock of representatives were seated illegally? Then covered up under Nancy’s terms as Speaker?

    2. Estovir – I learned about the angels dancing on the head of a pin in a Benedictine Monastery. Don’t place all the blame on the Protestants. It is also something we mused about at a Jesuit college.

      1. Paul

        1. which Benedictine Monastery? I entered the one in Cullman after graduating from my Jesuit college. I am a product of both the SJ and the OSB though I really wanted to be an OCSO but I felt it was a Trap(ist). 🙂 True story.

        2. I love Protestants! I married one….who eventually crossed the Tiber.
        the water is warm. Join us

        😇

  7. Cindy Bragg says:
    January 23, 2020 at 10:26 AM

    I’m just a housewife with a music degree, so this may be a dumb question, but I would sincerely like to know why the U. S. Treaty with Ukraine on Mutual Legal Assistance in Criminal Matters, signed by Pres. Bill Clinton, 1999-2000 (approved by Senate) does not apply in this matter????? Thank you.
    ********************************
    I’m just a dumb old country boy with no degree. I had the same question with regards the treaty approved by the senate Oct 2000. How can it be a crime to ask the other party to honor the treaty. (The senate approved it by a 2 thirds vote in a democrat controlled body. Just to name one Schumer.)

    When the money managers were concerned about the time line they asked for and received an extension. Here again it was not a secret vote. They knew the concern was the time factor (nothing to do with a whistle blower). The money was being released but the end of the year was coming.

    As for Rudy’s investigation, he started looking into the matter after Biden confessed in from of the camera.

    https://en.interfax.com.ua/news/general/636291.html

    The former president Ukraine) was thought to be involved in some bad things so President Trump couldn’t go to him. The new president seems to be seeking law and order so he is asked. The cases against Burisma group have been RE-OPENED and are in a serious delima, in order to avoid involvement in US political affairs they are only investigating prior to 2014 and after April 2019 in order to not be investigating the time when Biden was on the board.

    The simple answer is Biden is still protecting Burisma Group.

    As the investigation continues Burisma Groups crimes look more like treason. Burisma is one co. in the group which supplies gas to Ukraine. Russia is under sanction and Ukraine buys from EU at a higher price. One sub in the group buys cheap Russian gas and feeds it back to Burisma which sells it at the EU price. The over charges are in the billions of dollars.

    When Ukraine asked for US assistance under the treaty the requests were blocked, that’s another issue requiring investigation.

    My real question “WHO would fault our President (who is our chief executive) for investigating these matters?”. Is it not his job to investigate such things?

    Means while in Ukraine the SBI (eqiv to our FBI) office was bugged. Tapes of the SBI discussing investigations of the former president are released. The former president is declaring political motivation. The tapes are edited to make it sound that way.

    https://en.interfax.com.ua/news/general/637120.html

    I would have thought bugging the SBI to be and illegal act? Anyway it seems the criminals are investigating the law enforcement offices? What a crazy time in which we live.

  8. Interesting discussion by the Professor, however, the Democratic impeachment is purely political. There are no high crimes and misdemeanors.

    1. Other than falsification of charges and that qualifies under any judicial system but it is the job of the high court of the land to point that out and the highest court to mete punishment.

  9. “If Trump’s critics are right, it was the complaint that stopped an attempt from becoming a completed abuse of office.”

    But there is another way to look at it. The President has the Constitutional Right through his State Department or directly to manage the funds once they are authorized,

    Add two more truisms.

    We elected an outsider who while in a learning curve was faced with many choices and for the most part if not all parts made them morally and ethically, Add to that who knows what the hold overs might have said that wasn’t true in an effort to create this type of situation, We’ve seen plenty of proof that the opposition is quite capable of that possibility BUT

    The oath of office states ‘to the best of my ability’ Has any thing been said that proves beyond a shadow of doubt that the ability clause has been intentionally violated?

    The answer of course is no, not since Obama was President and even with that one who invoked it at the end could not prove intentional violation.

    Thus the Stupid Party has screwed the pooch again and that is far more believable based on their every day actions since they aren’t known for accomplishing ought else.

    1. The oath of office states ‘to the best of my ability’ Has any thing been said that proves beyond a shadow of doubt that the ability clause has been intentionally violated?
      _____________________________________________
      “ability clause”? Are you arguing he is not competent to follow the Constitution and the law?

