- Thanks to Audible for
keeping Legal Eagle in the air.
Oh my gosh, I have so
much work to do today.
Well, let me read one more article
by the mainstream media fake
news before I get started.
Testimony torpedoes
republican defenses of Trump.
Trump's defenses are almost entirely gone.
Trump has no defense
after Sondland testimony.
That can't be right, can it?
(triumphant music)
Hey Legal Eagles, it's time
to think like a lawyer,
because republican and
democratic positions
on this whole impeachment hearing
have been changing over time,
and I think it's worthwhile going over
the republican impeachment defenses
to see if they hold any legal water.
Quick disclaimer, of
course, the facts are fluid
and they are changing.
Multiple witnesses are
testifying every week,
so some of the factual issues here
that I'm going to discuss
I'm sure are going to change.
But I wanted to take some time to focus on
some of the legal issues
that are implicated
by these impeachment hearings.
I'm going to try to do my best
to steel man these arguments.
In other words, I'm going to try to give
the republican defenses
in the best light possible
to avoid attacking the strawmen
and dealing with the best possible version
of those particular defenses.
Some of these defenses
are better than others.
It's a bit of a moving target though,
because different republicans have
focused on different defenses.
There isn't exactly a
unified front on this.
With that being said, let's
dig in to the main defenses
that republicans are using
in this impeachment inquiry.
So the first impeachment
defense probably boils down
to no quid pro quo, or on other words,
the call was perfect.
- There's a rumor out there,
the first conversation.
It was beautiful, it was
just a perfect conversation.
- This is largely the preferred
defense of President Trump
in that he tends to tweet
this out with some frequency.
This also appeared to
be the early favorite
defense of the republicans
that has largely evaporated.
You still see it a little bit,
but it's not the favored
defense at the time.
The argument is that as a factual matter,
there was no quid pro quo
between the United States and Ukraine.
- I didn't do it, there
was no quid pro quo.
Senators and all of these other people
have actually done what
they're accusing me of doing,
which I didn't do.
- As the president often
tweets out and says in public,
read the transcript.
Whether you believe that
the transcript is sufficient
to show a quid pro quo evidencing
a solicitation of a bribe,
or whether you believe that the transcript
demonstrates that the
call was in fact perfect,
as the president says is a
factual matter for you to decide.
A variation of this argument was used
in the questioning of
Lieutenant Colonel Vindman
by Representative
Ratcliffe, who pointed out
that no witness in the depositions
as part of the impeachment inquiry
had ever used the word bribery.
- In an impeachment inquiry
that the Speaker of the House
says is all about
bribery, where bribery is
the impeachable offense, no
witness has used the word
bribery to describe President
Trump's conduct, none of them.
- Instead, that witnesses had
used the phrase quid pro quo.
Bribery is the ultimate conclusion.
In other words, it is a legal conclusion
that the democrats are
attempting to prove,
if the analogy to being
a prosecutor holds.
And it would be improper
to ask the fact witnesses
about an ultimate legal conclusion,
that's not what fact witnesses are for.
And while reasonable minds can differ
about the conclusions that one draws
from the facts that have
been elicited thus far,
and I leave it to you
as to where you think
the facts are going in
this particular case,
it does seem like most
republicans are pivoting away
from the argument that there
is no quid pro quo at all,
because to believe that argument,
you would have to believe
that most of the witnesses
that have testified so far are lying,
including Yovanovitch, Sondland,
Holmes, Williams, Taylor,
Volker, Kent, Hill, Vindman,
and John friggin' Bolton,
they're all liars in this particular case,
and that's a hard argument to make,
which is why it seems to appear that
most republicans have moved
on from no quid pro quo
to no illegal or impeachable quid pro quo.
In fact, even chief of staff Mick Mulvaney
said in the last press
conference that he gave
that there was in fact a quid pro quo
and that quid pro quos
happen all the time.
- We do that all the
time with foreign policy.
- And in fact that this
particular quid pro quo
was conditioned partially on
investigation into the Bidens.
Gordon Sondland said in his testimony
that there was in fact
an explicit quid pro quo.
He straight out said it.
- What there a quid pro quo?
As I testified previously with regard to
the requested White House call
and the White House meeting,
the answer is yes.
- Now House Minority Leader Kevin McCarthy
takes a slightly more nuanced
path when he argued that
the Ukrainians got
everything that they wanted,
so there was no quid pro quo.
