New on Lawfare: Defining a Theory of 'Bribery' for Impeachment

Where one public official act is traded for another public official act, there has not been any illegal conduct.

Seth Barrett Tillman and I published a new essay on Lawfare. We discuss a theory of "bribery" for the impeachment clause. Here is an excerpt:

Just as the executive branch should not investigate and prosecute horse-trading and log-rolling by members of Congress, Congress should not investigate and impeach horse-trading by the president. Where the president acts for mixed motives while engaging in log-rolling and horse-trading—entertaining related considerations of public policy, his party's success and his chances of personal reelection—there is nothing to investigate.

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich's receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that "a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment." He added that "[g]overnance would hardly be possible without" political log-rolling, "which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly."

Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant. Such acts are presumptively lawful, and should not be investigated, let alone be considered for indictment or impeachment. If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

We can think of one high-profile and far more brazen effort by a president to improve his party's prospects through the use of official communications. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Tecumseh Sherman to allow soldiers in the field to return to Indiana to vote. What was his primary motivation? It was to make sure that the government of Indiana remained in the hands of Republican loyalists who wished to continue the war until victory. This action risked undercutting the military effort by depleting the ranks. Lincoln had dueling motives. Privately, he sought to secure a victory for his party. This personal interest should not impugn his public motive: win the war and secure the nation.

Comments

[Mike Adamson]

Interesting. Given that the House determines what is impeachable and what is not, I suspect this would be applicable to criminal statute only. I have never felt particularly comfortable with the "arms for investigations" trade as bribery, seems more like extortion to me.

[bernard11]

If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

I'm not sure this makes sense. Just because the official act is public does not mean there can't be corrupt intent. Suppose Trump had insisted that Ukraine give him some sort of award, possibly including a cash prize - in honor of his efforts toward world peace, say - in exchange for releasing the funds. No corrupt intent?

And of course this theory allows for all sorts of deals:

"I'll release the aid for Israel if you come and speak in praise of me to Jewish groups in the US."

At a minimum, if you want to argue that the public nature of the acts means there is no corrupt intent, you should at least require that the transaction itself be public as well. Assuming the Blagojevich deal went through then it might be, just barely, OK, if, upon appointing him to the cabinet, Obama had said, "I am doing this to reward the governor for appointing Jarrett."

Open covenants.

[Voize of Reazon]

I agree, it's hard for me to believe Judge Easterbrook meant there would be no unlawful act if the suitcase full of cash were delivered in public view.

[Longtobefree]

Especially if the suitcase was the size of a shipping pallet?

[Brett Bellmore]

Or a cargo plane full of such shipping pallets.

[santamonica811]

Excellent defense!
"Trump sucks and is a dishonest sack of shit. But no impeachment, because Obama."
Oh. Kay.

[Armchair Lawyer]

It actually gets to a key point. If something is an impeachable action, it should be an impeachable action no matter who is president.

If previous Presidents have made similar actions, and they weren't impeached for them, or weren't even thought about impeachment for the actions, perhaps the actions aren't really impeachment-worthy.

[santamonica811]

Of course. But since pretty much every action Prez 2 does will be distinguishable from what Prez 1 did in the past, it's really important to look at the alleged wrongdoing. Obama returned Iran's money. Maybe a bad decision, maybe an idiotic decision. (Maybe a good decision, of course.) But it's important--I would argue--that you look at his motivations and his goals. And no one was claiming that Obama would gain some real benefit (other than the one any president gets from literally every single word or actions--to look better or worse to voters and to the public and to history).

But Trump did these alleged acts in order to cheat on an election. I think it is perfectly reasonable to strongly disagree with each act, but to find Trump's goal and motivation to be so antithetical to our country's values that it calls for impeachment. That does not show hypocrisy...that shows people using their brains to distinguish 2 quite-different situations.

Likewise, I hated B. Clinton's pardon of the corrupt Marc Rich. And I hated Trump's pardon of the evil Sheriff Joe Arpaio. But I (IMO only) think that the Rich pardon was far worse, because it rewarded a particularly corrosive type of corruption, while Trump's dreadful pardon of Sheriff Joe was based on Trump's support for Joe's racism. I get it if you find these two pardon's equally offensive. Or if you find Trump's pardon worse than Clinton's. But finding one bad enough to be impeachable and not the other does NOT indicate that you are a hypocrite or a partisan hack.

[Armchair Lawyer]

There are two issues here.
The first issue is, you're asserting motive, and using them for a judgement, rather than just looking at the actions.
The second issue is, you're assuming there needs to be a direct, exact example, rather than an analogous example.

The more direct analog here is Obama's "flexibility" for Russian "space" in 2012. The Russian "space" that was provided was clearly of a political advantage, especially as it was noted as just before the election.

As for "providing a meeting" in response to a "favor"....that's something that happens every day in politics. Criminalizing that (via impeachment) makes no sense based on past behavior

[Toranth]

No, Obama did not "return Iran's money" - unless you think the Shah paid the US in Euros in the 1970s? No time machine for the Shah? Well, then, no it wasn't "returning" anything.
You are probably actually attempting to claim that the US owed Iran some money. That is, in fact, a claim Iran has made. The US also claims that Iran owes the US a lot of money, both for previously outstanding debts of the Shah PLUS payment for the damage and confiscation done during the revolution. Both of these claims has been floating around international courts/commissions/committees/etc for decades without being settled. Part of the complication comes from the fact that Iran currently claims to be a distinct entity from the Shah's Iran... except for debts TO Iran.

But let's give you the benefit of the doubt. Let's say that, yes, Obama did want to do nothing more than pay to Iran monies equal to when the Shah paid for those undelivered arms - several hundred million dollars, or so.

But Obama didn't stop with transferring "several hundred million dollars" to Iran. Obama paid almost $2 billion in cash (to evade Congressional laws preventing payments to Iran). Was the other $1.8 billion allocated by Congress? NO. Obama illegally violated the Congressional power of the purse, took almost $2 billion from the public purse, and used it for purposes (explicitly opposed by the US Congress) that it was not allocated or permitted to be used for.

Are you saying that is not an impeachable offense?

[NOVA Lawyer]

Toranth,
You are just wrong.

https://www.washingtonpost.com/news/fact-checker/wp/2018/03/01/was-obamas-1-7-billion-cash-deal-with-iran-prohibited-by-u-s-law/

Among other things, this was a settlement of a claim Iran had made and won against the US in the Iran-U.S. Claims Tribunal and if the U.S. didn't pay, they faced exposure to significantly higher award to Iran. The payment was investigated by the IG and Congress and.....nothing.

I am saying that it is not an impeachable offense. (And, apparently, so did Congress by investigating by doing precisely nothing.)

[Armchair Lawyer]

That's one interpretation. A few questions though.

1. Why keep the $400 Million secret, especially from Congress? And all in cash? And flown in on pallets in the middle on the night?

2. Why were 4 American prisoners in Iran released on the very same day the money was sent?

3. Why did Iran publically refer to the payment as a quid pro quo, where the $400 million was a random payment for the prisoner release?

4. Supposedly this $400 million had already been used to settle the court cases against Iran by victims of Iranian terrorism. If they money was already gone, how was it being paid again?

[NOVA Lawyer]

Armchair,

1. It wasn't kept secret. It was cash payment of a debt owed by the U.S. and authorized by law, but paid in cash because of stringent laws against wire transfers to Iran.

2. They weren't. Three detainees were released the day before the payment. The original, negotiated payment was unrelated to the hostage release, but the Obama admin delayed the payment when the hostage issue arose in order to ensure Iran didn't get the money and keep the hostages.

3. You sentence doesn't make sense. I don't see any contemporaneous news story indicating Iran publicly called the payment a quid pro quo. And, so what if they did?

4. Your facts are wrong. For a more detailed explanation: https://www.washingtonpost.com/news/fact-checker/wp/2018/03/01/was-obamas-1-7-billion-cash-deal-with-iran-prohibited-by-u-s-law/

[Armchair Lawyer]

1. It was kept secret until well after the payment was made. A choice was deliberately made not to tell Congress about it ahead of time. Furthermore, the details on how the remaining 1.3 billion were paid are...unknown. No one's talking about how that was paid. The state department won't confirm anything.

2. Please. You can't have it both ways. You can't say "it wasn't a hostage ransom" while simultaneously saying "it was used as leverage until the hostages were released". Remember, it's against US policy to pay ransoms.

