13 November 2019

Can Adam Schiff Make His Case?

As Congressman Adam Schiff's impeachment inquiry moves into public hearings, the Democrats are changing up the rhetoric. "Quid pro quo" has been replaced with "bribery" after a flirtation with "extortion".

Bribery is a definite escalation of rhetoric, as it is one of the two crimes explicitly mentioned as grounds for impeachment in Article 2, Section 4, of the Constitution. Extortion, while still couched in the rubric of "high crimes and misdemeanors", is an accessible and obnoxious enough offense as to make its impeachability more or less a given.

However, the House Democrats are still faced with the same requirement as before: whatever charge they mean to bring against President Trump, they must at some point present a case to substantiate the charge. Allegations are great fodder for the legacy media, but if the Democrats wish their articles of impeachment to be greeted in the Senate with anything but derisive laughter, they must be able to present some sort of case establishing the bases for the charges. 

Can Adam Schiff make this case? That is what will be determined over next several days, as the public hearings play out.

How might Adam Schiff make his case? If he is going to allege bribery or extortion, he must present evidence of behavior that amounts to bribery or extortion.

We must be mindful of the fact that bribery and extortion are particular crimes. They are codefied in particular sections of the U.S. Code, they possess specific meanings, and, in the criminal sphere, they carry specific penalties. Adam Schiff's burden is likewise particular. He must make a plausible presentation of evidence to support either bribery or extortion.

Extortion Defined

Extortion is laid out for government officials at 18 USC 872:
Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The particulars of extortion are laid out at  18 USC 3559(c)(2)(C):
the term “extortion” means an offense that has as its elements the extraction of anything of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any person;
Bribery Defined

Bribery of a public official is established as a crime by 18 USC 201(b):
(b)Whoever—
(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—
(A) to influence any official act; or
(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;
...
shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
Immediately we are confronted with a problem of definitions. Section (a)(1) of that same statute defines "public official" as follows:
the term “public official” means  Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;
President Volodomyr Zelensky of Ukraine is many things, but a "public official" of the United States government is not one of them. Even if we presume President Trump did offer something of value to Zelensky, we cannot automatically presume that he bribed Zelensky. 

While the Foreign Corrupt Practices Act (15 USC 78dd-1 et seq) makes it unlawful to bribe foreign officials, that law is limited in application to privately held companies. Government officials are not covered by that statute.

Perhaps Adam Schiff feels that solicitation of a bribe applies. The same statute, in subsection (b)(2), covers the solicitation of a bribe:
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person;
This might be a more solid avenue for Schiff to take. President Trump is undeniably a "public official" and so is covered by this portion of the statute beyond a doubt.

Schiff's Case

Going by the statutes, Adam Schiff has to establish one of these two crimes. While at this stage of the impeachment process the criminal standard of proof beyond a reasonable doubt arguably does not come into play, it takes no mysterious reading of tea leaves to understand that any articles of impeachment voted by the House Democrats must have a solid case behind them if they are to be taken seriously by Senate Republicans. Adam Schiff must prove either extortion or bribery.

At the present time, we have only the rough transcript of President Trump's July 25th phone call with President Zelensky. There was an earlier phone call, made shortly after Zelensky was elected, but that transcript has not been made available. Given that the nature of both bribery and extortion involve a degree of interaction between the parties to the offense, the bribe or the extortion must have taken place within that phone call. Without communication, without an interaction between Donald Trump and Volodomyr Zelensky, neither extortion nor bribery are possible.

We should also take note of a key aspect of Alex Vindman's testimony regarding the phone call--he has confirmed that the memorandum transcript of the phone call is "very accurate". The one thing not in doubt in the impeachment inquiry is the accuracy and reliability of the transcript of the July 25th phone call, as its accuracy was something about which Alex Vindman was questioned specifically:

Q okay. But you don't think there was any malicious intent to specifically not add those edits?
A I don't think so.
Q Okay. So, otherwise, this record is complete and I think you used the term "very accurate"?
A Yes.
Q Okay. So, if we're trying to understand what happened on the call, this certainly is a very accurate record?
A Correct.
Regardless of how Schiff's witnesses testify, therefore, in order to establish either bribery or extortion the corrupt act(s) must be present in the transcript of the July 25th call. If there is no coercion, nor pressure, placed on Zelensky during the phone call, there can be no extortion. If there is no solicitation there can be no bribery.

