Trump's accusers and defenders need to think some things through.
We have at last reached the impeachment trial phase in which senators are given the opportunity to address questions to each side. Questions by the Republicans and Democrats are to be submitted and vetted by their respective leadership to avoid duplication and irrelevancy. They will then be submitted to Chief Justice John Roberts, who will pose them alternately to the House impeachment managers and President Trump’s defense team.
Each side presumptively has five minutes to answer, with the caveat that, on rare occasions when a question truly demands it, the party’s time to respond may be expanded slightly. This process will go on for no more than 16 hours – eight hours over the next two days.
Everyone who has been observing the Ukraine kerfuffle through the House impeachment inquiry and the Senate trial probably has some questions. I doubt close watchers will have very many, though.
The case against the president is very thin, in the sense that a finite set of events that took place over a relatively short time to an inconclusive end has been lavished with months of investigative attention, with the result that the Democratic-controlled House, on a strictly party-line vote, voted two articles of impeachment. The charges are so vague that Democrats repeatedly shifted their theory about what to call the president’s alleged misconduct – campaign-finance violation, attempted extortion, quid pro quo, bribery, and more recently, a budget-law transgression – before ultimately settling on a nebulous “abuse of power” claim, coupled with obstruction of the House’s inquiry.
We all have a good idea where things stand, and thus most of us are probably skeptical that this phase of questions by the Senate could change any minds.
Still, I think it’s possible.
There is, after all, a significant issue the resolution of which remains uncertain: Should there be additional witnesses, or should the trial end in the next few days with the president’s inevitable acquittal?
Conviction is unattainable since Democrats would need to hold their entire 47-vote bloc together plus draw 20 Republicans to their side to assemble the required two-thirds supermajority. Right now, it is unlikely any Republicans would vote to convict the president, and there may be some Democratic defections for acquittal. Thus, the final result is not in doubt. That itself may sway the preliminary vote on subpoenas for witnesses and documentary proof. Who, after all, wants to sit through what could be weeks of additional evidence if the effort would make no difference to the final disposition?
Consequently, while I could bore you with a hundred questions, I’m going to try to boil it down to just three. They are questions I believe bear directly on both the ultimate conclusion and the issue of additional witnesses.
To the House Managers:
- What is the evidence that announcement of a Ukrainian investigation would have had any material impact on the U.S. election?
It has surprised me that neither House Republicans nor the president’s lawyers have taken on the underlying premise of the Democrats impeachment case, to wit: That an investigation of the Bidens by the Ukrainian government, or at least the announcement of such a probe, could have materially influenced the 2020 U.S. presidential election. As I opined earlier this week, that is a preposterous assumption.
Understand what we are talking about here. There is nothing conceivably improper in the Trump campaign’s calling attention to the Bidens’ record of self-dealing – of the likelihood that the former vice president’s son Hunter, and perhaps other Biden family members, profited on Joe Biden’s political influence. There is, moreover, no problem whatsoever with the Trump campaign’s pointing out that (a) Hunter Biden took a lucrative board position with a corrupt foreign company in a sector (energy) in which he had no experience, facts that powerfully suggest influence peddling; and (b) Vice President Biden knowingly operated under a blatant conflict-of-interest in playing point-man on Obama administration Ukraine policy — such that he may have been corruptly influenced, and even if he was not, he created the appearance of impropriety that government officials are supposed to avoid. (And Ukraine may not be the only country in connection with which Biden created this unsavory appearance.)
All of that is fair game. Campaign arguments could properly be made about it, wholly apart from whether the current Ukrainian regime took any investigative action.
Democrats, however, allege that the dispositive fact is that the Ukrainian government — as opposed to, say, the American media — might have opened a corruption investigation at Trump’s behest. What plausible evidence is there that this would have had any real impact on the 2020 election?
Bear in mind: Ukraine is a notoriously, pervasively corrupt country. What it may be most infamous for is the exploitation of its criminal-justice processes, by whatever party is in power, as a weapon against political rivals, and to curry favor with Russia or the West, depending on what seems expedient to the incumbent rulers. Indeed, the Mueller probe reconfirmed that Ukrainian regimes serially and corruptly investigate their political adversaries. In a flash, Paul Manafort went from high-level adviser to one Ukrainian regime to criminal suspect of the next Ukrainian regime.
The Ukrainian justice system has no credibility. Even the House managers’ investigation acknowledged that corruption is endemic in the prosecutorial ministry. So why would anyone in America care whether Ukraine was investigating the Bidens for potential violations of Ukrainian law?
If the Bidens’ activities in Ukraine were actionably corrupt in a manner of consequence to American voters, the Justice Department would have been investigating them. If there were reason to believe Joe or Hunter Biden had violated American laws, that would be a big deal in the 2020 campaign.
To the contrary, no sensible American cares what the Ukrainian government does. Foreign governments and actors constantly claim that American officials are guilty of war crimes, corruption, fraud, meddling, etc. It comes with the territory of being a high-level representative of the United States government. Presumably, moreover, Vice President Biden would have had immunity from any claimed violation of Ukrainian law based on his official acts. An investigation would have been pointless as well as irrelevant.
Don’t get me wrong. Personally, I would far prefer that American presidents took the position that Ukraine should be punished if it harassed former U.S. officials or American citizens — regardless of whether they were political rivals. A president should not encourage foreign investigations of Americans. If there is criminal activity in a foreign country that our government cares about, the Justice Department should handle it — and it should be based only on suspected violations of American law.
But all that said, it is overwrought to suggest that a Ukrainian investigation of Joe Biden would have influenced the U.S. election. Democrats have just concocted a Ukraine straw-man to impede Republicans and the Trump campaign from making perfectly reasonable campaign arguments about potential Biden corruption.
- What is the evidence that President Trump is actively corrupting the 2020 election?
