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What Exactly Is Trump’s Impeachable Offense?

Jacob G. Hornberger
October 3rd, 2019
The Future of Freedom
Comments (23)

This article was originally published by  Jacob G. Hornberger at The Future of Freedom Foundation.

I confess that I still don’t get what exactly is going to be the particular offense for which President Trump is going to be impeached.

Now, don’t get me wrong. I’m all in favor of impeaching Trump and removing him from office, but only for grave crimes, such as waging war illegally (i.e., without the constitutionally required congressional declaration of war), wreaking death, suffering, and destruction in those wars, committing countless assassinations, and violating provisions in the Bill of Rights with respect to indefinite detention, torture, denial of speedy trial, and denial of due process of law.

But impeaching Trump for a telephone conversation? To me, that has the feel of desperation attached to it, desperation born out of an increasing realization that none of the Democratic presidential candidates is capable of defeating Trump in an election. Trump’s impeachment seems like it might be the political equivalent of a Hail Mary pass in football — almost impossible to complete but would at least give the Democrats a long-shot, short-cut way to the presidency.

There are three possible offenses that would form the basis of impeachment. Let’s examine and analyze each one.

Offense One

Trump’s request of Ukrainian President Volodymyr Zelensky to initiate a criminal investigation of former Vice-President and current Democratic presidential candidate Joe Biden and his son Hunter Biden on possible corruption charges in Ukraine.

Is it really a criminal offense for a president to request that a criminal investigation be launched against someone, including a political opponent?

Let’s first consider the case of an American citizen, John Doe, who is not running for office. The president calls the attorney general and says, “Would you initiate a criminal investigation against John Doe?” Would that really be a crime under US law? What if Doe is a suspected terrorist? Or a suspected bank robber? Where in the law is the president prohibited from requesting the attorney general from initiating an investigation (and possible criminal prosecution) of Doe?

Now, let’s change the scenario. Let’s say that Trump calls a state attorney general and makes the same request. Is that against the law? I don’t see how it can be. Again, what if the person really does need to be investigated? What if he’s committed fraud, both on the federal and state level? Where in the law does it say that the president is legally prohibited from asking a state attorney general to initiate an investigation?

Let’s change the scenario again. Let’s say that Trump calls the president of a foreign country and makes the same request. Let’s say that the person he’s targeting is running an international child-trafficking operation that is based in that country but also operating within the United States. Would it really be illegal under US law for the president to request that foreign president to initiate an investigation into such person? I don’t see how it would be.

Now, let’s change the scenario to one where Trump makes the same requests with respect to someone who is running against him for president. Would that be illegal? If it’s not illegal to make the request with respect to a non-candidate, then I don’t see how it would be illegal to make the same request with respect to an opposing candidate.

Yes, the request might be a malevolent, vicious, improper, and unethical thing to do, but if we are going to impeach presidents for doing those types of things in political races, no president would last more than a few days in office. Every one of them engages in malevolent, vicious, improper, and unethical conduct in his or her insatiable quest for political power.

What if the opposing candidate really has engaged in criminal wrongdoing, either here in the United States or in a foreign country or both? Does the law really say that when a person announces for public office, he is automatically immune from investigation and prosecution for any crimes he has committed? I am certain the law doesn’t say that. Otherwise, every murderer, robber, and rapist would be running for office perpetually.

Democrats and mainstream newspaper commentators are saying that Joe Biden and his son Hunter Biden are innocent of any criminal wrongdoing. Fair enough. But maybe that’s because they haven’t been sufficiently investigated. Many guilty people appear innocent until aggressive evidence shows otherwise. Why does the fact that they say they are innocent of official corruption in Ukraine convert Trump’s request that they be investigated for official corruption into an impeachable offense?

Offense Two

Holding up a US foreign aid package to Ukraine shortly before Trump requested President Zelensky to initiate the investigation.

