Saturday, September 21, 2019

The whistle blower's discovery of a 'matter of urgent concern' may be Trump's Watergate

Politifact addresses the question of What counts as a high crime or misdemeanor for impeachment? Based on their historical and current legal opinions they concluded that “Justin Amash got it right.”

Rep. Justin Amash of Michigan broke with his fellow Republicans in a series of tweets that suggested President Donald Trump might deserve impeachment by the House.

And that was before the whistle blower scandal broke.

In his tweet, Amash noted that the definition of “high crimes and misdemeanors” in the Constitution is relatively fluid, but that it has generally been seen as a breach of the public trust:

“In fact, ‘high Crimes and Misdemeanors’ is not defined in the Constitution and does not require corresponding statutory charges. The context implies conduct that violates the public trust—and that view is echoed by the Framers of the Constitution and early American scholars.”

Amash said that “high crimes and misdemeanors” is not defined in the Constitution but that the framers envisioned the phrase applying to violations of the public trust rather than just statutory crimes. We found that the writings of the Constitution’s framers, the discussions in the drafting of the Constitution, and the opinions of legal experts today all support Amash’s description. We rate his statement True.

Therefore, all the arguments about the immunity of a sitting president to investigation, prosecution, and indictment are not relevant when considering impeachment for high crimes.

With respect to the growing scandal, this last Thursday the New York Times Editorial Board nails it: ‘Urgent Concern’ About the President. A whistle-blower’s report has alarmed the intelligence agencies’ watchdog. Why won’t the administration share it with Congress? That is the question. In the absence of concrete answers, we are left to infer things quite nefarious. Here are excerpts (re-ordered).

The No. 1 task of America’s intelligence and law-enforcement communities is to identify and deal with threats to national security. The problem, as explained by Jack Goldsmith, who led the Justice Department’s Office of Legal Counsel under President George W. Bush, is that Mr. Trump’s behavior has repeatedly revealed “the extent to which our constitutional system assumes and relies on a president with a modicum of national fidelity, and decent judgment and reasonableness.”

In other words, the system isn’t designed to deal with a situation in which a hazard may come from the president himself.

It’s not every day that a whistle-blower in the intelligence community files a complaint about the president of the United States. But it seems to have happened last month, when an unidentified intelligence employee alerted the inspector general of the intelligence community, Michael Atkinson, to multiple acts by President Trump, including a promise he is said to have made to a foreign leader during a phone call.

The complaint alarmed Mr. Atkinson enough that he considered it a matter of “urgent concern” and alerted the acting director of national intelligence, or D.N.I., Joseph Maguire.

Under federal law, the D.N.I. “shall” deliver an inspector general’s report about an “urgent concern” to Congress within a week of receiving it. But Mr. Maguire has so far refused to. Taking his marching orders from the Justice Department’s Office of Legal Counsel, he has claimed that the whistle-blower’s complaint did not involve an “intelligence activity,” and that it contained “potentially privileged matters.”

So Mr. Atkinson reached out to Congress himself. In a letter dated Sept. 9, he informed Adam Schiff, the chairman of the House Intelligence Committee, of the existence of the complaint. On Tuesday, with the director of national intelligence still stonewalling, Mr. Atkinson followed up to say that the complaint “not only falls within the D.N.I.’s jurisdiction, but relates to one of the most significant and important of the D.N.I.’s responsibilities to the American people.”

On Thursday, Mr. Atkinson appeared before a meeting of the House Intelligence Committee that was closed to the public and the news media. Mr. Maguire is scheduled to appear before that committee in an open hearing next week. Leaders of the Senate Intelligence Committee said they expect him and Mr. Atkinson to brief them next week, too.

Maybe there’s not that much to the complaint; we can’t know yet. What we do know is there is an important principle at stake: that Congress is supposed to have oversight — through confidential hearings — of complaints like this. There’s a solid case to be made that Mr. Maguire, who has not invoked executive privilege as a reason for withholding the complaint, is ignoring the plain language of the law. While the lawyers battle over who is authorized to withhold what from whom, it’s worth making two observations: first, that the intelligence community’s watchdog — not some disgruntled denizen of the “deep state,” but a man appointed by Mr. Trump — was alarmed enough that he thought it necessary to inform Congress.

Second, that the administration is doing whatever it can to keep the complaint from becoming known, even behind closed doors.

Again, the most important question here is “why?” What do they fear? What do they have to hide?

Barbara McQuade suggests the answers in her Daily Beast opinion: If Whistleblower Is Right, Trump May Have Committed Extortion and Bribery. The president supposedly dangled millions of dollars in military aid to Ukraine in exchange for Kiev investigating Joe Biden. That looks a lot like old-fashioned corruption.

