Imagine you get indicted in a swindle. The prosecutors represent that they can prove you and your alleged co-conspirators planned to fleece a major financial institution. You counter that you weren’t fleecing anyone. Sure, you were asking for millions in loans, but the collateral you were prepared to post was real, and so were the businesses in which you were planning to invest the loan proceeds. The capital injection, you thought, would spur the commerce that would enable you to pay off the loan.
When you get to court, though, you are horrified to learn that the judge is excluding your defense. The prosecutors peremptorily assert that it’s all a big lie. The judge doesn’t want to hear your constitutional claims about the rights to present a defense and call witnesses; your motion to subpoena evidence is denied.
Then, at the trial, not only do the prosecutors establish that you planned to take millions from the bank; they tell the jury there was not a shred of evidence that you had any legitimate collateral or business investment prospects. The whole thing, they insist, was a scam. That is, they stop you from presenting your defense, and then they argue that you should be convicted because you have no defense.
It sounds like something out of Kafka. It would never be tolerated in the U.S. judicial system: no competent judge would bar an accused from attempting to prove his defense; and if one did, any conviction would be reversed on appeal. It would not matter whether the prosecutor’s proof was convincing; having one’s day in court means having an opportunity to present any exculpatory evidence.
Yet what I’ve just described is essentially what House Democrats have done to President Trump in the Senate impeachment trial on the matter of the Bidens and Burisma.
One of the most effective summations in the House impeachment managers’ presentation to the Senate on Thursday was given by Representative Sylvia Garcia, a freshman Democrat from Texas who used to be the presiding judge in Houston’s municipal court system. She took direct aim at claims about suspected Biden self-dealing in Ukraine that have been advanced by President Trump and his defenders, particularly House Republicans and Rudy Giuliani, the president’s private lawyer.
The congresswoman was persuasive. Vice President Biden, we’re to believe, had no connection whatsoever to Hunter Biden’s gig at Burisma, the reputedly corrupt Ukrainian energy company on whose board he was lavishly paid to sit. When President Obama’s veep threatened to withhold $1 billion in funding from Ukraine unless the government in Kyiv fired chief prosecutor Viktor Shokin, it had nothing to do with whether Shokin was trying to investigate Burisma. Indeed, it was quite the opposite: Shokin, you see, was utterly without scruples, an obstacle to Western anti-corruption efforts in Ukraine. In squeezing Kyiv to remove him, the vice president was simply carrying out Obama-administration policy, which had the backing of our European Union allies and the International Monetary Fund.
Should Biden have toned down his characteristic bravado in describing how he extorted the Ukrainians during a speech before a friendly audience? Maybe . . . but the point, Democrats maintain, is that he did nothing wrong. What’s more, they say everyone knows he did nothing wrong — including President Trump.
Therefore, the argument goes, when Trump asked President Zelensky for an investigation of the Bidens, it is inconceivable that Trump could actually have been concerned about rooting out corruption. The House impeachment managers scoff at the suggestion that Donald Trump has suddenly become the scourge of corruption in countries, such as Ukraine, that receive hundreds of millions of dollars in foreign aid. There can be no other explanation than that Trump was aiming to damage his likely rival in the 2020 campaign. What’s more, Trump had to have been asking Zelensky, in effect, to lie about Biden — to fabricate a corruption case — because everyone knew the Bidens had done nothing wrong.
It’s a well-conceived story. For all we know, there may be truth to it. After all, Trump’s more sensible defenders point out that even if it was imprudent for Trump to invoke Biden’s name and the specter of domestic politics in his conversation with Zelensky, and even if it was inappropriate for Trump to encourage a foreign government to investigate an American citizen for violations of foreign law, there was nothing illegal about it. Analogously, the fact that Hunter Biden was cashing in on his father’s political influence, and that Joe Biden had a neon-flashing conflict of interest when he took official action that could have benefited his son, does not necessarily mean the Bidens did anything illegal. Maybe Vice President Biden’s actions really were a straightforward, disinterested application of Obama-administration policy. This could be unsavory without being unlawful.
But here is the thing: It is also entirely possible that the Bidens’ actions, whether or not provably illegal, were so objectively suspicious, so suggestive of corruption, that it was perfectly reasonable for Trump to believe that they should be investigated — and that they could have violated American law, as well as Ukrainian law.
The president’s defense has not been given a fair opportunity to prove that. Even though the House impeachment managers are now arguing about Biden corruption allegations in their Senate presentation, the two leaders of the House impeachment inquiry, Adam Schiff and Jerry Nadler, took the position that Republican claims about the Bidens were irrelevant — a partisan red herring to distract from the “real” issues. They steadfastly refused to permit witnesses on that topic (including the Bidens themselves).
Moreover, the president was denied the right to have his counsel participate in the main investigative phase, run by Schiff. So, even though Schiff began the House hearings with an absurd parody version of the Trump–Zelensky conversation, falsely suggesting that Trump had asked Zelensky to “make up dirt” about Biden, the House denied the president the opportunity to prove that he was actually asking for help investigating activity that, objectively, appears quite suspicious and potentially corrupt.
Even if such an investigation would have helped Trump politically, it is a much different scenario if there was a real basis to believe the Bidens’ conduct should be scrutinized. Joe Biden is not immune from investigation just because he is running for president — certainly no more than the president himself is immune (which, obviously, he’s not).
The president has to be given an opportunity to prove his rebuttal case. A trial is not a trial, not in the American tradition, if prosecutors are permitted to level a serious accusation and then deny the accused the right to mount a defense.