The charge here refers to bribery. The argument is that by Trump withholding the foreign aid money to Ukraine until he made his request to investigate the Bidens, he was essentially offering Zelensky a bribe. That is, the argument is that Trump was essentially saying with his actions, “If you will grant my request, I will give you this money.”

If that’s the case, that certainly would constitute a bribe. But there are two big problems with this argument.

First, that’s not what Trump said. It might appear that that is what he was doing by withholding the foreign aid but appearances are not the same as proof. Trump himself has come up with two explanations as to why he was holding up the aid package, neither of which had anything to do with a bribe. He might well be lying, but the burden of proof is on the accuser, not Trump. Moreover, the fact that the aid was later released to Ukraine, without Trump having had his request for an investigation into the Bidens granted, does not bode well for the accusers.

Second, US foreign aid has long been used as bribery. That’s the very purpose of foreign aid — to induce foreign regimes to do the bidding of US officials. See my articles “Foreign Aid for Dictators” and “From the Anti-Russia Brouhaha to the Ukraine Brouhaha.” Is Trump going to be impeached and removed from office for doing what the US foreign-aid system is intended to do?

I’m reminded of what happened to Yemen after it voted against President George H.W. Bush’s request for a UN resolution authorizing war against Iraq. US Secretary of State James Baker reportedly stated that that was the most expensive vote Yemen would ever take. US foreign aid to Yemen was terminated. Neither Bush nor Baker was impeached.

Moreover, it turns out that Biden himself did the same thing when he was vice-president. He told Ukrainian officials that if they didn’t remove a particular prosecutor in the regime, he would make sure that US foreign aid to Ukraine would cease. The official was quickly removed, and the aid was continued. Now, it’s true that just because Bush and Biden did it doesn’t justify Trump doing it. But it seems to me that it’s going to look a bit hypocritical, petty, and Third-Worldish to impeach Trump and remove him from office for using foreign aid in the same way that other US officials do.

By the way, if we are going to start impeaching presidents for bribery through US foreign aid, can we also start prosecuting candidates for bribery who offer voters political freebies — such as free education, free healthcare, and free income — in return for their votes?

Offense Three

Soliciting an illegal campaign contribution from Zelensky by supposedly requesting him to get political dirt on Biden and his son.

The idea here is that by requesting a criminal investigation into Biden by Ukrainian officials, Trump was essentially seeking political dirt on Biden. The political dirt, the argument goes, would be a campaign contribution from a foreign regime. It is unlawful under US campaign-finance laws for Trump to solicit or accept a campaign contribution from a foreign regime.

There are three big problems with this supposed offense.

First, a criminal investigation is not the same thing as an investigation to find political dirt on someone. A criminal investigation is a criminal investigation. It ordinarily leads a criminal prosecution. That’s not to say that a criminal investigation cannot also be a search for political dirt, but there is no evidence that Trump specifically requested political dirt when he requested that Zelensky initiate a criminal investigation of the Bidens. Based on the notes of the telephone conversation, it is clear that Trump requested an investigation, not political dirt.

Second, for political dirt to constitute a campaign contribution, it has to have some value. If Trump’s request for an investigation is construed as a request for political dirt, how much would that dirt be worth? How can such a determination be made without knowing what the dirt is? And what if it turned out that there was no dirt? Is it unlawful under US campaign finance laws to seek a contribution worth zero dollars from a foreign regime?

Third, if US campaign-finance laws make Trump’s request for an investigation into the Bidens a criminal offense, the laws are clearly unconstitutional. That’s because they obviously run afoul of the First Amendment, which states as follows: Congress shall make no law … abridging the freedom of speech.” It would be difficult to find a better example of speech than a telephone conversation. Under our constitutional form of government, when a congressional enactment collides with the Constitution, the enactment must give way.

After embroiling the nation for three years in what has to be considered the most ludicrous conspiracy theory in US history — that Trump colluded with the Russians to elect him to the presidency — it seems to me that the Democrats, the mainstream press, and possibly even the deep state have now moved on to Part 2 of their effort to remove Trump from office without having to defeat him in an election.

