The testimony of Gordon Sondland made it plain that Donald Trump did expect something in return for releasing military aid to Ukraine, and that was a Ukrainian investigation that included investigating the nature of Hunter Biden's activities in Ukraine. Beyond that, and perhaps more importantly, his testimony makes it plain that knowledge extended to others in the administration, including Vice President Pence.*
While there will be those who continue to deny this, it can't rationally be at this point. But that still doesn't answer the question.
Is it illegal?
And if it isn't, is it an impeachable offense?
This gets us uncomfortable close to the "everybody does" it defense in some ways that was raised by an administrative official some days ago . . .if a defense is needed. One well argued op ed, by Daniel McCarthy, argues that no defense at all is needed, and we'll get to that in a moment.
Let's start with the "quid pro quo" aspect of this. That means, in Latin, "this for that".
A quid pro quo arrangement isn't illegal per se. Indeed, lots of things people do every day are done on a quid pro quo basis, and almost all business deals are based on it to at least some extent. In the use in regard to crimes, however, it's meant to suggest something that's an illegal exchange. A bribe, some type of coercion, or the like. Even where bonafide professional criminals are involved, however, a quid pro quo arrangement isn't necessarily illegal.
But quite a few are. Don Coreleone's taking care of the thugs who hurt the morticians daughter, for example, in The Godfather, in exchange for a favor, is illegal.
But was this illegal?
It's not clear at all that it is.
Keep in mind, and Americans need to very much keep in mind, that an immoral exchange isn't necessarily illegal. Indeed, while Americans are very fond of claiming that "you can't legislate morality", they only mean that in the case of their own favored vices. Americans are very much in favor of legislating morality as long as its the immoral acts of other people. In recent years, entire crimes have been added to the books based on things being unfair for other groups I'm not part of, for example. The outlawing of insider trading, for example, is just that. Insider trading is a natural advantage of insiders, and making it illegal is legislating morality.
When we hear cries to put bankers in jail, and the like, for bank failures or something, that's what we really mean. They made a lot of money without caring, perhaps, about everyone else, and that's bad. Bad behavior should be illegal, we feel.
Except for our own.
Be that as it may, not everything has been covered yet, and Donald Trumps pressure to have a foreign government investigate the son of a political rival isn't clearly illegal. At least it isn't to me, although I profess not to be an expert in the criminal law.
Indeed, quid pro quo arrangements seem to be standard fare of Executives in diplomacy. We tolerate a lot of them, as long as they're of a somewhat different nature. For example, if arms had been voted for Iraq, we'd tolerate an Administration withholding them until internal reforms were made in the country. And we'd likewise support withholding aid to a country if an administration was pressuring it to address a problem we all agreed was a problem.
We'd even tolerate an insistence that a regime conduct a criminal investigation, as long as it didn't seem so targeted. So when people argue that this isn't clearly illegal, it in fact isn't clearly illegal.
Almost nobody is willing to actually defend the conduct . . except maybe some people implicitly are. That takes us to the op ed in the New York Times. In it, the Times author argues that not only do some not see a problem, but that Trump's conduct is simply Trump being Trump and, moreover, Trump engaging in the very activity that he was elected to perform. That article is here:
And like it or not, the article has a point. Trump might not have seen this as wrong as his world view is so different from most who are in politics, and who follow it.
Indeed, for those in politics, and those who really follow it, this seems so shocking as its beyond the established political pale, which Trump himself is also beyond. This means we now have two groups, irrespective of party, that really don't conceive of the political world even remotely similarly. For those who really like politics, this is so far beyond the established rules, it seems like it is criminal, even if it isn't. For those who feel that all politicians have let them down, this is just a businessman doing what businessmen do, and there's nothing to complain about.
And that explains why the needle isn't moving at all on who supports, and doesn't support, the President.
Impeachments by their very nature are highly risky. They threaten to wreck democracy simply by occurring. Those in the Democratic Party who argue that impeaching Donald Trump is necessary to preserve democracy should consider that, and might be better off putting their efforts into the election instead. Both prior impeachment trials conducted by the Senate have been wholly unjustified and served to make things worse. This effort won't succeed.
Indeed the last effort was hopelessly tainted by the fact that Bill Clinton hadn't come even remotely close to engaging in an impeachable offense. He had not violated the law. Here, it's not clear what the law is that Trump can be accused of violating. Engaging in improper pressure on a foreign government isn't a crime, it's just really bad behavior. Lots of administrations engage in really bad behavior, but this is uniquely bad as its uniquely outside of the rules. But be that as it may, it doesn't appear to be criminal.
Everyone seems to be aware of this. The Democrats in the House, therefore, have been trying to use the term "bribery" now rather than quid pro quo. It doesn't seem to really fit that definition, however, and it certainly doesn't from a criminal prospective. That makes the effort much closer to a vote of no confidence.
But our Constitution doesn't feature such a provision. As it doesn't, use of the impeachment process to do that, which frankly will be the third such attempt, stands at some point to result in a success, at which point no President will be safe from those who oppose him attempting it. During the portion of my life in which I can recall people's views on Presidents, not one single one hasn't had some rabid detractors, and for at least four of those Presidents outside of Trump there are those who used the word "impeachment" pretty loosely. At least two of those Presidents did things that were arguably illegal, but nobody would have seriously considered impeachment.
Donald Trump has been a unique President in nearly every fashion imaginable. A person doesn't have to like or dislike him to acknowledge that. He received less than 50% of the popular vote and a person has to at least suspect that he will not gain reelection in 2020.
In recent years political elites have operated on at least one other occasion to use the judicial power to remove questions from the voters. All that has ever done in this country is to preserve an argument in a more virulent form. Removing Donald Trump for bad conduct will confirm in the minds of his supporters that he was taken out by a "deep state", and in an odd sort of accidental way, that argument will gain credibility as it will be a professional political class that would be taking that step, horrified as it is by Trump acting outside the rules that almost everyone agrees are there.
At least at this point, that action entails more long term risks to the nation, no matter what a person's views are, than forgoing that attempt. At a bare minimum, it won't work, and only serves to focus an argument over Trump himself, rather than actual policies, for the fall election.
These are odd times, and odd times are dangerous. With seemingly only a few days left in the hearing, the House should go home for Thanksgiving and ponder the deeper questions that this episode raises. The risks of acting here would seem to exceed the advantages of just waiting until the fall. On this, Nancy Pelosi's original instincts are likely correct, showing that her supporters who credit her with vast political skills would seem to be right at least here.
*The inclusion of Vice President Trump implicitly means that if President Trump is removed from office via impeachment, the Vice President logically faces the same possibility.
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