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The legal case against Trump was not strong - there was no actual crime

Sandeep Gopalan (Perspective)
Filed on February 6, 2020 | Last updated on February 6, 2020 at 09.01 pm

Americans were divided about whether he abused his office for personal gain, and even if he did, the harm was not actual or obvious.

58-52; 57-53. That's the final scorecard in the highest stakes gladiatorial sport in the world - taking down the president of the United States. In this game of thrones, the incumbent had a happy ending and President Donald Trump was acquitted by the Senate in a largely party-line vote. Democrats needed 67 votes to convict and remove him from office, but they fell far short as Republican kingmaker Mitch McConnell managed his flock adroitly and delivered a victory for Trump.

To be clear, Trump's impeachment trial may have commenced in the Senate on January 22 in a formal sense, but efforts to remove him from office started even before the ink announcing his shock election victory had dried. The Washington DC political establishment and a significant part of the country's electorate never accepted his victory as legitimate and remained irreconciled to his success.

It came as no surprise then, that after multiple attempts - Russian interference, the Mueller probe, tax evasion, adultery - at taking Trump down failed, the Democrats finally thought they had a winner when a whistleblower emerged claiming to have the goods on the president committing 'high crimes and misdemeanors.' At issue was a phone call Trump had with Ukrainian President Zelensky where he is alleged to have pressured that country to open a probe into Hunter Biden, son of Vice President Joe Biden in exchange for aid.

Let's examine the case. Democrats brought forward two articles of impeachment. The first alleged that Trump 'abused the powers of the Presidency' by soliciting 'the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. Democrats allege that Trump wanted the Ukrainians to 'publicly announce investigations that would benefit his reelection' and harm the prospects of Biden. They claim that Trump exercised leverage by conditioning matters 'of significant value to Ukraine on its public announcement of the investigations', specifically a White House invitation for Zelensky, and $391 million in aid. The Democrats' case is that Trump 'compromised' US national security and 'undermined the integrity' of American democracy. Trump is alleged to have acted corruptly for his personal benefit thereby ignoring and injuring the national interest.

Trump, of course, denies these claims.

So, what are the facts. The uncontroverted facts show that the US froze aid to Ukraine on July 25, the very date that the two presidents had their telephone conversation. Testimony in the House proceedings appears to show that Trump had some role in freezing the aid. Trump's allies claim that the aid was restored in September, and that it was not done in return for any investigation into the Bidens.

The weight assigned to these facts depends on where one stands on the political spectrum - for Trump's allies, it was right for the president to seek an investigation into alleged corruption.

They claim that Hunter Biden received compensation from Burisma, the Ukrainian natural gas company solely because his father was the Vice President in return for potential political favours.

And they claim that there was nothing wrong with withholding aid - US taxpayer funds should not be sent to corrupt countries, and Ukraine had longstanding problems with corruption.

As US opinion polls showed, this is not a slam dunk case. If Trump legitimately believed that there was even a whiff of corruption, he was within his rights to seek an investigation. This does not change merely because the corruption involves someone contesting an election against him.

Otherwise, anyone could evade investigation for a crime by the mere act of running for office against the party seeking to inquire - an absurd proposition. Second, the idea that a White House invitation coerced Zelensky is bizarre - he unequivocally denied being coerced and it is not evident that such an invitation was of such high value to the Ukrainian president that he would publicly announce a sham probe. Third, although Congress appropriated funding for the aid, the actual transmission of aid is an executive function. And it would severely erode the constitutional prerogative of the president's executive power to conduct foreign policy if he had no say in when and whether the foreign aid should be disbursed. This is especially the case in the Ukrainian situation. Recall that Ukraine is engaged in a conflict with Russia. The $391 million US aid scarcely makes a difference in that conflict and Ukraine is really in no position to resist Russia militarily. And the US is not interested in a military conflict with Russia over Ukraine. So, the idea that the temporary withholding of this aid would compromise national security or vital national interests is pure folly. It is not even a slam dunk that the aid was of such high value to Ukraine that it would be prepared to perform illegal acts in exchange for that aid. We have no such evidence and the Ukrainian president's words taken at face value contradict such a conclusion.

The second article of impeachment alleged Trump 'directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives.' The problem is that other presidents have defied Congressional subpoenas. Moreover, Trump, like other presidents before him was asserting executive privilege - a plausible legal ground for refusal, and a court did not order him to turn over documents.

To conclude, the legal case was not strong - there was no actual crime, much less an obvious non-criminal wrong. And it did not meet the founding fathers' intentions for what is impeachable under the constitution. Americans were divided about whether Trump abused his office for personal gain, and even if he did, the harm was not actual or obvious. In other words, Biden is not even the nominee and Trump has not won an election because of this 'election interference.'

And he did not receive anything of direct personal value - which bribery and corruption typically entails.

Trump may have won in the Senate. But his ultimate vindication can only come in the 2020 presidential election. The highest court - the people - will rule on that. Until then, the game of thrones will await another episode.

- Sandeep Gopalan is the Vice Chancellor of Piedmont International University, US


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