3. Here you go "Iranian press reports have quoted senior Iranian defense officials describing the cash as a ransom payment"

4. Congress and the Clinton administration agreed on legislation directing the U.S. Treasury to pay the American holders of terror judgments against Iran for the amount of their compensatory damages plus 10 percent of their punitive damages, up to the amount in the FMS fund. The law subrogated the United States—meaning that the terror judgments became direct U.S. government claims against Iran to the extent the Treasury had paid them. Finally, the law included a provision to ensure that Iran would ultimately have to bear the cost of those payments: “no funds shall be paid to Iran . . . from the [FMS] fund until such subrogated claims have been dealt with to the satisfaction of the United States

[NOVA Lawyer]

Armchair,

1. Not true. It wasn't kept secret until "well after" it was made. Just wrong.

2. The payment was negotiated in settlement of a debt and had been scheduled to be paid. Hostages were taken. The payment was delayed until after the hostages were released. So you want to go ahead with a scheduled payment while hostages are being held? What sense does that make?

3. Suddenly you are a fan of fifth-hand hearsay? And see #2. I am sure some do characterize it that way, but the timeline doesn't work out. The settlement was negotiated, the payment was scheduled, then the hostage situation, delay, then payment. Again, it makes no sense to follow through with business as usual while Iran has hostages. Putting a hold on previously scheduled payments is not the same thing as paying a ransom.

4. And, per the link I already provided, the determination was made that the surrogated claims had been dealt with to the satisfaction of the U.S.

[Armchair Lawyer]

1. Yes. It was.

2. Because it looks like you're ransoming the hostages. Which is a problem. Because then it just happens again. Iran grabs people, holds them hostage until the US pays up. The US pays, then they grab people again.

3. Try the senate investigatorial committee, and the senators there.

4. The Obama administration cannot be trusted in this regard without verification. They had a habit of disregarding the law and the best interests of the United States in order to "make a deal" with Iran. They further pushed to help Iran circumvent the global financial system in 2015. See the link below.

https://www.hsgac.senate.gov/imo/media/doc/2018-06-06%20PSI%20Majority%20Staff%20Report.pdf

[NOVA Lawyer]

Armchair,

You just don't make sense:

"Because it looks like you’re ransoming the hostages. Which is a problem."

We negotiated a settlement and agreed to pay. Iran knows this. Then the hostages. Our choices: 1. Pay before the hostages are released. 2. Say, hold up, we aren't paying until this hostage situation is resolved. 3. Never pay?

Option 1 doesn't solve the appearance that the hostages and money are linked. If anything, it makes it look worse. Option 2 is reasonable and what was done.

You must want option 3. But 3 isn't really viable as that just exposes us to even greater liability later. I suppose you could say, for appearances sake, we should delay the payment by months, but, again, that just exposes us to greater liability.

There was an investigation (not sure why you are referring me to the Senate, you are the one that wants a there to be there when no one has found any) and it turned up nothing wrong. GOP held the House, Senate, White House, DOJ, and Supreme Court within five months of this coming to light and held those entities for the next two years. But did nothing. Doesn't that tell you something? It should. (Benghazi! Also a tragedy but without wrongdoing, yet that resulted in hearing after hearing after hearing. It is simply not credible that the GOP would not investigate this and seek scalps if they thought they would find anything. They have obviously calculated that it plays better in the fever swamps with lots of innuendo than it would receiving an honest investigation out in public view.

[NOVA Lawyer]

Armchair,

You point to the Senate Intelligence Committee Report on a separate issue. Aren't you one of those saying that Ukraine eventually got their aid, so "no harm, no foul"? (which ignores that delay is harmful, notwithstanding the aid was eventually provided). Here, Iran never gained access to the U.S. financial system despite what you characterize as a "push[] to help". So, nothing happened, but you are still upset about it? Double standard much?

But if you aren't one of those, the cases are still distinguishable in that, in the Ukraine case the aid was delayed when there was no legitimate reason for it to be delayed (and literally nothing happened in the Iran situation that shouldn't have happened, nothing was delayed) and in the Iran case, the efforts were made in an effort to smooth the way for a nuclear deal rather than, say, to push for the announcement of an investigation into the corruption of Trump and his children. Big differences.

Try to at least pretend to apply consistent standards to "scandals."

[bernard11]

Unfortunately, except that they both involve money, the two acts are not remotely analogous.

Forget the "pallets to Iran" snark. It's Fox/Limbaugh level bullshit, no matter how many times you want to repeat it.

[Toranth]

Yup, CNN's pictures of pallets of cash is "Fox/Limbaugh level bullshit".

[NOVA Lawyer]

Toranth,

Cash was sent. That this was in any way a violation of law or was scandalous is the bullshit. It was a debt owed pursuant to the Iran-U.S. Claims Tribunal and failure to pay exposed the U.S. to significant litigation risk. Payment in cash rather than by wire was to ensure compliance with (not violation of) U.S. law.

[Armchair Lawyer]

Violation of law.

Section 560.204, US federal code. "The exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any goods, technology, or services to Iran or the Government of Iran is prohibited."

This law was broken. There's a reason Obama's own Justice Department strongly protested Obama's secret cash transaction.

[NOVA Lawyer]

Armchair,

There is a reason you are an armchair lawyer, not a real one.

31 CFR 560.204 is not part of the "US federal code" but is a federal regulation.

But, more to the point:

31 C.F.R. § 560.510(d)(2) authorizes “all transactions necessary to…payments pursuant to settlement agreements entered into by the United States Government in...a legal proceeding [involving Iran]." The payment was made pursuant to a settlement agreement entered into in a legal proceeding involving Iran.

And, also, 31 C.F.R. § 560.510(a) states that “specific licenses may be issued…to authorize transactions in connection with awards, decisions or orders of the Iran-United States Claim Tribunal in The Hague…; [or] agreements settling claims brought before tribunals…”

Which is another applicable exception form the 560.204 prohibition.

In other words, the regulations specifically provided that this sort of payment was exempt from the 560.204 general prohibition.

How about, just be Armchair, and drop the "lawyer" part. You aren't good at it.

[Toranth]

I have to agree with you. I think there needs to be at least a fig-leaf of a qualifier about the public-benefit on *both sides* of each transaction.

Political log-rolling and horse-trading are about official acts that (supposedly) have public benefits.

[bernard11]

I'm sure it was painful.

That makes me especially pleased to have you agree.

Another distinction that may mean something is that in the Blagojevich case someone was going to get those jobs. The question was who.

Ukraine was not necessarily going to investigate Biden and the mythical server, or get a WH meeting.

[Bob from Ohio]

A "meeting" is not an "official act" per the Supreme Court.

[NOVA Lawyer]

So you are saying that the U.S. President could condition White House meetings with foreign leaders on the foreign leaders paying $10 million into the President's personal account? Seriously?

[Toranth]

Oh, phew, you showing you didn't read the ruling and don't understand what you are talking about, plus being a general all-around dick again. Glad to see you back to normal.

The Blago ruling specified why it excluded the other charges, and it had nothing to do with your theory. Instead, as Blackman's article clearly explains, it was because the court differentiated between trading official actions and official action for purely private benefit.

Next time, if you read either the entire article or some of the references, you might be able to skip blowing your temporary illusion of sensibility quite so fast.

[bernard11]

My comment wasn't intended as a discussion of the ruling. It was just to mention, tentatively, a possible distinction between the two matters.

Di you forget how to read between my two comments?

[Toranth]

You were responding to the article, but are now claiming you were not discussing the article?

That's a bold strategy, Cotton. Let's see how it works out for you.

[Vaughn Bodie]

Thank you, Professor Blackman. Your essay was lucid and illuminating.

And it certainly colours Mick Mulvaney's retort of, "get over it," as common sense rather than some sort of admission of wrongdoing.

[Alpheus W Drinkwater]

Really? Then perhaps you can give us an example of another President of the US who impounded funds appropriated by Congress for a foreign country until that country agreed to announce an investigation of a political rival. Since common sense (and the comedy team of Tillman and Blackman) would dictate there is nothing wrong with such an action, surely it has happened many times in the past.

[Vaughn Bodie]

There are many aspects of this current fracas that make it one-of-a-kind. One would be the President's putative chief political rival being so seemingly compromised by his actions at a time when his son was entangled in another country's thoroughly corrupt oligarchy.

I'm sure you rattle off many examples of Presidents finding themselves similarly situated but I'm sorry I can't think of any.

[Alpheus W Drinkwater]

So in other words this or anything similar hasn't happened before, and Mulvaney and Bodie are simply wrong in asserting that it's just normal business and "common sense."

