An apology to Carter Page
Democrats seek to redefine crimes to reframe the Trump impeachment
After weeks of hearings, Democrats are discovering a simple truth about impeachment. You do not need a crime, but you need clarity, to remove a sitting president. Faced with a country still divided right down the middle on impeaching President Trump, Democrats have reframed an alleged abuse of power as actual crimes of bribery, extortion, and obstruction. These allegations are based on the same spurious interpretations used during the Russia investigation to claim clear proven crimes.
Those "clear established crimes" are absent in this impeachment. Instead, the same experts and House members now claim three new crimes with equal certainty, but even less support under case law. If Democrats continue on this course, it will combine the narrowest impeachment in history with the most dubious claims of criminal conduct.
House Speaker Nancy Pelosi declared that the first two witnesses in the impeachment hearing offered "devastating" evidence that "corroborated" bribery. House Intelligence Committee Chairman Adam Schiff repeatedly returned to the definition of bribery this week, saying that all it requires is a showing that the president withheld military aid, even briefly, for anything that would benefit him politically or personally.
It is a definition that would turn most discretionary decisions of a president into grounds for a bribery charge. All presidential acts are to some extent political, since they are taken by politicians. The same is true for members of Congress. Presidents often seek to convince other countries to take actions that would benefit them politically. The most cited provision is Title 18 Section 201 of the federal code, which defines bribery as an act by a public official who "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 being influenced in the performance of any official act."
That definition might seem endlessly flexible, so Pelosi told the press that "to grant or withhold military assistance in return for a public statement of a fake investigation into elections" is bribery. But it is not. The courts have narrowly construed these terms and reversed high profile cases based on the type of creative interpretations now put forward by Democrats. The Supreme Court rejected such claims in Robert McDonnell versus United States. In that case, the governor of Virginia actually received "things of value" but the court rejected the "boundless interpretation of the federal bribery statute." Similar counts were rejected in other criminal cases, including counts against Senator Robert Menendez, who received gifts for allegedly using his office to benefit a donor.
Trump did not receive the requested investigations and, after a brief delay, the aid was given to Ukraine. Two different investigations were raised by Trump. First, he wanted Ukraine to investigate efforts to influence the 2016 election. While Pelosi calls that investigation fake, it is a subject being investigated by United States Attorney John Durham, who is looking at both Russian and Ukrainian sources used by Democrats and their supporters and the Obama administration to probe the Trump campaign. Moreover, recent House inquiry witnesses like Kurt Volker, the respected former United States envoy to Ukraine, said he did not think it was a problem to ask for such an investigation as part of the aid discussion since it did not demand a particular finding.
The second investigation was more problematic. The request to probe the business dealings of Hunter Biden was highly inappropriate. But it was not bribery. There is an arguable public purpose to such an investigation, since the contract was a classic example of influence peddling by a corrupt Ukrainian company seeking leverage with Vice President Joe Biden. While the request by Trump never should have been made, it is far from other acts of politicians where actual benefits were delivered. If used by Democrats, such a "boundless interpretation" rejected unanimously by the Supreme Court would be imported into an impeachment standard designed to be bounded and burdensome for Congress.
The claim that Trump calling for a corruption investigation constitutes extortion is even further off the mark. The most obvious basis for such a charge is the Hobbs Act, which prohibits "extortion under color of official right." Such violations occur when a politician demands a bribe for official conduct, like the claims against former Illinois Governor Rod Blagojevich, who demanded $50,000 in campaign contributions to increase Medicaid reimbursement rates to benefit a hospital. The problem is that military aid is subject to a large degree of executive branch discretion, which President Obama relied on to withhold aid to Egypt.
The case is even weaker when the aid was only withheld for a short period, and it is not clear the Ukrainians understood that the request for investigations might be an actual precondition. The only clear date is August 29, when an article in Politico discussed a possible quid pro quo. That, however, was just 10 days before the release of the aid without a Ukrainian commitment to investigate. If that constitutes extortion, then most presidents and members of Congress are recidivist felons. All such politicians actively negotiate for a variety of changes or actions in return for legislative or executive acts.
Finally, Democrats have been alluding to obstruction, based on the White House withholding documents and discouraging witnesses from testifying. Some of us have pointed out that prior claims of obstruction in the Russia investigation were fundamentally flawed, and are now debunked entirely, by the failure to include them in the current impeachment. The obstruction theory today is even weaker.
The fact is that Trump waived executive privilege to an unprecedented degree in the special counsel investigation by Robert Mueller, making both witnesses and evidence available. President Obama presented a far more extreme position in withholding both testimony and documents from legislative committees. Moreover, waivers have been made in the Ukraine investigation, including ordinarily privileged communications with heads of state. Witnesses have testified, including current White House staff like Alexander Vindman, without being punished.
Most importantly, Trump has gone to court to seek judicial review of these conflicts between the legislative and executive branches. He is entitled to do so, just as President Nixon and President Clinton did. Obama also sought such judicial review. What Trump cannot do is disobey a final judicial order. To impeach a president for seeking judicial review would itself be an abuse of our constitutional system.
Crimes may be revealed in upcoming testimony, but they need to be grounded in the criminal code rather than in the imagination of members of Congress. I have long criticized the poorly considered statement by President Ford that "an impeachable offense is whatever a majority of the House of Representatives considers it to be." That often cited quote wrongly suggests impeachment is based on a purely political, not a legal, standard. Even if the House has broad license in impeachment, it does not have license to redefine crimes to fit impeachments.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.