That's not exactly the
same thing as arguing
that there was no quid pro quo
except to say that there
was no ultimate transfer
of a thing of value, which
is a slightly different
argument that we'll get
to in just a second.
Ben Shapiro points out an
interesting nuance on Twitter
when he says "the question
for Sondland today
"isn't whether Trump withheld aid
"in exchange for investigations.
"We already knew that.
"The question is whether Trump's intent
"was to get Biden in anticipation of 2020
"or to investigate 2016 activities
"out of concern for
corruption, even if the latter
"was based on bad information
"and conspiracism promoted by Giuliani."
And this is true in a
criminal prosecution sense.
I don't often agree with Ben Shapiro,
but I think this is an
interesting, if nuanced, point.
It deals with the mens rea
defense to impeachment,
which we'll talk about in just a second,
but I do want to drop a footnote
that I want you to think about,
which is that it's not
an either or proposition
that the president's motivation was either
to get dirt on the Bidens
for his own personal gain
or to investigation corruption in Ukraine.
It's not necessarily the case
that he had only one motivation,
want the legal implications
of this mixed potential motive
are very, very interesting.
And that brings me to the next
argument, it's all hearsay.
The Trump administration
and its supporters
have been fairly consistent
in arguing that the evidence
that's been elicited so far
has been hearsay testimony
and that it relies on
out-of-court statements.
- It's all hearsay, you
can't get a parking ticket
conviction based on hearsay.
The whistleblower didn't
hear the phone call.
- Now I have done an entire
video on the nature of hearsay
evidence as it regards
these impeachment hearings,
but suffice it to say while
there is a grain of truth
in these arguments, just
because something is hearsay
doesn't mean it's, number one, admissible,
and number two, bad evidence.
And the public shorthand of
thinking of hearsay evidence
as being second and third-hand information
is not necessary coextensive
with the legal definition,
and often hearsay is powerful evidence,
and it depends on the
particular circumstances
whether particular evidence,
particularly hearsay evidence,
is good evidence or bad evidence.
It depends on whether that
evidence is corroborated.
It depends on the nature of
the circumstances themselves,
and it depends on
whether the circumstances
would allow that hearsay
evidence in or not.
Now there are arguments to be made
that to the extent the
information is hearsay,
there are all kinds of
exceptions to the hearsay rule
that are used every day in court
to allow that information to
be admitted into evidence.
Sometimes hearsay evidence
is incredibly strong.
I would argue that things
like business records
in the form of emails or video
or testimony of the accused
who admits to a crime,
all of which are considered
hearsay but are admissible
in court because they are very
strong pieces of evidence.
But admittedly, sometimes
hearsay is particularly weak.
It depends on the nature of the evidence
and the nature of the circumstances
in that particular case.
Now I will point out that
in these proceedings,
there's a bit of what lawyers would call
an unclean hands problem,
in that the people who have
first-hand knowledge of
what the president said
and what the president
did are being prevented
from testifying in these proceedings.
And I think the democrats
would argue that, for example,
if the mob intimidates a
witness into not testifying,
that member of the mob
shouldn't be able to then argue
about the lack of witnesses
testifying against them,
and as Neal Katyal has argued on Twitter,
the only reason that we don't
have the first-hand knowledge
witnesses is because Trump
blocked them from testifying.
That itself is impeachable,
and as time goes on,
perhaps we will get more
testimony from those individuals
who had first-hand knowledge
of the actual instructions
that President Trump may
or may not have given.
And on November 20th, Gordon Sondland,
who did have some first-hand
interactions with the president
and first-hand knowledge
of the events described
did testify that apparently
the entire state department
led by Mike Pompeo and
Chief of Staff Mulvaney
did know about the explicit quid pro quo.
- You've testified that Mulvaney was aware
of this quid pro quo, of this condition
that the Ukrainians had to meet
that is announcing this
public investigations
to get the White House
meetings, is that right?
- Yeah, a lot of people were aware of it.
- Including Mr. Mulvaney?
- Correct.
- Which brings me to the next big defense,
which is that the aid, the
military and financial aid
that was allegedly
conditioned on investigations
into the Bidens was in fact released,
or for short, the Sideshow Bob defense.
This is the defense that was
made famous by The Simpsons
in arguing that attempted
crime is not really a crime.
