Clown World Impeachment

After three years of hoaxes and hysteria, the Democrats are finally bringing forward an impeachment inquiry resolution in the House of Representatives.

Sort of.

The resolution comes roughly one month after Nancy Pelosi officially "announced" an impeachment inquiry and delegated it to the endlessly duplicitous Adam Schiff and the House Permanent Select Committee on Intelligence.

To give credit where credit is due, the resolution at least pays lip service to the virtues of transparency and fidelity to due process of law.  However, it does condition rights of the minority upon the concurrence of the committee chair and makes no provision for the participation of President Trump's various counsel. It presents plenty of opportunity for Adam Schiff to make more of his trademark mischief.

Strangest of all, while Adam Schiff's Intelligence Committee is running the inquiry, Congressman Jerry Nadler and the House Judiciary Committee is the group the resolution tasks with drafting articles of impeachment against Donald Trump. Given the high degree of chaos and confusion that surrounds both committees and their chairs, how this division of duties will facilitate an expeditious process remains a mystery.

Update (10/31/2019): The House passed the impeachment resolution on a strict party line vote, with two Democrats defecting to vote "No".

Also of note: During debate on the rules portion of the resolution, the House Rules Committee voted down an amendment calling for any exculpatory material to be turned over President Trump and his attorneys--a rule similar to the "Brady" rule that exists in the Federal court system. That is not a stance that comports with existing standards of due process within American law.

Yet the resolution is not the most significant hurdle the Democrats have to overcome on impeachment. Regardless of the committee, regardless of the rules, regardless of their level of respect or contempt for due process, at some point, the Democrats have to make the case for impeachment.  

What sort of case can they make?

Let us begin with the basic background of the current impeachment imbroglio.  Only July 25, 2019, President Trump had a telephone call with Ukrainian President Volodymyr Zelensky, in which it has been alleged that President Trump coercively and corruptly pressured Zelensky to provide what the Russians call "kompromat"--"dirt", in the American idiom--on presumptive 2020 Presidential opponent Joe Biden. The crux of the material Trump is alleged to have sought involves son Hunter Biden's directorship with Burisma, a Ukrainian energy company, during Joe Biden's tenure as Vice President. That Hunter Biden held a directorship with Burisma at the time Joe Biden was the Obama Administration's "point man" on Ukrainian policy is documented fact.

I shall concede an obvious point: if the allegation against Donald Trump is true, that he did use military aid to coerce dirt on Joe Biden from the Ukrainians, that would be an ugly and potentially impeachable abuse of power, even if it could not be shown to be a criminal act in and of itself.

Yet we must also acknowledge something else equally obvious: In order for a Ukrainian investigation to be unwarranted, there must be no question of impropriety by Joe Biden with respect to the Obama Administration's Ukrainian policy. An investigation can only count as "dirt" if it is inappropriate and unwarranted. If there is any potential for impropriety, President Trump, as the nation's chief executive and charged with the faithful execution of the laws, is well within his Constitutional prerogative to have an investigation into possible improprieties by the Bidens. The Democrats must thus exonerate Joe Biden before they can impeach Donald Trump--at least, presuming they wish to maintain a fidelity to the rule of law and due process of law.

Is there cause to investigate Joe Biden, either by the US Department of Justice or by the Ukrainian state prosecutors? Quite probably.

18 USC 208 sets forth a legal basis for determining conflicts of interests for government officials. It specifically precludes government officials from participating in any process, even in an advisory capacity, where said official or a family member has a financial interest. The statute forbids involvement purely on the basis of that financial interest, and does not require there be any corruption or malfeasance behind the financial interest itself. Hunter Biden's directorship at Burisma almost certainly qualifies as a conflict of interest under this statute.

(Update: it should be noted that the Vice President is specifically excluded from the legal strictures of 18 USC 208 via an exception in 18 USC 202(c), but while this does relieve the Vice President from legal consequence it cannot alter the definitive conflict of interest that arises. But for Joe Biden's status as Vice President, Hunter Biden's Burisma directorship was a textbook 18 USC 208 violation)

Moreover, Joe Biden's repeated insistence that Hunter Biden did not do anything wrong is irrelevant, regardless of whether the assertion is true or false. The ethical and potentially legal malfeasance raised by Hunter Biden's Burisma directorship is that Joe Biden had a clear and unmistakable conflict of interest per 18 USC 208 and took no action to remediate it: he did not recuse himself from Ukrainian matters, nor did he request Hunter Biden to resign the directorship, nor is there any indication of a waiver being either sought or granted with respect to Hunter Biden and Burisma.

