A Legal Analysis of Trump’s Impeachment

There is a central problem with all the breathless charges levied against the President in the Senate impeachment trial. None of the allegations, pompously delivered by hyperventilating politicians and pundits, amounts to a crime. In fact, in an odd twist, if Trump failed to act in response to Joe Biden’s prior actions, he could have been accused of negligence.

As a young law student decades ago, I took part in an exercise mandatory for all in that branch of academia: breaking down a case into its basic elements. A performance of that same rigorous mental endeavor breaks down in a fascinating manner.

Burisma Holdings is a Ukrainian gas company widely considered to be corrupt. It employed former Vice President Joe Biden’s son, Hunter Biden, while Biden served as the point man for the Obama Administration to that nation. Hunter has no known expertise in the gas business. (He is an attorney who has been a cocaine abuser and was dismissed from the Navy.) The matter is similar to Hunter’s activities in China. Hunter flew along with his father on Air Force two to China on Biden’s official mission, and returned with an over one billion dollar financial deal in his pocket, on a business area he also knew little or nothing about.

Based on that objective analysis, there was nothing unlawful or unethical about President Trump’s actions in seeking to prosecute this obvious misuse of a federal office. Indeed, a failure to do what his Administration did could well have been considered negligent.

It is readily apparent that Joe and Hunter’s actions are deeply questionable, and should have been investigated thoroughly. That is precisely what the Trump Administration did. Some have quibbled about whether it was necessary to delay by three months lethal aid to Ukraine while the matter was being reviewed; others point out that it was necessary to encourage Kyiv’s cooperation. Ironically, those complaining about the several months delay in aid (aid which, by the way, was clearly given after that time period without any quid pro quo) supported the complete and total denial of that lethal aid by the Obama Administration.

A rigorous legal analysis of the charges against President Trump thoroughly indicates that his administration acted correctly, and, once again, failing to have acted as it did would have been negligent.

The second of the two charges against the President is that he obstructed Congress.

Since before he was even inaugurated, his opponents have sought to eliminate his ability to govern. I was in Washington, D.C. hours before Trump’s inauguration. His opponents, who refused to accept the election results, were marching around the Capital holding signs demanding that he be impeached! Shortly thereafter, a charge of Russian collusion was levied at him, which was thoroughly investigated and found not only to be completely false, but the product of a smear effort by his campaign opponent.

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Any opposition to the various smear campaigns has been labelled “obstruction.” Any attempt to restrict the harassment of presidential appointees, a rather overt move to cripple the ability of Trump’s Administration to govern, has been labelled “obstruction.”

Failing to come up with any legal basis to overturn the 2016 election, the opposition has resorted to attempts to divert the White House’s attention away from fulfilling its campaign promises by forcing it to defend against various unfounded charges. Absent any real basis, hyperbole is employed. Every baseless allegation is nonsensically labelled “devastating news against the President.”

The fiery language and the extreme opposition currently observed in the Senate trial are the result of two key Democratic Party concerns.

The first is their fear that they will not be able to defeat him in a fair election. Rep. Adam Schiff, a key figure in the impeachment, has already said that a Trump re-election would be “invalid.”

The second is more subtle, and includes greedy politicians of both parties.

Americans have always wondered about the shocking ability of federal elected officials of relatively modest means to become astoundingly wealthy after taking office. Trump’s threats to stop that, to, as he puts it, “drain the swamp” is a direct threat to them. This is particularly true in terms of financial relations between members of Congress and foreign governments. The President is not alone in this endeavor. Louisiana Senator John Kennedy has called for a ban on financial dealings by elected officials with Ukraine.

This impeachment, as a fair legal analysis would reveal, is a textbook exercise in what lawyers call “Abuse of Process,” a foul practice arising when a plaintiff misuses or perverts legal proceedings not justified by the underlying legal action, for the purpose of intimidating or harassing an opponent.