[Kazinski]

If Easterbrook's formula is rejected it would seem to ensnare Lyndon Johnson and Supreme Court Justice Tom Clark's deal, where Clark resigned from the Supreme Court so Johnson could get the political benefit of appointing Thurgood Marshall to the court in exchange for Johnson appointing Tom's son Ramsey as Attorney General.

If you ever wondered how the worst attorney general in American history got appointed, that was how it happened.

[bernard11]

Ok. So impeach LBJ.

[NOVA Lawyer]

The Johnson-Clark interactions would not become suspect if Easterbrook's formula was rejected. Johnson got no private benefit here. Clark took no official act to get his son the A.G. position. You are stretching "political benefit" to encompass anything that might be favorable. The appointment of Marshall had political costs as well as benefits for Johnson, obviously. Moreover, Johnson was doing all of the official acting in this situation.

It is still a little unsavory, no doubt, but hardly the same as (or even roughly analogous to) having a foreign government announce an investigation of your political opponent in exchange for faithfully executing U.S. law (namely, providing Congressionally authorized military assistance).

What Easterbrook's formulation seems to say, however, is that if Clark made a ruling that Johnson wanted in exchange for the appointment of his son as AG, that would be okay because it is just political log-rolling. That is insane. (Of course, Easterbrook and you would probably say that judicial acts are different. Maybe, but still, if you want to talk about Easterbrook's standard in the context of a "trade" with a Supreme Court Justice, then do so. Otherwise, don't pretend it has any relevance.)

[LawTalkingGuy]

This article seems to be missing an important point: at least a according to Sondland, the President and Giuliani apparently were most concerned with was a public announcement of an investigation into Burisma/Biden. Assuming an actual investigation is in the public interest, no matter the personal benefit to the President, what's the public interest in merely announcing it without actually caring whether or not it occurs?

[Brett Bellmore]

Getting a public announcement typically makes it harder to back out of actually delivering on what was announced. So I'm not sure how you get from "wanted a public announcement" to "without actually caring whether it occurs".

[LawTalkingGuy]

If there was a very public announcement that the Ukrainian government was investigating the Biden's for corruption and his polling numbers subsequently plummeted do you honestly think that Trump would actually care whether or not there was a real investigation? In fact might he not fear a real one on the chance it is exculpatory?

[Ben_]

Can you prove that Trump wouldn't care?

[Brett Bellmore]

This is literally begging the question, you're not concluding that Trump has guilty motives, you're assuming he has guilty motives.

[Sebastian Cremmington]

Giuliani knew Hunter Biden broke no laws in Ukraine or in America...other than smoking crack. 😉

[NToJ]

"Getting a public announcement typically makes it harder to back out of actually delivering on what was announced."

So what? It can be the case both (1) that the President wanted an announcement into Burisma/Biden but cared little for an actual investigation and (2) the announcement would make it harder (though certainly not impossible) for Ukraine to back out of some investigation.

[Armchair Lawyer]

This is one of those "dual use" activities. The statement of the investigation makes it harder for Ukraine to back out. It's a public commitment to anti-corruption. It may help Trump politically as well.

But that can be said about 90% of foreign affairs activities.

[NToJ]

Right, but the existence of an incidental public benefit is of no moment to whether the President cared more about the announcement (politically beneficial) than rooting out corruption (public interest).

[Armchair Lawyer]

This sort of guesswork on which motive between two closely related items (an announcement of an investigation vs an investigation) is more cared about doesn't really help anything.

To use an example, when a politician brings a large grant to his or her home district, do they really care about the jobs that the grant presents, or do they care more about the appearance that the grants is bringing in jobs (in order to get votes). The two are closely related, and "which one they care more about" doesn't help much.

[NToJ]

It is laughable that you expect anyone to believe that President Trump cares about the public interest of rooting out corruption in the Ukraine. Pork has nothing to do with this; it is a public benefit (at least to that constituency). There is no American public interest in the Ukraine announcing a fucking investigation of Burisma.

[Armchair Lawyer]

I would say fighting corruption in Ukraine is an American public interest, and announcing an investigation into Burisma is part of that.

Or is fighting corruption in Ukraine suddenly not in the American public interest? Yes or no?

[Sebastian Cremmington]

Except there was no predicate to begin an investigation. So Trump was trying to corrupt Zelenskyy which is obviously an impeachable offense.

[donojack]

He gets political benefit from exposing Biden's corruption, not from getting some announcement of an investigation. Nobody cares about that.

[Sarcastr0]

So were you born after 2016, or what?

[donojack]

Go find someone who isn't as addicted to this stuff as everyone here. Ask them what Burisma is, then ask them who Zelensky is. Don't even bother asking them who Zlochevsky is. Even post-w/b most people aren't paying attention to the details. Even the boffo news that I presented in the other post needs a ton of context to get most people's attention. Go further back and ask them to identify: Carter Page, Joseph Mifsud, Stefan Halper, or Andy McCabe. Most people know Strzok and Page by now, I'll give you that.

[NOVA Lawyer]

Your point actually strengthens Sarcastro's.

Most Americans don't know any of the people you mentioned, but Trump has effectively gotten "Biden" linked with "corruption" and, for the more astute, even "Ukraine" all linked together in many minds. That's all he needed. Headline on Fox: Biden being investigated for corruption. That works fine without anyone even hearing Burisma, much less Zlochevsky or Zelensky or any of the other pertinent names.

But you know this. You are just trolling, surely.

[donojack]

First of all Trump hasn't managed to do this. What caused Biden to get linked to corruption is the exposure of the mile wide conflict of interest, and that really only reached public consciousness post w/b. It looks so bad because it is so bad, not because Trump could have somehow engineered headlines from a mere announcement by some obscure foreign leader. You seem to be getting confused about events that might have transpired pre-w/b and those that actually did transpire post-w/b.

[NOVA Lawyer]

donojack,

Be serious. The Biden thing existed pre-whistleblower and wasn't well known. Trump's push to have an announcement of an investigation into Biden in exchange for already-appropriated military aid caused the whistleblower to blow which brought Trump's wish to light and that is what happened. Trump didn't mean for his plan to work the way it has worked out, but his request for an announcement of the investigation is the but-for cause of the issue being widely known by the American public. And, there remains no indication that the Hunter Biden's position on the Burisma board (or any acts related thereto) violates any American or Ukrainian law. And in terms of conflict of interest, it really isn't worse (actually far less bad) than Ivanka's trademarks from China, Jared's White House position and his foreign business dealings, etc., etc.

[Vaughn Bodie]

With a functioning news media, an investigation that exonerated Biden would also be a headline.

Given the media that the United States have is it your contention that the viewers of Fox News would exert some sort of material effect on the Democratic primary? Or that CNN, MSNBC, et al do not necessarily carry news beneficial to President Trump?

[NOVA Lawyer]

Vaughn Bodie,

As we learned (or should have) from the Hillary/Comey fiasco. Criminal investigations are generally not publicly announced because announcing you are investigating person X necessarily does damage to their reputation.

We also learned (or should have) that the results of criminal investigations are not really announced or discussed except for person X is charged, or person X will not be charged.

So it is not standard practice to announce an investigation into a person and then, if the evidence isn't there, to publicly exonerate that person. That just isn't how it works, in large part because the stink of criminal activity that gets on you from an announced investigation doesn't get washed off by later announcing the investigators didn't find sufficient evidence to charge a crime.

Fox News would push the story more, much as they pushed the Hillary thing, the Benghazi conspiracy theories, etc., and that does influence less informed persuadable voters in the general. Other networks wouldn't push the story, but merely reporting an official criminal investigation into alleged Biden corruption, well, that does a lot of work on its own (as pointed out above). Trump knows all this, which is why he pushed for a corrupt announcement of an investigation. That such politically motivated investigations are generally seen as corrupt and because announcing the initiation of a criminal investigation on U.S. TV has one clear, corrupt purpose, Ukraine resisted and never made the announcement and didn't open an investigation into either Biden or reopen the tangentially related investigation into Burisma because it had already been concluded (in a less politically toxic environment) that there was nothing further to find.

[Vaughn Bodie]

NOVA,

Thank you, that is very clear. What is less clear (to me at least) is how Fox News running this headline benefits the President?

The received wisdom is that the typical Fox viewer is not voting for a candidate in the Democratic primary anyway, and is no more likely to vote for Biden if he were to be nominated. Am I investing too much in the stereotype?

I tend to agree that in 2016, when many still could not believe Trump as President might be real life, the announcement of investigations into Clinton moved the needle in Trump's favour materially. Now, when attitudes towards him are more congealed, I just don't see what difference the Biden story on * Fox News * makes.

