I had a great discussion on The Editors Thursday about my view that President Trump did nothing wrong in his July 25 phone call with Ukrainian president Volodymyr Zelensky. My view seems to be the minority position, so it makes sense to lay it out as clearly as possible.
Much of the confusion around this case stems from the entanglement of two groups specializing in bamboozlement: lawyers and spies. Espionage and the law have specialized argots that hide fabrication and skulduggery. Nonetheless, critical analysis reveals that the call was in bounds and that objections to it reduce to absurdity.
My argument relies on an assertion, a distinction, and showing the absurdity of the other side of the argument taken to its logical conclusions.
First, the assertion: The United States government has a compelling interest in knowing if its private citizens are involved in corruption abroad, either alone or in concert with current, former, or future public officials. This is not a controversial claim, yet when applied to what we know about how Joe Biden conducted his vice presidency in relation to his son Hunter Biden’s career, it invites unwarranted controversy.
Here are the facts. The decision of Joe Biden, while vice president, to facilitate his son Hunter’s international business dealings presents, minimally, the appearance of a conflict of interest. Indeed, anything that Hunter Biden touched that intersected, however tangentially, with the official doings and responsibilities of his father can be presumed to be a worthy subject of investigation unless and until proven otherwise. The younger Biden’s shady dealings with his uncle dating at least to 2008, his absurd (and absurdly lucrative) board post on the Ukrainian energy firm Burisma, his massive financing rounds in China, and his travel to these countries along with his father, the latter acting in his official capacity — all raise major questions.
Because Hunter Biden repeatedly profited in countries where his father was conducting official business, despite having no marketable skills or relevant experience, these questions would exist even if he were a paragon of personal virtue. Yet we know that he is not. His fiscal profligacy, repeated battles with addiction, and seeming erotomania, make Billy Carter, Hugh Rodham, and Roger Clinton look like Boy Scouts. Indeed, Hunter Biden is recreationally closer to Hunter Thompson than he is to most ne’er-do-well political relatives. Hunter Biden is clearly a person who should not be anywhere near government.
As a result, in the absence of clear and convincing proof that nothing is amiss in the Biden family business, there is a presumptive case for looking into the Bidens to see if all the smoke surrounding Hunter came from fire. Joe Biden didn’t choose to have a troubled son. But he did choose to integrate his troubled son into his official functions. The burden of proving that the interpenetration of government and family did not enrich the younger Biden falls squarely on the elder Biden. He has not met that burden because, given the facts already known, doing so is probably impossible.
Joe Biden wishes to be president. The American people have a right to know if, as second in line to the presidency, he facilitated his family’s enrichment. Did he do so consciously or through blind irresponsibility? He flew Hunter Biden to China on an official visit: What did Joe think Hunter was doing on that trip? If nothing is amiss, follow the administration’s response to this scandal and open the books. Until that happens, an investigation — whether formal or informal — is justified.
Second, my distinction: Information is not interference. Based on the call transcript, Trump asked Zelensky to get to the bottom of whether Ukraine or Ukrainians interfered in the 2016 election. One may consider Trump’s concerns absurd or silly. Alternatively, one may suspect Ukrainian involvement. I do not know and will not pretend to know, because whether Ukraine was actually involved is irrelevant. The request for information that the Ukrainian president may be uniquely positioned to offer is fair and does not, in and of itself, constitute election interference.
The president is well within his rights to seek information from his counterparts abroad. He can ask Zelensky if the Dodgers will make the World Series, or who Zelensky thinks is the most formidable Democratic candidate. Soliciting information, in the form of facts or opinion, does not constitute election interference. It does not constitute having a foreign head of state do opposition research for the Trump campaign. It is not some of in-kind contribution.
Nor is there anything wrong with the president using leverage to get answers to his questions. Ukraine is not in NATO. Ukraine has been an ally of the United States some of the time, but at other times has been a de facto extension of the Russian Federation. And while the United States owes Ukraine certain obligations owing to the Budapest Memorandum, obligations the last administration ignored, Ukraine does not enjoy a constitutional or treaty right to Javelin missiles. Regardless of whether or not Trump asks important questions or stupid ones, by virtue of his office, he has the right to ask what he wants and use the leverage he controls to get answers. Because the national interest is served by those questions, even if they also align with Trump’s perceived political self-interest, a quid pro quo is not a problem.
