Clown World Or Real World? How To Tell The Difference?

Among conservatives and right-leaning media types, one of the most disheartening media shifts in recent memory has been the apparent "betrayal" of iconic news aggregator Matt Drudge, whose headlines have lately trended towards the "anti-Trump" view of the world.

The curiously, quaintly, and yet effectively retro-themed "Drudge Report" has long been considered a primary source for conservative-leaning news, as well as "real" news unfettered by horrendous liberal bias. Many on the right feel that Drudge has abandoned that stance in favor of a more leftist/progressive tilt towards the news.

No right-tilting media outlet wields more influence than the Drudge Report, the widely read news-aggregation site launched in 1996. But those who follow the site closely say a sudden anti-Trump pivot is unmistakeable.

“Lately he has been absolutely terrible toward President Trump,” said conservative podcaster Josh Bernstein in a Nov. 8 show, dubbing the site “the Sludge Report.”

Gateway Pundit’s Jim Hoft pleaded, “Dear Matt Drudge — Please come home,” while Fox’s Jesse Watters took notice of a series of anti-Trump headlines, saying, “it just seems like the website has recently played up Trump gaffes and downplayed his successes.”

And they’re not wrong, according to B.J. Rudell, associate director of the Center for Political Leadership, Innovation and Service at Duke University’s Sanford School of Public Policy, who pinpoints the U-turn to the first week of August.

Impeachment Is A Double-Edged Sword

An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.

Gerald R Ford, Remarks in House of Representatives, 15 Apr. 1970

After two weeks of public hearings on whether or not to impeach President Donald Trump, the Democrats are facing an uncomfortable truth about impeachment--like all political weapons, it is a double edged sword that cuts sharply in both directions, all the time.

In considering impeachment, we must remember that, first, ever, and always, a political response to a miscreant chief executive. As Alexander Hamilton stated in Federalist #65:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Thus, even though the Constitution establishes the causes for impeachment to be "Treason, Bribery, or other high Crimes and Misdemeanors", and so calls our attention to the prospect of a President or other high government official violating the law, impeachment itself is not a criminal proceeding, nor is tied to the judicial branch. Rather, impeachment exists in the Constitution as a corrective measure for when a sitting President greatly oversteps and abuses his authority as the nation's Chief Executive.

The challenge for the Democrats, led by Congressman Adam Schiff, has always been to make the case that President Trump has overstepped and abused his authority as the nation's Chief Executive. That is not a challenge that Adam Schiff can be said to have met to any noteworthy degree.

High Crimes And Misdemeanors

Perhaps no other phrase in the Constitution save the curious construction of the Second Amendment has been scrutinized, interpreted, and arguably misinterpreted as the phrasing from Article 2 Section 4, "High Crimes and Misdemeanors." Unlike treason, which is defined within the Constitution itself, and bribery, which is identified in the Federal Code (18 USC 201), "high Crimes and Misdemeanors" is not something which is explicitly defined within the boundaries of statutory US law.

If we follow Gerald Ford's cynical construction of the impeachment power, "high Crimes and Misdemeanors" is a catch-all phrase designed to give the House essentially carte blanche to impeach a President. Yet that is not quite accurate. As Alan Dershowitz has noted:

Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment

The meaning of “high Crimes and Misdemeanors” was, so to speak, its own distinct thing. It was not a combination of “crimes” and “misdemeanors” as understood in today’s criminal-law sense. It was instead a unique legal term with its own meaning. The framers of the Constitution understood and used the phrase in that specialized sense, consciously adopting a known English-practice term of art in preference to other proposed formulations of the impeachment standard. And the ratification debates uniformly reflect that same broad understanding.

Exactly what meaning attaches to the phrase we can begin to see from Hamilton's Federalist 65, when he describes the impeachable offense as being "the abuse or violation of some public trust". Stripped away of the florescence of 18th century political language, an high Crime and Misdemeanor is any conduct which may plausibly be described as an abuse of power. 

As a matter of simple practicality, the easiest abuses of power to establish are those that involve some level of legal misconduct, and the Constitution invites this approach by establishing the first two criteria for impeachment as actual statutory crimes. 

Previous Presidential impeachment efforts have followed this violation of law model. Andrew Johnson's articles of impeachment centered on supposed violations of the Tenure in Office Act. Bill Clinton's articles of impeachment centered around charges of perjury (Chapter 79 of the US Code). Richard Nixon's articles of impeachment, which were never voted on by the full House of Representatives, not only alleged perjury and making false statements to investigators, but also witness tampering (18 USC 1512).

Nixon's articles of impeachment are instructive for Democrats contemplating possible articles of impeachment against Donald Trump because they included such charges as "endeavouring to misuse the Central Intelligence Agency, an agency of the United States", something which is clearly wrong, certainly unethical, but might not be easily reduced to a particular statutory offense.