 

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Author: Jacob G. Hornberger
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Date: October 3rd, 2019
Website: https://www.fff.org

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23 Comments...

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  1. Which law? This one. says:

    That’s simple: 52 U.S.C. 30121, 36 U.S.C. 510
    https://www.fec.gov/regulations/110-20/2019-annual-110#110-20

  2. Old Codger says:

    Easily explained, all Democrats are INSANE!

    • Bill says:

      OC – I wish it was true they were only insane. Unfortunately, this is not the case, they don’t necessarily have mental illness, but certain do have mental disorders. There is no type of life experience, especially in the US or even the free world that causes a person to become decidedly Marxist. It germinates then blossoms in a less than well mind or evil mind. It is truly a psychosis, that’s why it is so dangerous.
      Marxism is an ideology; like all other ideologies it is irrational, it is an ideology that tries to make reality conform to their beliefs, rather than their beliefs conform to reality. They must therefore must resort to extreme measures (mass murder, gulags, extermination of individuality, destruction of personal freedoms, denial of GOD, and heavy doses of fear and propaganda) to keep it all going.
      They are Marxists at heart. They are collectivist, they despise individuality, independent thought and action, and freedoms that confer self-empowerment. They hate individual success, and those things that give average citizens the ability to live well outside the State, that is, property and prosperity. There is only one thing Marxists hate more than anything else – people.
      Their ideology is their religion, the State is their god, oppression of all free human expression is their most important sacrament.

  3. Clown World says:

    T is rumored to be making another promise, again, in which his false accusers are arrested.

    That would be something, at least.

    But, not holding my breath.

    I have not verified whether someone on trial for impeachment is eligible to run for office again.

    If true, they do not have to win the trial, to accomplish their coup.

  4. the Lone Ranger says:

    His impeachable offense?

    Outsmarting and globalists and getting in the way of their evil (destructive) plans.

    The Democrats recently changed the definition of “whistleblower” to include recipients of “secondhand” information.

    Why?

    To “micromanage” this President and choke his legitimate, Constitiutional Presidential Prerogative to protect the interests of the United States of America.

    If Joe Biden did dirty deeds as a Vice-President, he is likely to do them as a President.

    Since when is making a legitimate inquiring into such an impeachable offense?

    Mr. Trump’s pants aren’t on fire.

    The Liars’ are.

  5. Old Guy says:

    Trump isn’t being impeached the house hasn’t voted. It nothing more than a INVESTIGATION. That violates HOUSE RULES. those dimocraps are guilty on Mal Feasance, Mis Feasance and Non Feasance. They can be removed from office for just that. Add to that trying to remove the president with a political Coup that’s Treason. Barr wanted to wait until after the election to arrest the deep state Cabal criminals.

    • Fifth_Disciple says:

      Precisely the reason Pelosi is calling it an “impeachment inquiry”. Read the House Rules, I have. They don’t have to vote to investigate, they can, but they don’t have to. The are some “special investigative” powers that aren’t invoked unless they vote but I’m sure Pelosi thinks she doesn’t need those, at least not yet. The Republican minority in the House is shut out of the process until a vote is taken. This means they can’t warn their colleagues in the Senate what the House has found until it gets its floor vote. I think Pelosi is going to let this go on for a couple of months then assess where it’s at. If they’ve found strong evidence for impeachment they will. If not she wlll declare it’s “tearing the country apart and for the sake of the nation they’ve decided to let it be decided at the ballot box”.

  6. Anonymous says:

    such as waging war illegally (i.e., without the constitutionally required congressional declaration of war)
    MumbleBush…

  7. Anonymous says:

    And it’s okay to spend tens of millions of dollars to impeach Clinton for a bee jay in the office or Obama over a birth certificate.
    Sounds like politics to me but Trump’s has to do with the Constitution of United States so he is gone
    It’s about time in this. It will go down in history as one of the worst times ever for USA for a sitting disgusting personthat somehow ended up by being president by the deep state

  8. Genius says:

    All I can say is “FUUUUUUUUUU” lol.

