RUTHFULLY YOURS

The New York Times leaked what President Trump’s former national security adviser John Bolton allegedly claimed in his forthcoming book about an August 2019 meeting he held with President Trump regarding Ukraine. Bolton is said to have written that President Trump “wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens.” Senate Democrats and a few Republicans such as Senator Mitt Romney would like to hear Bolton’s first-hand testimony. However, it is much ado about nothing. Bolton’s testimony would prove nothing of relevance to the Senate impeachment trial.

One legitimately can be skeptical about the timing of the leak, which happened contemporaneously with the Amazon product page for the book going live. One can argue, as Robert Spencer has done, that Bolton sold the president out because “Trump represents a strong challenge to the foreign policy establishment views that have failed again and again, and of which Bolton is a foremost exponent.” But it does not really matter. Even if, for the purest of reasons, Bolton wants to tell what he knows at the Senate trial about his direct interactions with President Trump concerning the temporary hold on the release of the security assistance, it would not be worth prolonging the Senate trial to hear him.

John Bolton, a long-time neo-conservative hawk, left office following sharp disagreements with President Trump on a variety of foreign policy issues. Keeping security aid to Ukraine flowing without even a temporary pause was just one of those issues that Bolton felt strongly about. Bolton aired his opinions to the president, as he was obliged to do as the presidentially appointed national security adviser. President Trump rejected Bolton’s advice, as the duly elected president is entitled to do. Policy differences, whether between the president and his subordinates or between the president and members of Congress, are not impeachable offenses. Whether Bolton and members of Congress were right, and the president was wrong, does not turn a policy difference into an impeachable offense. And whether the president saw any political benefit in deciding to hold up the release of the security aid temporarily in order to satisfy himself that the supposedly anti-corruption reformist Ukraine government was truly serious about investigating allegations of corruption does not turn his mixed motives for taking an official action into an impeachable offense.

Former Harvard law professor and constitutional law expert Alan Dershowitz exploded any pretense of relevance as to what Bolton might have to say. It would add nothing of constitutional significance regarding the decision that the Senate must make in dealing with the rabidly partisan House Democratic majority’s fatally flawed articles of impeachment.

The abuse of power article rests on assessing the president’s “real” motives for withholding the security aid and allegedly pressuring Ukraine to announce the opening of investigations into reported Ukrainian interference in the 2016 presidential election and into the Bidens’ activities in Ukraine. Bolton, the Democrats argue, would provide an invaluable first-hand account of the linkage between the hold on the assistance and the president’s improper political motivations that their case lacks so far.

However, in his riveting presentation to the Senate as part of President Trump’s defense, Professor Dershowitz used the text of the Constitution on impeachment, as well as the history of its origin and subsequent application, to render even first-hand proof of such a linkage absolutely meaningless in an impeachment trial context:

Such a mind reading approach to divine personal motive, even if assisted by first-hand testimony as to what the president said he wanted to do during one portion of a wide-ranging meeting, is fatally flawed. It provides no carefully defined objective standard for applying the Constitution’s drastic impeachment and removal remedy, while nevertheless supplanting the right of the voters to decide who they want to be their president.

“Quid pro quo alone is not a basis for abusive power,” Professor Dershowitz explained. “It’s part of the way foreign policy has been operated by presidents since the beginning of time. The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, abusive power, as a constitutionally permissible criteria for the removal of a president.”

Professor Dershowitz aimed his analysis directly at what Bolton claimed he heard President Trump say that he wanted Ukraine to do before he would lift the temporary hold on the security assistance. Professor Dershowitz explained that “if a president, any president were to have done with (sic) the Times reported about the context of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat, nothing in the Bolton revelations, even if true would rise to the level of an abusive power or an impeachable offense. That is clear from the history, that is clear from the language of the constitution, you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit.”

The issue is not whether President Trump saw a political advantage for himself in pressing Ukraine to announce an opening of an investigation into the Bidens’ activities in Ukraine. The issue is whether there was any national interest in doing so, including even using a temporary pause on foreign aid as leverage for that and perhaps other purposes. There decidedly was such a national interest in addressing indisputable Ukrainian corruption. This included the potential impact of such a culture of corruption both on possible misuse of  U.S. foreign aid and on the dropping of an investigation into the corrupt Ukrainian company the son of a former U.S. vice president worked for while the father was the Obama administration’s point man in Ukraine.

The following are undisputed facts. A much fuller description is provided in the Senate testimony of Pam Bondi.

* Ukraine has a history of pervasive corruption.