- Convicted of a crime
I didn't even commit.
(scoffs) Attempted murder,
now honestly what is that?
Do they give a Nobel Price for
attempted chemistry, do they?
(toilet smashes)
- I know this may come as
news to many of you out there,
but attempted crime is in fact a crime,
and unfortunately for many of you,
next time you are pulled
over by the police,
you can't try to get out of
it by offering the police
a bribe and then claim that
it wasn't attempted bribery
because the police officer didn't accept
the bribe that you offered.
That will get you in a lot
of trouble, #notlegaladvice.
Now I think most people
intuitively understand
that attempted crime is
still, in fact, a crime
in and of itself, but this
argument in particular
in the context of bribery
makes absolutely no sense.
Solicitation of a bribe is a federal crime
under 18 USC 201
particularly subsection b2.
Federal bribery occurs
when a public official
seeks a thing of value in exchange for
some official act or duty.
It doesn't rely on the
person who is the target
of the solicitation actually giving
the politician in question
the thing of value,
it's all in the ask.
Arguably, there isn't such a thing
as attempted solicitation of bribery
in the context of someone
who has asked for a bribe.
In that particular case, the
act has been consummated.
There's no attempt, there is
an actual violation of the law.
So here the argument
is that President Trump
sought an investigation
into a political rival
in exchange for releasing a hold
on funds the Congress appropriated,
punctuated in the Zelensky
transcript readout
where President Trump talks about the aid
and then says "I would like
you to do us a favor though."
Along those lines, Nikki
Haley says it didn't succeed,
so it was absolutely okay.
- The Ukrainians never
did the investigation,
and the president released the funds.
I mean, when you look at those,
there's just nothing impeachable there.
- The main argument being here that
because the $400 million in
aid was in fact released,
that is evidence that there was no
conditional hold on it in the first place,
therefore no quid pro
quo, and it certainly is
potential evidence of
that particular argument.
The counterargument there is
that based on the timeline
that the aid was released
only after Politico
did its famous article on
this particular quid pro quo,
after the whistleblower
had already come forward,
and after the House had
started investigating
the whistleblower, that
based on that timing,
the actual release of the
funds is not as exculpatory
as the administration may want it to seem.
And as far as I know,
there doesn't appear to be
a strong counter-narrative as to why
the aid was held in the first place.
Gordon Sondland says he reached
out to the administration
for an answer as to why there was a hold
and no one, including up
until the present day,
ever provided him with a reason
for why there was a hold
on these Ukrainian funds,
which was particularly
important because the aid
was going to expire at the
end of September if it wasn't
released based on the
congressional budgetary rules.
The best defense is that it was somehow
related to anti-corruption measures,
which we'll talk about in just a second.
But that brings me to the next argument,
which is that the Ukrainians
didn't feel any pressure.
This is a slight variation on
the aid was released argument.
Now it remains to be seen to what extent
the Ukrainians knew or thought
that the $400 million in aid
was being deliberately withheld
on condition of investigations
into the Bidens.
There are conflicting
witnesses on both sides,
but I think it's unanimous
in that everyone knew
that the aid wasn't delivered
and that there was some kind of delay
on the $400 million in aid.
Now some, including Mick
Mulvaney have argued that
the president withheld
the aid to ensure that
it was put to good use,
but it's worth pointing out
that the president doesn't have authority
to withhold
congressionally-appropriated funds.
The 1974 Congressional Budget
and Impoundment Control Act
at 31 USC 1512 states that
the president can only
impound funds under limited circumstances
and for no more than 45 days,
because congressional
power is at its zenith
when you're talking about the budget,
congressional appropriations.
Congress has the power of the purse,
and the funds would have
expired if not released
by the end of September
because of the way that
the congressional budget works.
The relevant federal budget was
passed in September of 2018,
a year prior, and in February of 2019,
the Trump administration
said it was releasing the aid
to Ukraine and it wasn't
until almost the entire year
after it was passed that
the Trump administration
actually released the appropriated funds,
which I probably don't need to tell you
is far longer than the 45 days that
the Impoundment Control Act
allows the president to delay.
And as to whether the
Ukrainians actually felt
the pressure or not, it
actually doesn't matter
for the crime of bribery.
Elie Mystal makes this
point in a great article
in The Nation which I will link to below.
He talks about the difference between
the crime of bribery and
the crime of extortion.