[NOVA Lawyer]

It is well known that many voters dislike Trump personally, but held their nose because they thought Hillary had worse policies and was corrupt. Biden is viewed as more moderate and doesn't have the same Whitewater/Benghazi/email baggage, but does appeal to white working class (i.e. Michigan, Pennsylvania, etc.) voters. Therefore, he is more dangerous. Some of those voters watch Fox, an even larger percentage have friends and family who watch Fox. Tainting Biden with the stink of corruption makes him more like Hillary and makes those voters who might have crossed over or who might have stayed home more likely to vote Trump. When the margins are as close as they were in 2016, it might make the difference in who is President. Fox News, unfortunately, is not a hermetically sealed environment, so their conspiracy-mongering does get out into the broader public and influence people who aren't guaranteed GOP voters.

[NOVA Lawyer]

Armchair,

Ukraine resisted announcing an investigation of the Bidens not to avoid a "public commitment to anti-corruption" but because they understood such politically motivated investigations are one of the most heinous forms of public corruption. The requested announcement would be tantamount to announcing they had abandoned the very platform Zelensky had run on.

[Sarcastr0]

Then why didn't Trump make a public announcement about the DoJ opening an investigation, Brett?

[Allutz]

Probably because he anticipated Dems and the media lighting their hair on fire if he did such a thing. Which I don't think anyone doubts would have happened.

[Leo Marvin]

Not only is "I did the bad thing because if I did the right thing my opponent would cry" unfalsifiable, it's evergreen. It works with everything. Which is another way of saying it's meaningless.

[Ben_]

He was planning it for tomorrow. Always a good answer to "why didn't something happen" questions.

But realistically, the answer is that the sequence of events you made into a story and told yourself in your head is different than the sequence of events that happened. Why? Because sometimes things work out the way they work out, rather than some other way.

[Sarcastr0]

Your sequence of facts is pretty idiosyncratic to the right. Though I do like that you're not being cagey and full-on embracing your BS version of things as though it were true.

[Leo Marvin]

So I’m not sure how you get from “wanted a public announcement” to “without actually caring whether it occurs”.

The "it" in your second clause is the announcement. Of course Trump and Rudy cared whether that occurred. What they showed no evidence of caring about was whether the announcement would or would not create some kind of pressure on Zelensky to conduct an investigation, and if so, whether he would do it. If they cared about that, they'd have expressed the same concern about it as they did about the announcement.

In other words, if you care about an investigation, expressing concern only for the announcement is a funny way to show it.

[Brett Bellmore]

No, I assure you the "it" in my second clause was the investigation, not the announcement. Tautologically, if you want something, you care about it, so it could not have been the announcement.

[Leo Marvin]

That was my point. But I did know what you meant, so it was petty of me to nitpick. Sorry.

[M L]

Announcing the investigation means they would be expected to actually do an investigation, as opposed to simply saying in private that you will do so which is no assurance.

[LawTalkingGuy]

Expected by whom?

[M L]

A public announcement makes an investigation much more likely to happen, because it would be expected by the public.

[Alpheus W Drinkwater]

Of all the TDS driven excuses and rationalizations for President Trump's actions, that one is by far the lamest.

[M L]

So Obama investigated Trump, and Trump at least passingly mentioned investigating Biden?

Seems like things are in balance, then.

[NOVA Lawyer]

Aside from a non sequitur (you ignored Alpheus's point), Obama didn't investigate Trump.

Also, the investigation that the FBI did begin during Obama's tenure resulted in numerous felony convictions. I haven't heard anyone suggest that either Biden is remotely suspected of having violated any law, but Trump wanted an announcement to tie the stink of corruption to people for whom there is no predicate to even open an actual investigation.

[donojack]

There is plenty of suggestion that Biden has violated laws, and there is plenty of predicate to open an investigation:

Shokin seizes assets of Zlochevsky 2/4/16
https://en.interfax.com.ua/news/general/322395.html

Shokin fired 3/29/16 after pressure from Biden.

[NOVA Lawyer]

donojack,

There is a predicate that Zlochevsky violated Ukrainian law. That fact in no way creates a predicate for investigating either Biden.

It is beyond dispute that Biden pushed for Shokin to be fired after the investigation into Burisma had been suspended and the push was supported (if not initiated) by the British, EU, and other European countries. And all this is because Shokin was known to be corrupt and was not investigating corruption aggressively enough. You are just making stuff up.

(And bonus, Trump praised Shokin and suggested this corrupt prosecutor was treated unfairly, but we are to believe Trump cares about corruption.)

[donojack]

NOVA Lawyer
Your pathetic attempt to separate Zlochevsky from Burisma won't fly. Z wanted protection for himself and he got it. The juxtaposition of the asset seizure and the push from Biden to have Shokin fired is a smoking gun. You see the influence peddling but your side is going to try to paper it over at all costs. (Even Sarcastro knows this is "boffo news." He at least is willing to admit it.) Your impeachment dream collapses with Biden's corruption being proven.

All your EU, IMF bullshit won't provide cover from this.

[NOVA Lawyer]

donojack,

I assume you are a troll.

Your facts are wrong, the timeline doesn't work for you. Shokin had closed the Burisma investigation and then he was fired for not pursuing and prosecuting corruption aggressively enough.

And I never attempted to separate Zlochevsky from Burisma. He was the head of Burisma,

the investigation focused on his and Burisma's dealings prior to Hunter Biden being on the board,

the investigation closed prior to Britain, the EU, the IMF, internal watchdog groups in Ukraine, and the US pressuring for Shokin's removal,

Biden's pressure had nothing to do with protecting Hunter and there is no indication that there was anything to protect Hunter from. The appearance of a conflict of interest was not illegal and nothing actually illegal has been ever been alleged except by right wing conspiracy theorists. But not the US DOJ or the Ukrainian authorities. If you haven't noticed, Trump's pet Bill Barr runs the DoJ, so if there was a there there, we can expected Barr's DOJ would pursue it.

[donojack]

NOVA Lawyer
Are you really this dumb? I said nothing about protecting Hunter. The protection that Zlochevsky was paying for was for himself, and he got it. In case you failed to read the article Z's assets were seized by Shokin in February, 2016. Biden got Shokin fired at the end of March, 2016. Whether you think Shokin had an open case against Burisma at that time is irrelevant. Z got his assets back and he was able to return to Ukraine after Shokin was fired.

Zlochevsky was paying for protection and the way he was paying was by giving Hunter $83,000 per month to do nothing. Hunter was a bag man. Joe was selling influence and Z got what he paid for.

You say my timeline is wrong. No. Less than two months after the guy has his assets seized the person who seized them is fired, and he is fired because Biden extorted the promise to fire him from Ukrainian officials by withholding 1B in aid. He has bragged about this publicly.

Now either you have trouble reading for comprehension or you are being willfully obtuse. This is not a difficult thing to understand, and I don't think the American people will find it difficult to understand either.

[NOVA Lawyer]

donojack,

The assets were reseized and additional assets were also seized because the unfreezing happened during transfer of the case to a different prosecuting entity.

https://www.washingtonpost.com/politics/2019/12/04/gop-tries-connect-dots-biden-ukraine-comes-up-short/

Importantly, the unfreezing occurred in December 2015, they were reseized in February 2016. Then, later in February 2015, Shokin was removed. Again, the timeline doesn't fit your conspiracy theory. The case that has you so concerned was already transferred out from Shokin's oversight (probably because he was known to be corrupt). Firing him therefore, was irrelevant to the Zlochevsky matter.

Again, the fact that Britain, the IMF, the World Bank, the EU, international and Ukrainian anti-corruption organizations, and the U.S. generally wanted Shokin out because of his corruption further undermines your wacky conspiracy theory.

[NOVA Lawyer]

It should read:

Importantly, the unfreezing occurred in December 2015, they were reseized in February 2016. Then, later in February 2016, Shokin was removed.

(the original "February 2015" was a typo, as I assume is clear, but never count on internet posters to read in good faith....)

[donojack]

Let's see if we can understand how this would have worked pre-whistleblower:
Trump convinces some guy who 99.9% of the American public has never heard of, from a country that probably 50% of the people have never heard of, and 80% couldn't find on a map, to announce an investigation. That's it? That wouldn't even make it to day two on Fox, much less even get a mention on any MSM outlet.

So Trump, who tends to have a sense of how to get media coverage, goes for a lead balloon like this? It doesn't seem likely.

[NToJ]

Do not reply to this person.

[Kazinski]

Now I just have to reply.

Trump doesn't have to worry that the news about Biden being investigated makes a big splash, he can make it splash by himself on Twitter.