      1. It has been mentioned every day by myself but the reason as clearly stated and their is no argument is quite the opposite for more than one reason. First he was judged competent by a majority of legal voters in a valid election. Second the socialist have made no attempt to explain how they would prove differently. Yours is the only comment and sorry but you got it 180 degrees wrong translated Which means your programmer got it wrong.

  10. I can’t get past the double standard.

    1) Obama used IRS against conservative opposition groups to improve his chances for re-election in 2016.
    2) Obama was caught on a hot mic conspiring with the Russians to influence the 2016 election.
    3) Obama lied about Benghazi to improve his chances for re-election in 2016.
    4) Obama lied about Obamacare.
    5) Obama, when he lost congress, said he had a phone a pen to enact his agenda and proceeded to use both.
    6) Obama created broke the law wrt immigration policy.
    7 through ?) Etc.

    Neither the Dems nor the Repubs even thought of impeachment for all of that.

    But Orange man is guilty of a thought crime . . .

    This is Kavanaugh all over again.

    It’s repulsive.

    1. Anonymous all we see here is What Abouts; the pillars of Trumpism. If Obama committed so many impeachable offenses, Republicans would have most certainly impeached him. It’s not like Republicans were too nice to impeach. They hated Obama intensely and sought to render him impotent.

      1. So you say after the fact but the fact is they didn’t and Obama did, No way you can weasel word your way out of this one nor the fact that when asked to evaluate his Presidency he almost quoted the ability clause stating under the circumstances I think I did a good job as could be expected… not an exact quote but as well as I can remember it – under the circumstances.

        The part most missed was he felt compelled to invoke the ability clause.

      2. “Obama committed so many impeachable offenses, Republicans would have most certainly impeached him.”

        Peter, if the same criteria were used to assess Obama’s offenses one wouldn’t have to make offenses up. It is not that Republicans are so good rather it is that Democrats are so dastardly and hateful towards the people and the constitution.

        1. “… it is that Democrats are so dastardly and hateful towards the people and the constitution.”

          Rubbish by Allan the Stupid.

    2. Apparently you never get tired of lying; sadly, this could be anyone of numerous idiots that post here regularly.

      1. Hey- YNOT, you’re a Climate Change Denial scolder, let’s here you explain Jevon’s paradox and how it can be solved as a difficulty in possible carbon emissions mitigation strategies?

        or are you stuck with one sentence remarks? can you compose a complete thought? YNOT?

        1. WTF does that have to with what is being discussed. As for Climate Change Denial scold, can you be anymore confusing. I am familiar with Jevon Kearse.

  11. The real issue is not what Trump might have done, it’s what the Constitution SAYS! Constitutions are documents that spell out how an organization MUST conduct itself. In the case of the US Constitution, it is VERY CLEAR that the only impeachable offenses are treason, bribery and other “high crimes and misdemeanors.” “Liberals,” those who seek to make their own interpretations beyond what is spelled out, have come up with all kinds of claims. (Unfortunately, many of those on the staffs of prominent universities are liberals who believe their own thoughts overrule those of the actual authors of documents, whether it’s the Constitution, Federal regulations or the Bible.) For a crime to be a crime, there has to actually have been a crime or attempted crime. In the case of the current impeachment, Democrats are baseless because there is no law or regulation that prohibits a president from seeking help from foreign governments or of offering a quid pro quo, which is the most overworked (and meaningless) term in a profession (legal) that makes up it’s own term. ALL government actions in regard to foreign policy are quid pro quo, ALL of them. By the way, 52 USC 30121 applies ONLY to financial contributions. By the way, there has been a major crime committed, but it was committed by Adam Schiff’s staff and certain members of the White House staff, former and present, as outlined in this excellent article – https://www.realclearinvestigations.com/articles/2020/01/22/whistleblower_was_overheard_in_17_discussing_with_ally_how_to_remove_trump_121701.html

  12. Everyone who thinks Trump ‘done wrong’ here starts with the assumption that Trump’s motive was to affect the 2020 election. There is no proof of that. If you think I’m wrong, give me that proof. In fact, all the evidence available points to Trump was looking at past behaviours, such as Sondland’s stating Trump said there was no quid pro quo asked for, and the evidence of Ukraine’s president and minister of foreign affairs.
    Does this mean Trump was unaware that investigating Biden might help him in 2020? I doubt it, Trump (despite the yowling from the left) isn’t stupid, but our system provides that we take the most favourable tack in these things. In this case, that means that without evidence pointing to 2020 being the driving force behind all of this, we have to presume that Trump was doing this with proper motives.
    And lastly, the question the left just hates to answer – why does Biden get a ‘get out of jail free’ card as a candidate? How does the left justify this?