Bribery, or at least in this
case solicitation for bribery
does not require that the recipient feel
any particular pressure,
whereas the crime of extortion
does require undue pressure being levied
against the victim and
that forcing them to do
something as a result of thing.
Which takes me to the next offense,
which is too bad to crime,
AKA Quid-Amateur-Pro.
In the world of attempt, it doesn't matter
if you are stopped beforehand
or are so inept as to not be able to
actually consummate the
criminal act contemplated,
or that the victim is unaware
that the criminal acts are going on.
What matters are whether you
have the requisite intent
and whether you take a step
in furtherance of that particular act.
So for example, if you
are wearing ski masks
with the intent to rob a
bank, it doesn't matter
if you are arrested before
you get to the bank.
That's attempted bank robbery.
Or if you go into a bank
and ask the teller for money
at gunpoint and she says "no"
and you don't get any money,
that's also attempted bank robbery.
So from a criminal law perspective,
it doesn't actually matter
if you're not good enough
or competent enough to actually complete
the crime that you are accused of,
what matters is that
you attempted to do it
and that you had the requisite mens rea
or corrupt intent to be able to do it.
Of course as we've discussed,
in the world of solicitation of bribery,
all that's required is
that the ask be made.
It doesn't actually require
that the thing of value
that was sought actually be transferred.
There really is no attempt
in this particular context,
it's the full crime itself.
So whether the people who
are being accused here
are competent enough or
not is beside the point,
at least as it regards
general criminal law.
Which brings me to the next defense,
the Ukrainians didn't pay up.
This is a variation on
the actual crime itself
was not completed argument,
and this was the focus
of Representative Jim Jordan
during the questioning
of Gordon Sondland on November 20th.
Representative Jordan
focused on the fact that
allegedly President Trump
had extorted the Ukrainians
to investigate the Bidens
and to do an investigation
into the Crowd Strike Ukrainian servers,
and he focused on the idea
that because the Ukrainians
didn't pay up for what was
part of the quid pro quo,
that therefore there
was no underlying crime.
- You know what a quid pro quo is?
- I do.
- This for that, right?
Looks to me like Ukraine got that
three times and there was no this.
There was, we didn't do anything,
or excuse me, they didn't
have to do anything.
- The argument goes that
effectively no harm, no foul,
because the Ukrainians
got what they wanted
and they didn't have to
investigate the Bidens.
Again, the problem with
this argument is that
the idea of attempted
solicitation of bribery
is a little bit incogent,
and the no harm no foul
argument sort of breaks down
when you compare it to an analogy to
something that we could all agree would be
absolutely solicitation for a bribe.
So imagine if you had a politician
who is on a city council, for example,
and says to a local developer
"I will approve your
project if you give me
"a million dollars into my bank account."
Well we can all agree that that is
solicitation of a bribe.
It doesn't actually
matter if the developer
pays the million dollars or eventually
goes to the newspaper, reveals it,
and then the development is approved.
The fact that the politician
asked for a million dollars
is the improper act
and is the consummation
of the crime of solicitation of bribery.
And here, Representative
Jordan is probably correct
that the Ukrainians didn't
have to do the ultimate things
that were asked of them.
The factual evidence appears
to show that the Ukrainians
were in active talks
with the State Department
to eventually make an announcement.
There were negotiations back and forth
as to what the announcement
was going to say,
and during the July 25th call,
President Zelensky says
that he is going to do it.
Effectively, the damage was
done and the ask was made,
and on November 20th,
Gordon Sondland testified
that in exchange for the official act
of actually releasing
the $400 million in aid,
the Ukrainians only had to announce
investigations into the
Bidens, they actually didn't
have to do the investigations
into the Bidens.
- I never heard Mr.
Goldman, anyone say that
the investigations had to
start or had to be completed.
The only thing I heard from
Mr. Giuliani or otherwise
was that they had to be
announced in some form,
and that form kept changing.
- Announced publicly?
- Announced publicly.
- Now it's probably
worth pointing out that
the aid was released only
after the Trump administration
allegedly got caught,
and it's possible that
there are other explanations,
there could be other evidence here,
and that the timing here
is only a coincidence.
But so far, the White House
hasn't really provided
that evidence or provided
an alternative narrative.
All right, that takes us
to the no mens rea defense
and the variation, the
too dumb to crime defense.
Now, some crimes have a very
specific intent required,
sometimes called mens rea.
In other words, a lot
of criminal laws require
not only do you do the act
that is considered criminal,
the actus rea, but you also
have to have the mental state
that goes along with that particular act.
In this particular case,
President Trump needs to
have had the specific
intent to solicit a bribe.
Proving mens rea sounds hard.
It requires proving the mental
state of another person,
and oftentimes that is very difficult,
but it's also something that
the criminal justice system
is very, very familiar with.
You use the witness's other
actions and statements
to show a state of mind.
Here for the most part, I
think we're talking about
18 USC 201 b2, which is the
solicitation of a bribe.
Now the caveat here is, as always,
impeachment does not require proving
beyond a reasonable doubt that
someone committed a crime.
The burden for impeachment is not the same
as the burden for a criminal prosecution.
Impeachment is a political device
and high crimes and
misdemeanors can often mean
whatever Congress says it means.
This particular statute does
provide a good definition
of generally what courts look for
in terms of solicitation of a bribe.
Now the jury instructions
for federal bribery state
that at least when you're talking about
trying to bribe an official,
the defendant must have
promised, offered, or given
money or a thing of value
to the public official
with the deliberate purpose of influencing
an official act of that person.
The analogy being that
when you're talking about
the solicitation of a bribe,
it's the other way around,
the public official is
asking to be influenced
in exchange for some other official act,
but that is the general mens rea,
the intent requirement that a
prosecutor would have to show
in order to prove solicitation of a bribe.
Now here, on November 20th,
Gordon Sondland said that
the president conditioned
a White House meeting
on the Ukrainians
providing the investigation
into the Bidens and the
Ukrainian Crowd Strike server,
but Sondland also testified
that he never heard
the specific words that the $400 million
in military aid was conditioned
on the Biden investigation.
He said that was his conclusion
from all the instructions that he received
from Mick Mulvaney and Mike Pompeo.
Now contrary to what you see on TV,
criminals rarely say the
actual explicit words
that by themselves are sufficient
to prove the actual crime.
Generally, prosecutors have to prove that
with circumstantial evidence.
Now also contrary to what you see on TV,
circumstantial evidence
can be very, very strong.
DNA evidence is considered
circumstantial evidence,
and in fact if this were
a criminal prosecution,
the jury would get an
instruction from the judge
that says circumstantial
evidence is as strong,
if not stronger as direct evidence.
All that circumstantial evidence means is
something that is not by
itself directly sufficient
to prove the crime itself,
or in this case, the mental state.
Now in this particular case,
the circumstantial evidence
of the potential mens rea
for solicitation of bribery
would include the July 25th
call with President Zelensky,
the July 26th call with Gordon Sondland,
the fact that Rudolph
Giuliani was a go-between
even though he's not a
member of the government,
and everything else that was said and done
as between Sondland and the
members of the State Department.
In fact, Gordon Sondland testified that
he cleared everything with
Mulvaney, Bolton, and Pompeo,
and he assumed that if it
came from those people,
that it came from orders
from the president himself.
On the other hands, defenders
of the administration
would point to other
circumstantial evidence
that they would claims as evidence of
lacking the required mens rea
to effectuate a solicitation of bribery,
and in fact, Gordon Sondland
says that after Bill Taylor
famously texted "as I said on the phone,
"I think it's crazy to
withhold security assistance
"for help with a political campaign"
in a September 9th phone
call with the president
that potentially raises the questions
that Bill Taylor Raised.
- I just asked him an open-ended question,
Mr. Chairman, what do
you want from Ukraine?
I keep hearing all these
different ideas and theories
and this and that, what do you want?
And it was a very short,
abrupt conversation.
He was not in a good mood,
and he just said "I want
nothing, I want nothing,
"I want no quid pro quo."
- While you can argue that the president
explicitly saying that he
doesn't want a quid pro quo
is exculpatory evidence and shows that
he lacks the requisite mens rea,
you could also argue given the timeline
that this actually supports
a potential coverup
from the president,
that given the timeline
that the Politico article
had already revealed
the potentially improper hold
on Ukrainian foreign assistance
and the fact that even
Bill Taylor was saying
it was crazy to condition the aid on
the Ukrainians investigating the Bidens,
that this call and the statement that
President Trump made to Gordon Sondland
is actually evidence
that he was backtracking
and trying to cover up his
tracks, it can go both ways.