Democrats claim that the sovereign, the American people, should not be permitted to decide President Trump’s fate for themselves in the November election, just a few months away. The political class must preempt a democratic election, Democrats say, because the president, right this minute, is actively plotting with foreign powers to undermine the election.
What is the evidence of that?
The Democrats have not presented a shred of evidence that the president has threatened the U.S. voting process. They have not even alleged — much less provided a sliver of proof — that the president has asked any regime, other than Ukraine’s, to take action that could conceivably corruptly influence the U.S election in the slightest way. And, as we’ve just seen, President Trump’s cockamamie effort to prompt a Ukrainian investigation of the Bidens — which was aborted without commencement of any such investigation — would have had no impact on the U.S. election.
The Democratic House impeachment managers nevertheless proclaim, as if it were established fact, that the president is actively undermining the November election. It is the central assumption of their case, the rationale for insisting that president must be removed from office immediately. Where, in the hundreds of hours and thousands of pages of testimony, is there any proof — any evidence at all — that President Trump is presently working with any foreign government to corruptly influence the outcome of the 2020 election?
We don’t impeach and remove American presidents on supposition and surmise. What is the hard evidence?
For the President’s Defense Team:
Why not subpoena John Bolton for four hours of narrow testimony on a single aspect of his communications with President Trump, or alternatively draw a negative inference against the president?
For reasons that continue to baffle me, the president has not limited his defense to the positions that (a) the House has failed to charge impeachable offenses that approach the constitutional standard of egregiousness, and (b) nothing of consequence happened here — the Ukrainians got their defense aid; President Zelensky got an audience with the president; there was no undermining of Ukrainian security, much less of American national security; Ukrainian investigations were neither conducted nor announced; and the Ukrainians say they did not feel pressured.
Instead, the president’s team continues to claim that everything was “perfect,” nothing inappropriate whatsoever happened, and there was no quid pro quo tying the transmission of congressionally authorized American security aid for Ukraine to Kyiv’s conducting of investigations President Trump wanted — probes of the Bidens and Ukraine’s alleged interference in the 2016 election.
The president does not need to establish these facts in order to demonstrate that he should not be impeached and removed. But he has nevertheless insisted on putting these matters in issue.
With that as background, there are now reported indications that former national-security adviser John Bolton is prepared to testify that, in at least one conversation between them, the president said he was delaying the security aid for Ukraine to induce Kyiv to announce that it was conducting the investigations.
These reports have not been confirmed. They are press accounts of a version of events Bolton is said to have included in a memoir of his time in the Trump White House. He has submitted the manuscript to the government for a classification review because he hopes to publish it in March. That said, the press reports seem credible: They line up well with the testimony of other witnesses and are consistent with Bolton’s publicly expressed assertion that he has relevant testimony that he would be willing to share with the Senate.
The president and his supporters argue that (a) Bolton’s testimony is covered by executive privilege and should be suppressed, and (b) if the impeachment trial is going to be extended by witness testimony from Bolton, the president should be entitled to call witnesses that were denied him during the House investigation.
As noted above, it is unlikely that anyone wants to see the trial extended when the outcome is not in doubt. And it is certainly important to protect executive privilege — as Democrats would concede if a Democrat were in the White House.
On the other hand, the president has chosen (foolishly in my view) to make the quid pro quo question an issue in the trial; and he and his surrogates have chosen (foolishly in my view) to mount public attacks on Bolton’s credibility. Furthermore, legal confidentiality privileges are shields, not swords. A litigant is not supposed to be able to inject an issue of fact into a case (e.g., there was no quid pro quo) and then deny the fact finder access to probative evidence on that same issue. If you want to rely on your privilege, you need to steer clear of the issue.
It seems to me that there is an easy way out of this quandary. What I will now propose would neither require nor foreclose the president’s opportunity to call other witnesses, such as the Bidens, the “whistleblower,” et al.
The Senate could pass a resolution that would authorize a four-hour deposition of John Bolton by the Senate Judiciary Committee. There would be 90 minutes of questioning for each side, with the remaining hour reserved for members of the committee to pose questions. To move things along, Chief Justice Roberts would preside, subject to the Judiciary Committee’s review (it is highly unlikely that senators would have reason or gumption to overrule the chief justice on a point of admissibility). The subject would be: What if any communications did Bolton have with Trump on the lone subject of conditioning Ukrainian defense aid on Kyiv’s conduct of investigations? This would respect executive privilege by narrowly limiting the testimony to the only relevant issue, not permitting a fishing expedition into the former national-security adviser’s discussions with the president.
The president’s defense would be able to avoid Bolton’s deposition by stipulating that he would testify that there was a quid pro quo. The president’s defense would also be permitted to renew its call for more witnesses after hearing Bolton’s testimony and deciding whether it was really necessary to extend the trial further for that purpose.
I am betting that either (a) the president’s team would stipulate, since it is probably true and makes no difference to the outcome of the case; or (b) the lack of a difference to the outcome would be so clear after Bolton’s testimony that the president’s team would not press for more witnesses — seeking, instead, to move on to final arguments and a verdict of acquittal. Presumably, the limited testimony, or stipulation to what the testimony would be, would satisfy such senators as Mitt Romney, Susan Collins, and Lisa Murkowski — Republicans said to be leaning toward voting to subpoena Bolton.
By this process, the trial could be wrapped up by early next week. But for now, here’s the question for the president’s team: If you are claiming that there is no quid pro quo, shouldn’t we hear very limited testimony from Bolton on that question; or, if you don’t want to have testimony from Bolton, shouldn’t we just assume he would testify that there was a quid pro quo?
Editor’s Note: This article has been emended since its initial publication to correct two mistaken references in the last paragraph to “Biden.” The correct references are to “Bolton.”