If the latest allegations about President Donald Trump’s conversations with the leader of Ukraine are true, his conduct may constitute a garden-variety public corruption crime: extortion and bribery.

The Washington Post has reported that the subject of an intelligence community whistleblower’s complaint relates to a “promise” made by Trump in a conversation with the president of Ukraine, Volodymyr Zelensky. Further reporting indicates that the conversation amounted to a threat to withhold $250 million in military aid to Ukraine unless Zelensky investigates the family of Joe Biden, who is of course running to unseat Trump in 2020.

And The Wall Street Journal has reported that during a single phone call in July, Trump made “about eight” demands for Zelensky to work with his lawyer, Rudolph Giuliani, to investigate Biden, though Trump did not mention the aid during the call. The Post reported that while there was no explicit quid pro quo during the call, that conversation is part of a broader set of facts included in the whistleblower complaint. According to the Post, a “Ukrainian official this year said he had no evidence of wrongdoing by Mr. Biden or his son, Hunter Biden.”

The facts here still need to be fleshed out, but the gist is easy enough to understand. Trump allegedly has demanded that Ukraine launch an investigation into Biden if it wants to receive the military aid that has already been promised. If true, this conduct would be a classic abuse of power that is considered criminal when committed by a public official.

The federal bribery statute makes it a crime for a public official to demand anything of value in exchange for performing an official act. A statute known as the Hobbs Act defines extortion as obtaining property from another, with his consent, under color of official right. “Property” is defined to mean anything of value, tangible or intangible. The essence of both crimes is a demand by a public official to obtain something for himself to which he is not entitled in exchange for performing an official act of his office.

Here, if the reporting is correct, Trump may be … committing bribery and extortion by using the power of his office to demand a thing of value, dirt on Biden, in exchange for an official act, the provision of $250 million in military aid. This is precisely the kind of old-fashioned corruption scheme that the bribery and extortion statutes were designed to punish.

Instead of requiring 400 pages of factual recitations and legal analysis as the Mueller investigation did, a summary of these corruption allegations would be fairly simple: Trump used the power of his office to threaten to withhold a benefit in exchange for a thing of value in violation of federal law. The nature of the purported extortion—using his position as president to make demands of a foreign leader to help him win an election—only makes it more egregious.

While we have all learned that the Department of Justice takes the position that a sitting president cannot be indicted, bribery is specifically included in the Constitution as an impeachable offense. It is the type of abuse of power that the framers envisioned when they included in the Constitution a remedy to remove the president from office when he commits high crimes or misdemeanors. By enacting the bribery and extortion statutes, Congress has proclaimed that this type of conduct is not behavior that we should tolerate in public officials generally. We should no more tolerate this abuse of power when the president does it.

Jennifer Rubin at the Washington Post tags the emerging scandal as What might finally ensnare Trump.

All of this raises the question as to whether the multiple actions amounted to a “promise” by Trump to release aid in exchange for Ukraine’s help investigating Biden. Aside from possibly implicating bribery statutes, there could be no clearer example of a “High Crime & Misdemeanor” than in using government revenue to extort a foreign power to help you get reelected. Constitutional scholar Laurence Tribe tells me that such an arrangement would probably meet the definition “within the meaning of the Constitution’s phrase ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ although it might well fail to meet the narrow definition of ‘bribery’ for purposes of criminal prosecution under 18 U.S.C. § 201.”

But make no mistake: This would be the perfect example of conduct that might not technically be a crime but is obviously and blatantly a violation of the president’s oath of office and a threat to our democratic system. Former prosecutor Renato Mariotti tweeted, “If Trump promised foreign aid to Ukraine in exchange for investigating Biden’s son, that is obviously corrupt and should meet any definition of a ‘high crime’ for impeachment.”

Now, we do not know whether this is the basis of the complaint and whether any Trump “promise” was part of a quid pro quo. That is why we need the whistleblower’s complaint released to Congress, a lightning-fast investigation and then, if supported by the facts, a call for Trump to resign or be impeached.

Along the way, there will be questions as to whether Trump or his attorney general ordered the complaint not to be sent to Congress. There will be questions as to whether Vice President Pence, who went to Ukraine recently and was asked about release of aid by reporters, or former national security adviser John Bolton (who was there as well) knew anything about this.

… if the facts point to corrupt behavior, impeachment will be a necessity and a political winner for Democrats. And yes, this would be way, way worse than Watergate.

The first step, it seems to me, is for Congress to issue a subpoena for whatever the Inspector General sent to the acting DNI.

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