    1. Everyone who thinks Trump ‘done wrong’ here starts with the assumption that Trump’s motive was to affect the 2020 election. There is no proof of that. If you think I’m wrong, give me that proof.
      ______________________________________________
      You don’t have to assume that Trump did anything wrong to see that it has affected the 2020 election. This will definitely help Trump get elected

      But without the help of the whistle blower and the House Democrats that would not be possible.

    2. Does this mean Trump was unaware that investigating Biden might help him in 2020?
      ____________________________________________
      There would be no investigating Bidens without the help of the whistle blower and the Democrats. Investigating Bidens would be just an obscure right wing conspiracy theory without the help of the whistle blower and House Democrats.

      1. jinn……There is no whistleblower. The undercover informant did not have first hand knowledge of Pres. Trump’s Ukraine phone call.
        He does not satisfy the Federal definition of whistleblower.
        You can call him a whistleblower, and you can call me a buxom blonde, but you would be wrong on both counts.

        1. jinn……There is no whistleblower. The undercover informant did not have first hand knowledge of Pres. Trump’s Ukraine phone call.
          __________________________________
          Well regardless of what you want to call it, without that element of the saga the investigating Biden story would still be an obscure right wing conspiracy theory that most of the US voters would have never heard of.

          The objective from the beginning was to get the investigating Bidens corruption story out of the narrow confines of the right wing echo chambers and into the MSM and consciousness of the mainstream voters. Without the help of the whistle blower and House Democrats that would never happen.

            1. I said what I meant
              There is no doubt the whistle blower is fake. You have to be pretty dim-witted to believe that a CIA agent would be upset by that silly phone call. Like the CIA is some bastion of integrity and honesty.

              But that doesn’t change the fact that the whistle blower has helped Trump get reelected. Without the whistle blowers help reelection would be much less likely.

              1. You have to be pretty dimwtted to belief that there could not be anti- Trump bias by anyone in the CIA. It’s widely believed that this Eric Cimeriila sp? is the CIA employee who is the whistleblower. That is not certain, but realistically it could only be so many people with some knowledge about those Trump- Zelensky phone calls.
                If it us this Eric C., he could only have obtained info about the phone calls from a very select few individuals, probably in the NCS.
                Whether the whistle blower was motivated because he was “upset” by the actual contents of those Trump- Zelensky conversations, or whether he primarily saw a pathway to impeaching Trump—– we don’t know the motivations.
                But to eliminate a CIA employee as the possible or probable whistleblower is nonsense.

                1. You have to be pretty dimwtted to belief that there could not be anti- Trump bias by anyone in the CIA.
                  ___________________________________
                  You have to be pretty dim-wtted to believe that there could not be pro-Trump bias by the CIA.

                  As prof Turley indicates luckily the CIA stepped in. What does that tell you?

                  The simple fact is this without the whistle blower’s help this would not have turned out so well for Trump.

                  The problem with you Trump supporters is that you believe Trump is guilty of trying to blackmail Ukraine to get a worthless investigation from them. Well that isn’t what happened. There was never any interest or intent to get any investigation from Ukraine and Trump can prove it. Nobody in the White House ever wanted an investigation by Ukraine. That was always just a ruse to trigger the insane response from the Democrats and it worked, but it would not have worked without the whistle blower.

            1. Thank you Cindy but you are fine. It is Anon that needs to worry. He gets everything wrong even with a good nights sleep.

      2. These high profile public proceedings were kicked off by the whistleblower’s contact with Schiff’s Committee.
        Has the whistleblower gone though normal channels ( reporting through his superior or directly to the IG) it may have become public anyway, but going to Schiff’s Committee guaranteed that there would be massive media coverage.
        While it does drag the Bidens into this and raise questions about them, I don’t know how someone comes to conclusion that there would be no investigation of Biden without the whistleblower.
        Trump definitely expressed an interest in investigating Joe Biden in his call with Zelensky. And Zelensky appeared willing to grant Trump’s request.
        So the Ukrainian investigation of the Bidens would likely have proceeded with or without the whistleblower.
        The way this was handled by the whistleblower, it made it certain that the the Bidens would be peripheral targets of a process that was actually set in motion to get Trump.
        But the whistleblower’s actions were not what prompted the willingness of Zelensky to investigate the Burisma/ Biden issues; now that Zelensky’s new government has been unwillingly dragged into a very public, it may in fact make Zelensky gun-shy about pressing a Burmisa/Biden investigation.

