This is part 1 of a 2-part series. For part 2, click here.
The public phase of the House impeachment hearings into US President Donald Trump ended on Thursday, Nov. 21, following a near-perfect rollout of key witnesses to the president’s alleged withholding of military aid to the Ukraine in exchange for Ukraine’s agreement to dig for dirt on a political rival of his.
And not just any rival but the former US vice president and now Democratic Party frontrunner ahead of the 2020 presidential election, Joe Biden.
Charges have yet to be formally made, although the House Permanent Select Committee on Intelligence, which held 30 hours of public hearings in four days of testimony, is moving full-speed forward with preparing a report saying that the president committed crimes and betrayed the public’s trust.
Meanwhile, the House Judiciary Committee, tasked with drafting articles of impeachment if needed (expect them to be needed), will hold its first public hearing this week, on Dec. 4, to look into constitutional issues. Specifically: what did US constitutional framers have in mind when citing “treason,” “bribery” and “high crimes and misdemeanors” as criteria for removing a president from office.
Setting “politics” aside – both Democrats and Republicans have doubled down in their respective camps – there seems to be little reason to doubt that the US president solicited a bribe, directly or indirectly, from Ukrainian President Volodymr Zelensky, which is a federal crime under US Code Title 18, Section 201, and then tried to shake Zelensky down, which is extortion under the same title of the code but a different section: 871.
Just to be clear, a bribe, according to the statute, is “corruptly giving, offering or promising anything of value to a public official or person … with the intent to influence an official act.”
Black’s Law Dictionary, the go-to reference for lawyers, stipulates that a bribe “signifies any money, goods, right in action, property, thing of value or advantage … or any promise or undertaking (to be) asked, given or accepted with a corrupt intent to unlawfully influence the person to whom it is given (by way of) his action, vote or opinion in any public or official capacity.”
Note further that, under the code, “solicitation of a bribe” is the crime of “asking or enticing another to commit bribery.”
Extortion, meanwhile, also according to Black’s, is “obtaining property from another induced by wrongful use of actual or threatened force, violence or fear … or under the color of official right. A person is guilty of theft by extortion if he purposely obtains property of another by threatening to take or withhold action as an official or cause an official to take or withhold action.”
Some of this may seem legal gobbledygook, but the point is that the public testimony involving 12 witnesses established unequivocally that the president wanted a favor and withheld $391 million of congressionally mandated military aid from a leader of a foreign country (Zelensky) to induce him to look for embarrassing information about a political opponent to influence the US election in the president’s favor.
Not only did he want Zelensky to dig for dirt on the Bidens, he wanted him to make a public announcement that he was conducting an investigation. To what end? Had a whistleblower not stepped forward in early August with an explosive report about President Trump’s July 25 phone call to President Zelensky, we might have witnessed more than a year of daily “Lock him up!” attacks on the former vice president.
Biden isn’t just the Democratic frontrunner, he maintains a nearly 9% national polling lead over the president in major polls conducted since September.
There may be other charges that apply – including campaign finance violations – but bribery and extortion are the two big ones. And both meet the standard of “high crimes and misdemeanors.”
For the president’s defenders, who are trying to argue that there is no “there” there, that there is no proof the president instructed his personal lawyer, Rudy Giuliani, to secure the investigation of the Bidens, “proof” in fact is considerable based on the testimony provided by senior State Department and Defense Department officials including three current and former ambassadors and the top Russia expert on the National Security Council.
Now comes the tricky part. Does the president’s conduct rise to an impeachable offense?
If it doesn’t, then what does? Lying to a court about a sexual affair was considered an impeachable offense by then-Representative, now Senator Lindsey Graham in 1998 when a Republican-controlled House of Representatives moved to impeach President Bill Clinton. Graham now chairs the Senate Judiciary Committee, which will be charged with running the Senate trial.
Does the public care? Early polling is mixed.
Will more witnesses step forward? That’s also to be determined. But if I were a betting man I would say yes. Just over the past week, new documents related to the case from the Office of Management Budget, which is responsible for disbursing the aid, surfaced suggesting irregularities.
Meanwhile, Lev Parnas, one of Giuliani’s associates who is currently out of jail on $1 million bail, having been arrested in October on charges of campaign finance violations, has offered to testify and, if we believe media reports, Giuliani, a former federal prosecutor, could be arrested at any time.
His “crimes” have yet to be disclosed, but it would be difficult to see him as other than a joint principal in whatever offenses the president has committed (US Code Title 18, Section 2) and subject additionally to professional discipline by the New York State Bar Association for aiding his client in and himself committing crimes (New York Rules of Professional Conduct, Rule 8.4).
The most important witness could be John Bolton, the president’s former national security advisor, who reportedly is willing to testify but wants to be ordered to do so by a court since the president has instructed all current and former agency and White House employees to ignore congressional subpoenas and NOT testify.
Bolton characterized the Zelensky extortion as a “drug deal,” according to testimony given by Fiona Hill, the former top Russia expert at the National Security Council.
Speculation is that Democrats are targeting the end of December to vote articles of impeachment – a list of charges – out of the House. What then will be the outcome of a Senate trial, assuming Mitch McConnell, the Republican majority leader in the Senate, decides to proceed with a trial?
At this juncture, we can predict almost certain acquittal because a conviction would require a two-thirds majority, thus 67 votes. Democrats and Democratic-leaning independents hold only 47 seats.
It is reasonable to expect that several Republicans up for reelection in so-called swing states or concerned about their legacy post-Trump might join Democrats, but probably not enough to reach 67.
One wild card if the proceeding moves to the Senate is that the US Supreme Court’s Chief Justice John Roberts will preside.
No one knows how Roberts will adjudicate issues of evidence – specifically, whether he will compel witnesses to testify. Surely he will look to precedent, but then there have only been 19 Senate trials dating back to 1797 (the case of a long-forgotten senator from Tennessee), only three of them involving presidents.
That said, Democrats could appeal to Roberts to compel witnesses like Giuliani, Bolton and Secretary of State Mike Pompeo to testify along with the president’s acting chief of staff, Mick Mulvaney.
Roberts also might rule that the White House should turn over hundreds of pages of documents, requests for which have been denied – and even the actual tape of the July 25 phone conversation between Trump and Zelensky.
Note, however, that the chief justice’s powers are expected to be more advisory than absolute because, as a practical matter, the Senate can vote to overrule him. Thus, he is not likely to be proactive in offering opinions on matters raised by the House “managers,” the House members designated either to prosecute or to defend the president.
More likely, Roberts will respond to one-off requests for witness testimony and whether or not he thinks it “should be” included and use his moral suasion to steer proceedings in a particular direction. His likely role has been described as that of an umpire or arbiter.
In the second and concluding part of this series, the detailed case against Donald Trump.
Roger Schreffler is a veteran foreign correspondent now living back home in the northeastern United States. He attaches this disclosure to his analysis: “Truth in advertising: I see Trump as a clear and present danger to the republic. I have registered both as a Republican and as a Democrat in the past 20 years. My most recent registration was as a Democrat in a year when I wanted to vote in the Democratic primary (can’t remember which year). I did study political “science” (an oxymoron if ever there was one) as a graduate student; the curriculum included the underpinnings of political polling.”