High Crimes Are Violations Of Ethics

Consistent with the Hamiltonian definition of an impeachable offense are the findings of the committee staff for Nixon's 1974 impeachment inquiry, which elaborated on the Hamiltonian standard as follows:

(1) exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government; (2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and (3) employing the power of the office for an improper purpose or for personal gain.

Clearly, impeachment is not limited to criminal misconduct, nor is all criminal misconduct intrinsically impeachable. Rather impeachment is meant to be used for misconduct, whether criminal or simply unethical, which is both severe and inextricably tied to the office and not just the office holder. 

The criteria are broad and therefore difficult to assess uniformly, as a 2015 Congressional Research Service Report, "Impeachment and Removal", noted. One proposed article of impeachment against Richard Nixon was voted down in committee because it was believed the misconduct in question was more of a private and personal nature, and not intrinsic to the office of President of the United States. By the same token, the articles of impeachment against Bill Clinton for perjury were voted on the theory that 

The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties. The report rejected the notion that conduct such as perjury was “more detrimental when committed by judges and therefore only impeachable when committed by judges.” The report pointed to the impeachment of Judge Claiborne, who was impeached and convicted for falsifying his income tax returns—an act which “betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary.” While it is “devastating” for the judiciary when judges are perceived as dishonest, the report argued, perjury by the President was “just as devastating to our system of government.”

However, in every instance, an impeachable offense carries a clear ethical dimension, regardless of whether it is also a statutory criminal offense. 

Given the broad definition of "high Crimes and Misdemeanors", Gerald Ford could certainly be forgiven for his cynical assessment of the term, although as I have argued previously "the unspoken addendum to Gerald Ford's assessment must be an acknowledgment that the majority of the House which votes impeachment must accept and be prepared to face the wrath of the voters." If Congress is to argue an abuse of the office, the argument must eventually be accepted by the electorate at large.

When The Sword Cuts The Other Way

As this post's title states, impeachment is a double edged sword, and it is double edged because of the broad nature of the term "high Crimes and Misdemeanors". What constitutes a gross ethical lapse by a President of the United States? 

The Constitution does not define particular powers of the President, other than to execute the laws of the United States, serve as Commander-In-Chief of the armed forces, appointed federal judges, and negotiate treaties with other nations, the last two being in conjunction with the United States Senate. This is a far cry from the particular laundry list of congressional powers outlined in Article 1 Section 8. All other powers and prerogatives of the President come as an outgrowth from the office's status as the nation's chief executive: all cabinet departments are answerable to the President, as are all federal agencies and all ambassadors and diplomats.

With a broad governing mandate, it follows that the ethics of the office are similarly broad. Some aspects are reducible to statutory language (such as the prohibitions on gifts and emoluments, as well as the obvious offenses such as perjury), but others considerably less so. This is one of the challenges facing House Democrats wanting to impeach Donald Trump--establishing the gross ethical violation in the eyes of the electorate.

The core allegation of the Democrats has actually not changed much, even as they shifted from "quid pro quo" to "bribery". The essential charge has always been that President Trump corruptly and coercively pressured the Ukrainian government to provide political "dirt" on Joe Biden and his son, Hunter Biden. As I have noted from the outset, if this charge can be proven it is unquestionably a misuse of the power of the Presidency and, arguably, impeachable.

However, the Democrats have still not tackled a very big elephant in the room regarding the charge--the undeniable conflict of interest that existed by Hunter Biden serving on the board of Ukrainian natural gas company Burisma while Joe Biden was Vice President. Just as the ethical charge against President Trump is damning if true, the ethical lapse inherent in the conflict of interest is equally damning to the Bidens  if true, and any factual material attesting to that ethical lapse, or of ethical lapses arising from that conflict of interest, cannot be dismissed as mere political "dirt". The criteria is not whether Donald Trump benefits politically from any such information, but whether any such information is dispositive in a potential legal proceeding against the Bidens.

It is on that point that the news cycle has not been kind to the Democrats. As they have pushed ahead arguing impeachment, news reports regarding Hunter Biden's conduct both in the Ukraine and elsewhere have been emerging with some regularity, all of which is charitably described as "ethically problematic":

• Burisma allegedly paid some monies to Hunter Biden "off the books".
• Hunter Biden and his consulting firm received $16.5 million from Burisma, which was paid with laundered money, according to Ukrainian state prosecutors.
• Hunter Biden's consulting firm received $130 million in federal bailout money in 2009, in the aftermath of the 2007-2008 financial crisis.

Even more damaging to the Democrats' case have been the revelations from their own witnesses that not only are there plausible ethical questions surrounding the Bidens and Burisma, these ethical problems were apparent even to the Obama Administration. If there is one consistent thread through all the witness testimony it has been that singular point.