  9. Confederate Bill says:

    I am absolutely delighted with all the chaos in US officialdom, they are going at the most incredible lengths to discredit themselves and each other. Do not be dismayed with their breathtaking lies, their grotesque hypocrisy, their amateurish pretentiousness and phoniness, and their apparent willingness to debase themselves to the point of public contempt and mockery. Rather, just laugh at them and enjoy it, let it entertain you. Just hope it continues to keep getting worse and worse until the system they built collapses. It is deeply gratifying to watch US officialdom in the act of self destructing, making itself a laughing stock around the world. They are horrible people, just dreadful awful people, the lowest sort. At least a positive effect for the Amer. citizens is that in this paralysis that they are not legislating. The good news in all this is that we are an empire in decline. This reminds me what Yeats wrote, “things fall apart, the center cannot hold”.

  10. What is Trump’s impeachable offense? In reality and leading Democrat’s minds, beating Hillary in the Presidential election.

  11. Clown World says:

    Failure to act, for the last three years, is the impeachable offense.

    • DMONIC says:

      Then The kenyan should have been impeached on month 1. Yet, we let him get away with EIGHT YEARS of ruining the country.

      • Anonymous says:

        Even if they want to believe in Obama’s badly-faked documentation, and let him and all his enablers get away with that, forever, he still never proved eligibility *ahead of running.

        Speaking of inaction, for years ongoing, how badly did Trump literally want to erase Obama’s legacy.

        Each successive administration appears to be a logical continuation of the policies of the prior administration, afaic.

      • Clown World says:

        Even if they want to believe in Obama’s badly-faked documentation, and let him and all his enablers get away with that, forever, he still never proved eligibility *ahead of running.

        Speaking of inaction, for years ongoing, how badly did Trump literally want to erase Obama’s legacy.

        Each successive administration appears to be a logical continuation of the policies of the prior administration, afaic.

  12. jakartaman says:

    Since the beginning of this farce I have been saying that this is the end of the Democratic Party as a national party

    This is an all out war for it’s very survival

  13. Anonymous says:

    § 110.20 Prohibition on contributions, donations, expenditures, independent expenditures, and disbursements by foreign nationals (52 U.S.C. 30121, 36 U.S.C. 510).

    a. Definitions. For purposes of this section, the following definitions apply:

    1. Disbursement has the same meaning as in 11 CFR 300.2(d).

    2. Donation has the same meaning as in 11 CFR 300.2(e).

    3. Foreign national means—

    i. A foreign principal, as defined in 22 U.S.C. 611(b); or

    ii. An individual who is not a citizen of the United States and who is not lawfully admitted for permanent residence, as defined in 8 U.S.C. 1101(a)(20); however,

    iii.
    Foreign national
    shall not include any individual who is a citizen of the United States, or who is a national of the United States as defined in 8 U.S.C. 1101(a)(22).

    4. Knowingly means that a person must:

    i. Have actual knowledge that the source of the funds solicited, accepted or received is a foreign national;

    ii. Be aware of facts that would lead a reasonable person to conclude that there is a substantial probability that the source of the funds solicited, accepted or received is a foreign national; or

    iii. Be aware of facts that would lead a reasonable person to inquire whether the source of the funds solicited, accepted or received is a foreign national, but the person failed to conduct a reasonable inquiry.

    5. For purposes of paragraph (a)(4) of this section, pertinent facts include, but are not limited to:

    i. The contributor or donor uses a foreign passport or passport number for identification purposes;

    ii. The contributor or donor provides a foreign address;

    iii. The contributor or donor makes a contribution or donation by means of a check or other written instrument drawn on a foreign bank or by a wire transfer from a foreign bank; or

    iv. The contributor or donor resides abroad.