As regards a charge of extortion, a plain reading of the phone transcript does not show any extortionate language. There are no threats, veiled or explicit. There are no intimations of bad things to befall either Ukraine or Zelensky. To characterize the phone call as extortionate is simply absurd. A plain reading of the transcript does not support in any way a claim of extortion. One might even suppose that Schiff altered his rhetoric to focus on "bribery" because "extortion" is simply not in evidence within the phone call.

Is there a solicitation of a bribe?  There is most definitely the asking of a "favor":
I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike ... I guess you have one of your wealthy people... The server, they say Ukraine has it. There are a lot of things that went on, the whole situation .. I think you're surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they. say a lot of it started with Ukraine. Whatever you can do, it's very important that you do it if that's possible.
There unquestionably is an "ask", and we should also note that it comes right after President Zelensky mentioned Ukraine's future interest in purchasing more Javelin anti-tank missiles.

However, even as a simple "quid pro quo" this passage is a stretch, for the simple reason that there is nothing within the language that conditions the availability of Javelin missiles on the investigation of Ukraine's possible role in any improprieties surrounding the 2016 Presidential election.

Further on there is an additional "ask" regarding Joe and Hunter Biden, but, again, there is no language making these investigations a precondition for Ukraine getting more Javelin missiles. Nor is there any language in the transcript where President Trump expresses reluctance to provide them, nor any other form of military aid. For any sort of "quid pro quo" to exist, the one must be conditioned upon the other. A plain reading of the transcript does not show such conditioning except in the most hostile of interpretations. One has to assume the worst about President Trump for the inference that the "favor" is a precondition for further aid to Ukraine to hold up; on the face of the text itself, that inference cannot be made, as the language does not support it. 

However, even in that most hostile of interpretations, while this favor possibly constitutes a "quid pro quo", does it constitute the solicitation of a bribe? 

Let us note here that the mere existence of a "quid pro quo" does not by itself indicate a bribe. Government aid packages have strings attached, as military and economic aid are tools of statecraft, a means for a country to advance its own interests. For the "quid pro quo" to constitute a bribe, there must be some element of corruption attached. For the favors asked in the transcript to amount to the solicitation of a bribe, they must constitute a personal benefit to Donald Trump--the "strings", in other words, must benefit Donald Trump and not the United States. Even a single beneficial aspect towards the national interests of the United States is sufficient to permanently bar an exclusive imputation of personal motive to Trump's asking them; President Trump is allowed to benefit from the wisdom of his various decisions, so long as those decisions also further the interests of the United States.

Can Adam Schiff show the favors to be occasioned solely for President Trump's benefit? That seems unlikely. Even before Donald Trump was inaugurated, Politico reported that Ukrainian officials acted to influence the 2016 election in Hillary Clinton's favor. While there may be some debate about the propriety of that influence or its magnitude, the assertion that Ukraine "meddled" in the 2016 election has been part of the public dialogue since Donald Trump was elected. In March of this year, Ukraine opened an investigation into that interference, acting on a claim that the interference was illegal under Ukrainian law.

After the 22 months of the Mueller Investigation into the Russian Collusion Hoax, it would be absurd to suggest the United States has no interest in knowing whether or not Ukrainian corruption was present in the 2016 election. If foreign meddling is condemned, then all foreign meddling must be condemned. As the nation's chief executive, sworn to protect the Constitution and to see the laws be faithfully executed, President Trump arguably has a duty to pursue such matters. Whatever personal benefit he might gain from Ukraine performing this investigation has to be considered secondary to the interests of the nation. Accordingly, there would have to be no national interest in a Ukrainian investigation before a corrupt purpose can be imputed to the request for an investigation.

This, remember, is while reading the transcript in the least favorable light.

What about the investigation into the Bidens? Can we divine corrupt purpose there?

No. We cannot.