The impeachment inquiry has produced a steady "drip, drip, drip" of tantalizing and potentially damning revelations--but about the Bidens, not about Donald Trump. The number of such revelations has even reached a critical tipping poing where Senators Chuck Grassley and Ron Johnson are asking the US Treasury for any information it might have about Hunter Biden's dealings, and are broadly pursuing information regarding any contacts between Obama Administration officials, the Ukrainian government, and the Democratic National Committee back in 2016. These are investigations that are being pursued outside of the auspices of an impeachment inquiry, and therefore will not necessarily go away once the impeachment process is done. 

That the impeachment inquiry has resulted in an undesirable level of scrutiny of Joe Biden's two terms as Vice President is nothing if not ironic. Yet the reality remains that Congressman Adam Schiff arguably has made a better case for investigating Hunter Biden than he has for impeaching Donald Trump.

This was always the major vulnerability in the Democrats' strategy on impeachment. An abuse of power charge of any sort against any President is only going to be sustainable if the person or persons believed to have been abused are themselves not fit targets for legal scrutiny. Regardless of what Donald Trump's main motivation might have been in asking for an investigation by Ukraine into the 2016 election and into Burisma and Hunter Biden, so long as there is even one legitimate law enforcement reason to conduct such investigations, the abuse of power charge is never going to last--and there are multiple legitimate law enforcement reasons to investigate the Bidens, just from the published news accounts. Potentially, Donald Trump need not even have a formal impeachment trial in the Senate--the investigations by various committees will provide him with all the platform he needs.

News accounts are not necessarily legally valid evidence, and any one individual news item is certainly not absolute conclusive proof of wrongdoing by either Joe or Hunter Biden. Yet the threshold is not establishing the ultimate guilt or innocence of the Biden clan, merely that reasons exist for an investigation to be undertaken. That threshold has been met, multiple times.

As the Democrats proceed with their next phase of impeachment inquiry, one has to wonder how much more collateral damage will they do to their fellow Democrats, even as they fail to damage President Trump in the slightest.

A Tale Of Two Worlds: Clown World vs Real World

It was the best of times, it was the worst of times.

Charles Dickens, A Tale Of Two Cities

If one is reading news reports of how witness testimony during the impeachment hearings currently underway "destroys" the Democrats case for impeachment, one might laugh and think this is the best of times.

If one is following other portions of the legacy media, which is reporting how that same testimony "proves" Trump's corruption, one could be forgiven for thinking this is the worst of times.

If one is reading all of the news, and is therefore seeing that this or that witness is both destroying the Democrats' case for impeachment and proving Trump's corruption, one could be forgiven for a bit of head scratching and wondering what to make of the breathless reporting and pearl clutching attendant upon both narratives.

Clown World, meet Real World.

In Clown World, Impeachment Is A Moral Imperative

After now two weeks of public hearings, the legacy media is filled with articles detailing how "damning" the witnesses arrayed before Congressman Adam Schiff and the House Permanent Select Committee on Intelligence have been. 

Consider some of the recent headlines:

• From USA Today: "'Fierce, focused and fearless': Fiona Hill emerges as a principled voice in impeachment inquiry"
• From Politico: "Fiona Hill clashes with GOP over ‘fictional’ Ukraine claims"
• From Vox: "Trump didn’t want an investigation into Biden. He wanted a political show." 

The USA Today piece details a purported deconstruction by Fiona Hill of the "Republican theory" that Ukraine interfered in the 2016 election.

Hill rebutted the Republican theory that Ukraine meddled in the 2016 U.S. election and answered questions about the pressure campaign President Donald Trump is accused of levying against the nation. 

Politico reiterates how Dr. Fiona Hill presumably dismantles the Republican narrative of  Ukraine interference in the 2016 election:

“I refuse to be part of an effort to legitimize an alternate narrative that the Ukrainian government is a U.S. adversary, and that Ukraine — not Russia — attacked us in 2016,” Hill told the House Intelligence Committee in its seventh public impeachment hearing.

“These fictions are harmful even if they are deployed for purely domestic political purposes,” added Hill, a longtime Russia hawk.

The Vox article presents the November 20 testimony of Ambassador Gordon Sondland as shredding any pretense that President Trump was concerned at all with corruption in famously corrupt Ukraine.

Sondland’s revelation rips away the last of the pretense that Trump cared about corruption in Ukraine. He wanted a televised announcement of an investigation into Hunter Biden that he could use to cast a pall on the Biden campaign, just as the email morass damaged Hillary Clinton in 2016. All he ever asked for was a sort of political show trial that would allow him to run the same playbook he ran against “Crooked Hillary.”

To be sure, there have been many statements made by these witnesses that are quite unfavorable to President Trump, such as Ambassador Sondland's opening remark about "quid pro quo":

I know that members of this Committee have frequently framed these complicated issues in the form of a simple question: Was there a “quid pro quo?” As I testified previously, with regard to the requested White House call and White House meeting, the answer is yes.