Photo: Pixabay

Quick Analysis

Part 3: AMERICA’S STRATEGIC POSTURE

We conclude our summary of the urgent recommendation of the Congressional Committee on the nation’s Strategic Posture NON-NUCLEAR CAPABILITIES The Commission recommends: The United States urgently deploy a more resilient space architecture and adopt a strategy that includes both offensive and defensive elements to ensure U.S. access to and operations in space. The United States and its Allies take steps to ensure they are at the cutting edge of emerging technologies – such as big data analytics, quantum computing, and artificial intelligence (AI) – to avoid strategic surprise and potentially enhance the U.S. strategic posture. The United States prioritize funding and accelerate long-range non-nuclear precision strike programs to meet the operational need and in greater quantities than currently planned. x America’s Strategic Posture The United States develop and field homeland IAMD that can deter and defeat coercive attacks by Russia and China, and determine the capabilities needed to stay ahead of the North Korean threat.4 The Secretary of Defense direct research, development, test and evaluation into advanced IAMD capabilities leveraging all domains, including land, sea, air, and space. These activities should focus on sensor architectures, integrated command and control, interceptors, cruise and hypersonic missile defenses, and area or point defenses. The DOD should urgently pursue deployment of any capabilities that prove feasible. The Secretary of Defense and the Military Departments transfer operations and sustainment responsibility for missile defense to the appropriate Military Departments by 1 October 2024. This will allow the Missile Defense Agency (MDA) to focus on research, development, prototyping and testing. ALLIES AND PARTNERS The Commission believes it is in the U.S. national interest to maintain, strengthen, and when appropriate, expand its network of alliances and partnerships. These relationships strengthen American security by deterring aggression regionally, before it can reach the U.S. homeland, while also enabling U.S. economic prosperity through access to international markets. Withdrawing from U.S. alliances and partnerships would directly benefit adversaries, invite aggression that the United States might later have to reverse, and ultimately decrease American, allied, and partner security and economic prosperity. Further, the Commission believes that our defense and the defense of the current international order is strengthened when Allies can directly contribute to the broader strategic posture, and the United States should seek to incorporate those contributions as much as possible. The Executive branch should recognize that any major change to U.S. strategic posture, policies, or capabilities will have great effect on Allies’ perceptions and their deterrence and assurance requirements. As a result, any changes should be predicated on meaningful consultations. RISK REDUCTION The Commission believes it is of paramount importance for the United States to work to reduce strategic risks. This involves activities and programs across the U.S. government, including in nonproliferation and arms control, as well as maintaining strong, viable, and resilient military forces. The Commission recommends that a strategy to address the two-nuclear-peer threat environment be a prerequisite for developing U.S. nuclear arms control limits for the 2027-2035 timeframe. The Commission recommends that once a strategy and its related force requirements are established, the U.S. government determine whether and how nuclear arms control limits continue to enhance U.S. security. The Commission recommends that the United States continue to explore nuclear arms control opportunities and conduct research into potential verification technologies in order to support or enable future negotiations in the U.S. national interest that seek to limit all nuclear weapon types, should the geopolitical environment change. Where formal nuclear arms control agreements are not possible, the Commission recommends pursuing nuclear risk reduction measures to increase predictability and reduce uncertainty and the chances for misperception and miscalculation. The 2009 Congressional Commission on the Strategic Posture of the United States reported that the United States was at “a moment of opportunity, . . .but also a moment of urgency” – because the security environment had improved and the threat of nuclear proliferation was the principal concern. Since 2009, the security environment has dramatically worsened and new existential threats have emerged. This Commission concludes that the United States now faces a highstakes challenge that requires urgent action. Nevertheless, the Commission has not seen the U.S. government demonstrate the urgency and creativity required to meet the challenge. Nothing other than synchronized steps taken by the Executive and Legislative Branches will craft the strategy and build the posture the nation requires. The challenges are unmistakable; the problems are urgent; the steps are needed now. Photo: An Air Force Global Strike Command unarmed Minuteman III intercontinental ballistic missile launches during a test at Vandenberg Space Force Base (DoD)