18 USC 208 is a criminal statute, and criminal penalties apply when it is violated; moreover, even if Joe Biden is not subject to criminal sanction by virtue of being Vice President, such cavalier disregard for even the appearance of a conflict of interest creates a significant ethical if not legal issue. Is it inappropriate for the US Department of Justice to investigate the Bidens with this statute in mind (we should also keep in mind that the Vice President has few official duties beyond presiding over the Senate; an argument that Joe Biden, during his diplomatic work with Ukraine, was not acting as Vice President but as special envoy and thus subject to 18 USC 208 prohibitions is a matter for a court to adjudicate)? That would be unlikely; the conflict of interest is as factual as Hunter Biden's Burisma directorship, and would, by itself, occasion a complaint of official corruption.

As a matter of simple logic and examination of irrefutable fact, we cannot conclude that Donald Trump was looking for "dirt" on Joe Biden. An investigation into the Bidens is easily justifiable under US law. The extent to which Hunter Biden's activities might run afoul of Ukrainian corruption laws (on the Ukrainian side of things, Hunter Biden would have largely the same conflict of interest as Joe Biden) is an unknown, but if there were to be a corruption investigation by the Department of Justice, arguing that Ukraine should not have a coordinated investigation of aspects falling within their jurisdiction seems a rather tenuous and uncertain position to take.

Can seeking the investigation itself be corrupt? No. President Trump is charged per the Constitution to see that US laws are faithfully executed. He is, by the nature of the office, the United States' chief law enforcement official. In that capacity, directing and facilitating investigations is part of the job, albeit one almost entirely delegated to the Attorney General and the Department of Justice. Corrupt purpose cannot be inferred from exercise of legitimate statutory or Constitutional authority.

There is an argument to be made that seeking such investigations by the Ukraine is not a good policy position for the United States, but differences on matters of policy by definition cannot be corruption. Policy matters are, in a democracy, both to be expected and to be discussed publicly. Policy matters are not fit material for either articles of impeachment or criminal indictments. Congress would be well within its rights to object to Trump's pursuit of an investigation, even to the extent of passing a resolution of censure of the President. Indeed, if the policy differences are significant and relevant, one could even argue it is the duty of Congress to lodge such opposition and disapproval. Yet opposition and disapproval are not themselves proof of corruption, nor even intimation of corruption. In a democracy, people will disagree; that is the order of things.

Without a corrupt act, a charge of abuse of power is unsustainable, as a matter of logic and as a matter of law.

This is the quandary in which the Democrats find themselves. Before they can impeach Donald Trump--before they can plausibly hope to persuade the Senate to convict on articles of impeachment--regarding his July 25 telephone call to the Ukrainian President, they must exonerate Joe Biden of any and all impropriety. At the moment, they are not even considering Biden's activities in the Ukraine, and they certainly are not establishing they are in any way interested in scrutinizing those activities.

Perversely, one could argue the Mueller report has a more substantive case for obstruction of justice than the current impeachment inquiry has for abuse of power. The Democrats' inaction on the Mueller report since its release is a fair proof the Democrats do not believe in its case for impeachment, which makes their current faith in impeachment on abuse of power a mystery.

Thus we have a true Clown World Impeachment. We have an impeachment inquiry without a defined impeachable offense, without investigation to lay a proper foundation for even a single article of impeachment, without an efficient and effective inquiry process from which to draw articles of impeachment, yet with Democrats professing all the certitude that President Trump's malfeasances are both damning and amply established, all the while remaining studiously ignorant of the most crucial facts essential to their allegations against President Trump.

Orwell and Kafka would both be quite impressed by today's Democrats. Clown World has outdone them both.

If Democrats Draft Biden, They Justify Donald Trump

The news this week that Democratic Presidential hopeful Bernie Sanders has vaulted ahead of Hillary Clinton in the New Hampshire polls has sent chattering class scurrying for cover.  It has also given renewed impetus to the "draft Biden" scenario.

Consider: Bernie Sanders is drawing large crowds at rallies around the nation--the largest of any political candidate on either side of the aisle, he's energizing a large part of the base of the Democratic party, and the response of the party leadership to his success on the campaign trail is to look around almost desperately for a more "suitable" candidate. The crowd favorite--the unquestioned crowd favorite, judging by the size of the crowds--has been deemed "unelectable" by the Democratic Party leadership.

