Clown World Impeachment

After three years of hoaxes and hysteria, the Democrats are finally bringing forward an impeachment inquiry resolution in the House of Representatives.

Sort of.

The resolution comes roughly one month after Nancy Pelosi officially "announced" an impeachment inquiry and delegated it to the endlessly duplicitous Adam Schiff and the House Permanent Select Committee on Intelligence.

To give credit where credit is due, the resolution at least pays lip service to the virtues of transparency and fidelity to due process of law.  However, it does condition rights of the minority upon the concurrence of the committee chair and makes no provision for the participation of President Trump's various counsel. It presents plenty of opportunity for Adam Schiff to make more of his trademark mischief.

Strangest of all, while Adam Schiff's Intelligence Committee is running the inquiry, Congressman Jerry Nadler and the House Judiciary Committee is the group the resolution tasks with drafting articles of impeachment against Donald Trump. Given the high degree of chaos and confusion that surrounds both committees and their chairs, how this division of duties will facilitate an expeditious process remains a mystery.

Update (10/31/2019): The House passed the impeachment resolution on a strict party line vote, with two Democrats defecting to vote "No".

Also of note: During debate on the rules portion of the resolution, the House Rules Committee voted down an amendment calling for any exculpatory material to be turned over President Trump and his attorneys--a rule similar to the "Brady" rule that exists in the Federal court system. That is not a stance that comports with existing standards of due process within American law.

Yet the resolution is not the most significant hurdle the Democrats have to overcome on impeachment. Regardless of the committee, regardless of the rules, regardless of their level of respect or contempt for due process, at some point, the Democrats have to make the case for impeachment.

What sort of case can they make?

Let us begin with the basic background of the current impeachment imbroglio.  Only July 25, 2019, President Trump had a telephone call with Ukrainian President Volodymyr Zelensky, in which it has been alleged that President Trump coercively and corruptly pressured Zelensky to provide what the Russians call "kompromat"--"dirt", in the American idiom--on presumptive 2020 Presidential opponent Joe Biden. The crux of the material Trump is alleged to have sought involves son Hunter Biden's directorship with Burisma, a Ukrainian energy company, during Joe Biden's tenure as Vice President. That Hunter Biden held a directorship with Burisma at the time Joe Biden was the Obama Administration's "point man" on Ukrainian policy is documented fact.

I shall concede an obvious point: if the allegation against Donald Trump is true, that he did use military aid to coerce dirt on Joe Biden from the Ukrainians, that would be an ugly and potentially impeachable abuse of power, even if it could not be shown to be a criminal act in and of itself.

Yet we must also acknowledge something else equally obvious: In order for a Ukrainian investigation to be unwarranted, there must be no question of impropriety by Joe Biden with respect to the Obama Administration's Ukrainian policy. An investigation can only count as "dirt" if it is inappropriate and unwarranted. If there is any potential for impropriety, President Trump, as the nation's chief executive and charged with the faithful execution of the laws, is well within his Constitutional prerogative to have an investigation into possible improprieties by the Bidens. The Democrats must thus exonerate Joe Biden before they can impeach Donald Trump--at least, presuming they wish to maintain a fidelity to the rule of law and due process of law.

Is there cause to investigate Joe Biden, either by the US Department of Justice or by the Ukrainian state prosecutors? Quite probably.

18 USC 208 sets forth a legal basis for determining conflicts of interests for government officials. It specifically precludes government officials from participating in any process, even in an advisory capacity, where said official or a family member has a financial interest. The statute forbids involvement purely on the basis of that financial interest, and does not require there be any corruption or malfeasance behind the financial interest itself. Hunter Biden's directorship at Burisma almost certainly qualifies as a conflict of interest under this statute.

