Trump, Ukraine, and Justice

Even if we assume the worst, Trump did nothing wrong in Ukraine, and nothing more than his duty. Applying pressure on Ukraine to investigate whether a past vice president of the United States engaged in a corrupt bargain that would potentially have been an impeachable offense is the constitutional duty of anyone who has sworn to defend and protect the Constitution of the United States.

The United States Constitution works on the energy of “ambition made to counter ambition” as James Madison succinctly put it in the Federalist Papers.  This is how freedom works.  Just as party ambition has spurred Democrats in Congress to investigate the president so too the ambition to defend his presidency may have motivated Trump’s investigation of Biden in Ukraine.  So far, nothing wrong.

But beyond any charges of ambition, Trump has a solemn duty as articulated in the oath of office written into the Constitution to: “preserve, protect and defend the Constitution of the United States.”  Clearly, such duty not violated by actions that could potentially protect the people from choosing a corrupt future president.  Indeed, one might argue that it requires such actions.

The potential crime Trump pushed Ukraine to investigate was one that deserved investigation.  That crime is one of only two specific crimes explicitly mentioned in the Constitution as a basis for impeachment: bribery. “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  While Democrats and the mainstream media may be inclined to disparage any possibility of its accuracy because some of the articles discussing the evidence appeared in the conservative media, what Biden was potentially accused of in Ukraine was bribery.  Accepting hundreds of thousands of dollars for family members in order to protect a company from prosecution would be an abuse of the trust placed in his office.  Given the foreign context of the bribe, and the connections of the company to the Russian-allied former regime in Ukraine, treason was also a possibility.  

If we assume the worst about Trump's actions, then all Trump did was to leverage the power and influence of the United States to coerce the government in Ukraine to investigate whether there was a potentially impeachable offense by the former Vice President.  Such an investigation was even more justified because Biden was running for president.  And past conduct while vice president that could have constituted an impeachable offense would clearly be relevant to public deliberation about the fitness for office of this candidate. 

Even if Trump imposed a quid pro quo to force a Biden investigation in Ukraine, this action by Trump, if it happened, was appropriate and just.  It passes muster.  Immanuel Kant suggested in the Categorical Imperative that one ought to “Act only according to that maxim by which you can at the same time will that it should become a universal law.”  Should it be a universal law that the officers of the United States government should be investigated when they have potentially committed treason and or bribery? Obviously.  Should those seeking an investigation leverage legal powers available to ensure that the investigation happens?  Why not?  Is imposing conditions on receipt of aid a legal power to be exercised by officers of the United States government when dealing with the leaders of other nations?  Undoubtedly.

In the relations between national governments, there is nothing so natural nor so unexceptional as a bargain in the form of a quid pro quo:  “a favour or advantage granted in return for something.”  This is negotiating 101.  State 1 gives something of value to state 2 and in return state 2 gives something of value to state 1.  To criminalize the quid pro quo in international bargaining between nations would be to criminalize most of the enterprise of international relations.  Imagine this fictitious scenario: “I’m sorry, Mr. President, I must blow the whistle.  We cannot threaten the Taliban with bombing if they don’t turn over Bin Laden, that would be a quid pro quo.”  Bargaining with foreign powers in order to accomplish things that make the President more electable is precisely the point of the constitutional set-up.  The reelection motive encourages presidents to pay attention to the wants and needs of the people.

Then there are the knock-on accusations and issues.  For instance, the claim that special treatment was accorded records of the Ukraine call.  While some reports indicate that these procedures were standard in the Trump White House because of the level of leaks it has experienced, even if they were not, the choice to protect the communications of the President when those communications were not in themselves inappropriate clearly falls within any reasonable understanding of executive privilege.  As Alexander Hamilton noted in the Federalist papers, sometimes the affairs of state require secrecy and dispatch.

Those who claim that a request from the head of one state to the head of the other constitutes a crime may perhaps be imagining that the positive response to such a request would in this context constitute a “campaign contribution” and hence it would be in violation of campaign finance law.  To see how little sense it makes to stretch campaign finance law this far, let’s reflect on it for a minute.  The claim is more or less that any request for action by anyone that helps one presidential campaign and hurts another constitutes a campaign finance violation.  Such an interpretation would prevent the President of the United States from conducting any foreign policy at all.  Let’s imagine some fictitious quotes that illustrate the absurdity.  Prime Minister Abe of Japan: “I’m sorry Mr. President. I would like to sign a trade deal with you that will lead to the purchase of millions of tons of U.S. agricultural goods, but I cannot because it would help your reelection campaign, and that would constitute a campaign contribution.”  A U.S. soldier on an anti-terrorism mission: “I’m sorry Mr. President, I cannot take on this mission because if it succeeds in stopping the sequel to 9/11 that will help your reelection campaign and it would therefore be an illegal campaign contribution.”  Indeed, it requires only a small further stretch to make the claim that perhaps the whistleblower should be charged with a campaign finance violation for taking actions that helped or hurt particular candidates in the Democratic primary.   

The current push to impeach Trump over Ukraine is, even if one assumes the worst about a “quid pro quo” in his alleged coercion of Ukraine, entirely unjustified.  Trump did not accept bribes.  He did not commit treason.  His actions constituted neither high crimes nor misdemeanors.  Instead, his actions were appropriate and just in defense of the Constitution of the United States.  And they may even have (if one assumes the worst about Biden) saved the Democratic Party from selecting as its nominee a candidate unsuited for office by virtue of his past abuse of official trust to procure personal gain.

Jesse Richman is Associate Professor of Political Science and International Studies at Old Dominion University. He teaches classes on American politics, political thought, methodology, and international studies.  His research has appeared in many scholarly journals including the American Political Science Review.  He has served as an American Political Science Association Congressional Fellow and as a Fulbright Scholar. 

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