Indeed, if one listens to the whole of Ambassador Sondland's opening remarks, he makes many statements which are decidedly unfavorable to President Trump. Statements such as this:

In response to our persistent efforts to change his views, President Trump directed us to “talk with Rudy.” We understood that “talk with Rudy” meant talk with Mr. Rudy Giuliani, the President’s personal lawyer.

Let me say again: We weren’t happy with the President’s directive to talk with Rudy. We did not want to involve Mr. Giuliani. I believed then, as I do now, that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for Ukraine matters.

Nonetheless, based on the President’s direction, we were faced with a choice: We could abandon the efforts to schedule the White House phone call and White House visit between Presidents Trump and Zelensky, which was unquestionably in our foreign policy interest -- or we could do as President Trump had directed and “talk with Rudy.” We chose the latter course, not because we liked it, but because it was the only constructive path open to us.

Or this: 

Everyone was in the loop. It was no secret. Everyone was informed via email on July 19, days before the Presidential call. As I communicated to the team, I told President Zelensky in advance that assurances to “run a fully transparent investigation” and “turn over every stone” were necessary in his call with President Trump. 

In Real World, Impeachment Is Unproven

Like all news and commentary, however, the reporting on Fiona Hill's testimony must be reconciled to all of her testimony, and to all the responses and comments by committee members related to that testimony. Fiona Hill's statement about the "false narrative" was directly challenged by Congressman Devon Nunes in his opening remarks, where, among other items, he reminded the committee of DNC staffer Alexandra Chalupa's communications with Ukraine in 2016 on behalf of Hillary Clinton's campaign:

And they got caught covering up for Alexandra Chalupa—a Democratic National Committee operative who colluded with Ukrainian officials to smear the Trump campaign—by improperly redacting her name from deposition transcripts and refusing to let Americans hear her testimony as a witness in these proceedings.

Congressman Nunes finished his remarks by handing to Dr. Hill a copy of the 2018 report by the Republicans on the Intelligence Committee detailing what they considered to be evidences of Russian interference in the 2016 election, a direct and fairly sweeping rebuke of Dr. Hill's assertions.

 

In the case of the Politico reporting, they and Dr. Hill are further contradicted by none other than Politico itself, from back in 2017:

Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found.

Fiona Hill's testimony is, at least as regards her opening remarks, factually challenged. The demonstrable factual defects in her testimony prevent it from being the incredibly damaging testimony the legacy media reports it to be.

In similar fashion, the Vox article must inevitably be reconciled to the actual testimony given by Ambassador Sondland. It must be reconciled not just to Sondland's opening statement, but all of his answers to questions by both Democrats and Republicans, which includes this exchange with Republican Congresswoman Elise Stefanik:



A highlight of this part of his testimony is Ambassador Sondland recounting a statement from President Trump that he wanted Ukrainian President Zelensky to "do the right thing" regarding Ukrainian corruption.

Republican Congressman Michael Turner's questioning of Ambassador Sondland also runs quite counter to the Vox narrative:




Under questioning, Sondland flatly contradicts the Vox reporting:

Turner: “What about the aid? He says that they weren’t tied, that the aid was not tied.”

Sondland: “And I didn’t say they were conclusively tied either. I said I was presuming it.”

Turner: “Okay. So, the president never told you they were tied.”

Sondland: “That’s correct.”

Turner: “So, your testimony, his testimony is consistent in that the president did not tie aid to investigations?”

Sondland: “That’s correct.”

Sondland makes the point repeatedly that the linkage reported by Vox and other media outlets did not exist, or at least that he could not testify they existed. 

Turner: “So, no one told you. Not just the president? Giuliani didn’t tell you. Mulvaney didn’t tell you. Nobody. Pompeo didn’t tell you. Nobody else on this planet told you that Donald Trump was tying aid to these investigations? Is that correct?”

Sondland: “I think I already testified to that.”

Turner: “No answer the question: Is it correct? No one on this planet told you that Donald Trump was tying this aid to the investigation? Because if your answer is yes then the chairman’s wrong and the headline on CNN is wrong. No one on this planet told you that President Trump was tying aid to investigations? Yes or no?”

Sondland: “Yes.”

Turner: “So, you really have no testimony that ties President Trump to a scheme to withhold aid from Ukraine in exchange for these investigations?”

Sondland: “Other than my own presumption.”

So it goes with all the testimonies--inconvenient facts and admissions spill out that undercut the impeachment narrative. While there are witnesses in abundance to testify against President Trump and to condemn his conduct, the witnesses also fail to make an unequivocal case against President Trump. There is plenty of evidence to indicate that many within the government disapprove of how Trump handled the July 25 phone call, but there is no clear evidence, no un-contradicted testimony, that establishes either a clear crime or any abuse of Presidential authority.

