Category Archives: Impeachment

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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Adam Schiff Is Watching

It is almost shocking that the press is not calling this out, even though its “one of their own” who is the perpetrator.

WSJ  12/6/2019

Fanatics can justify any action, and House Intelligence Chairman Adam Schiff this week demonstrated where that mindset leads. In his rush to paint Donald Trump as a lawbreaker, Mr. Schiff has himself trampled law and responsibility.

That’s the bottom line in Mr. Schiff’s stunning decision to subpoena the phone records of Rudy Giuliani and others. Mr. Schiff divulged the phone logs this week in his Ukraine report, thereby revealing details about the communications of Trump attorneys Jay Sekulow and Mr. Giuliani, ranking Intelligence Committee member Devin Nunes, reporter John Solomon and others. The media is treating this as a victory, when it is a disgraceful breach of ethical and legal propriety.

If nothing else, Mr. Schiff claims the ignominious distinction of being the first congressman to use his official powers to spy on a fellow member and publish the details. His report also means open season on members of the press. Mr. Giuliani over months has likely spoken to dozens of political figures and reporters—and the numbers, dates and length of those calls are now in Democrats’ hot little hands. Who gets the Schiff treatment next? If you think politics is ugly now, imagine a world in which congressional partisans routinely track and expose the call lists of their political rivals and disfavored media.

If we’ve never had a scandal like this before, it’s in part because it is legally dubious. Federal law bars phone carriers from handing over records without an individual’s agreement. The statute makes some exceptions, including for federal and state law-enforcement agencies.

But not for lawmakers. “There does not appear to be any basis to believe that a congressional committee is authorized to subpoena telephone records directly from a provider—as opposed to an individual,” former Attorney General Michael Mukasey tells me.

Maybe that’s because no one would have conceived of Congress needing to peruse private phone records. Its mission is writing laws. Or it might have been in recognition that Congress has no outside check on its subpoena powers. Law-enforcement subpoenas generally entail court supervision, helping to ensure they have a valid purpose. Mr. Schiff, working in secret, unilaterally decided he was entitled to see the phone records of private citizens.

Mr. Mukasey notes that the legal problem is “compounded,” in that going after Mr. Giuliani “raises questions of work-product and attorney- client privilege.” Whatever his role in the Ukraine affair, Mr. Giuliani remains the president’s personal lawyer. Law enforcement must present a judge with powerful evidence to get permission to vitiate attorney-client privilege. Mr. Schiff ignored all that, and made himself privy to data that could expose the legal strategies of the man he is investigating.

 

Obtaining phone logs of political rivals is a stunning abuse of congressional power.

 

Mr. Giuliani did have notice that Democrats wanted some of his phone records. The Intelligence Committee sent a subpoena on Sept. 30, and gave him until Oct. 15 to comply. Yet before Mr. Giuliani even had an opportunity to respond, Mr. Schiff separately moved to seize his records from a phone carrier, sending his subpoena to AT& T on Sept. 30 as well.

Mr. Schiff purposely kept that action secret. This guaranteed that the only entity involved with a decision over whether to release the records was AT& T. And that gave Mr. Schiff all the cards, since companies fear political retribution far more than violating their customers’ privacy.

The question is whether Mr. Schiff, in his zeal to bring down Mr. Trump, has made himself legally vulnerable. In Kilbourn v. Thompson (1881), the U.S. Supreme Court held that “a congressional investigation into individual affairs is invalid if unrelated to any legislative purpose.” Mr. Schiff might argue he has wider powers in an impeachment inquiry. But the House didn’t approve the inquiry until Oct. 31, a month after he issued his main AT& T subpoena.

“The subpoenas aren’t related to legitimate congressional oversight,” says constitutional lawyer David Rivkin. Because there’s “no conceivable legislative purpose to obtaining these call logs and publicly disclosing this information, Mr. Schiff would not be able to benefit from the Speech and Debate Clause immunity that otherwise protects members of Congress from civil and criminal liability.” Mr. Rivkin adds that any of the targets could sue Mr. Schiff under state law for invasion of privacy or intentional infliction of emotional distress, and potentially even compel Mr. Schiff to turn over documents in discovery.

Mr. Nunes has already said he’s weighing his legal options. Since House Democrats obviously won’t hold Mr. Schiff accountable for his abuses, let’s hope at least one of the targets demands a court review his tactics. No one should want to live in a world where Adam Schiff has unfettered power to spy on Americans.

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Obstruction of justice??