(Update: it should be noted that the Vice President is specifically excluded from the legal strictures of 18 USC 208 via an exception in 18 USC 202(c), but while this does relieve the Vice President from legal consequence it cannot alter the definitive conflict of interest that arises. But for Joe Biden's status as Vice President, Hunter Biden's Burisma directorship was a textbook 18 USC 208 violation)

Moreover, Joe Biden's repeated insistence that Hunter Biden did not do anything wrong is irrelevant, regardless of whether the assertion is true or false. The ethical and potentially legal malfeasance raised by Hunter Biden's Burisma directorship is that Joe Biden had a clear and unmistakable conflict of interest per 18 USC 208 and took no action to remediate it: he did not recuse himself from Ukrainian matters, nor did he request Hunter Biden to resign the directorship, nor is there any indication of a waiver being either sought or granted with respect to Hunter Biden and Burisma.

18 USC 208 is a criminal statute, and criminal penalties apply when it is violated; moreover, even if Joe Biden is not subject to criminal sanction by virtue of being Vice President, such cavalier disregard for even the appearance of a conflict of interest creates a significant ethical if not legal issue. Is it inappropriate for the US Department of Justice to investigate the Bidens with this statute in mind (we should also keep in mind that the Vice President has few official duties beyond presiding over the Senate; an argument that Joe Biden, during his diplomatic work with Ukraine, was not acting as Vice President but as special envoy and thus subject to 18 USC 208 prohibitions is a matter for a court to adjudicate)? That would be unlikely; the conflict of interest is as factual as Hunter Biden's Burisma directorship, and would, by itself, occasion a complaint of official corruption.

As a matter of simple logic and examination of irrefutable fact, we cannot conclude that Donald Trump was looking for "dirt" on Joe Biden. An investigation into the Bidens is easily justifiable under US law. The extent to which Hunter Biden's activities might run afoul of Ukrainian corruption laws (on the Ukrainian side of things, Hunter Biden would have largely the same conflict of interest as Joe Biden) is an unknown, but if there were to be a corruption investigation by the Department of Justice, arguing that Ukraine should not have a coordinated investigation of aspects falling within their jurisdiction seems a rather tenuous and uncertain position to take.

Can seeking the investigation itself be corrupt? No. President Trump is charged per the Constitution to see that US laws are faithfully executed. He is, by the nature of the office, the United States' chief law enforcement official. In that capacity, directing and facilitating investigations is part of the job, albeit one almost entirely delegated to the Attorney General and the Department of Justice. Corrupt purpose cannot be inferred from exercise of legitimate statutory or Constitutional authority.

There is an argument to be made that seeking such investigations by the Ukraine is not a good policy position for the United States, but differences on matters of policy by definition cannot be corruption. Policy matters are, in a democracy, both to be expected and to be discussed publicly. Policy matters are not fit material for either articles of impeachment or criminal indictments. Congress would be well within its rights to object to Trump's pursuit of an investigation, even to the extent of passing a resolution of censure of the President. Indeed, if the policy differences are significant and relevant, one could even argue it is the duty of Congress to lodge such opposition and disapproval. Yet opposition and disapproval are not themselves proof of corruption, nor even intimation of corruption. In a democracy, people will disagree; that is the order of things.

Without a corrupt act, a charge of abuse of power is unsustainable, as a matter of logic and as a matter of law.

This is the quandary in which the Democrats find themselves. Before they can impeach Donald Trump--before they can plausibly hope to persuade the Senate to convict on articles of impeachment--regarding his July 25 telephone call to the Ukrainian President, they must exonerate Joe Biden of any and all impropriety. At the moment, they are not even considering Biden's activities in the Ukraine, and they certainly are not establishing they are in any way interested in scrutinizing those activities.

Perversely, one could argue the Mueller report has a more substantive case for obstruction of justice than the current impeachment inquiry has for abuse of power. The Democrats' inaction on the Mueller report since its release is a fair proof the Democrats do not believe in its case for impeachment, which makes their current faith in impeachment on abuse of power a mystery.

Thus we have a true Clown World Impeachment. We have an impeachment inquiry without a defined impeachable offense, without investigation to lay a proper foundation for even a single article of impeachment, without an efficient and effective inquiry process from which to draw articles of impeachment, yet with Democrats professing all the certitude that President Trump's malfeasances are both damning and amply established, all the while remaining studiously ignorant of the most crucial facts essential to their allegations against President Trump.

Orwell and Kafka would both be quite impressed by today's Democrats. Clown World has outdone them both.