[donojack]

Even Trump couldn't make that interesting. Just because you and most of the people commenting here find this fascinating doesn't mean that the public in general does. There has to be a real hook to get their attention and some nobody from nowhere announcing the start of an investigation ain't it.

[Brett Bellmore]

He doesn't need the announcement to make a splash. If he's assuming Biden is guilty, (Which, given public information, is a reasonable assumption.) he would be anticipating the result of the investigation making a splash.

[NOVA Lawyer]

Brett,

As far as we know, there is still no investigation of either Biden because there is no predicate for any investigation. What law did either Hunter or Joe violate, based on the "public information" you tout?

And none of you understand Fox News if you do not think Zelensky's announcement of an investigation into Hunter Biden made on CNN would not be on their crawler 24/7 for about a week or six. (why CNN and not Ukrainian media if the point is to tie Zelensky to the commitment?)

[NOVA Lawyer]

*double negative mistake.....My point: You are not paying attention unless you realize the Fox News crawler would have "Biden Being Investigated" 24/7 for weeks after an official announcement by Zelensky. And that's what Trump knows: No one has to know Zelensky, Ukraine, Burisma, or anything else in order for "Biden investigated for corruption" to serve its purpose.

Of course, the corruption is in trying to pressure a foreign government to pursue a baseless investigation.

[donojack]

Before the whistleblower there were a number of articles about the conflict of interest wrt Ukraine and China. For the most part it was ignored by the public. You guys seem to have a very childish view of the power of Fox News. Bringing impeachment into the spotlight is what has exposed Biden's corruption to the public.

[NOVA Lawyer]

donojack,

It is true that the whistleblower complaint and resulting impeachment investigation amplified the story. But what predated the whistleblower is Trump's demand for the announcement of an investigation. You assume that the non-story of a typical "politician's son has cushy job" would not become more of a story if Trump had succeeded in getting a public announcement on CNN that Biden was under criminal investigation. The two things have different legs and, even if you don't understand this, Trump did. It isn't the power of Fox News, it is the bigger impact of a criminal investigation as compared to "there's this kind of ugly thing where a politician's kid has a good job but no laws are being broken, it's just how things are done". And any criminal investigation would have been a sham, as Zelensky's resistance to the idea suggests and the lack of any U.S. or Ukrainian investigation prior to or after this fiasco demonstrates.

[donojack]

Sarcastro is still pushing the "just like the Kardashians" line so no it wouldn't have had legs without the impeachment spotlight. Without it an announcement from some nobody from nowhere might make one day on Fox, no days anywhere else. Just bad luck for Biden that the Dems had to pivot from the Russian hoax to this.

[Sarcastr0]

What in the heck line are you talking about?

[donojack]

Sarcastro,

The line that Hunter is just some spoiled rich kid getting favors because of his name, and not the bag man for an influence peddling scheme.

I am going to object on another ground, and that is that it is insulting to Kim Kardashian to compare her to Hunter Biden. She has about fifty times more substance than he ever will.

[donojack]

I can understand why you would be hesitant to reply, given the sad history of you being subjected to humiliation after humiliation. BTW when are you going to fess up to being a conspiracy fool regarding the phone call? Sarcastro to his credit has but none of the rest of you have said a word.

[NToJ]

What the fuck are you talking about?

[donojack]

Why did you say "Do not reply to this person?" We have had many discussions over the years, mostly civil. I don't understand why you would say something like that. That sort of statement is usually reserved for Hihn or Kirkland.

[Leo Marvin]

Humiliation after humiliation? I've read I'm guessing hundreds(?) of NToJ's comments, and while I've often disagreed with him, I've never seen him make a less than well-reasoned argument. What have I missed?

[donojack]

I was mainly jabbing at him, as I have the rest of your crew, about being such a conspiracy junky for being so convinced that the memorandum of the phone call was incomplete and probably fake in many parts. I was also pissed at him for saying "Do not reply to this person," especially due to the fact that we have had many spirited but civil discussions over the years.

[Longtobefree]

Interesting article, but it overlooks the key piece of information; it's Trump.

[Sarcastr0]

This Trump victimization wankery is just going from unsupported to full-on ritualistic levels of symbolism-cum-meaninglesness.

'This legal analysis is airtight (on accounta it's good for Trump), and the only reason someone could disagree is uncontrollable hatred of Trump.'

Meh.

[juris imprudent]

full-on ritualistic levels of symbolism-cum-meaninglesness.

Yes, I too hate to see the right adopting the tactics of the left.

[Sarcastr0]

I see you go in for a slightly different, but no less reflexive and empty, ritual.

Provide evidence next time, beyond your own feeling of victimization.

[Colossal Douchebag]

You are boring, and an asshole.

[Leo Marvin]

While you, Mr. "Colossal Douchebag," are... oh never mind.

[Sarcastr0]

😀

[JHR]

This article seems to conflate several distinct types of situations under the "mixed motive" label.

First, there's the situation where I offer an official act in exchange for something that I think will directly benefit the country, but I also think it will be politically popular and therefore beneficial to me. That's obviously normal politics.

Second, there's the situation where I offer an official act in exchange for something that I think will directly benefit the country, but which may have unrelated political benefits to me. It might be argued that Trump falls in this category, but that seems embarrassingly naive. (Did Trump personally get involved in pressuring any other nations to investigate corruption?)

Third, there's a situation where I offer an official act in exchange for something with pretextual benefit to the country, but which was primarily or entirely motivated by an unrelated political benefit. That seems to be where Trump is, and I think it's more than enough to convict.

Finally, there's a situation where I offer an official act in exchange for something that has zero direct benefit to the country, but which may help me politically, and I rationalize this exchange by saying that I believe keeping myself in power is good for the country. How anyone can possibly defend this kind of behavior, or even lump it in with the first category, is utterly beyond me. This is basically a description of a totalitarian dictatorship.

[Bob from Ohio]

"This is basically a description of a totalitarian dictatorship."

No its not.

A totalitarian dictatorship has no voting, no independent court system, no legislature, no free press, no civil or political rights, a secret police, prisons for political opponents.

Trading something for a personal favor is not totalitarian.

[Sarcastr0]

A leader that believes the best thing for the country is himself maintaining power...guess what his position is on voting, and co-equal branches, and dissent.

[3ducerist]

You mean like the 'we know better than you so shut up you ignorant welps and do what we say' parties we have now?

[Bob from Ohio]

"A leader that believes the best thing for the country is himself maintaining power"

C'mon, that applies to every leader. They all think losing will be a disaster for the nation.

The leader of a totalitarian state doesn't just have "beliefs", he acts on them by repressive measures.

Trump broke your brain.

[NToJ]

I don't think there's any serious disagreement that the President did in fact act on his beliefs in this instance. The aid to Ukraine was held up.

[Robert Beckman]

That’s just begging the question though.

Trump held up the aid to Ukraine I think is an easy conclusion, and if you’re not sure he did it but you believe in a unitary executive then he’s responsible for it nonetheless. But aid to many other countries was held up at the same time, so the question isn’t “was aid delayed?” It’s “why was aid delayed, and was that reason appropriate?”

For example, if Trump was concerned about the $15 billion in aid that was diverted and never tracked down during the Obama administration, and that it was being used against the interests of the nation, would he (a known incompetent) have acted any differently?

Not would a competent executor (like Hillary) have acted differently, but would Trump, given what we know about how he operates, have acted differently? Not even “could he, or should he, have acted differently,” but would have definitely done so.

What if he was looking for a way to leverage the aid to get more out of neighboring countries, as he did with NATO in getting greater European compliance with the treaty than seen in decades? Wouldn’t that look quite a bit like what we know (not just speculate or conclude) happened?

The same applies the other way too - if he was trying to bribe Ukraine for purely nefarious reasons, would it really look any different than this?

[NToJ]

There is not any serious disagreement that the President withheld the aid to secure (at a minimum) an announcement from Ukraine that it would investigate Burisma/Hunter Biden. The withholding, and the request for the investigation, are both undisputed.

[Vaughn Bodie]

The withholding is not disputed, and the request for the favour is not disputed. Some reasonably dispute that the two are linked.

It may be that the President asked for the favour while aid was withheld, and not that aid was withheld in order to secure the favor.

As I understand the testimony from from OMB staffer Mark Sandy, the aid was withheld because the the White House wanted data on which European countries - and how much they - were contributing to Kyiv.

Like it or not, that the aid was released after the OMB provided the requested report supports Trump's position and undermines the position of those that insist the aid was tied to the never-announced and never-conducted investigation of the Bidens.

[NOVA Lawyer]

"It may be that the President asked for the favour while aid was withheld, and not that aid was withheld in order to secure the favor."

