Tuesday, December 10, 2019

IG Report and Articles of Impeachment

The IG report is here: https://www.justice.gov/storage/120919-examination.pdf.  It is 476 pages.

The Articles of Impeachment are here: https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/Articles%20of%20Impeachment.pdf

A summary of the Articles are:
1. Abuse of Power
Trump solicited the interference of Ukraine in the 2020 elections.  He tried to get Ukraine to publicly announce investigations into: (A) Joseph Biden, a political opponent and (B) the theory that Ukraine interfered into the 2016 elections.  Trump pressured Ukraine by: (A) suspending $391 million of military funds and (B) promising a meeting of Ukraine with Trump.

2. Obstruction of Congress.
Trump directed Executive Branch employees not to comply with subpoenas.  Specifically: (1) the White House withheld documents, (2) other departments such as the State Department withheld documents, and (3) Trump directed officials such as Mick Mulvaney not to cooperate.

That's it.  My quick thoughts:
1. Did Trump ever mention the name Joe Biden during his phone call with the Ukrainian president?
The transcript is here: https://www.politico.com/story/2019/09/25/trump-ukraine-phone-call-transcript-text-pdf-1510770 .  Here are the key lines:
Trump: "There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.  Biden went around bragging that he stopped the prosecution so if you can look into it .. it sounds horrible to me."
Ukrainian president Zelenskyy: "He or she [the new prosecutor] will look into the situation, specifically to the company that you mentioned in this issue".

It sounds to me like Trump is asking Zelenskyy to open an investigation as to why the previous prosecutor [Viktor Shokin] was fired.  Was it because he was corrupt, or was it to stop him from investigating Burisma, which was corrupt-but-untouchable?  Did Biden's threat have anything to do with it?  Trump isn't trying to dig up dirt on Biden, he is trying to get clarity on what happened (was Shokin corrupt or was Burisma corrupt).  I don't see what this has to do with the 2020 elections at all.

I don't see anything wrong at all with Trump asking a foreign country to do an investigation.  Furthermore, I don't see anything wrong at all with Trump temporarily withhold aid to put pressure on Ukraine.  This is certainly not abuse of power.

2. On obstruction of Congress.  This is a much stronger case against Trump.  However, it is clear that the President has some executive privilege. Congress doesn't have any absolute right to order the president to produce documents or have officials testify. If the president claims it, then this must be tested in court.  The claim would have been fast-tracked to the Supreme Court, which would have analyzed the situation.  In some cases, the privilege is upheld, in some cases the privilege is denied.  It is a balancing test: the "public interest in obtaining the truth in the context of a criminal prosecution" vs the need for confidentiality.  If it is a criminal matter, then the executive privilege probably will not be upheld.  The Supreme Court has only overturned executive privilege twice, once for Nixon and once for Clinton.  So it is an open question as to whether the court would have overturned it or not.  This is primarily a legal argument.  However, Congress did not test it in court and Nadler did not make any legal arguments or go through the analysis of balancing the competing interests.  Because of the lack of legal analysis, the obstruction of Congress charge must fail.

In conclusion, I don't think this is a serious effort at making a case against Trump.  This is intended only as a blot on Trump's record, like a censure, except a little stronger because it is labeled "impeachment".

What should the Judiciary Committee have done?  I don't know why they didn't hire an independent prosecutor or special counsel to research the issues, like what happened with Nixon and Clinton and with Trump previously, or have a joint committee, like what happened with Reagan.  Also, they should have gone to court to force the issue of complying with subpoenas.

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Update: Here is another analysis of the Articles of Impeachment.
https://www.breitbart.com/politics/2019/12/10/pollak-line-by-line-debunking-democrats-articles-of-impeachment-against-trump/

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