It’s all a game … at seizing power
House Democrats have moved a step closer toward impeaching the president, and their friends in the media are excited at the prospect. Part of that is the ratings bonanza that would follow an impeachment as Americans are compelled to watch the news they would usually rather avoid. But another part is their sense that at last, they’ve caught President Trump in something that will lead to his downfall.
But if you turn off Twitter and talk to people in your neighborhood, it doesn’t quite feel that momentous. In significant ways, the accusations against Trump differ from Bill Clinton’s impeachment and Richard Nixon’s almost-impeachment. The legal implications of Trump’s phone call to the Ukrainian president are still being hashed out, but there are several points in Trump’s favor in terms of the public perception about the charges.
1. Where’s the Cover-Up?
As a people, we have heard the Watergate-era phrase “it’s not the crime, it’s the cover-up” so often that we’ve internalized it. “What did the president know and when did he know it?” was the signature inquiry of that investigation, with the assumption being that Nixon did, at some point, know of the Watergate break-in and then worked to conceal that fact.
Likewise, Clinton’s resistance to the Kenneth Starr investigation suggested he had something to hide. The same could even be said of Trump’s reaction to Robert Mueller’s questions earlier in his term.
Unlike in Nixon’s third-rate burglary or Clinton’s philandering, though, there is no cover-up here, or at least there doesn’t appear to be. Faced with accusations about a phone call, Trump released the whole transcript within a couple of days. He’s not covering up a thing.
The people can judge for themselves what happened and act accordingly. Had Trump stonewalled, it would have looked worse and people would have naturally suspected more serious misdeeds. Transparency was the smart move here, especially since judging by the transcript, there’s not much to see.
All of this hinges, of course, on the people believing the transcript. That’s not a guarantee. Even before it was released, journalists on the left raised questions about its authenticity. Had it shown an explicit quid pro quo or some other law-breaking, those doubts would have been dispelled, but now that we know that transcript shows no such thing—and Ukrainian President Volodymyr Zelensky agrees—the conspiracy theorists will stick to their suspicions. Transcript truthers are even now getting their stories straight.
2. No Conspiracy
In Watergate, there was a general perception of a conspiracy. That was not as true as Nixon’s enemies made it seem—the administration was more haphazard than that, recent biographies have shown—but the public saw the president then as a man who planned ahead, like a responsible world leader. He wouldn’t just send of G. Gordon Liddy and his gang on a whim, would he? (He probably did.)
In the Monica Lewinsky and other scandals, Clinton’s method of thoroughly destroying his accusers in the press and concealing his actions could not have been accomplished without help from others in the White House.
On the other hand, no one is suggesting that Trump asking Zelensky to investigate Biden’s son was any sort of well-rehearsed administration policy. Maybe it was, but even before the transcript was released, the whole thing appeared classic off-the-cuff Trump, just saying what he thinks. It even sounded like his now-famous speech in 2016 when he joked that Russian intelligence should release Hillary Clinton’s e-mails, since they surely had obtained copies of them from her unsecure server. The impression here is one of a man saying what came to his mind, not one hatching an intricate plot.
It’s an anti-conspiracy, which to most folks is inherently less of a problem than a conspiracy. Again, this could change. If it develops that there is more to it, that the White House used the intelligence apparatus to attack his enemies the way Nixon and Barack Obama used the Internal Revenue Service, then maybe the kind of conspiracy that fueled prior impeachments might add fuel to the fire currently being tended by House Democrats.
But until then, ethical or unethical, this appears to be Trump being Trump. For better or worse, that’s become unremarkable.
3. Impeachment Fatigue
After several months failing to invalidate his election, the self-appointed Resistance and their friends in the press turned their attention to getting Trump removed from office. This has been the state of affairs ever since. Trump’s unorthodox style has given plenty of reason to at least question the propriety of some of his actions in office, but even ordinary actions have led partisans to demand impeachment.
The Mueller investigation was the main thing on which Resistance members invested their hopes. In declaiming the theory that Trump colluded with Russian President Vladimir Putin to steal the 2016 election, they were trying to fix two problems: how Trump could possibly have won, and how could they get rid of him. Yet the Mueller report showed no such conclusions, and the massive effort fizzled.
This time, we are told, Trump is colluding with Putin’s sworn enemies in Ukraine to steal a different election. It’s a weird sequel, and suggests that all of the talk of kompromat may have been overblown, to say the least. Now, the story goes, Trump is happy to give military hardware to Putin’s enemies, but he wants them to investigate his opponents’ corruption in return.
Is this a serious charge? It’s certainly unseemly. Offering a sovereign action in exchange for a political one does blur the lines in a way most Americans would deem sordid.
Ukraine should investigate things that it thinks are crimes, as we should, but whether to launch a criminal investigation should not depend on the politics of the accused. That’s a rule that is often broken, but that doesn’t make it right.
4. Crying Wolf
The legal implications of that are beyond the scope of this article. The political implications are, if anything, harder to determine. But the constant barrage of attacks on Trump before now, the constant demand for escalation, the years-old calls for impeachment: they all make it easier for him to say that this is just another politically motivated attack.