No witness has testified to that, but they have testified to the opposite. And Trump himself, on the phone call strongly indicates a link. And the aid was released once the whistleblower complaint came out. And Sandy testified that the fig leaf explanation you mention didn't come until after the whistleblower complaint surfaced. I don't think "reasonable" is an accurate description of ignoring all of this evidence to conclude that the delay was unrelated to Trump's demand.

[Vaughn Bodie]

Every witness has testified that he or she * supposed * or * presumed * a link between the request and the withheld aid.

If one side has a narrative to push and only that same side controls which witnesses are led out, then I find this outcome much less persuasive than otherwise and not at all surprising.

[NOVA Lawyer]

Vaughn,

"If one side has a narrative to push and only that same side controls which witnesses are led out, then...."

And it is the Trump administration that controls which witnesses are "led out." So why can't we hear from the witnesses with direct knowledge, as the Trump defenders keep claiming they want? You know the answer as well as I do.

[Vaughn Bodie]

Well, this is one of those "principle, cause, condition, occasion," questions isn't it?

You're right in that there are unsubpoenaed witnesses on both sides so to speak. The Trump administration may have conditioned things unhelpfully to the Democrats, but the witnesses have remained off-stage because the Democrats running the impeachment investigation have not subpoenaed them and gone to court.

At least that is the story for officers and documents the Democrats suspect might be helpful to their case. With regard to the Republicans' proposed witnesses the Democrats have simply refused to issue subpoenas - White House interference is not a factor.

It is therefore the House Democrats running the investigation that are controlling the witnesses. So I don't know why we can't hear from the witnesses with direct knowledge. But repeatedly during Trump's first term Democrats have pitched fits over his supposedly norm-breaking behaviours, only to later be reminded embarrassingly that Trump is taking, or continuing, actions that Obama supporters supported.

[Kazinski]

"(Did Trump personally get involved in pressuring any other nations to investigate corruption?)"

You might also ask if Biden got personally involved in getting any other prosecutors fired in nation's where his son did have any business interests. And in think there is a very apparent benefit to the country in investigating potential corruption and nepotism like that.

[Ben_]

The short answer is: why would a non-obsessed person care in any of these situations? Seriously. Why should anyone care?

[Brett Bellmore]

"Third, there’s a situation where I offer an official act in exchange for something with pretextual benefit to the country, but which was primarily or entirely motivated by an unrelated political benefit. That seems to be where Trump is, and I think it’s more than enough to convict."

Then you could convict a lot of Presidents, this sort of thing is deplorably common. You really think anybody in politics is genuinely unaware that raising minimum wages increases unemployment, for instance? But they're glad to profit politically from the stupidity of people who think it will.

[jjrzw72]

I think lots of politicians are "genuinely unaware that raising minimum wages increases unemployment," since the available evidence suggests that modest increases in the minimum wage have no effect on employment.

[NToJ]

"Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant."

No, in that exact situation the mixed motives were relevant, because Blagojevich was convicted of trying to receive money. The "mixed motives" are personal and public benefit.

And the example has nothing to do with the current impeachment. Blagojevich was impeached before his convictions. It demonstrates, if anything, that impeachment is a political issue.

"The secretness of the benefit is evidence of corrupt intent."

Right lol? Y'all need to think this one through.

Anyway, why would receiving a bag of cash be a problem necessarily? If the official spends the money on their reelection campaign, they're right back into your "personal reelection" exception.

The argument sounds half-baked.

[Robert Beckman]

Your retort doesn’t mean what you think it means.

“ “The secretness of the benefit is evidence of corrupt intent.”
Right lol? Y’all need to think this one through.”

Since the “benefit” was a PUBLIC announcement under your proposed logic that’s evidence of no corruption in this case.

[NToJ]

The benefit is that the President wins an election without anyone knowing that he secured the announcement. The ask was not meant to be public.

[Cthulunotmyfriend]

Great article. We are all hypocrites when it comes to those we support vs those we despise. I dislike Trump. He is an asshat. I even think, if the Hoise of Reps wants to impeach him, of course they can, that’s the whole point of the constitution and the separation of powers thang, and we know the Senate isn’t going to convict, so why are al of you complaining, unless Pelosi has a “Trump” up her sleeve that we don’t know about yet. And if she does have more ammo, then Trump deserves the hammer for being so stupid. Do any of you remember Reagan and the Iranian hostages? Come on, that was obviously all preplanned and there was a quid pro quo, but most people liked him and the job he did so it was Ok, and then when they found out about the continued arms trading, they burned a couple people, while Reagan said quite believably that he couldn’t remember. Name a president that served in the past 100 years that didn’t do something questionable, because I can name something for all of them (though I am not sure about Carter but I bet one of you can explain the real reason he let the Shah flee to America, a blunder that poisons our relationship with Iran to this day), including ripping on Ford for pardoning Nixon ( which I actually thought was a good idea). I don’t know what shady stuff Eisenhower was up to, if anything, but you really need to go back a long way if you want to find somebody squeaky clean. How about Herbert Hoover? No wait, I think he was shady too.

[NToJ]

There is a broad range of "something questionable". A President asking a foreign power to announce an investigation into a political opponent to help the sitting President win an election, is nothing like a President defying Congress to fund Contras to defeat socialists in central America. Michael Dukakis was not a Sandinista.

[Bob from Ohio]

"Michael Dukakis was not a Sandinista."

No, he was not.

Sanders and DeBasio on the other hand.

[Armchair Lawyer]

And if a President asks a foreign power to go easy on him for a couple of months, so after the election he can help them get what he wants? Is that questionable?

[NToJ]

I don't think it is questionable at all to tell a foreign representative that the middle of an election year (for both of them) is not the best time to accomplish meaningful compromise on foreign relations. But you see what you want to see, man. I don't think House Speaker Boehner was asleep at the wheel when he failed to do whatever you think he was supposed to do about it.

[Armchair Lawyer]

See, if that was the case, the Obama could've just cancelled the talks. But that's not what happened.

Russia gave Obama "space" at the same time Obama was criticizing Romney for saying Russia was "enemy number one". That's a nice political advantage there.

Then Obama returned the favor once he was re-elected, reducing missile defense in Eastern Europe.

If we're talking about threats to national security...that matters a lot more than a couple months delay in lethal military aid. Especially since, oddly enough, Obama never gave lethal military aid to Ukraine. Perhaps more of that "flexibility" Obama promised Putin.

[donojack]

And before the election he promised that he wouldn't reduce them. So the "flexibility" was that he could tell a lie to help get elected and then later do what he had intended to do all along.

[NToJ]

Everything you're attempting to describe nefariously is what the rest of us call negotiations. The thing you keep hanging your hat on is "space" must mean "go easy on him".

[Stephen Lathrop]

Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant. Such acts are presumptively lawful, and should not be investigated, let alone be considered for indictment or impeachment.

With regard to impeachment, Easterbrook is, of course, completely wrong. That judgment is not for Easterbrook to make, until he gets elected to the House of Representatives. And when the House makes that judgment, nobody else, including the courts, gets a say. That is what, "sole power," means.

[Michael Ejercito]

So when the Senate summarily dismusses the impeachment...

[3ducerist]

The Senate doesn't dismiss the impeachment. They decline conviction. He's still impeached, just not removed. But yes, the Senate has the sole power to do so and it's not reviewable.

[NToJ]

In fairness to Easterbrook, he didn't say that.

[Dilan Esper]

I don't normally agree with Stephen on issues of constitutional interpretation, but he has this one exactly right.

Everyone needs to step away from the legal scholarship when it comes to impeachment. An impeachable offense is anything the House wishes it to be. Something can be lawful and impeachable; something can also be a terrible violation of law and not impeachable; something can also be impeachable if one President does it and not if another President does it. It's entirely up to the House majority.

I personally think this issue brings out the worst in my profession. We lawyers think we have the answers to all human disputes, and we can't stand that this super-important one is left in the hands of, ew, politicians, who get to completely ignore us no matter what we say. So we screech "please, please, listen to us".

[Alpheus W Drinkwater]

I don't know that an impeachable offense is "anything the House wishes it to be." The constitution does have some qualifying language in there, and that language must mean something. I understand your argument from a practical point of view, but that Gerald Ford interpretation always makes me uncomfortable.

[Kazinski]

"Everyone needs to step away from the legal scholarship when it comes to impeachment. An impeachable offense is anything the House wishes it to be."

