The Democrats' crazy drive for impeachment

Robert Ray:

We Shouldn't Impeach Trump on the Basis of Flawed Legal Theory

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The problem for those pushing impeachment is that there appears to be insufficient evidence to prove that Trump committed a crime. Half the country at present does seem prepared to conclude, on the basis of the summary of the Trump-Zelensky call released by the White House on Sept. 25, that Trump at least raised the prospect of an unlawful quid pro quo. The theory seems to be that Trump proposed an exchange of something of personal benefit to himself in return for an official act by the U.S. government. On one side of that alleged quid pro quo would be the public announcement of an investigation by Ukraine into a rival presidential candidate, former Vice President Joe Biden, and a member of Biden’s family. On the other: the release of temporarily withheld foreign aid, including military assistance.

The problem with this legal theory is that an unlawful quid pro quo is limited to those arrangements that are “corrupt”–that is to say, only those that are clearly and unmistakably improper and therefore illegal. But in the eyes of the law, the specific, measurable benefit that an investigation against the Bidens might bring Trump is nebulous. There is a serious question as to whether it could ever constitute a criminally illegal foreign campaign contribution of personal benefit to President Trump. Indeed, the Office of Legal Counsel and the Criminal Division at the Justice Department apparently have already concluded it couldn’t. Just as important, the U.S. Supreme Court and lower federal courts have struggled since at least the early 1990s with application of the federal anticorruption laws to situations like this, where an “in kind” benefit in the form of campaign interference or assistance is alleged to be illegal.

In my view, a fair and better legal argument can be made in this context that only an explicit, as opposed to an implied, quid pro quo would be sufficient to find criminal illegality as the result of President Trump’s words on the call with President Zelensky. What’s the difference? Instead of President Trump saying to his counterpart in Ukraine in words or substance, “Do me a favor …” he would have to have said, “Here’s the deal …” and followed up by explicitly linking an investigation of the Bidens to the provision of U.S. military assistance. None of that, of course, is what was said.
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I think the Democrats' theory of the case is even weaker.  If it were followed it would mean that you could not investigate corruption by a Democrat candidate involved with a foreign power.  That is an absurd position.