How this impeachment will play out
The effort by President Trump to bring on an investigation of former Vice President Joe Biden in Ukraine and China has given life to what had been a moribund impeachment effort in Congress. But the Constitution is clear about what is an impeachable offense, and there is serious doubt that the conduct of Trump is consistent with what the framers had in mind.
Professor Alan Dershowitz, who has made a study of impeachment, has argued persuasively that the framers, in using the term “high crimes and misdemeanors” as the key standard for impeachment, meant that an impeachable offense must at least be a crime, not just any crime, but a “high crime” equivalent in gravity to an act of treason or bribery.
Is what Trump did a crime? Although the Democrats and the media have routinely called his effort to “dirty up” Biden a crime, that is not at all clear. The foundation for the charge is campaign finance law, which makes it a crime to solicit or accept “anything of value” from a foreign source. What was the “thing of value” that Trump solicited? According to his accusers in Congress, it was the agreement by Ukraine to investigate the potential connection of Biden to his son receiving lucrative business benefits.
One of the problems with this idea is that presidents always attempt to acquire things of value exactly like this, without ever triggering a claim of criminal behavior. Think of the speech that candidate Barack Obama delivered in Berlin before he won the 2008 election. It involved much solicitation of and expenditure by the German government and was certainly of value to the Obama campaign. Was it then a crime?
Or consider the many times in past campaigns that the prime minister of Israel has come to the White House and praised the incumbent president as a true friend of Israel. Does anyone imagine that this was a voluntary act or that the president did nothing to produce this endorsement at the time and place it occurred? Is there any doubt that this was a thing of value to the incumbent president who solicited it? Was it then a crime under campaign finance law? If it was, all past presidents who have benefited from this foreign support should have been impeached.
Even if asking for an investigation of Biden were a thing of value under campaign finance law, is it something for which Trump is the sole beneficiary? There is certainly an argument that driving Biden from the race would benefit Trump next year, but if Biden had actually engaged in wrongdoing, then his exposure would prevent similar wrongdoing in the future and therefore benefit the American people as well as Trump.
The one time where a past campaign unambiguously solicited and paid for a thing of value from a foreign source was the $10 million payment by the Clinton campaign for the Christopher Steele dossier, made through an American law firm cutout to an American research firm. If Congress is going to impeach Trump for the crime of soliciting a thing of value from Ukraine, what basis would there be to deny that Hillary Clinton and her campaign should not be charged with a crime for this payment?
If lawmakers cannot distinguish the request that Trump made to Ukraine from these examples of ordinary campaign activity, the current rush toward impeachment by Congress and the media is either doomed to failure or a path to conviction for the 2016 Democratic candidate.
Peter Wallison is a senior fellow at the American Enterprise Institute. He was White House counsel in the Reagan administration. His latest book is “Judicial Fortitude: The Last Chance to Rein the Administrative State.”
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