As I have analyzed previously--and there is no information that has come to light since to alter that analysis--there are valid legal and factual predicates for investigating Joe and Hunter Biden. That is not to say they are unquestionably guilty of any wrongdoing, but there are matters that warrant further scrutiny. At the very minimum, there is a prohibited conflict of interest under 18 USC 208; it was simply not proper for Joe Biden to be heading up the Obama Administration's Ukraine policy while Hunter Biden was on the board of directors of Burisma. Whether as simple "quid pro quo" or outright bribery, for the "favor" to be a corrupt request, there cannot be any basis for investigating the Bidens, and there absolutely is a basis for at least an investigation.

It is not possible, in either law or logic, to impute a corrupt personal benefit to a legitimate performance of Presidential duty. If that were not true, no President could request anything from anyone. So long as there is a valid national interest in these requests made by President Trump, we must consider them to be valid requests. Any personal or political benefit Donald Trump might derive is purely incidental and not dispositive.

This, remember, is while reading the transcript in the least favorable light.

Do Any Witnesses Matter?

What are we to make of all of Schiff's witnesses? Ultimately, not much. Only one--Alex Vindman--actually listened to the call. He confirmed during his testimony that the memorandum transcript released was "exceptionally accurate". Beyond that one admission, the witness testimonies are simply irrelevant. There can be no bombshell "reveals" during the public hearings for the simple fact there is nothing more to reveal. The issues, the disagreements, the contentions that may or may not have taken place before or after the phone call pertain only to questions of policy.

Was it appropriate, as a matter of policy, for President Trump to make such request of Zelensky? That is a political question, and not one that will be answered here. There are those who believe, rightly or wrongly, that President Trump has a duty to make such requests. There are those who might feel such requests should be kept at the level of the Attorney General. There are those who feel that only American investigators should be investigating American citizens. 

I am not going to debate the merits and demerits of these positions. I will merely note these positions do exist.

However, disagreements over policy are, in the end, merely differences of opinion. Differences of opinion are not now nor will they ever be any sort of  crime. Differences of opinion are not ordinary crimes. Differences of opinion are not high crimes, nor are they misdemeanors. Policy disputes are not impeachable offenses. Even if the disputes are serious and the policy concerns major, such disputes cannot ever rise to the level of impeachable offense by the President.  Such disputes are why elections exist, and why elections rightly have consequences.

This has always been the singular defect of the Democrats' quest for impeachment over Donald Trump's phone conversations with President Zelensky. The moment we inspect the particulars of witness testimony, we find the concerns to be in the realm of policy and not of law. Alex Vindman and others might not agree with President Trump's decisions on policy, nor with the policy he has advanced regarding Ukraine, but that disagreement does not invalidate President Trump's decisions, and does not magically transform Trump's decisions regarding legitimate uses of Presidential authority into abuses of power.

When even the most hostile reading of the phone transcript divines only a possible "quid pro quo" and no evidence of a corrupt act or corrupt intent by President Trump, we are forced to conclude that, far from being able to prove an impeachable offense, Adam Schiff cannot show that any offense occurred at all. Simply put, there is no "there" there. No matter what was said among Trump Administration officials before or after the call, no matter what beliefs various Trump Administration officials might have had about President Trump's policy towards Ukraine, without clear demonstration of malfeasance on the phone call itself, there is no case to be made.

Despite the move to public hearings, and despite the escalated rhetoric of Adam Schiff and other House Democrats, we are still left with a Clown World Impeachment Hoax rather than an actual impeachable offense or a legitimate impeachment inquiry. Adam Schiff is alleging a malfeasance that simply does not exist and cannot be found within the phone transcript.

When we read the transcripts, when we read the Constitution, and when we read the law, the only conclusion we can properly draw is that no wrongdoing has occurred. Adam Schiff has no case he can make on the basis of the phone call, and he has no case of any kind without the phone call. There is no number of witnesses that will alter the essential facts of that phone transcript. This impeachment exercise is as much of a hoax as Russian Collusion was for the 22 months of the Mueller probe, and it is likely to end just as badly for the Democrats.

Read the transcripts. Read the Constitution. Read the law. Judge for yourself whether Adam Schiff and the House Democrats have any sort of case to make against the President. A plain and objective reading of all three shows quite clearly that they do not.

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