The alleged quid pro quo transaction at the heart of House Democrats’ case against President Trump is closer to typical Oval Office deal-making than a high crime or misdemeanor worthy of impeachment, legal scholars say.
Bartering with foreign leaders, they say, is part of a president’s job description.
“All this discussion of quid pro quo is really a smokescreen,” said Robert G. Natelson, a constitutional scholar with the Independence Institute, a libertarian-leaning think tank in Denver. “Even if it were a quid pro quo, I think it is rather clearly neither a felony nor a misdemeanor.”
The Constitution’s criteria for impeachment — treason, bribery, or other high crimes and misdemeanors — refer to felonies and serious breaches of fiduciary duty or the obligation to act in the best interest of the U.S., he said.
“It is not a breach of fiduciary duty for a president to make aid to another country conditional, and it is certainly not a breach of fiduciary duty for the president to ask the other country to investigate possible involvement in an American election,” Mr. Natelson said.
House Democrats’ impeachment case hinges on allegations that Mr. Trump withheld U.S. military aid to force Ukraine to investigate corruption involving former Vice President Joseph R. Biden and his son Hunter, who got a high-paying job at Ukrainian natural gas company Burisma Holdings while his father spearheaded Obama White House efforts in that country.
Mr. Trump also prodded Kyiv to investigate Ukraine’s suspected interference in the 2016 U.S. presidential election.
Robert Ray, a former independent counsel who conducted the probe in the Whitewater scandal involving Bill and Hillary Clinton, said the quid pro quo — “something for something” in the original Latin — also doesn’t qualify as impeachable bribery.
“If what the Democrats are pointing to is bribery, it is a long way short of that. You have to have more than a quid pro quo,” he told Fox Business Network’s Neil Cavuto.
He said the deal-making would have to be blatantly illegal to qualify as bribery.
“It has to be corrupt, which is to say something that the law is prepared to recognize as clearly and unmistakably illegal,” Mr. Ray said.
The argument has gained credence with the Republican senators who will judge Mr. Trump if impeachment goes to a Senate trial.
Sen. Lindsey Graham, South Carolina Republican, told reporters this week that he wasn’t convinced a quid pro quo by itself was impeachable.
“We put conditions on aid all the time,” the chairman of the Senate Judiciary Committee said. “But if you said, ‘I’m not going to give you money unless you investigate my political opponent to help me politically,’ that would be completely out of bounds.”
Several Trump administration officials have told the lawmakers conducting the impeachment inquiry that they believed there was a transactional relationship between the military aid and the investigation request, according to transcripts of the closed-door interviews.
Rep. Adam B. Schiff, California Democrat and chairman of the House Permanent Select Committee on Intelligence, is leading the inquiry and says the testimony about a quid pro quo is indisputable.
“We are getting an increasing appreciation for just what took place during the course of the last year and the degree to which the president enlisted whole departments of government in the illicit aim of trying to get Ukraine to dig up dirt on a political opponent, as well as further conspiracy theory about the 2016 election that he believed would be beneficial to his reelection campaign,” he said.
Mr. Trump has insisted there was not a quid pro quo. The White House said the president held up U.S. military aid to pressure other countries to contribute and to make sure Kyiv was fighting graft.
Ukraine is notorious for government corruption, especially in the energy industry.
“The president always has the authority to make aid conditional as part of American foreign policy,” Mr. Natelson said. “He certainly has authority to make aid conditional on an anti-corruption investigation. That is true even if a potential political opponent or potential political opponent’s son happens to be a suspect.”
What’s more, he said, it would be “absolutely appropriate” for Mr. Trump to request an investigation if the Biden family was suspected of corruption.
Part of the allegations against the elder Mr. Biden stems from his bragging that as vice president he threatened to block a $1 billion U.S. loan guarantee to Ukraine unless its leaders fired the country’s chief prosecutor, which they did.
Mr. Biden said he forced out Ukrainian Prosecutor General Viktor Shokin for not doing enough to fight corruption. The move was part of the Obama administration policy at the time.
However, Mr. Shokin had been investigating Burisma. The suspicions of corruption include accusations of tax evasion and that Burisma owner Mykola Vladislavovich Zlochevsky used his position as minister of natural resources to illegally secure for his company a dozen natural gas contracts.
Recently released federal documents showed that lobbyists for Burisma used Hunter Biden’s name when seeking a meeting with State Department officials to end the corruption investigation.
Mr. Natelson scoffed at the suggestion that the Bidens were off-limits for Mr. Trump’s investigation requests.
“Think of what it would look like if the president said, ‘You know, President Zelensky, what we would like you to do is undertake this anti-corruption investigation but don’t investigate Hunter Biden, he’s the son of someone who might get the Democratic nomination — so don’t investigate him.’ That would be absurd,” he said.