        1. So the Ukrainian investigation of the Bidens would likely have proceeded with or without the whistleblower.
          __________________________________________
          The Ukrainian investigation of the Bidens did proceed without the whistle blower…
          This article details the result of that investigation:
          https://www.nbcnews.com/politics/donald-trump/hunter-biden-did-not-violate-anything-former-ukrainian-prosecutor-says-n1059136

          What the whistle blower made possible was to give credence and wide spread currency to the investigate-Biden-corruption trope.

          Without the whistle blower the concept of Biden corruption in Ukraine would be only something that people in the right wing echo chamber would know about. The vast majority of voters would remain oblivious.
          Ukraine has the most corrupt investigators in the world. Who is going to pay any attention to what they say?

          1. The NBC link in Jinn’s comment is about a former Ukrainian prosecutor referrng to an investigation THAT WAS CLOSED IN 2017.
            JINN previously stated that there would be no investigation of Biden without the whistleblower’s, and now uses an investigation that was closed long before Zelensky came to power, long before the Trump- Zelensky phone calls, and obviously before the whistleblower going to Schiff’s Committee.
            The issue under discussion was Jinn’s dubious claim that there would be no investigation of Biden(s) without the whistleblower, and now he uses a closed investigation to say there WAS an investigation before the whistleblower came forward.
            Trump clearly wanted ZELENSKY, who had just taken power in mid-2019, to “look into” the Burisma-Biden matter. And Zelensky seemed willing to have his new government prosecutors do that. So it goes back to Jinn’s original claim about no Biden investigation without the whistleblower.
            I have a better idea of the reason why neither clarity nor consitency are Jinn’s strong suits.

            1. So it goes back to Jinn’s original claim about no Biden investigation without the whistleblower.
              ________________________________________

              Ha Ha Ha you still think Trump is guilty and are trying to twist the facts to make the blackmail look like it was justified and legal.

              There was NO blackmail. There was no attempt to get Ukraine to investigate anything. You don’t need to come up with excuses to try to justify it.

              Without the whistleblower the majority of voters would have never heard of Biden-Ukraine-corruption. Without the whistleblower as far as most voters are concerned there never was and never will be a Biden corruption investigation.
              _________________________________________
              now he uses a closed investigation to say there WAS an investigation before the whistleblower came forward.
              _______________________________________

              I used a past investigation to demonstrate how utterly worthless an investigation by Ukraine is. Ukraine can investigate the Biden’s 10 times and come up with 10 different conclusions and nobody is ever going to believe any of them. If you want an investigation that people take seriously the last place in the world you should go to is Ukraine. They have the most corrupt legal system in the world.

              You have to believe Trump is really stupid to want Ukraine to investigate anything. Trump might as well ask the mafia (or China) to investigate the Bidens.

              Trump did not withhold the aid to get Ukraine to anything and he has the evidence to prove it.

            2. Trump clearly wanted ZELENSKY, who had just taken power in mid-2019, to “look into” the Burisma-Biden matter.
              _______________________________________

              No the fact is that is not what Trump wanted. You have to believe Trump is stupid to think that is what he wanted. Getting Zelensky to look into the Burisma-Biden matter is about as close to worthless as it gets. And it would be crooked to use the threat of withholding aid to get something that is worth nothing. Trump is not that stupid…

              Trump wanted CNN, Wapo, NYT, NPR, MSNBC, etc to look into the the Burisma-Biden matter and that would never happen without the help of the CIA whistle blower.

              The CIA and its whistle blower know that this is not going to hurt trump but it will land on Biden like a ton of bricks. They also know that Trump has the evidence that can exonerate him any time he wants to reveal it.

        2. going to Schiff’s Committee guaranteed that there would be massive media coverage.
          _______________________________________________
          The law says the complaint has to go to Schiff’s Committee.
          One way or the other the Congressional Intelligence Committee is the final destination of the complaint according to the statutes.