The first primaries of the 2016 election season are still six months away, and candidates can rise and fall, and rise again many times in that time frame.  Howard Dean similarly energized crowds in the 2004 contest only to fade as the Iowa caucuses approached.  Moreover, on two occasions Sanders' rallies were upstaged by activists from the "Black Lives Matter" movement, and essentially driven from the stage by their tactics--and to prevent a third he has brought members of that movement into his campaign. To presume that Bernie Sanders has any sort of lock on the nomination at this juncture would be ludicrous.

Indeed, Bernie Sanders does not yet enjoy a broad base of support among minority voters--a key constituency of the Democratic Party; as late as July, his favorability rating among non-whites was still at a lethally low 25%. Having been twice on the receiving end of minority activist antics can hardly be seen to help strengthen that number, although it is also possible that embracing the Black Lives Matter activists within his campaign will help him connect better with minority constituencies.

It is also true that Bernie Sanders has refused to formally align with the Democratic Party before now; a self-identified Socialist, he caucuses with the Democrats in the Senate but is nominally an Independent.  Whether that presents a credibility concern for him either with the Democrats or with the general electorate, should he win the nomination, remains an open question.

What is not an open question is that Bernie Sanders is surging in the Democratic polls, just as Donald Trump is leading in Republican Polls.  Indeed, the Washington Post has noted the odd parallels between these two campaigns from outside either party's mainstream, and then rather condescendingly wrote off both candidacies as transitory phenomenon, concluding that "this too--and these two--shall pass." The candidates grabbing not just the headlines but also the attention of the nation are not those from either party's rank and file--Bernie Sanders for the Democrats, and for the Republicans Donald Trump, followed (in some order) by Carly Fiorina, Ted Cruz, and Ben Carson. The reality of the moment is that what these candidates are saying--and how they are saying it--is of far greater interest to Americans than the rhetoric coming from the more conventional candidates who have thus far thrown their hat into the ring.

It may very well be that Bernie Sanders' main selling point among Democratic voters is that he stands outside the status quo of Democratic politicians. His political career has been defined by his quirky refusal to embrace the apparatus of a political party, maintaining a stance as a political independent throughout his terms in both the House of Representatives and the Senate. At the very least, that notion of independence is being consciously articulated by Sanders' supporters. In a supreme political irony, a career politician has cast himself as the outsider and the agent of meaningful--and in this case liberal--political change, and the voters are rewarding that stance handsomely.

Whatever one makes of Bernie Sanders' politics or his proposals, that he is reflective of voters' desire to alter the status quo cannot be denied. In this coming presidential election cycle, the public demands different candidates, with different themes, different messages, different backgrounds. Even more than 2008, the animating force in the coming Presidential contest seems to be a rejection of the status quo, and a rejection of those who represent the status quo.

Which is why the chief beneficiary of any serious effort at this stage to draft Joe Biden into campaigning for President is likely to be....Donald Trump.  A career businessman who has never even run for elective office before (despite having flirted with a run for President in 2012), a recurring theme in "The Donald's" stump speech is a mantra he's repeated for years: "Nobody owns me". While Donald Trump is campaigning for the Republican nomination for President he has no grand affiliation with Republican party politics or the Republican party machine--and indeed has donated liberally to both Democrat and Republican candidates in the past, and has spoken out in favor of Democratic as well as Republican party policies. In his unapologetic attacks on illegal immigration, on bias in the media, and on the cronyism of both major political parties, Donald Trump has put forth an image of independence that so far has been matched by only one other candidate: Bernie Sanders.

By contrast, Joe Biden is someone who has been near the apex of Democratic leadership in Washington for decades, a two-time Presidential candidate who chaired Senate committees literally for decades prior to becoming Vice President in 2008. Regardless of his stance on issues, or his personal priorities for holding elective office, Joe Biden is nothing if not the ultimate insider. He is the status quo personified, the very thing voters on both sides of the political aisle are fervently rejecting.

If Bernie Sanders continues to dominate Hillary Clinton in the polls, and if the New Hampshire primaries draw near with him still enjoying a front-runner aura among Democrats, and if the Democratic Party leadership continues to respond to his success among Democratic voters by looking for anyone who can be a more "electable" alternative to Bernie Sanders, might that not broaden Donald Trump's appeal? If the Democrats throw Sanders under the proverbial bus, might that not create an opening for a Trump candidacy to woo erstwhile Democratic voters with his bombastic rhetorical pledge to "Make America great again," rhetoric that is every bit as populist as Sanders' own verbal assaults on economic, political, and racial inequality?

The Democratic Party would do well to consider the consequences of its actions. The alternative to a "President Sanders" might very well be a "President Trump."