In The Real World, All Facts Matter

While the media enjoys spinning narrative, ordinary people must deal in facts. There is one singular fact surrounding the impeachment inquiry that neither side has been willing to fully acknowledge or consider: The Ukrainians did investigate Burisma. Not only was Burisma investigated, but the company's owner, Nikolai Zlochevsky, has been indicted. Even more awkward, Hunter Biden's consulting company through which he was paid during his Burisma directorship is alleged by the Ukrainians to have received money laundered from criminal activities by Zlochevsky.

Dubinsky made the claim in a Wednesday press conference, citing materials from an investigation into Zlochevsky and Burisma.

"Zlochevsky was charged with this new accusation by the Office of the Prosecutor General but the press ignored it," said the MP. "It was issued on November 14."

"The son of Vice-President Joe Biden was receiving payment for his services, with money raised through criminal means and money laundering," he then said, adding "Biden received money that did not come from the company’s successful operation but rather from money stolen from citizens."

Ironically, the Ukrainian investigation predates President Zelensky's election in April. The very thing that Donald Trump requested in the July 25 phone call was already underway, and had been publicly announced in Kyiv in February. Perhaps the reason Zelensky undertook no great action to accede to President Trump's July 25 "ask" was that there was no need for action--on the Bidens and Burisma, what Trump had requested was already being done.

Zlochevsky's indictment is a serious challenge to the narratives of the legacy media. It is a grim reminder that Burisma is a corrupt company run by a corrupt oligarch. It is a company that needed to be investigated, whether or not Donald Trump requested it.

It's A Mess

What is left is simply a hot mess. Some people are put out that President Trump dared ask a foreign government for an investigation of a US citizen. Others are put out that he did not follow the recommendations of the policy "experts" within the government. Still others are outraged that Democrats would consider this an impeachable offense.

When these hearings began, I posited the question of whether or not Adam Schiff would be able to make a case for impeachment. At this juncture, it is fairly certain he has not done so. Not only has he failed to address the many inconsistencies and contradictions within his witness testimonies, he has even failed to acknowledged the Ukrainians' own legal actions, which establish a basis in fact both for an investigation of the 2016 election and an investigation into Burisma and Hunter Biden.

Even more damning is that he has completely failed to persuade independent voters. In the two weeks there have been hearings, support for impeachment among independent voters has dropped by 10%. To make the case for impeachment Schiff needed the numbers to move in the opposite direction, especially among independent voters--these are the voters who are not deeply committed pro- or anti-Trump, and are therefore the ones most amenable to persuasion.

Yet the lack of persuasion on impeachment has not yielded a dramatic uptick in job approval for President Trump. Voters might not be impressed by Schiff's impeachment claims but neither are they any more persuaded on how well Trump has carried out the duties of President.

What to make of it all? Simply that impeachment has been from the outset a contrivance, a non-event intended to excite voters and give the media fresh clickbait. This was less about governing the Republic than it was about driving ratings and revenue for the legacy media. A simple examination of Google Trends shows how well this worked out for the media:

For the legacy media, impeachment has been the very best of times. The infotainment industry never had it so good. 

For everyone else, impeachment is merely another sign of the times, and another sobering reminder of the growing divide between Clown World and the Real World.

Why Won't Adam Schiff Call Hunter Biden To Testify?

With two days of public hearings now complete, the public has been presented with a general sense of Adam Schiff's organizing narrative for impeaching President Trump: That Donald Trump corruptly misused and abused the Office of President of the United States by requesting Ukraine conduct an official investigation of Joe and Hunter Biden in order to develop political "dirt" to use against Joe Biden in the upcoming Presidential elections, using US military aid to Ukraine as an inducement.

During the public testimony, just as with the transcripts of the closed-door depositions released by Schiff's committee, much has been said about Hunter Biden and his tenure on the board of directors of Burisma, a Ukrainian energy company frequently mentioned in conjunction with allegations of official corruption within Ukraine. It is quite possible there has been more testimony about Burisma, and Ukrainian corruption in general, than there has been about Donald Trump.

Burisma IS A Question

Ambassador Marie Yovanovitch testified in her deposition that, as part of her preparation by the State Department for her confirmation hearings in 2016, a specific question was posed about Hunter Biden and Burisma:

Q And you may have mentioned this when we were speaking before lunch, but when did the issues related to Burisma first get your attention? Was that as soon as you arrived in country?

A Not really. I first became aware of it when I was being prepared for my Senate confirmation hearings. So I'm sure you're familiar with the concept of questions and answers and various other things. And so there was one there about Burisma, and so, you know, that's when I first heard that word.

Q Were there any other companies that were mentioned in connection with Burisma?

A I don't recall.

Q And was it in the general sense of corruption, there was a company bereft with corrupt?