The courts have to defer to the House, but the voters don't have to, they can make their own judgement. And of course that's why the House is trying so hard to find a rational that resonates. An effort that has largely failed, since obviously no one has changed their minds about Trump. His approval rating has held steady and his RCP approval average is exactly the same as Obama's was 8 years ago this week.

Where the House really blew it was ginning up impeachment efforts repeatedly. If they would have had the message discipline to not say a word about impeachment until they actually had something, then maybe they could have gotten people to take a look.

[mse326]

Under this theory, however, a misuse of the pardon power couldn't be impeachable. Even a "legal" use of Presidential power can be done in a way that that would be maladministration.

It also doesn't take into account the relationship between President and Congress that is a big part of this. Congress appropriated the funds to be used as aid and it is Congress that has the power of the purse. The President needs to use the funds for what they were appropriated for, he can't just decided no to do it. Obviously congress can give some discretion to the executive that they can withhold if certain things by the recipient aren't done, but the President is confined to those constraints. I'm more concerned about the misuse of funds. The severity of which is often determined on both the amount of funds, what they were meant to be used for and the purpose for which it was misused. All the talk about a quid pro quo or bribery is really just a red herring the the Democrats want because it is easier for their base to understand as we have a notion of what bribery is and the Republicans want because then they can keep hammering about not being able to prove. If the Democrats had any faith in citizens knowing basic civics, quid pro quo wouldn't have ever been the narrative. But they rightly know we as a nation have horrible civics education and knowledge, so here we are.

[Allutz]

A misuse of pardon power wouldn't be bribery.

The House surely could impeach someone for misusing the pardon power. If we had some crazy guy pardoning all the pedophiles and terrorists in federal prison, they surely could impeach for that.

[mse326]

I know but if we are talking about this in terms of impeachment and not a federal offense, then misusing a power is impeachable whether done in it's own right or for something particularly of private gain. And doing it for something makes it more likely to be considered a misuse.

So again the talk of bribery is a red herring and missing the point.

[Bored Lawyer]

"A misuse of pardon power wouldn’t be bribery."

Don't understand what you are saying. If a president or governor agreed to take a suitcase full of cash in exchange for a pardon, why is that not bribery?

[Armchair Lawyer]

This is a solid article, and a big part of the reason Pelosi's statement about the president not having a meeting with someone as a quid pro quo impeachment worthy offense went way way overboard. If not having a meeting with someone because they didn't help you out when you asked is "impeachable," you've just thrown out 90% of politics.

We can play this game all day. One of our favorite examples is the Obama hot-mike moment with the Russian President where Obama asked for "Space" now in return for "flexibility" later, after the election.

We can ask a series of questions.
1. Did Obama receive something of value with his "space" from Russia?
2. Did that potentially help him politically in the election?
3. Did Obama give Russia what they asked for, in terms of "flexibility" later?
4. Does this represent an impeachable offense, the trading of political favors from Russia in exchange for removing missile defense?

There are serious questions here. But, if Trump cancelling a meeting because the Ukrainian President wouldn't announce an anti-corruption investigation is impeachable, surely Obama removing missile defenses from Eastern Europe in exchange for Russian political assistance in laying off Obama prior to the 2012 election is impeachable.

[NToJ]

These are not serious questions and you are not a serious person.

[Toranth]

An excellent argument! Unfortunately, my browser seems to have failed to render it, instead displaying just a childish insult. I can't imagine how that would have happened...

Perhaps you could post your argument again, since you are so convinced of it?

[Armchair Lawyer]

I see. By "not serious questions," you mean "inconvenient questions that you would rather not answer"

Let's answer them for you.

1. Yes, Obama received something of value
2. Yes, it was of political value and helped Obama in the election
3. Having been elected, Obama helped out Russia later, whereas presumably Romney would not have (given Romney's public statements).
4. Further investigation would realistically be needed to know the exact details. On the surface is looks sketchy, but likely within the President's authority to negotiate with international partners. If the "space" Russia offered was something more substantial than just not criticizing Obama and making life hard for him on the diplomatic front, well...

[Formerly Known as Stash]

I've always thought the emphasis on the investigation of the Bidens was misplaced, that it should have been much more concerned with the crazy Crowdstrike theory pushed in the call, since there was no such "server" and the theory is a Russian disinformation campaign positing no Russian interference in the election. I think it not coincidental that the article in Lawfare mentions this "investigation" not at all, inasmuch as it concedes:
"Of course, our analysis presupposes that the president was calling for a lawful investigation. The situation would be entirely different if the president called for an unlawful investigation..."
We know that Trump was warned by his own officials that this was a load of B.S., that it is likely he, and indubitably members of his staff, have been briefed by our intelligence services that Russia was the source, that he could have ordered a review of the FBI investigation of the hack in detail "to get to the bottom" of why Russia, instead of Ukraine was blamed, etc.. So he intentionally required the announcement of a fraudulent investigation to benefit him politically, while knowingly furthering the goals of a foreign adversary. While I have seen in these pages the argument that Trump conceivably genuinely believed that the Crowdstrike theory was true, generally fraud includes not just conscious lies, but also"reckless disregard for the truth or falsity of a statement" and "intentional ignorance." Trump has been selling the notion that "deep state" actors should be jailed for opening the Russia investigation without an adequate predicate, which suggests he consciously knows it is wrong and corrupt to elicit wrongful, politically motivated investigations.

[M L]

I don't know much about the "Crowdstrike theory" but as far as I know, there isn't any public hard evidence pinning the DNC hacks on specific Russian state actors. There is Mueller's Report which on Page 41 says that it "appears" that this is what happened. This low level of certainty that Mueller expressed (much lower than the high degree of certainty of the WMDs for example) seems like it may have been quite appropriate, given that the only hard evidence that is public seems to be some kind of Russian keyboard signature which a sophisticated hacker wouldn't leave behind unintentionally. But there is also some indictment. Is anything to come of it? All in all, it seems to me that nobody really has good reason to say that they know with certainty who hacked the DNC. And that's unlikely to change.

[Formerly Known as Stash]

The "appears" is not the qualification you pretend. Page 40 states straight out that the theft occurred and names specific files taken. Yes the footnotes are redacted for investigative technique. But what is public is that every intelligence agency concurs. What is obvious is that the first place to start would be to review the classified technical evidence--something Ukraine has no access to but Trump does. In any event, Crowdstrike is just silly because it posits the existence of a single DNC server smuggled to Ukraine to prevent investigation, but the DNC used cloud servers. We don't know whether it was the Russians the same way we don't really that 9/11 was not a US government conspiracy or whether OJ did it. Maybe Trump should listen to OJ and demand that Ukraine should search for the real killer who, people are telling me, could be hiding out there.

[Toranth]

every intelligence agency concurs

When people say things like this, they are revealing they don't actually understand the words coming out of their brain.
Do you think the DEA preformed an analysis of the DNC hack? Do you think the Coast Guard did? How about the DoE's ICI - an agency that focuses on nukes? Oh, also the Custom's team - do you think they went in-depth in researching the issue?

[NToJ]

I mean, most of us don't consider the Coast Guard an "intelligence agency" but shoot your shot, player. Per the Senate's Select Committee on Intelligence on Russian Active Measures Campaigns and Interference in the 2016 US Election, chaired by noted Never Trumper Richard Burr, the agencies involved were: FBI, DHS, CIA, DIA, State, NIC, NSA, and Treasury.

[Formerly Known as Stash]

Just wow. FBI, CIA, NSA and DHS, plenty good for me. Who and what you got contra? I get that in the absence of any evidence for a point, one can only attack the sources of information that wishful thinking wants to be wrong--but when reduced to peripheral objections like this one, the argument goes from weak to pathetic, and likely pathological.

[SimonP]

So which administrative or judicial position are you angling for, Josh? Academia no longer working out for you?

It really doesn't bode well when the excerpt you chose to share is, on the face of it, so speciously silly. Easterbrook was interpreting the scope of a criminal corruption statute, not articulating the relevant standard for impeachment, so his statements in that context have little relevance for the point you're making. And there is no reason to hold that impeachment can only be for otherwise "criminal" offenses.

And then you hang your hat on the "secretness of the benefit," completely skating by the extent to which Trump's plot was secret. Indeed, the whole point of conducting the Zelensky plot through Giuliani and Sondland was to pursue a private benefit while ostensibly pursuing a public policy. You'd prefer to ignore the whole record of evidence pointing to how Trump and his cronies knew exactly how corruptly they were acting and bless the whole endeavor because, at the end of the day, Trump was just "trading" military aid for a damaging public statement that Zelensky was pursuing "investigations."

[Ben_]

The I have no substantive argument response has been posted.

[SimonP]

The I read no further than the first sentence of your comment response has been received.