* Burisma, a major Ukrainian energy company, was run by Mykola Zlochevsky, a reportedly corrupt oligarch.

* Former Vice President Joe Biden’s son, Hunter Biden, joined Burisma’s board in April 2014, the same month his father visited Kiev officially on behalf of the Obama administration and one month after the United Kingdom Serious Fraud Office opened a money laundering case into Burisma. Hunter Biden was paid at least $50,000 per month by Burisma, despite having no experience in the field of energy or with Ukraine itself.

* Hunter Biden’s tenure on Burisma’s board coincided with his father’s serving as the Obama administration’s point man in Ukraine, ostensibly to influence the policies of Ukraine’s government on matters dealing with corruption and energy issues. House Democrat witnesses called to testify during the impeachment proceeding, including Deputy Assistant Secretary Kent from the Department of State, testified there was at least a potential appearance of a conflict of interest. Hunter Biden himself admitted during an interview that if his last name was not Biden, he probably would not have been asked to be on Burisma’s board.

Burisma’s  founder was under investigation by then-Ukrainian prosecutor general Viktor Shokin, whom Joe Biden demanded in late 2015 be immediately fired. The former vice president threatened to withhold $1 billion in loan guarantees for Ukraine if that demand was not met. Biden claimed that he shared with other Western government leaders concerns that Mr. Shokin was not doing enough to combat corruption in his country. However, one of the focal points of grave corruption that Mr. Shokin was investigating at the time was Burisma. The Ukrainian prosecutor general obtained a renewal of a court order to seize the assets of Burisma’s reportedly corrupt owner, Zlochevsky.

On March 29th, 2016, the Ukrainian parliament voted to fire the prosecutor general who was investigating the owner of Burisma, on whose board Hunter Biden sat. Two days after the prosecutor general was voted out, Vice President Biden announced that the U.S. would provide $335 million in security assistance to Ukraine. Soon thereafter, he announced that the U.S. would provide $1 billion in loan guarantees to Ukraine. A clear case of quid pro quo.

While Hunter Biden sat on the board of Burisma and while Joe Biden was still the vice president, a Ukrainian court canceled the Zlochevsky arrest warrant for lack of progress in the case and all legal proceedings against Burisma and Zlochevsky were reportedly closed.

Officials in the Obama State Department were concerned enough about Hunter Biden’s connection to Burisma that they prepared Ambassador Yovanovitch on what to say during her confirmation hearings in case she was asked a question on this specific topic.

In short, we know what happened – the Ukrainian prosecutor investigating Burisma was fired following Vice President Biden’s demand at a time that his son was serving on Burisma’s board for a nice piece of change. However, we still don’t know why. We do not know for sure what was in Joe Biden’s mind at the time. He could have been trying to help his son. He could have been sincere in his belief that a corrupt Ukrainian prosecutor had to go. More likely, he could have had mixed motives. Yet Joe Biden was not subjected to any impeachment proceedings for “abuse of power,” even by a Republican-controlled House of Representatives. But that should not mean his conduct while in office is forever immune from the scrutiny of investigators.

President Trump had sufficiently objective reasons, which served a legitimate public purpose, to ask the Ukrainians to investigate what happened involving the closing of an investigation into the corrupt Ukrainian company the former vice president’s son was working for. Joe Biden is not off limits to an investigation of his use of his official powers as vice president just because he is running in 2020 to defeat Donald Trump. Placing Joe Biden off limits would place the former vice president above the law.

President Trump has the constitutional authority as the nation’s chief executive officer to determine foreign policy priorities – not the House of Representatives impeachment managers, not career bureaucrats, and not presidential appointees advising him such as former national security adviser John Bolton. For that reason, it makes no difference whether Bolton is prepared to testify that, over his objections and those of other senior foreign policy advisers, President Trump said that he intended to hold up on releasing the security assistance until he got assurances on Ukrainian investigations of possible wrongdoing by the Bidens in Ukraine in connection with Burisma. In any case, as we all know, the assistance was released without any strings attached. In short, President Trump used his powers appropriately. He certainly did not “abuse” them, whatever that means.

As Professor Dershowitz concluded, “It is inconceivable that the framers would have intended so politically loaded and promiscuously deployed a term as abuse of power to be weaponized as a tool of impeachment. It is precisely the kind of vague, open-ended and subjective term that the framers feared and rejected.”

John Bolton’s book is due for release this March. Let the American voters consider what Bolton has to say about his dealings with President Trump when casting their ballots. If the Senate decides to waste its time and call Bolton to testify, then in all fairness it must also call Hunter Biden.