Is Schiff Impeaching Biden?

 WSJ 12/6/2019

Speaker Nancy Pelosi made the least surprising news of the year Thursday by announcing that the House will proceed to impeach President Trump. Once she fired the “inquiry” missile, it could never be called back.

The question now is what precisely the articles of impeachment will say, and in particular we wonder if they will include the charge of bribery. If they do, Joe Biden should prepare for a Senate grilling.

Recall that Adam Schiff, the leading House impeachment advocate, has been floating a capacious definition of bribery that bears no relation to current law. “Well, bribery, first of all, as the Founders understood bribery, it was not as we understand it in law today. It was much broader,” he told NPR. “It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.”

Mr. Schiff repeated this definition during his Intelligence Committee hearings, and Senator Richard Blumenthal (D., Conn.) made the same point this week when he claimed in the Washington Post that “federal law defines bribery as the solicitation of ‘anything of value personally’ by a public official ‘in return for’ an official act.”

Voila, the charge is that Donald Trump solicited a bribe when he tried to withhold a White House meeting or military aid to Ukraine’s new President in return for investigations into corruption and Joe and Hunter Biden. Mrs. Pelosi says the witnesses summoned by Mr. Schiff “corroborated” the bribery charge.

We’ve argued that Mr. Schiff’s definition of bribery wasn’t true for America’s Founders and isn’t true today. And we were pleased to see support this week from impeachment scholar Jonathan Turley in his testimony to Congress. “On its face, the bribery theory is undermined by the fact that Trump released the aid without the alleged pre-conditions,” Mr. Turley said, adding that “this record does not support a bribery charge in either century.”

As for current bribery law, Mr. Turley noted, the “Supreme Court has repeatedly narrowed the scope.” The Court specifically ruled out the promise of a meeting as a corrupt “official act” in McDonnell (2016). Numerous corruption cases have been thrown out as a result, including one against New Jersey Senator Robert Menendez. The delay in military funds also fails under bribery law given that the aid was ultimately delivered and there’s doubt Mr. Trump even had the statutory authority to deny it. But let’s assume, for the sake of argument, that Mr. Schiff’s bribery definition is correct and should be the impeachment standard. Why then wouldn’t Joe Biden’s actions in Ukraine in 2015 also be an impeachable bribe?

Mr. Biden has admitted that he threatened Ukrainian officials with the denial of U.S. aid if they didn’t fire a prosecutor who was investigating Burisma, which was paying Hunter Biden some $50,000 a month. That sure looks like an official act that had “some personal or political reason,” under the Schiff definition. It was certainly something “of value personally” under the Blumenthal definition.

Mr. Biden might object that he was representing the Obama Administration “in the nation’s interest.” But defining national interest is in the eye of the beholder. Is it in the U.S. interest for Ukraine officials to see that a company can escape scrutiny for corruption if it hires the son of the U.S. Vice President? Is it in the nation’s interest if other countries and companies observe this behavior and hire relatives of other American politicians?

At the very least, this is a question the U.S. Senate should be eager to explore in Mr. Trump’s impeachment trial. Mr. Biden would be essential to call as a leading witness, perhaps for the Trump defense team.

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Our point isn’t to play a game of political gotcha with Mr. Biden, whom we would hate to see disqualified as a potential presidential nominee because of this. The point is that if Mr. Trump is guilty of bribery for his Ukraine acts, then so are most American politicians. Democrats are defining bribery so broadly for their impeachment purposes that they are also indicting Mr. Biden, Mr. Menendez and probably most previous American Presidents.

To put it another way, Democrats are trivializing impeachment. They are defining down a constitutional “remedy,” to borrow Mr. Schiff’s word, when it ought to be reserved for genuine “high crimes and misdemeanors” that most Americans would readily understand as such. Mr. Schiff and Mrs. Pelosi are putting Mr. Biden as much in the impeachment dock as the President they despise.

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