WSJ 11/15/2019

Is it an impeachable offense for a president to resist impeachment? House Intelligence Chairman Adam Schiff told CNN last week that White House officials’ refusal to testify in his committee’s impeachment probe could lead to “obstruction of Congress” charges against President Trump.

At a press conference last month, he warned the White House against trying to “stonewall our investigation” and said: “Any action like that, that forces us to litigate or have to consider litigation, will be considered further evidence of obstruction of justice.” He’s wrong. In the absence of a definitive judicial ruling to the contrary, the president has a well-established constitutional right—even a duty—to resist such demands. The Constitution authorized the House to impeach the president if it has evidence of “high crimes and misdemeanors,” but it does not require the president, who heads an equal branch of government, to cooperate in gathering such evidence. Accordingly, the Trump administration has refused to honor various document-production requests, and has instructed some current and former officials to ignore committee subpoenas.

Not all officials have complied with this instruction, but those who have—including former national security adviser John Bolton, former deputy national security adviser Charles Kupperman, chief of staff Mick Mulvaney and deputy White House counsel John Eisenberg—are acting lawfully and appropriately.

It has long been established that the president, and by extension his advisers, have two types of immunity from making disclosures to Congress. One applies to national-security information, the other to communications with immediate advisers, whether related to national security or not. Both immunities, when applicable, are absolute, which means they can’t be trumped by competing congressional needs.

The national-security privilege was most definitively explained in a 1989 memorandum from the Justice Department’s Office of Legal Counsel (OLC). It noted that the privilege is anchored in the longstanding right “not to disclose state secrets,” first asserted by President Thomas Jefferson and affirmed by the courts in 1807. Although the Supreme Court unanimously rejected an assertion of executive privilege for all presidential communications in U.S. v. Nixon (1974), it “unmistakably implied,” according to the OLC memo, “that the President does enjoy an absolute state secrets privilege.”

The privilege for communications with the small group of senior White House staff who are the president’s immediate advisers is equally well-grounded. The OLC first fully articulated it in 1971 under future Chief Justice William Rehnquist. The office has reaffirmed it many times under presidents of both parties in response to all manner of congressional requests.

The privilege is premised on the Constitution’s separation of powers: “The President is a separate branch of government,” a 1982 OLC memo put it. “He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it.” The president’s immediate advisers are effectively his alter egos. Compelling them to appear is the equivalent of compelling him.

This point bears emphasis. Congress also has absolute privileges from interference with its operations, including the Constitution’s Speech and Debate Clause. Under that protection, lawmakers may defy the executive branch—for example, by publicly reading classified information into the congressional record—and they have done so.

Both privileges apply to the situation at hand, in which Congress seeks information from Mr. Trump’s most senior advisers about sensitive issues of national security. Ultimately, the courts must determine whether the president may invoke these privileges and whether his advisers must comply with the Intelligence Committee’s demands. Mr. Kupperman has brought a lawsuit challenging the subpoena, which is now pending before Judge Richard Leon of the U.S. District Court for the District of Columbia. Mr. Schiff appears to have little confidence in his legal position, because he attempted to make the case moot by withdrawing the Kupperman subpoena. House lawyers asked the court to dismiss the action on that ground. Judge Leon refused.

The House claims it doesn’t want judicial review because of another pending lawsuit involving a subpoena. But that case is materially different. It was brought before the impeachment inquiry began and involves efforts to force former White House counsel Don McGahn to testify about the firing of James Comey as director of the Federal Bureau of Investigation and matters related to special counsel Robert Mueller’s investigation. It raises no question of national-security immunity, so it cannot resolve the question with respect to Mr. Kupperman—at least not in Mr. Schiff’s favor. The House majority’s effort to avoid adjudication of its demands for testimony presents another key problem. Under Mr. Schiff’s legal theory of what constitutes an impeachable offense, the House must demonstrate that the president has engaged in quid pro quo conduct vis-à-vis Ukraine, where U.S. military aid was allegedly withheld to secure cooperation in investigating Hunter Biden’s association with Burisma Holdings, a Ukrainian energy company. Mr. Trump vigorously denies that he intended to withhold U.S. aid.

His state of mind is of utmost importance to the House’s case. Yet, the only witnesses who have provided testimony on the question had little if any direct contact with the president. Advisers like Messrs. Bolton, Kupperman and Mulvaney, by contrast, would have been in daily contact with him. If House Democrats are serious about impeaching Mr. Trump for his dealings with the Ukrainian president, obtaining a judicial ruling that they are entitled to this critical testimony should be their top priority.