A The way the question was phrased in this model Q & A was, what can you tell us about Hunter Biden's, you know, being named to the board of Burisma?

Deputy Assistant Secretary of State George Kent, during his Day 1 opening remarks, acknowledged a concern about Hunter Biden's directorship and the potential for a conflict of interest:

Later, I became aware that Hunter Biden was on the board of Burisma. Soon after that, in a briefing call with the national security staff of the office of the vice president in February of 2015, I raised my concern that Hunter Biden’s status as a board member could create the perception of a conflict of interest.

There is little room to dispute that the extent to which Burisma is a corrupt enterprise is a question the US State Department has had for some time.

Burisma Is The Question Not Asked

Remarkably, Adam Schiff himself attempted to dismiss this notion, intimating in his Day 1 opening statement that investigating the Bidens served no interest of the United States:

Neither of these investigations was in the US national interest. And neither was part of the official preparatory material for the call. Both however, were in Donald Trump’s personal interest and in the interests of his 2020 reelection campaign. And the Ukrainian president knew about both in advance because Sondland and others had been pressing Ukraine for weeks about investigations into the 2016 election, Burisma, and the Bidens.

Note the conflict between Adam Schiff's opening statement and the testimonies of his own witnesses. Congressman Schiff, in order to establish that the request for investigations as a corrupt act by President Trump, quite rightly acknowledged, albeit implicitly, an essential truth: for President Trump's request to be corrupt, there has to have been no US security or other interest served by the investigations.

This is a point I have emphasized repeatedly in writing about these impeachment proceedings.

This is the question Adam Schiff will not ask. It is the question Adam Schiff should ask, and ultimately must ask.

Hunter Biden Has The Answer

Yet there is one witness Adam Schiff could call which would confront the topic of whether there should be an investigation of Hunter Biden and Burisma: Hunter Biden. The question that Adam Schiff must ask is one that Hunter Biden is unquestionably equipped to answer.

Hunter Biden has already made repeated public denials of wrongdoing with regards to Burisma. In October he decried the allegations of impropriety as "false charges".

"Hunter always understood that his father would be guided, entirely and unequivocally, by established U.S. policy, regardless of its effects on Hunter's professional interests," according to a statement released by his attorney. "He never anticipated the barrage of false charges against both him and his father by the President of the United States.

Hunter Biden went even further in an exclusive interview with ABC News, denying any wrongdoing at all while on the Burisma board.

"Did I make a mistake? Well, maybe in the grand scheme of things, yeah," he said, again referring to fallout from his overseas business. "But did I make a mistake based upon some ethical lapse? Absolutely not."

Biden said, "I take -- full responsibility for that. Do I -- did I do anything improper? No, and not in any way. Not in any way whatsoever. I joined a board, I served honorably. I did -- I focused on corporate governance. I didn't have any discussions with my father before or after I joined the board as it related to it, other than that brief exchange that we had."

As I have written previously, and as Secretary Kent has confirmed, Hunter Biden's directorship at Burisma presented at least an appearance of a conflict of interest for Joe Biden. Moreover, based on the extant reporting, there is no indication that either Biden took steps to mitigate either the conflict or the appearance of conflict. Based on the extant reporting, there is at a minimum, a basis for investigation for a prohibited conflict of interest as specified in 18 USC 208.

However, if there is no basis--if, upon additional reporting, it could be determined that there was no prohibited conflict of interest, that the Bidens had in fact taken proper steps to prevent such a conflict--then President Trump's request indeed becomes questionable. If it is absolutely clear, when all the facts are known, that there is no conflict, then Schiff's allegation of corrupt purpose by President Trump acquires considerable weight and merit.

Hunter Biden is a person who can speak directly to this point; he may be the only person who can speak directly to this point. Congressman Schiff has the authority (or could easily obtain the authority) to provide an appropriate grant of immunity to avoid infringing upon Biden's Fifth Amendment right against self incrimination, and, practically speaking, there is little downside to such a grant of immunity: barring an outrageous revelation of corruption by either Biden, the likelihood of any US Attorney pursuing a prosecution of Hunter Biden seems remote. If there is not likely to be any criminal charge preferred, why not ask Hunter Biden to "clear the air"? 

Questions about Hunter Biden are not going to magically disappear during this impeachment inquiry. There is no way they can disappear: Adam Schiff made Hunter Biden essential to the entire process the moment he declared that no US national interest could be served by an investigation of the Bidens. There is but one circumstance where that assertion can be true--the Bidens have to be affirmatively cleared of any wrongdoing regarding Burisma or Ukraine. 

If the Bidens cannot be cleared, then there are undeniable national interests at stake. Even if one wishes to argue that the United States should be doing the investigating rather than Ukraine, and thus wishes to fault President Trump for asking for the investigations on that basis, that debate is a question of policy. Disputes over policy are not and must never be characterized as "high crimes and misdemeanors", the threshold that must be met for there to be an impeachable offense.