    6. Solicit has the same meaning as in 11 CFR 300.2(m).

    7. Safe Harbor. For purposes of paragraph (a)(4)(iii) of this section, a person shall be deemed to have conducted a reasonable inquiry if he or she seeks and obtains copies of current and valid U.S. passport papers for U.S. citizens who are contributors or donors described in paragraphs (a)(5)(i) through (iv) of this section. No person may rely on this safe harbor if he or she has actual knowledge that the source of the funds solicited, accepted, or received is a foreign national.

    b. Contributions and donations by foreign nationals in connection with elections. A foreign national shall not, directly or indirectly, make a contribution or a donation of money or other thing of value, or expressly or impliedly promise to make a contribution or a donation, in connection with any Federal, State, or local election.

    c. Contributions and donations by foreign nationals to political committees and organizations of political parties. A foreign national shall not, directly or indirectly, make a contribution or donation to:

    1. A political committee of a political party, including a national party committee, a national congressional campaign committee, or a State, district, or local party committee, including a non-Federal account of a State, district, or local party committee, or

    2. An organization of a political party whether or not the organization is a political committee under 11 CFR 100.5.

    d. Contributions and donations by foreign nationals for office buildings. A foreign national shall not, directly or indirectly, make a contribution or donation to a committee of a political party for the purchase or construction of an office building. See 11 CFR 300.10 and 300.35.

    e. Disbursements by foreign nationals for electioneering communications. A foreign national shall not, directly or indirectly, make any disbursement for an electioneering communication as defined in 11 CFR 100.29.

    f. Expenditures, independent expenditures, or disbursements by foreign nationals in connection with elections. A foreign national shall not, directly or indirectly, make any expenditure, independent expenditure, or disbursement in connection with any Federal, State, or local election.

    g. Solicitation, acceptance, or receipt of contributions and donations from foreign nationals. No person shall knowingly solicit, accept, or receive from a foreign national any contribution or donation prohibited by paragraphs (b) through (d) of this section.

    h. Providing substantial assistance.

    1. No person shall knowingly provide substantial assistance in the solicitation, making, acceptance, or receipt of a contribution or donation prohibited by paragraphs (b) through (d), and (g) of this section.

    2. No person shall knowingly provide substantial assistance in the making of an expenditure, independent expenditure, or disbursement prohibited by paragraphs (e) and (f) of this section.

    i. Participation by foreign nationals in decisions involving election-related activities. A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision-making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person’s Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

    j. Donations by foreign nationals to inaugural committees. A foreign national shall not, directly or indirectly, make a donation to an inaugural committee, as defined in 11 CFR 104.21(a)(1). No person shall knowingly accept from a foreign national any donation to an inaugural committee.

  14. sammy says:

    Its not just the author who doesn’t know what “impeachable” offenses President Trump has supposedly committed: its virtually every other person in America. Even the Sky Screamers, when pressed, can only come up with:
    “I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM I HATE HIM !!!”

    The true motivation lies in the fact that, even this early on, the DNC knows that none of the “candidates” they’re fielding will provide anything but target practice for the President before they go down to a crushing defeat. They can’t win fair and square, so they’re gonna try to cheat their way in.

    Gee, how’d that work out for them in 2016?

  15. The Deplorable Renegade says:

    I’ll bet Trump could just stare at the dems cross-eyed and they’d still cry impeachment. Such snowflakes. Such babies. They’ll never get over losing 2016.

  16. Anonymous says:

    So the video of biden withholding money is not a crime? If it is, why is it wrong for Trump to look in to this esp, given the past indiscretions of Ukraine’s past leaders.

  17. "all for impeaching Trump" i'm done with shtfplan. have you been bought out or what? says:

    “all for impeaching Trump” are you kidding me? i’m done with shtfplan. have you been bought out or what?

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