That's the issue with
circumstantial evidence,
it can support one narrative,
but it can also support a
different narrative as well,
and I will leave it to you
as to whether you believe
the president intended the
exchange for his own purpose
or for an official
purpose of the government.
Which brings me to the
next potential defense,
which is that the president
controls foreign policy
and it would be improper to impeach him
over a foreign policy decision.
Now there is certainly some truth to this.
The president has almost all of the power
for foreign policy, he
is the commander in chief
of the armed forces and he
controls almost every decision
when it comes to foreign policy.
Really, Congress has the
power to declare war,
ratify treaties, and appropriate funds
when it comes to foreign policy,
but that's really about it.
The executive is really in
control of foreign policy.
Now there is a dispute about whether
a constitutionally-enumerated
power can give rise
to a crime or to impeachment.
- Well when the president does it,
that means that it is not illegal.
- By definition?
- Exactly.
- But most constitutional
scholars agree that
even an official act that is
enumerated by the Constitution
can give rise to impeachment
if not criminal prosecution.
That being said, you would imagine that
given that the president has
vast foreign policy powers,
that you would be very, very reluctant
to impeach a president over something
that he or she has plenary authority over,
in this case, setting foreign policy
or removing an ambassador.
And there's no doubt that
interactions with Ukraine
touch on foreign policy power,
but just because you have
a right doesn't mean that
you can escape the repercussions
of exercising that right.
In the same way that you
have a First Amendment right
to freedom of speech, but
that doesn't absolve you
from all of the repercussions
of actually using
that speech in a specific way.
By analogy, consider a
hypothetical involving pardons.
Now in the same way that the president has
almost unfettered foreign policy power,
the president absolutely
has unfettered pardon power.
It can't be checked by Congress
and it can't really be checked
by the judiciary either,
but if a president started selling pardons
for a million dollars apiece,
that president could and pretty
much by all accounts should
be impeached for that kind of action,
despite the fact that
the president is allowed
to pardon people under
almost any circumstances,
and in fact, one might
argue that that president
should be criminally prosecuted
for solicitation of a bribe.
So the fact that this particular instance
implicates foreign policy
should give everyone pause
because the president
has wide powers here,
but just because the
president has wide power
doesn't act to absolve the president
of potentially untoward activity.
Which brings me to the next defense,
which is that the State Department
or Gordon Sondland went rogue.
I think we're gonna be seeing more
of this particular defense in the wake of
Gordon Sondland's bombshell testimony,
but at base, Gordon
Sondland testified that
in a few calls he had with the president,
he didn't explicitly
link releasing the aid
with investigations into the Bidens,
but that everyone knew that
that was what the president wanted.
That was the understanding amongst Pompeo,
Volker, and Sondland,
AKA The Three Amigos.
So potentially, those
three people could be
the fall guys for the administration,
saying that it wasn't the
president that ordered
the conditionality of the
Biden investigation on the aid,
but rather these State Department
officials that went rogue.
The argument being that the
president didn't order it,
if the State Department
officials had that understanding,
it wasn't an understanding
that came from the president,
and that the State Department
and the Chief of Staff
slash the head of the OMB Mick Mulvaney
effectively went rogue
in a coordinated effort
to extract something from the Ukrainians
that the president actually didn't want.
I will leave it to you if you think that
it is more likely that these individuals
acted without the knowledge
and consent of the president,
or whether it was more
likely that the president
gave orders that were trickled through
the Secretary of State and Chief of Staff.
- Secretary Perry,
Ambassador Volker, and I
worked with Mr. Rudy
Giuliani on Ukraine matters
at the express direction
of the president of the United States.
- Now Gordon Sondland says
that when Giuliani gave orders,
it was assumed to have come from
the president, specifically.
- When the president says
"talk to my personal attorney"
and then Mr. Giuliani
as his personal attorney
makes certain requests or demands,
we assume it's coming from the president.
- Now one issue with
this particular defense
is that Rudy Giuliani
didn't have the authority
to hold up Ukrainian aid
for almost an entire year,
that that falls under
the purview of the OMB
that's led by Mick Mulvaney,
which is one reason we
would really want to know
what people told Mick Mulvaney and why,
as well as what was told to Rudy Giuliani
and what was spoken
between the two of them,
which brings me to the
next potential defense,
the president has a duty
to root out corruption,
both domestically and abroad.
