The first week of hearings in the Trump impeachment inquiry presented a dizzying array of names and dates from the Ukrainian scandal for the public to digest. However, one Zen like question seemed to be left at the conclusion of the testimony. If a quid pro quo was uttered in Washington but no Ukrainians heard it, did it make an impeachable sound?
After all of the atmospherics and personalities, that may be the question given to the Senate for a trial in 2020. It comes down to timelines that both parties seemed eager to construct. Despite their different points of emphasis, we now have a clearer picture on a couple of points. House Democrats succeeded in presenting a compelling case that a quid pro quo was conveyed to various American players. However, it also seems clear that it was not conveyed to the Ukrainians until a few days before American military aid was actually released by the White House.
Ambassador William Taylor offered a key piece of information when he recalled with certainty that Ukrainian officials did not appear to know about any quid pro quo until after a Politico article on August 29. As soon as they learned of the possible condition of an investigation in exchange for aid, they contacted him. Thus, despite the desire of President Trump for investigations into the Ukrainian role in the 2016 election and the Hunter Biden controversy, we have a firm date for when the Ukrainian officials presumably knew about the precondition for aid.
For Republicans, this date is reinforced by the fact that there were at least three meetings with the Ukrainian president over 55 days without mention of a precondition or a quid pro quo. A second date, September 11, is equally important. That is when the aid was released by the White House. That means there was less than two weeks between the Ukrainians raising an alleged quid pro quo and the release of the aid. Democrats on the House Intelligence Committee like Joaquin Castro of Texas insisted this is just like attempted murder, unsuccessful, but still a crime. However, the law of attempt is based on clearly defined attempted crimes. It is far from established that a request or even a demand for investigations is a criminal or impeachable offense in this context.
Witnesses established that Trump requested an investigation into both 2016 election interference and the Hunter Biden contract. The first request is not and cannot be an impeachable offense. After all, United States Attorney John Durham is already leading an investigation into those allegations, including the involvement of Ukrainian figures cited as the source for information in the dossier from Chistopher Steele. It is not uncommon for presidents to encourage other heads of state to assist in such probes. Durham, a respected career prosecutor, recommended recently that his investigation be elevated to a criminal inquiry.
The references to the Biden investigation, in contrast, do raise legitimate questions for Congress. But this would be a stronger case if Trump was demanding a particular result or criminal charge from any investigation. The United States had previously asked for such investigations, and George Kent considered the Hunter Biden contract to be serious enough to raise at the State Department and directly with the office of Vice President Biden at the time. If one concludes that the Hunter Biden contract was indeed corrupt influence peddling, then the demand for an investigation takes on a slightly different cast, even if many of us view that demand as inappropriate, given its focus on a political rival.
It also would be a stronger case if American aid had been withheld until Ukrainian fulfillment of any preconditions. Instead, less than two weeks after raising the matter, the aid was released. Democrats raise a good point that the aid was released 48 hours after the intelligence community inspector general referred a whistleblower complaint to Congress, and the White House knew the issue would blow up in. However, we still do not know if the aid would have continued to be withheld if the Ukrainians failed to meet the alleged demand by Trump for investigations.
That conjectural element would create a dangerously low standard for impeachment. Transcripts of presidential conversations, from Lyndon Johnson to Ronald Reagan to Barack Obama, would indeed likely show discussions of political considerations with heads of state. Impeaching a president over asking for investigations into alleged corruption would expose future presidents to similar scrutiny. The timing or substance of actions by other countries often benefit presidents. When would such conversations be subject to review and possible impeachment?
One does not need a crime for impeachment, but without a criminal allegation there is a heightened burden to clearly define the scope of impeachable “abuse.” Otherwise, every communication with a head of state could be challenged as touching on actions that would benefit a president politically. In the impeachment of Bill Clinton, Democrats said that a president lying under oath was not impeachable because it did not “rise to the level of impeachable offenses.”
Now Democrats argue that some noncrimes constitute impeachable offenses as “abuses,” but they have yet to offer a clear limiting principle for future presidents. Since presidents often act or seek actions that benefit them politically, a “bright line” needs to be established if we do not want to reduce impeachment to simply a discretionary power of the majority. Of course, Republicans face their own challenges over defining lines. Taylor and Kent made compelling cases in their testimony for why the withholding of military aid was wrong and dangerous. Rather than defending the indefensible, most Republicans are not supporting the withholding of American military aid but are citing the fact that it was eventually released. That is hardly a moral high ground.
Listening to the Republicans reminded me of a case related to me by the Irish ambassador to the United States and a former defense lawyer. It seems that an Englishman accused an Irishman of stealing a pair of boots. The guilt of the defendant was abundantly obvious, but the Irish jury ruled against the Englishman. On the acquittal form, however, they added a line, “We do believe O’Brien should give the Englishman back his boots.” In a strange sense, the jury felt justice had been done.
In declaring Trump innocent, some Republicans seem to be adding that they are glad he eventually handed over the aid. That nuanced ethical position is likely to be lost on most voters. However, “contemptible” is not synonymous with “impeachable” in this context. The simply fact is that presidents often commit abuses. Reagan was accused of delaying the release of Americans held hostage by Iran until he was elected. Clinton pardoned a Democratic Party donor and his own half brother.
So what abuses of power are impeachable rather than contemptible? Congress soon will be meditating over the “Trump Impeachment Zen.” The difference is that, unlike real Zen, no one expects wisdom to follow the contemplation of this paradoxical political question.
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.