He might not even be wrong. It is hard to get to the heart of the matter when the Resistance mob treats every anonymous accusation from a disgruntled bureaucrat as a slam dunk for impeachment. Tribalism makes fools of us all, at times, and it is perhaps hopeless to ask for more introspection and thoughtfulness before leveling charges against our political enemies. But this is where we are.
The radicalism of the House Democrats and their media allies has made it hard to take them seriously without more conclusive evidence of presidential wrongdoing. Resistance folk on the internet are energized by this latest incident, and Trump’s more fervent partisans are too, but most people are dead tired of all of the lawfare and 24-hour news cycle argle-bargle.
They’ll watch—we all should—but for now the Zelensky affair looks unlikely to be the knockout blow the left has been seeking.
Trump detractors hyper-focus on the president’s request that President Zelensky provide Attorney General Barr with any information Ukraine might have about Biden twisting arms to quash an investigation involving his son’s cashing in on dad’s influence. I say “hyper-focus” because there was a lot more to it than that. Long before the conversation came around to the Biden topic, the “favor” that Trump asked for was Zelensky’s assistance in Barr’s ongoing investigation of the genesis of the Trump-Russia investigation.
No matter how much Democrats seek to discredit that probe and the AG overseeing it, it is a legitimate investigation conducted by the United States Department of Justice, which has prosecutors assigned and grand jury subpoena power. It is examining questionable Justice Department and FBI conduct. It is considering whether irregularities rise to the level of crimes. It will be essential to Congress’s consideration of whether laws need to be enacted or modified to insulate our election campaigns from politicized use of the government’s counterintelligence and law-enforcement powers.
I mention all this because it is a commonplace for the government to seek assistance from foreign counterparts for ongoing federal investigations.
Indeed, as Marc Thiessen pointed out this week in an important Washington Post column, Democratic senators pressured Ukraine to cooperate with the Mueller probe — notwithstanding the obvious potential electoral ramifications and the specter of “foreign interference in our democracy.” These requests for assistance often occur at the head-of-state level. When I was a federal prosecutor in the mid-nineties, for example, the FBI and Justice Department asked President Clinton to intervene with Saudi authorities to assist the investigation of Iranian complicity in the Khobar Towers bombing.
There is nothing wrong with our government’s requesting the assistance of foreign governments that have access to witnesses and evidence relevant to an ongoing Justice Department investigation. The president is the democratically elected, constitutionally empowered chief executive: There is nothing his subordinates may properly do that he may not do himself (it is his power that they exercise). And the president is never conflicted out of executive branch business due to his political interests. There is no legal or ethical requirement that the Justice Department be denied potentially probative evidence because obtaining it might affect the president’s political fortunes.
There was no impropriety in President Trump’s asking Ukraine’s president to assist the Justice Department’s investigation of Russiagate’s origins. Okay, you say, but what does that have to do with Biden?
Well, Biden was the Obama administration’s point man in dealing with Kyiv after Viktor Yanukovych fled in 2014. That course of dealing came to include Obama administration agencies leaning on Ukraine to assist the FBI in the investigation of Paul Manafort, Trump’s campaign chairman. So, Biden’s interaction with Ukraine is germane: The fact that he had sufficient influence to coerce the firing of a prosecutor; the fact that, while Biden was strongly influencing international economic aid for Kyiv, a significant Ukrainian energy company thought it expedient to bring Biden’s son onto its board and compensate him lavishly — although Hunter Biden had no experience in the industry.
That aside, I do not understand why there has not been more public discussion of the Foreign Corrupt Practices Act in light of the instances of Hunter Biden conveniently cashing in with foreign firms while his dad was shaping American policy toward those firm’s governments. As we saw with the collusion caper, it does not take much evidence of any crime for the FBI and the Justice Department to open an investigation and scorch the earth in conducting it. And if it would have been legit for the Justice Department to open an FCPA investigation of one or both of the Bidens, then it was appropriate for President Trump to ask President Zelensky to help the Justice Department determine if an FCPA crime took place – even if doing so could have affected the 2020 fortunes of Biden and Trump.95
Don’t get me wrong: I am not rooting for Joe Biden or his son to be subjected to investigation and prosecution. I agree with Attorney General Barr that there has been too much politicization of law enforcement and intelligence. In the absence of a concrete, patent, and serious violation of the criminal law, I want the Justice Department and the FBI out of politics – which would be better for them and for politics. If you think there is an indecorous heavy-handedness to the way Donald Trump and Joe Biden conduct foreign policy, that’s fine – go vote against them on Election Day. We don’t need creative prosecutors deciding elections by testing the boundaries of abstruse statutes.
Neither, however, do I believe in unilateral disarmament. There is at least as much basis for opening an FCPA investigation against the Bidens as for opening campaign-finance investigations against the Trumps. If I had my druthers, all of this nonsense would end. But as I detailed earlier this week, we have one candidate for the presidency — a once-serious legal scholar and practitioner — who publicly and straight-faced says Trump’s call with Zelensky could rate the death penalty. As we saw in the late 1990s, when Bill Clinton got to experience the independent-counsel statute up close and personal, maybe it takes Democrats being hoisted on their own petard before we finally say: This has to stop.