House Democrats on Tuesday released two articles of impeachment, one accusing President Donald Trump of abusing his power concerning requests he made of Ukrainian President Volodymyr Zelensky. The second article accuses the president of obstructing Congress due to not allowing members of his administration to testify before Congress even under congressional subpoenas.
What is noticeably absent is an article of impeachment accusing President Trump of bribery or extortion left out, presumbably, because they lacked the evidence to proceed in light of what those particular statutes require.
By requesting Ukrainian President Zelensky to investigate Crowdstrike, Burisma, Hunter Biden, and Vice President Joe Biden (or at least announce the investigations), House Democrats charge President Trump with abusing his power.
“Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of investigations,” the article reads in part.
What “acts of significant value”? A meeting at the White House and $391 million in military aid to Ukraine.
The article continues: “President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit. In so doing, President Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation.”
Jonathan Turley, a liberal law professor at George Washington University, who testified before the House Judiciary Committee last week pointed out in his written testimony that presidents have never been impeached solely or largely on the basis of a non-criminal abuse of power allegation.
“Abuses of power tend to be even less defined and more debatable as a basis for impeachment,” he wrote. “(W)hile a crime is not required to impeach, clarity is necessary.”
Turley, who called Trump’s requests of Ukraine for these particular investigations inappropriate, said that there needs to be a “clear unequivocal proof of a quid pro quo.”
He said the primary problem with the abuse of power allegation is its “lack of foundation.”
He pointed to core witnesses and documents that Democrats have not sought through the courts and the Democrats failure to seek the needed foundation is due to their arbitrary deadline at the end of December.
“The principle problem with proving an abuse of power theory is the lack of direct evidence due to the failure to compel key witnesses to testify or production of key documents. The current record does not establish a quid pro quo. What we know is that President Trump wanted two investigations. The first investigation into the 2016 election is not a viable basis for an abuse of power, as I have previously addressed. The second investigation into the Bidens would be sufficient, but there is no direct evidence President Trump intended to violate federal law in withholding the aid past the September 30th deadline or even wanted a quid pro quo maintained in discussions with the Ukrainians regarding the aid,” he wrote.
Turley noted the request into investigating the Bidens alone, while improper, is not impeachable.
“(P)residents often discuss political issues with their counterparts and make comments that are troubling or inappropriate. However, contemptible is not synonymous with impeachable. Impeachment is not a vehicle to monitor presidential communications for such transgressions. That is why making the case of a quid pro quo is so important – a case made on proof, not presumptions,” he wrote.
Turley also notes that House Democrats have “willful blindness to ignore the obvious defense.”
“Trump can argue that he believed the Obama Administration failed to investigate a corrupt contract between Burisma and Hunter Biden. He publicly called for the investigation into the Ukraine matters. Requesting an investigation is not illegal any more than a leader asking for actions from their counterparts during election years,” he wrote.
“Voters should not be asked to assume that President Trump would have violated federal law and denied the aid without a guarantee on the investigations. The current narrative is that President Trump only did the right thing when ‘he was caught.’ It is possible that he never intended to withhold the aid past the September 30th deadline while
also continuing to push the Ukrainians on the corruption investigation. It is possible that Trump believed that the White House meeting was leverage, not the military aid, to push for investigations,” Turley added.
The obstruction of Congress article is even weaker than the abuse of power article of impeachment.
The article cites that President Trump “has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its ‘sole Power of Impeachment’.”
Seriously? Unprecedented? Hardly.
Also, Congress has not impeached when the executive branch denied a subpeona Congress issued. Turley, in his testimony, reminded the House Judiciary Committee of action taken during the Obama admnistration with Attorney General Eric Holder refused to turn over documents subpeoned by Congress in their Fast and Furious investigation.
They found him in contempt of Congress, but did not impeach him.
Turley noted that the assertion of executive privilege and immunity was expected and that the House elected not to subpoena core witnesses with first-hand evidence on any quid pro quo primarily because of their timetable. They are unwilling to wait for a court ruling.
“Essentially, these members are suggesting a president can be impeached for seeking a judicial review of a conflict over the testimony of high-ranking advisers to the President over direct communications with the President. The position is tragically ironic. The Democrats have at times legitimately criticized the President for treating Article II as a font of unilateral authority. Yet, they are now doing the very same thing in claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts,” he wrote.
If President Trump defies a final court order related to congressional subpeonas without a stay from a higher court, then that could be considered obstruction, Turley noted.
He also noted the numerous people in Trump’s administration who did testify and are still in federal service in good standing.
“Thus, the President has sought judicial review without taking disciplinary actions against those who defied his instruction not to testify,” Turley wrote.
“If this Committee elects to seek impeachment on the failure to yield to
congressional demands in an oversight or impeachment investigation, it will have to distinguish a long line of cases where prior presidents sought the very same review while withholding witnesses and documents,” he warned.
“Basing impeachment on this obstruction theory would itself be an abuse of power . . . by Congress. It would be an extremely dangerous precedent to set for future presidents and Congresses in making an appeal to the Judiciary into ‘high crime and misdemeanor,'” Turley agrued.
It’s possible that House Democrats could offer stronger articles of impeachment with a longer process, subpeoning core witnesses and documents, and then waiting on courts to rule on the matter.
But they didn’t, and it’s not reasonable to expect Senate Republicans to convict based on what they offer should the House actually vote to impeach which seems likely.
Read Jonathan Turley’s full written testimony: