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Impeachmentis movingforward onan arguablyflawed legaltheoryconstitutes an abuse of the President’s office.
The problem for those pushing impeachment is
that there appears to be insufficient evidence to prove
that Trump committed a crime. Half the country at
present does seem prepared to conclude, on the basis
of the summary of the Trump- Zelensky call released
by the White House on Sept. 25, that Trump at least
raised the prospect of an unlawful quid pro quo. The
theory seems to be that Trump proposed an exchange
of something of personal benefit to himself in return
for an official act by the U.S. government. On one
side of that alleged quid pro quo would be the pub-
lic announcement of an investigation by
Ukraine into a rival presidential candi-
date, former Vice President Joe Biden,
and a member of Biden’s family. On the
other: the release of temporarily withheld
foreign aid, including military assistance.
The problem with this legal theory
is that an unlawful quid pro quo is lim-
ited to those arrangements that are “cor-
rupt”—that is to say, only those that are
clearly and unmistakably improper and
therefore illegal. But in the eyes of the
law, the specific, measurable benefit that
an investigation against the Bidens might
bring Trump is nebulous. There is a se-
rious question as to whether it could ever constitute
a criminally il legal foreign campaign contribution
of personal benefit to President Trump. Indeed, the
Office of Legal Counsel and the Criminal Division
at the Justice Department apparently have already
concluded it couldn’t. Just as important, the U.S. Su-
preme Court and lower federal courts have struggled
since at least the early 1990s with application of the
federal anti corruption laws to situations like this,
where an “in kind” benefit in the form of campaign
interference or assistance is alleged to be illegal.
in my view, a fair and better legal argument can be
made in this context that only an explicit, as opposed
to an implied, quid pro quo would be sufficient to
find criminal illegality as the result of President
Trump’s words on the call with President Zelensky.
What’s the difference? Instead of President Trump
saying to his counterpart in Ukraine in words or
substance, “Do me a favor.. .” he would have to
have said, “Here’s the deal.. .” and followed up by
explicitly linking an investigation of the Bidens to the
provision of U.S. military assistance. None of that, of
course, is what was said.
Importantly, we have also learned in a little-
noted aside to the widely reported Oct. 17 press
conference by acting White House chief of staff
Mick Mulvaney that the Administration recognized
that it had no authority through the Office of
Management and Budget to permanently withhold
congressional appropriation of aid to Ukraine beyond
the 2019 fiscal year, which ended Sept. 30.
Taken together, these facts mean that whatever
your view of whether the President’s call was, in his
words, “perfect” or not, the race to impeachment is
moving forward on an arguably flawed legal theory
of an implied quid pro quo of temporarily withhold-
ing foreign aid. It doesn’t help those arguing that the
implied and temporary attempt at a quid quo pro ne-
cessitates impeachment that the aid was eventually
released and disbursed on Sept. 11. Nor does it help
them that Ukraine never publicly announced an in-
vestigation of the Bidens.
An investigation into the origins of
the probe into Russia’s 2016 election
meddling, including any Ukrainian
matters relating to it, is under way. It
is being handled through appropriate
channels and with built-in independence
by a career prosecutor, John Durham,
the U.S. Attorney in Connecticut,
and presumably outside of political
interference at Main Justice in
Washington. If Durham finds actual
evidence warranting investigation of the
Bidens, that would be entirely appropriate,
unless one is prepared to argue, speciously,
that a presidential candidate enjoys
absolute immunity from investigation during the
course of a campaign. So things are finally in the right
hands.
That is not to say that the “no harm, no foul” argu-
ment excuses the evident lack of judgment exhibited
by the White House in attempting to spur action by
a foreign government outside of proper channels to
investigate a political rival. But it is another thing al-
together to claim that such conduct is clearly and un-
mistakably impeachable. If recent polls are any guide,
many fair-minded Americans seem prepared to accept
that even if such conduct was wrong, it was not so se-
riously wrong as to warrant removal from office.
At this point nothing appears to stand in the way
of the House’s intemperate and unreasonable vote to
impeach. In Hamilton’s words, events are proceeding
“more by the comparative strength of parties than by
the real demonstrations of innocence or guilt.” It will
be left instead to the U.S. Senate sitting as a court of
impeachment with the “requisite neutrality” and the
nation’s best interests in mind to render judgment
and put a stop to what is an undeniably, and all but
exclusively, partisan effort to remove this President
from office. Only then can the country return to the
business at hand, which is the fast-approaching 2020
election, now less than a year away, and the other
important and pressing matters before the nation.Ray is a partner at Thompson & Knight LLP and, as
independent counsel from 1999 to 2002, issued the final
report in the Whitewater investigation