I think that this is
probably the main defense
that we're going to see going forward.
Now as we've covered, the
president controls foreign policy
and there's no doubt that
rooting out corruption
is intertwined with that mandate
to deal with America's foreign policy.
Now based on the evidence
that's been elicited so far,
I leave it to you as
to whether you believe
that the president was
motivated to root out
corruption abroad, or
whether he was motivated
to get dirt on a political rival,
but note that people are
complicated and it can be both.
People can be motivated by multiple
different things at the same time.
Now in the criminal world,
in terms of mens rea,
if there are multiple reasons
for committing something,
if any one of those mental
states is sufficient
to meet the standard of
mens rea as required,
that person can be convicted
of that particular crime.
So the underlying argument
is that if there was a basis
for the Hunter Biden
slash corruption argument,
then the president is absolved,
but that actually goes the wrong way,
at least when you're talking
about a criminal context.
If someone has committed
the act that is sufficient
for a crime, say bank robbery,
and has multiple reasons for doing it,
one of which is the mental
state that's required
for the criminal offense,
say bank robbery again,
the fact that there are multiple
different motivations is irrelevant.
If any one part of that
motivation is sufficient,
that person can be convicted.
And again, we would have to go back
to not only what the president has said,
but what the president has done
and what everyone else had
done around the president
to determine what the
president's mental state
actually was at the time and
whether that was sufficient
to prove solicitation of bribery.
Now Kurt Volker testified on November 19th
that he sought investigations into Burisma
to be separate from the Bidens.
The former being okay,
the later being improper
quid pro quo solicitation of bribery.
- There was no mention
of Vice President Biden.
Rather in referencing Burisma
in 2016 election interference,
it was clear to me that he, Mr. Yarmouk,
was only talking about
whether any Ukrainians
had acted inappropriately.
- He concluded that others
in the Trump administration
saw the two as intertwined
and as the same.
If that is indeed the case,
that could be sufficient
to prove solicitation of bribery,
but what could be
potentially even more damning
in this context and might
obviate the corruption defense
is that multiple witnesses had testified
that President Trump wasn't interested
in the investigation into the Bidens
so much as the announcement
of the investigation.
As I think Asha Rangappa
was the first to point out,
this is what's considered
black propaganda,
propaganda that obfuscates
where it came from.
The Trump administration
wanted the Ukrainians
to make an announcement
of the investigation
into the Bidens and make it look like
it had nothing to do with
the Trump administration.
And on top of that, it doesn't appear that
the Trump administration
cared about this corruption
in 2017 or 2018 when hundreds
of millions of dollars
of aid went to the Ukrainians,
it was only in 2019
when Joe Biden became the
political front runner
for the Democrats for the 2020 election.
And since President Trump asks
us to read the transcript,
in the transcript of the July 25th call,
the president doesn't
actually mention corruption.
He mentions the Bidens three times,
and similarly, President Trump
doesn't ask about Burisma,
but about the Bidens.
Now other witnesses may have
a lot more to talk about this,
that we may learn evidence
that the president
was more concerned about corruption.
Of course, as we've talked
about on this channel before,
there are proper channels for
opening up an investigation
into an American citizen abroad,
and President Trump does
not appear to have followed
any of those procedures, and of course,
those procedures never involve
using your own personal
attorney as a figurehead
for American foreign policy.
And also, as several witnesses testified,
foreign policy and/or the
National Security Council
is supposed to be very separate
from domestic politics.
So arguably it is correct that
whatever Hunter Biden
may or may not have done,
and whatever Joe Biden
may or may not have done
isn't relevant to the
question of whether president
engaged in some illicit action,
but what is relevant is the
president's understanding
of what Hunter and Joe Biden
may or may not have done.
And I think this is what Ben Shapiro
was getting at in his tweet.
He accurately points out that
the president's motivations
do matter in this context,
that similar action can
be liable or culpable
depending on the mental
state that's at issue,
but at the same time,
the process matters too.
Given how unusual some
of these actions are
and how bad some of them look,
it can be very, very
difficult to make a defense
that the mental state is
missing in this particular case.
The process does matter,
and you can't just put
lipstick on a pig by saying that
something that was completely
illegal and improper
was done for the purpose
of rooting out corruption.
For example, as law professor Orin Kerr
said very facetiously, "you
can't impeach Nixon for trying
"to uncover corruption at
the DNC's Watergate offices.
