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Blog No. 247. SHAME!

As regular readers know, RINOcracy.com maintains a Trump New Lows Tracker. If it had such a tracker for Congress, Friday’s proceedings would surely have qualified. On that shameful day, only two Republican Senators, Susan Collins and Mitt Romney, joined Democrats in moving to hear additional witnesses, most notably John Bolton. The motion failed, thereby assuring the acquittal of President Trump on Wednesday.

There was, to be sure, no guarantee that having testimony from Bolton or others would have changed the outcome in the Senate. Trump had denied the published report of the account in Bolton’s forthcoming book, that Trump had directly tied the aid to Ukraine to an investigation of the Bidens by Ukraine. Trump’s denial continued to be the stated position of Trump’s lawyers, but their arguments had increasingly shifted their emphasis to “Even if…”

The feeling of many Republican Senators was probably captured in a statement by Lamar Alexander:

There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’

It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.

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Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.

There was some logic to Alexander’s position. If one believed that the conduct succinctly described by Alexander was merely “inappropriate,” perhaps it is arguable that no further witnesses were needed. But what a pathetically weak term was “inappropriate.” The great majority of President Trump’s tweets are inappropriate: crude, un-presidential, spiteful, factually inaccurate, etc. But while they make even many Trump supporters wince, they are not crimes. By contrast, Trump’s conduct toward Ukraine was a crime.

Perhaps the vividness of powerful testimony from John Bolton would have awakened Senator Alexander and others to that fact. At the very least, such testimony would have laid out before the public in the clear terms just what the Senate was sweeping under the rug as merely inappropriate. The public would then have been in a better position to judge both Trump’s guilt or innocence, and whether Senators were being faithful to their duty of allegiance to the Constitution. That judgment, of course, is exactly what the Republican Senators feared.

The House did allege the commission of a crime and the House Managers did prove it. Abuse of power is not the subject of a federal statute, but as Harvard Professor Nikolas Bowie pointed out in a New York Times op-ed, abuse of power and obstruction of Congress have long been recognized as crimes at common law. Moreover, although Article I did not explicitly charge Trump with bribery, the Article alleged, and the evidence showed, that Trump committed every element of that federal crime. Under 18 U.S.C. 201, the crime of bribery includes, among other things:

(2)being a public official or person selected to be a public official, [who] directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A)being influenced in the performance of any official act;

The term “thing of value” has been broadly construed by federal courts. A memorandum by the Federal Election Commission provided a concise summary supported by multiple citations:

Federal courts have consistently applied an expansive reading to the term “thing of value” in a variety of statutory contexts to include goods and services that have tangible, intangible, or even merely perceived benefits, for example: promises, information, testimony, conjugal visits, and commercially worthless stock.

In the case of the Ukraine bribe, the “thing of value” Trump sought was the announcement of investigations in return for Trump’s “influence” in providing military aid to Ukraine.

The several presentations of the President’s lawyers reached their creative height with the argument of their lead constitutional lawyer, the Emeritus Errant, Alan Dershowitz, late of Harvard and the salon of Jeffrey Epstein. Professor Dershowitz declaimed that:

Every public official that I know believes that his election is in the public interest. And mostly you’re right. Your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

Dershowitz’s claim was widely understood to mean that a president could do virtually anything to aid his re-election “in the public interest.” Met with withering criticism, Dershowitz engaged in Washington’s favorite indoor sport, “walking back” an indefensible statement. Dershowitz offered a second version, explaining by Twitter that what he really meant was “A good motive does not justify criminal behavior. But a mixed motive should not turn perfectly legal conduct into an impeachable crime, as the Manager’s theory would.” Apart from the fact that there is little connection between the two versions, the second was not much of an improvement. Professor Michael Dorf’s scholarly analysis in Dorf on Law pointed out that the problem with the latter version “is it has almost nothing to do with Trump’s conduct.”

Indeed, I would go beyond “almost nothing” and suggest that Dershowitz’s re-cast argument had nothing whatever to do with Trump’s conduct. There were no “mixed motives” here, only pure self-interest. There was not a scintilla of national interest in asking Ukraine to investigate Trump’s loony “Crowdstrike” theory, which not even the President’s lawyers attempted to explain or defend. Nor was there any national interest in Ukraine investigating the action of Vice President Biden in carrying out the clearly established policy of the United States (and other allied governments) in seeking the dismissal of a corrupt Chief Prosecutor. Indeed, the evidence clearly showed that Trump was not even interested in any actual investigation of Biden, but only the announcement of one. On the whole, Trump’s conduct reflected self-interest as undiluted as if the “favor” he had asked of Zelensky was to come to the United States and give a major address advocating Trump’s re-election.

Reflecting on the performance of the Senate on Friday, brought to mind a famous cartoon of Thomas Nast depicting Tammany Hall’s notorious Boss Tweed. The cartoon, published in Harper’s Weekly in 1872 was titled “Can the Law Reach Him? – The Dwarf and the Giant Thief.”

On Friday, January 31, Congress elected once again to play the dwarf to President Donald Trump.

2 thoughts on “Blog No. 247. SHAME!”

  1. Alan Dershowitz: “Emeritus Errant…late of Harvard and the salon of Jeffrey Epstein.”
    I can’t stop laughing, and want to call for an investigation into why you don’t have an Op-Ed gig.

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