Mr. Schiff’s claim that Mr. Trump is guilty of an impeachable offense if he “forces us to litigate” is preposterous. It is the president’s right and obligation to protect the institution of the presidency from inappropriate congressional demands. If Mr. Schiff believes he is right on the law, he should welcome the opportunity to put his case to a judge. His refusal to do so exposes the entire exercise as a partisan sham.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

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just another impeachment

Kimberly Strassel  WSJ  11/15/2019

Democrats have already lost their impeachment battle. That’s the takeaway from Wednesday’s first public hearing. What was meant to be a moment in history turned out to be business as usual.

Democrats laid out their best case for removing Donald J. Trump from office, repeatedly using words like “extortion,” “bribery” and “abuse of power.” Mr. Trump was accused of “presidential misconduct,” of a “shakedown scheme” and of “corruption.” He was said to have broken the law and violated the Constitution. Texas Rep. Joaquin Castro analogized the president’s actions to “attempted murder.”

What else is new? The left has been leveling similar claims since before Mr. Trump was elected. When a party spends three years baselessly accusing a president of everything from being a Russian mole to obstructing justice, from profiting off the presidency to abusing security clearances and cheating on his taxes, that party loses the credibility to say: Really, this time, we mean it. Democrats didn’t lose the war for hearts and minds on Wednesday. They lost it three years ago.

Those hearts and minds are the only prize here. The media will continue to imbue this event with gravity, to report every bit of testimony as more “bombshell” evidence against Mr. Trump. But impeachment is a political process, so the measure of its “success” is whether its supporters can convince a bipartisan majority of the country that Mr. Trump took an action worthy of removal from office. Nothing in Wednesday’s hearing came close, and the Democrats took their best shot.

The FiveThirtyEight blog offers a useful polling tracker that broadly sums up public opinion on impeachment. Aside from a bump in favor in late September, when Speaker Nancy Pelosi announced her semiformal impeachment inquiry, the ensuing weeks of testimony and leaks have barely moved the needle. Instead positions have hardened. Democrats overwhelming support impeachment; Republican overwhelmingly oppose it. A majority of independents continue to oppose it. And a Politico/Morning Consult poll this week found that 81% of voters say there is no or little chance they will change their minds about the proceedings.

As for the 8% of respondents who say there is “some” chance they could be persuaded, what did Wednesday’s hearing provide them? Not much new. The Democratic strategy of holding depositions in secret and leaking nuggets meant they’d already handed out their best info to the public. The hearing was a repeat, only this time with Republican push-back.

For the most part, it was a five-hour slog through the minutiae of U.S. policy toward Ukraine. Even political junkies had a tough task trying to keep track of dates, meetings and the long, dizzying cast of bureaucratic players. Two State Department officials, William Taylor and George Kent, laid out their concerns over the temporary delay in security aid to Ukraine and their belief that it was driven by domestic politics.

At the same time, viewers watched the Democrats’ two star witnesses acknowledge that they had no firsthand knowledge of White House decisions on the aid. They were reminded that Ukraine got the money without launching an investigation into Hunter or Joe Biden. And they watched Republican congressmen make a persuasive case that Democrats are abusing the process by blackballing White House counsel from hearings and refusing to call witnesses from the Republican list.

A Roll Call story this week about voter sentiment on impeachment in Washington state quoted Mark Stephan, a political science professor at Washington State University Vancouver. He said most voters “are either not exactly tuned to it closely, or . . . they’re just like, ‘I can’t make anything of this. This all seems like a Washington, D.C., mess.’ ” That’s a Democratic failure by any measure, and it is hard to see how that dynamic could change as the hearings progress. Friday’s hearing is with a former U.S. ambassador to Ukraine, who left that post two months before the disputed phone call. Next week’s hearings will include more critics but also witnesses such as Kurt Volker, former special representative to Ukraine, and Gordon Sondland, the U.S. ambassador to the European Union, who will likely defend the administration’s actions. Democrats have meanwhile abandoned efforts to get testimony from central players, including former national security adviser John Bolton. Such testimony would arguably be most important, but Democrats have decided the process would take too long. They want a quick vote, not a thorough probe.

Given the current dynamic, it’s also hard to see how impeachment redounds to either party’s benefit. Both sides are already claiming victory and will use it as a voter-turnout tool in 2020. Impeachment is meant to be a big deal, but Democrats and the media have accomplished the disturbing feat of turning it into day-to-day partisan warfare. And the public is understandably treating it as just that: Washington as usual.

Write to kim@wsj.com.

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