"It was Nixon's duty to fight corruption
"and it's not his fault
that his political opponents
"were so corrupt that it required him
"to send burglars over to break in.
"Some might counter that a
president has better ways
"to fight corruption,
such as sending the FBI,
"whose job it is to do that.
"But Nixon is so passionate
about fighting corruption
"that he felt compelled to secretly send
"his own burglars, loyal only to him,
"to get it done right.
"It's disgusting that some
think Nixon should be impeached
"simply for loving America so much that
"he just wanted to investigate corruption
"in the most effective way he could.
"You'd have to love
corruption to criticize
"the Watergate break-in.
"It was a perfect break-in."
That really gets to the heart of it.
The process matters,
and the process also gives us a window
into the motivations
that might have motivated
the particular actions at issue here.
Now I think I'll have to do
an entirely separate video
on Hunter and Joe Biden and
the potential for corruption,
but suffice to say both sides could be
right at the same time.
There could be underlying corruption
and it could also be the
case that President Trump
did something illegal and impeachable.
Both could be true at the same time.
Hunter Biden could be the devil incarnate,
but President Trump's acts could still be
an illegal solicitation of a bribe,
they are not mutually exclusive,
which is one of the reasons why I think
a lot of president's defenders
will retreat to the position
that it's bad, but it's
not impeachably bad.
This is a political question
as to whether these actions
give rise to impeachment
or whether it is prudent
to conduct an impeachment
under the circumstances.
It's a political question
that I will leave to you,
but also remember that the standard is not
whether this is a crime or not,
it is whether it is an abuse of power
that is sufficient for impeachment or not,
and all I'll say is that
it might be a good time
to read Federal 65 and 66
written by Alexander Hamilton,
which gives a pretty good
summary of why the founders
gave Congress the power to impeach
and when it's a good idea to impeach.
Always a good idea to read
The Federalist Papers.
And then of course,
everything else pretty much
falls into the Chewbacca defense.
- Ladies and gentlemen, this is Chewbacca.
Now think about that for one minute.
That does not make sense.
- Or in other words,
as lawyers like to say,
when you don't have the
facts, pound the law,
when you don't have the
law, pound the facts,
and when you don't have
the law or the facts,
pound the table.
(Chewbacca wailing)
The funny thing is that
in my Twitter timeline,
I am seeing both democrats and republicans
using this phrase to
describe the other side,
so I will leave it to you
as to whether you think
that it is the republicans who are using
the Chewbacca defense or the democrats
who are using the Chewbacca defense.
And of course, as Mark Twain said,
history doesn't repeat, but it does rhyme.
And I would say that
everything that is unfolding
in this impeachment inquiry rhymes with
the Nixon impeachment proceedings,
and if you're not familiar with
those impeachment hearings,
you are missing a huge part of the story.
Of course, the easiest
way to get up to speed
is to listen to some
incredible books on Watergate
and impeachment on Audible.
I've actually been refreshing
my memory about Watergate
by listening to Impeachment,
An American History.
It's a fantastic book
in which four experts
on American presidency
review the only three
impeachment cases from history,
against Andrew Johnson, Richard
Nixon, and Bill Clinton,
and explore the power and
meaning of impeachment today.
And you can also listen
to Neal Katyal's audiobook
Impeach, The Case Against Donald Trump.
Katyal wrote the
independent council statute
under which Robert Mueller was appointed
and was the former
acting solicitor general
for the United States.
So that book is absolutely
incredible and gives you a window
into the arguments for
and against impeachment.
And right now, Audible is
giving Legal Eagles like you
three months of Audible
for just $6.95 a month.
That's more than half
off the regular price.
There's going to be a
lot more impeachment news
over the next three months,
so it's a great time to
get an Audible subscription
and learn about the history of impeachment
in the United States.
All you have to do is go over
to audible.com/LegalEagle,
which you can clink in the link below,
or text LegalEagle to 500500,
and clicking on the link in
the description really helps.
So learn how these impeachment proceedings
echo the past and how
they're new on Audible.
Just head over to audible.com/LegalEagle,
text LegalEagle to 500500,
or click the link in the description.
Do you agree with my analysis?
Leave your objections in the comments,
and check out this playlist over here
for all of my other real law reviews,
including all of my impeachment coverage,
where I will see you in court.