Hunter Biden is the essential fact witness to these impeachment proceedings. He is the one who can say what he did and did not do regarding Burisma and Ukraine; he may very well be the only one who can do that.

Ironically, the Republicans want him called as a witness, even though nothing he might say could be of any relevance to a rebuttal by President Trump to Adam Schiff's core allegation of abuse of power: So long as the conflict of interest under 18 USC 208 is unresolved, there is a plausible predicate for an investigation, making it impossible to impute corrupt purpose to President Trump's request. Hunter Biden's silence is far more helpful to President Trump and the Republicans than any testimony he might give.

Adam Schiff has it in his power to make quick end of these impeachment proceedings. He has the power to establish once and for all if there is a basis for investigating the Bidens. He need only call Hunter Biden to testify, and the conflict question is resolved, one way or the other.

Yet Adam Schiff refuses to call Hunter Biden to testify. Why?

Clown World Or Real World, Cases Must Begin And End With The Law

With the second day of Congressman Adam Schiff's impeachment inquiry hearings now in the history books, it is time to once again beat the dead horse, and remind everyone that, regardless of the pontifications of witnesses and Congressmen alike, the two immutable qualities of the impeachment inquiry itself are the actual facts of what was said, when it was said, and to whom it was said, and the particular letter of the law with regards to whatever was said.

The law is the framework within which this impeachment inquiry must fit. At every turn, every bit of testimony and political speechifying must conform to the dictates of the law.

Clown World or Real World, that is always going to be the order of things.

Therefore, once more we must step back and remember what the law actually is--what the statutes and regulations themselves actually say.

The Case Of The Tampering Tweet

The most (in)famous moment during the hearings came when Congressman Schiff interrupted proceedings to read into the record one of President Donald Trump's tweets, in which the President was critical of the witness, former Ambassador Marie Yovanovitch.

Everywhere Marie Yovanovitch went turned bad. She started off in Somalia, how did that go? Then fast forward to Ukraine, where the new Ukrainian President spoke unfavorably about her in my second phone call with him. It is a U.S. President’s absolute right to appoint ambassadors.

— Donald J. Trump (@realDonaldTrump) November 15, 2019

Democrats immediately denounced the tweet as "witness intimidation". The legacy media went predictably over the top, with one op-ed piece in the Los Angeles Times describing it as "Twitter acid". Suffice it to say, that was an obvious exaggeration--one could even say it was a "triggered" exaggeration.

What does the law say about it?

Witness tampering is indeed a crime, defined at 18 USC 1512. The applicable portion is 1512(b) and 1512(d):

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— 

(1) influence, delay, or prevent the testimony of any person in an official proceeding; 

(2) cause or induce any person to— 

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; 

(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; 

(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or 

(D) be absent from an official proceeding to which such person has been summoned by legal process; or 

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release,, parole, or release pending judicial proceedings; 

shall be fined under this title or imprisoned not more than 20 years, or both. 

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from— 

(1) attending or testifying in an official proceeding; 

(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings; 

(3) arresting or seeking the arrest of another person in connection with a Federal offense; or 

(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding; 

or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.

Was there any threat, actual or implied in Donald Trump's tweet? No.

Did Donald Trump threaten Ambassador Yovanovitch? No.

Did Donald Trump persuade, corruptly or otherwise, Ambassador Yovanovitch? No

Did Donald Trump, by that tweet, "...influence, delay, or prevent [her] testimony"? Given that she was already testifying before the House Permanent Select Committee on Intelligence, I do not see how that is even possible.

Did Donald Trump harrass Ambassador Yovanovitch, thereby hinder, delay, or prevent her testimony? No.

Was the tweet in poor taste? Some would argue that it is. Some would argue the tweet is merely un-gentlemanly, boorish, and crass. Perhaps it is.

But boorish and crass tweeting does not add up to "witness intimidation". A plain reading of the tweet fails to establish any of the essential elements.

Hearsay Evidence Is Better Than Direct?

Donald Trump's tweet was matched on the first day for outlandish perspectives on the law by Congressman Mike Quigley's take on hearsay evidence:

“I guess to close, a primer on hearsay, I think the American public needs to be reminded that countless people have been convicted on hearsay,” Quigley said. “Because the courts have routinely allowed and created, needed exceptions to hearsay. Hearsay can be much better evidence than direct as we have learned in painful instances and it’s certainly valid in this instance.”

In the federal courts, where the Federal Rules of Evidence apply, Rule 802 establishes firmly that, as a rule, hearsay evidence is not admissible:

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute; 
• these rules; or 
• other rules prescribed by the Supreme Court.

The laundry list of exceptions to the hearsay rule are found in Rule 803.