  13. I’m just a housewife with a music degree, so this may be a dumb question, but I would sincerely like to know why the U. S. Treaty with Ukraine on Mutual Legal Assistance in Criminal Matters, signed by Pres. Bill Clinton, 1999-2000 (approved by Senate) does not apply in this matter????? Thank you.

    1. imo – and I’m merely a former newspaper owner with a degree in economics… if it helps Trump, it falls under the ‘Orange Man Bad’ classification and no one wants to talk about it.

    2. Cindy:

      I just wanna know what law immunizes a potential political adversary and his family from criminal scrutiny when the sleaziness is this obvious. How is asking for an investigation into obvious corruption ($83K a month for a sinecure in a country where you don’t speak the language, don’t know the business and the average Joe makes $8300 A YEAR) worse than the actual corruption itself?

      1. Good question. The only question after that is, given Hunter Biden’s income from Burisma Holdings and whatever gifts, payments and other emoluments he got from various Chinese entities, where’d all that money go?

        Cocaine’s expensive, but Hunter Biden would have had to share some “toot” with his entire Naval Reserve unit and all his other associates to go through all that money. Yet, Hunter Biden’s attorneys assert on his behalf, in an Arkansas court, that Mr. Biden is too poor to pay child support.

        Where’d the money from China and the Ukraine go? It’s a relevant question for this impeachment trial. One of the charges is that looking into Hunter Biden’s possibly unjust enrichment by a Ukrainian firm and his father’s boasted use of his own power to halt an investigation into what looks like purchase of influence from the Obama administration is an abuse of power.

        It’s imperative under the Federal Rules of Evidence and the Constitution that ANY exculpatory evidence against a Federal charge be admitted into a trial on that charge – not just to allow defendant Trump an opportunity to present his side of matters at the heart of an impeachment trial, but to uncover what the Democratic Party’s Congressional leaders are so determined to leave covered-up that some of those leaders publicly say they’d go without witnesses altogether rather than see Hunter Biden testify in this impeachment trial.

        1. https://nypost.com/2019/12/23/hunter-bidens-baby-mama-says-hes-linked-to-multiple-criminal-probes/
          Loupgarous,
          At this stage, I’d take the allegations of a PI involved in the civil suit against Hunter Biden with a grain of salt. This was reported about a month ago in some publications, and we’ll see if there’s anything to it. Anyway confirmation of what the PI claimed.
          I think H. Biden was actually paid by Burisma though an American agency connected to Burisma, which in and of itself doesn’t indicate that he was involved in money laundering. It just raises some questions about the possibility that he might have in some way been involved in suspicious activities with shell companies.

    3. I would sincerely like to know why the U. S. Treaty with Ukraine on Mutual Legal Assistance in Criminal Matters, signed by Pres. Bill Clinton, 1999-2000 (approved by Senate) does not apply in this matter
      _____________________________________________
      The treaty authorizes the Attorney General to request help with an investigation.
      Many weeks after the phone call AG Barr said he knew nothing about an investigation of the Bidens.

      1. The Attorney-General works for the President, Gainesville. There is no authorization to him that does not derive from the chief executive’s function.

          1. Cindy, it’s the same Anon and he is under a multiplicity of names. His first alias was Jan F. which was probably the most honest thing he ever said.

        1. There is no authorization to him that does not derive from the chief executive’s function.
          ___________________________________________
          That is false.
          There is the authorization contained in the treaty. It says only the Attorney General can request an investigation from
          the Ukraine Ministry of Justice. There is no provision in the treaty for the US president to ask the Ukraine president for an investigation.

          It is similar to the Special Counsel Law. It says only the AG (or acting AG) can appoint a Special Counsel. Under the law the President has no authority to hire or fire a Special Counsel.

          The question was why the treaty does not apply – that’s the answer.

          1. That is false.

            We have a unitary executive, Gainesville. It is not false. The attorney-general is not a separate branch of government, nor can he be made one by statutory law.

            1. DSS, it seems that no matter how many times you correct Anon or explain it in a different way he can’t seem to grasp the point. Maybe he has shot the nailgun too many nails up his nose.

      2. Many weeks after the phone call AG Barr said he knew nothing about an investigation of the Bidens.

        They are not investigating the Bidens. They are investigating a group of companies which the younger Biden happened to be a board member. Actually they are investigating the time before and after Biden was on the board. Politics will not allow investigating the company while he sat on the board.

        1. They are not investigating the Bidens. They are investigating a group of companies which the younger Biden happened to be a board member.
          ______________________________________
          Barr said he knew nothing about an investigation of Burisma either.