While the seeking of information does not intrinsically constitute a problem — indeed, it’s exactly the sort of thing we want the president doing in exchanges with foreign heads of state — what Trump chooses to do with the information he receives matters immensely. Were Trump to pass documents to his campaign, that would blend his official powers with his electioneering apparatus, which is against campaign-finance law. Were Trump to tell Zelensky to leak whatever damaging information he might find about Biden, that too would constitute election interference. Obviously, if Trump asked Zelensky to target Biden or his campaign with hacking, it would be a crime. If he asked Zelensky to fabricate information and leak it to the public, this impeachment talk would be completely justified.
Yet Trump did not do these things. He asked for information that might help him serve the national interest in his capacity as president. Whether one trusts Trump to act accordingly or not is not itself impeachable in the absence of action. Similarly, that Trump failed to follow up regarding his invocation of Attorney General Barr is neither a problem nor surprising given his lackluster organizational tendencies.
But what if we were to treat the request for information as tantamount to interference? Let us trace this line of thinking to its absurd conclusion. If Trump cannot ask anyone, foreign or domestic, about the obviously dubious behavior of a political rival, then we have created a de facto immunity for anybody running for president, an immunity that extends to their family if they mix family with previous public-office holding. So long as American officials and private citizens misbehave abroad and then run for president, they cannot be investigated legitimately, so this line of thinking goes.
As a historical matter, this would mean that the Benghazi and Clinton Foundation investigations undertaken by Congress were illegitimate the day they began because they had political consequences for presumptive Democratic nominee Hillary Clinton. They would similarly mean that the Russiagate investigation was wrong the day it began. And while many people can justifiably point to misbehavior by Russiagate investigators, it cannot reasonably be said that Donald Trump’s words, deeds, and associates made that investigation unreasonable from the get-go. Indeed, we can go still further back.
Going back further still, if targeting a political opponent for investigation is illegitimate under any circumstances, then FDR was wrong to direct the FBI to work with friendly European governments to investigate Charles Lindbergh and the German American Bund.
Clearly, creating an effective blanket immunity for those powerful enough to run for president is truly the stuff of banana republics. Indeed, if it achieved anything, it would only encourage well-heeled rascals to run for office while simultaneously encouraging the politically connected to engage in international graft. I, for one, think America has enough of both already.
Finally, I would like to close with two observations. Neither is logically necessary to my argument, but both are sociologically and constitutionally worth examining. Many people are uncomfortable with the president leveraging America’s superior power to extract concessions from an inferior. I question this instinct. Power involves coercion and brokering. It can look and feel gross. It can be smutty. We have two and a half millennia of political philosophy in large part because goodness and political effectiveness have a complicated relationship. People can be bad and ineffective, yes. The good guys sometimes win too. But politics at the highest level has long been recognized as sitting in an awkward relationship to morality.
As a result, politics isn’t for everybody. Though we misattribute the idiom to Bismarck, Americans have long understood that people prefer to eat sausage rather than see it get made. The Framers of the Constitution, who expected to be the weaker party — to be in Zelensky’s position rather than Trump’s — understood this. That’s why Article II, Section 2 gives the president the power to negotiate treaties. Those treaties come into effect only when ratified by the Senate, so the conclusion of a deal is subject to popular review. However, the back-and-forth required to get that deal is and should remain a solely presidential power. If anything, the White House was too quick to disclose the transcript of Trump’s call with Zelensky.
None of this guarantees that wrongdoing has not transpired. If President Trump overstepped in the ways outlined above, I will happily revisit my opposition to impeachment. The president is entitled to designate a special representative to serve as his proxy in negotiations or fact-finding, including a personal attorney with whom he enjoys attorney–client privilege over and above traditional executive privilege. However, these powers stop the minute the president directs his subordinate to go beyond information-gathering and to engage in campaigning. And if a subordinate does so of his own volition, that subordinate ought to be punished. However, nothing we have seen to date crosses these lines. Instead, opponents of the president have elevated his person above his position, deciding that the practice of executive power itself is illegitimate because of who has been elected to wield it. That is the very kind of institutional nihilism many of these same people claim to fear most about this presidency.