Yes, there are exceptions to the hearsay rule, but the general rule--and thus the presumption--is always that hearsay evidence is not admissible, and that direct evidence is what must be presented before the court. Where Congressman Quigley got the idea that the rule was otherwise remains very much a mystery.

On the subject of hearsay, one has to marvel at the amount of hearsay that is being touted as evidence by Congressman Schiff and the House Intelligence Committee.  By far the most memorable example of this is a sentence from Ambassador Gordon Sondland's addendum to his closed door deposition:

Ambassador Taylor recalls that Mr. Morrison told Ambassador Taylor that I told Mr. Morrison that I had conveyed this message to Mr. Yermak on September 1, 2019, in connection with Vice President Pence's visit to Warsaw and a meeting with President Zelensky.

Congressman Jim Jordan's questioning of Ambassador Bill Taylor on Day 1 regarding this particular item is a memorable piece of performance art in its own right, and conveys quite effectively why hearsay is not highly regarded as a form of evidence.


Even Ambassador Taylor effectively conceded at the end of this exchange that his testimony was almost entirely hearsay (emphasis added): 

As I think I was clear about, I’m not here to take one side or the other or to advocate any particular outcomes. Let me just restate that. Second thing is that my understanding is only coming from people that I talked to.

Ambassador Marie Yovanovitch's testimony today (Day 2) seems equally problematic as regards the amount of direct evidence vs hearsay evidence she is able to provide. She acknowledged this in her opening remarks, where she pointed out that she had been recalled from Ukraine on May 20, 2019, two months before the July 25 phone call that is at the epicenter of this impeachment inquiry.

Several other events occurred after I returned from Ukraine. These include: 

President Trump's July 25, 2019 call with President Zelenskiy; The discussions surrounding that phone call; and Any discussions surrounding the delay of security assistance to Ukraine in Summer 2019.

This frank admission prompted Republican Ranking Member Devin Nunes to question why Ambassador Yovanovitch was even giving testimony, as the focal point of the inquiry is the July 25 phone call between President Trump and Ukrainian President Volodomyr Zelensky: "I'm not exactly sure what the ambassador is doing here today."

Thus far, in the depositions from the closed-door hearings just released and in the public testimonies from both Day 1 and Day 2, hearsay evidence is the sum total of what the Democrats have assembled thus far to support drafting Articles of Impeachment against President Trump.

Even CNN legal analyst Jeffrey Toobin conceded after Day 1 that the lack of direct evidence provided by both George Kent and Bill Taylor was "a problem."

Adam Schiff Still Needs A Case

As I covered in my last blog post, Congressman Schiff has a very simple objective in this entire impeachment inquiry: he must make a plausible case that President Trump has so abused his office and the trust of the American people as to warrant his immediate removal from office. Based on Congressman Schiff's own public statements, his case revolves around a charge of either bribery or extortion. These are specific allegations, predicated presumably on specifics facts and circumstances, with specific statutes describing each.

Bribery is found at 18 USC 201(b). Extortion is criminalized by 18 USC 872.

Nothing that has been presented in the public hearings thus far has made even the slightest case for either bribery or extortion. Nothing has made a case for any abuse of power.

All three witnesses have made it quite clear that they have significant policy disputes with President Trump, that they disagree on the propriety of President Trump requesting the Ukrainian government to investigate American citizens. There might even be several substantive policy debates to be had arising from their commentaries in these hearings.

But policy disputes are not impeachable offenses. They are not bribery, nor are they extortion, nor do they reflect any abuse of Presidential power.

Adam Schiff came into these hearings needing to present a case for impeaching the President. He still needs to present that case.

All Laws Matter

The standard for impeachment is specific. Article 2 Section 4 of the Constitution lays out the precise threshold for an impeachable offense: "Treason, Bribery, or other high Crimes and Misdemeanors." In order for an impeachment to happen, the House of Representatives must make a case, however implausibly, that a President has sorely abused his office. There has to be a clear sense of malfeasance, else there is no impeachable offense. That clear sense of malfeasance comes, in large part, from conforming an argument for impeachment to the relevant statutes.

In order for the Democrats to impeach Donald Trump, they must be able to coherently explain how it is that Donald Trump abused his office. Hearsay evidence and appeals to emotion are not explanations, and they certainly do not conform to any statute currently in force. Emotions, feelings, and the curriculum vitae of witnesses may make for a weighty, ponderous, presentation, but they are irrelevant.

The facts are what matter.

The laws are what matter.

The Constitution is what matters.

In the ultimate display of Clown World logic, Congressman Schiff and the House Democrats have ignored the facts, ignored the law, and are perilously close to disregarding the Constitution altogether. The extent to which they will "get away" with their own serial abuses of their authority remains to be seen, but it is difficult to discern any way in which the hysterical and hyper-partisan inquiry Schiff is conducting will end well for the Democrats.