          The Ukraine Prosecutor General had investigated Hunter Biden’s involvement with Burisma:
          https://www.thedailybeast.com/yuri-lutsenko-former-ukrainian-prosecutor-general-hunter-biden-did-not-violate-anything

          1. https://www.unian.info/politics/10763873-ukraine-wants-to-probe-burisma-but-it-s-too-sensitive-media.html

            He was tip toeing around the matter because it is radioactive in Ukraine. Remember English is his second language. In a later interview he clarifies that a crime was committed but it was not a violation of Ukrainian law. No Ukrainian law against transferring funds to a NY bank account. The problem is how they are used, for example. The member of Parliament is more direct in his finding.

            https://en.interfax.com.ua/news/press-conference/617936.html

            In this video he gives the evidence:

            1. He was tip toeing around the matter because it is radioactive in Ukraine.
              ____________________________________
              Everything is radioactive in Ukraine – remember Chernobyl?

              The whole idea of asking the most corrupt govt with the most corrupt investigators to conduct an investigation is stupid.
              Discussing the contradictory claims and opinions from the most corrupt govt’s officials is likewise also stupid.

              The IMF and the US has given Ukraine something like $7 billion in aid and loans since the 2014 CIA backed coup. Nobody can find out where the money went it just all disappeared.

              What you get from an investigation in Ukraine all depends on who is willing to pay the investigators the most.

      3. Article 2 provides for the establishment of Central
        Authorities and defines Central Authorities for purposes of the
        Treaty. For the United States, the Central Authority shall be
        the Attorney General or a person designated by the Attorney
        General. For Ukraine, the Central Authority shall be the
        Ministry of Justice and the Office of the Prosecutor General.
        The article provides that the Central Authorities shall
        communicate directly with one another for the purposes of the
        Treaty.

        Just one of many items in the treaty but since it doesn’t deny anyone the right to ask for assistance by investigating a certain situation and since the funds were as the treaty required not held up the whole discussion is moot and since no one bothered to ask the Central Authority to clarify what turned out to be a mutual request it’s doubly moot except in the minds of those willling to parse the truth to their own version,

  14. Hey Prof Turley, in the real world, people get prosecuted for conspiracy every day. This post sugarcoats the actions by Trump and those of his cohorts who appear to have conspired with Trump by failing to refer to these actions as an apparent (alleged) conspiracy.

    Trump didn’t do what he did alone. He agreed with others to pursue a course of action. If the object/goal of the agreement was illegal/improper, and if acts were taken in furtherance of that goal, voila, there is a conspiracy.

    The tactically incompetent Democrats didn’t lay out the case as a conspiracy. But you, Prof Turley, as a law professor, are not bound by the tactical failures of the Democrats in these posts. You should stop sugarcoating. But I doubt you will.

    1. Easy to see you didn’t read the treaty but since you didn’t but charged right in condemnation without foundation……How’s your petard holding up? The part you conveniently forgot when you cherry picked this and that is the Central Authority works for the National Command Authority and there is a request sequence built into the treaty, Along with the funds being ready to go and subsequently delivered. In reading the exchange between the two National Command Authorities and in light of the other shady deals stamped with the name Biden not asking would have been dereliction of duty where as it turned out Biden was involved or as the Democrats used to say when they had moral and ethics it had the appearance of impropriety and not investigating or at the least bring the subject up would have been misprision of office

      Instead the complainers and the complaint came from one of if the biggest violators of Oath of Office through misprision of office under the mistaken belief that since a Representative cannot be impeached if their party holds a temporary majority they cannot be judged by the highest court in the land… one can only mark it down to just one more example of not appearance but blatant impropriety.

  15. If so, the whistleblower complaint could strangely prove the luckiest break Trump ever got from the House. If Trump’s critics are right, it was the complaint that stopped an attempt from becoming a completed abuse of office.
    ________________________________________________

    That statement captures the absurdity of the charge against what Trump. Lets suppose there had been no whistle blower and instead of that, Ukraine announces an investigation of Bidens and the delayed aid was released.
    How would that look good for Trump?
    Everyone would think the investigation was being done in exchange for the aid.

    It is not a matter of luck that CIA provided a whistle blower to save Trump’s ass. That is how it was planned before that perfectly executed phone call. There is no way anybody in the WH could believe this would work in their favor without the whistle blower.

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