The Evidence Against Trump vs. the Evidence Against the FBI . By Peter J. Wallison
https://www.realclearpolitics.com/articles/2019/12/13/the_evidence_against_trump_vs_the_evidence_against_the_fbi_141950.html
The House of Representatives, if the pundits are right, is about to impeach Donald Trump for attempting to use his position as president of the United States for his personal political benefit. Everyone should agree that impeachment is a serious matter, simply — if not for any other reason — because it nullifies the votes that over 60 million people cast in 2016. Under these circumstances, what do we actually know about the conduct that has put the president in jeopardy of impeachment?
In a criminal trial — a trial that would send a person to prison, or worse — we insist on a proof of guilt beyond a reasonable doubt. It’s highly unlikely that any of those who believe impeachment is justified would say that the evidence is sufficient to conclude that the charges against him are true beyond a reasonable doubt.
In a civil case, where a person is sued for doing wrong to another, the standard is a preponderance of the evidence. That means the evidence should be examined and weighed to determine liability. That standard — preponderance of the evidence — would appear to be the minimum requirement for the finding of any wrongdoing, particularly when the question is the impeachment, conviction and removal of the president.
The full House is about to debate the impeachment of President Trump on a charge of putting his personal political interests ahead of the interests of the United States. There are reasonable grounds to debate whether this is an impeachable offense, but at this point the real question is whether the House has the evidence to take such a fateful step for the country.
Oddly, this question arises precisely at the time that the inspector general of the Department of Justice has issued a report on the actions of the FBI in investigating whether the president colluded with Russia in his 2016 campaign. The IG concluded that there were 17 egregious errors by three separate groups of FBI officials — errors of such significance that they raise the question as to whether they were motivated by political bias or hatred of the president. On this question, the IG refused to make a decision. As he said in the Senate hearing, he did not find any “documentary or testimonial evidence” to charge the members of the three FBI groups with anti- Trump bias, and had forwarded his report to the attorney general for that purpose.
The IG’s statement that he had not found any “documentary or testimonial” evidence of bias was seized upon by many Democratic senators, and by the media (the New York Times headline was “Report Debunks Anti-Trump Plot in Russia Inquiry”) as evidence that the whole idea of a conspiracy against the president at senior levels of the FBI was refuted.
As many former prosecutors have made clear, even guilt in a criminal trial can be shown by the acts of the accused, whether or not they have stated or written that they intended to engage in a crime, and the gross errors of members of the FBI would be sufficient to prove criminal guilt. Attorney General William Barr, to whom the IG report was referred, has said that he believes there could be criminal intent underlying these unusual and unauthorized actions.
Compare the evidence in the IG’s report with the evidence that would be used in the House to impeach the president. It may be true that he withheld funds from Ukraine for the reasons claimed, but there is no direct evidence of this. What the brief investigation by the House Intelligence Committee showed was that there was a general belief among many people in the U.S. foreign policy establishment that the president’s motive for withholding the funds was to pressure Ukraine into investigating former Vice President Joe Biden and his son’s taking of a highly paid position in a Ukraine company at a time that Biden was serving as the Obama administration’s lead official on Ukraine.
However, there is no documentary or testimonial evidence of this. All of the evidence is what would be called hearsay in a court of law, but apparently it will be the only evidence of wrongdoing by the president that will be presented to the House. On the other hand, the president’s defenders have argued that there could be many other explanations for what he had in mind, including that he would have liked to see the investigation done but never actually told the new Ukrainian president that he was withholding the funds until an investigation was started — what became known as the absence of a quid pro quo. Most people will agree that hoping something will be done, but not acting to get it done, is not an impeachable offense.
Yet, on the basis of this evidence — far less than the preponderance of the evidence that would be required in a civil trial, and without any documentary or testimonial evidence that they consider so important in the FBI case — the Democratic members of the House seem prepared to vote for the president’s impeachment.
This is a startling inconsistency. The Democrats have accepted the statement of the DOJ inspector general that he found no “documentary or testimonial evidence” of anti-Trump bias at the FBI as sufficient to dismiss the entire question of an FBI conspiracy against the president, while accepting a collection of presumptions and rumors — without documentary or testimonial evidence — about Trump’s Ukraine intentions as a sufficient basis for impeaching him.
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