[Leo Marvin]

I see no reason to assume he wants to leave academia. I suspect he's just burnishing his credentials to take over the Jim Lindgren Blogging Chair in Quadrennial Tortured Partisanship. Jim did recently pop his head up to defend Steve Calabresi's embarrassing piece in the Daily Caller, but I'm skeptical he has the stomach to reprise anything like his wacky Obama conspiracy theorizing of 12 years ago. The mental and moral gymnastics required to carry Trump's water is a young man's game.

[SimonP]

Josh's record makes plain that he is extremely ambitious and will embrace whatever destructive, specious arguments as may prove necessary to ingratiate himself to Trump apologists. Meanwhile, he's sloshing about in a fourth-tier cesspool of a law school, barely worthy of being called "academia" at all. I have to expect that he'll take a judgeship or administrative position at the first opportunity, to get out of there.

[Kazinski]

If it doesn't really matter of Trump's acts were criminal then why is the House working so hard to sell the 'bribery' charge?

If it wasn't criminal then it's just political. And if it's just political then elections are the proper venue to settle political beefs.

[Sarcastr0]

Weird impeachment exists then when elections will take care of it.

[SimonP]

This isn't even the argument Josh is making.

Anyway, if the constitutional standard requires "criminality," this creates a series of absurdities, including (as here) permitting a president to be impeached for perjury but not for manifest abuse of power, or precluding a president from being impeached because he won't sign legislation criminalizing his conduct. The Founders can't have intended for the president to be able to abuse the power of his office to ensure his own re-election, if Congress should have failed to foresee that possibility and passed legislation criminalizing it.

[Voize of Reazon]

I took another look at Judge Easterbrook's opinion in US v. Blagojevich because Prof. Blackman's summary seemed puzzling:

If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

In fact, the opinion doesn't contain the word "secret" anywhere in the text. I think when the judge writes about private versus public benefits the distinction is better understood as between benefits accruing to the person versus the public rather than anything to do with secrecy. Consider these examples

A political logroll, by contrast, is the swap of one official act for another. Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D's promise to vote to confirm E as a member of the National Labor Relations Board. Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.

where the bargainers can make the case that the primary beneficiary they are negotiating for is their constituents.

[bernard11]

What is this objection, so often repeated? A quid pro quo is a requirement of bribery, is it not? So just using a term better understood by the public is worthy of criticism?

I would think being clear about the accusation was worthwhile.

Of course I do understand that Republicans would never ever adjust the terminology they use to gain public traction for an idea.

[Krayt]

Nor would Democrats twist bribery from being bad because our official is bribed to our official doing the bribing (which may be bad but not the issue. In this case it would be bad because it temporarily thwarts government congressional policy, not because it's bribing a foreign official.)

[Brett Bellmore]

The objection to "quid pro quo" on my part, is that it literally means exchanging one thing in return for another; You engage in a quid pro quo any time you pay the cashier at a store.

It may be an element of many crimes, but it is not itself a crime.

[Liberty Lover]

Bribery connotes a personal economic gain. There was no personal economic gain, only political. The articles mentions this in respect to President Lincolns re-election.

[bernard11]

It's not bribing a foreign official. It's soliciting a bribe.

[bernard11]

You mean people hate Trump because he is a white Republican?

I don't think so. I think the Trump hatred, which is certainly real, is based on his conduct and character and personality. Not all of it has to do with his behavior in office, but a lot does.

It's no secret that I despise the guy. Is that stronger because he's President? Well, yes, for two reasons:

First, I know much more about him and his history and personality than I would have if he had never run.

Second, his actions and behavior, IMO, are extremely harmful to the country. This is not just stuff any GOP president would push, like tax cuts or appointing right-wing judges. It includes lots of things that say, Romney or Jeb Bush, wouldn't have done.

[Sarcastr0]

Quit your whattaboutism to defend your contentless caterwauling.
It was also dumb when people said everything that went against Obama was racism.

But birtherism sure was.

[Rufus The Monocled]

And yet. Yet no nuclear or financial catastrophe has struck the nation. In fact, there have been some notable accomplishments. For example, tax and prison reform as well as an economy that's humming along nicely.

And his non-interventionist instinct in foreign policy is also a good thing.

Fact is, they wanted to 'lynch' that guy from day one before he did anything. So much so, they essentially orchestrated a soft coup to oust him.

Personally, I find their hysterical behaviour and reaction from the side that lost to be far more detrimental and foul.

[Kazinski]

Yet according to the press and activists Romney was a Nazi too. A homophobic bully, cancering people to death, ready to introduce the handmaid's tale for real.

So if a fundamentally decent guy like Romney is no different than Trump, then I guess Trump's ok too.

[NToJ]

"Personally, I find their hysterical behaviour and reaction from the side that lost to be far more detrimental and foul."

Yes, but since the bar you've set is "nuclear or financial catastrophe" what is it you find so detrimental and foul, exactly? The losers haven't killed us, after all. Personally, what I find most detrimental and foul is your professed feelings of detriment and foulness over the behavior of the side that lost.

[bernard11]

I wouldn't call his tax cut "reform," exactly.

And non-interventionism is one thing, pulling the rug out from under our allies and damaging our alliances is something else.

[NOVA Lawyer]

Umm,

If you don't think running trillion dollar deficits during the "Best Economy Ever" (TM) is a financial catastrophe or, more to the point, will make the next financial catastrophe much, much worse than it otherwise would have been, you don't know much about economics.

Trump has increased spending, cut taxes, and publicly pressured the Fed to lower rates during the "Best Economy Ever" (TM), what tools are left in the toolbox to soften the next downturn? And you understand that, no matter who is in office, there will be a downturn?

[Leo Marvin]

OK, but it's not like Trump had anything to do with birtherism.
Wait wut?

[Robert Beckman]

Yeah, sure good thing that you advocated against the public originator of birtherism.

A sucker might fall for it, but whoever originated it must have been because of racism, right? Good thing she’s in retirement now and writing books with her daughter.

[Kazinski]

Birtherism was pretty stupid, but at least part of it was Obama's fault. He was certainly ready to claim he was born in Kenya when he thought it would sell books. The earliest claim that Obama was born in Kenya came in a brochure from Obama's publicist.

[bernard11]

I think some of the opposition to Obama was certainly because of his race. How much is debatable, but you can't deny it was a fair amount.

Do you recall some of the caricatures and other things that were passed around? Even here we have at least one commenter who likes to refer to "Oboingo" or something.

Look, there are racists in the country. And a racist is going to hate the idea of a black President. For them race is, as they say, dispositive.

[Armchair Lawyer]

"You can't deny it was a fair amount"

I can and do deny that. The type of racism you're thinking of is a very minor small percentage. I would say Obama benefited from his particular skin color in the 2008 election far more than any damage that may have occurred.

[Krayt]

Not helping the point, which is stretching the meaning out of whack.

[Rev. Arthur L. Kirkland]

The party of birthers, and of the caliber of people who believe Pres. Trump is a better president than was Abraham Lincoln, is invoking its “color-blind” card and declaring racism to have been vanquished?

If only there were more culture wars so you guys could get smacked around by your betters in those ones, too.

[Armchair Lawyer]

The reverend is a bigger bigot and racist than almost any other commenter here. (RWH may be the exception).

[bernard11]

Not sure what your point is.

[bernard11]

More BS.

It was a publicist's error that was corrected.

[Kazinski]

Better tell Snopes that. While they contacted the publicist years later, and the publicist said was an error, it wasn't ever "corrected", by which I assume you mean an updated brochure was issued, or a press release, or anything?

[Brett Bellmore]

Why not? Trivially, all "reform" means is "change". It's just a loaded word people use to describe changes they approve of. So, sure, YOU wouldn't call it "reform", because you don't like the connotation, but the denotation is exactly right.

Personally, any time somebody says "reform" I mentally substitute "change", I find it clarifying. I suggest you do the same.

[donojack]

He's damaging our alliances by getting our allies to at least pretend to be live up to their obligations? I'm sure they feel "damaged" by having to pay and do more but that doesn't exactly equate to "damaging our alliances."

[Leo Marvin]

"Bribery connotes a personal economic gain."

No, it connotes offering or soliciting a thing of value. That value may be expressible in economic terms, but not necessarily. You wouldn't deny, for example, that offering to have sex with a public official in exchange for his promise to vote in favor of, say, impeaching the President, would be bribery.

[Leo Marvin]

I find it more informative to call Trump's tax cuts a deficit-funded late-cycle-stimulus and upward redistribution of wealth. But I wouldn't dispute that's a tax reform of sorts.