Lawyer Examines Impeachment Defenses (Real Law Review)
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 sunland, testimony, that. Can't be right, cannon. 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 steal man these arguments, in other words I'm going to try to give, the Republican, defenses, in the best light possible to. Avoid, attacking. Straw men 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 but that being said let's, dig into the, main defenses, that the Republicans are using in this, impeachment, inquiry, so the first impeachment, defense probably boils, down to no, quid pro quo or in other words the call was perfect, there's a rumor out they want the first conversation. It. Was beautiful, it was just, a perfect conversation this, is largely the preferred, defense of President. Trump and that he, tends to tweet this out with some frequency this also appeared to be the early, favored, 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. And says and public read the transcript, whether you believe that the transcript, is sufficient to show a quid pro quo evidencing. 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, in a variation of this argument was used in the questioning, of lieutenant-colonel vin Minh by representative, Radcliffe 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 problems 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 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.
Jovanovic. Sandlin, Holmes Williams, Taylor, Volker, Kent Hill, VIN Minh 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 an investigation into, the Biden's Gordon Sandlin said in his testimony, that there was in fact an explicit, quid pro quo he straight-out, said it was, 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 Sandlin 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 I don't often agree with Ben Shapiro but I think this is an interesting if, nuanced, point that, deals with the mens rea a 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 Biden's for his own personal gain or to. Investigate. Corruption in. Ukraine, it's not necessarily, the case that he, had only one motivation, and 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, supporters, have been fairly consistent in arguing that the evidence that's been elicited, so far has, been hearsay. Testimony in. 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. In her third hand information is not necessarily, 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, there using 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 of 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 we 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 the. 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 Sandland 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 and that. Mulvaney. Was aware. Of this quid pro quo of this condition, that, the, Ukrainians, had to meet that is announcing, these public investigations, to. Get the White House meeting is that right, yeah. A lot of people were aware of it and, including. About 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 Biden's was, in fact released, or for. Short the Sideshow Bob defense, this, is the defense that was made famous by the Simpsons, and arguing, that attempted. Crime is not really, a crime, victim of. A crime I didn't even commit. Murder. Now honestly what is that do they give a nobel prize for attempted chemistry. Tuesday 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 hashtag not legal advice 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 two a one particularly, subsection, B to 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 that Congress appropriated, punctuated. In these lens, the transcript, readout where, President, Trump talks about the aide 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 four hundred million dollars in aid was in fact released, that is evidence, that there was no conditional. Hold on it in the first place and therefore no quid pro quo and it, certainly, is potential. Evidence of that particular, argument the, counter-argument, there is that based on the timeline that the aid was released only after Politico, did, it's famous article, on this, particular, potential, 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 Sandlin 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 Budget arey 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 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 four hundred million dollars in aid was being deliberately withheld, on condition, of investigations.
Into, The Biden's 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 four hundred million dollars 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. Elly, missed all 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 that which takes me to the next offense which is too bad to, crime AKA, quid. Amateur, quo, 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 gunpoint and she says no, and you don't get any money that's also attempted, bank robbery, so from in 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 have 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 Sandlin on November, 20th, representative, Jordan focused on the fact that allegedly. President, Trump had extorted. The Ukrainians, to investigate. The Biden's and to do an investigation, into the, CrowdStrike. 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 a week there was no this there, was we, 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 Biden's again, the problem with this argument is that the. Idea of attempted, solicitation, of bribery is a little bit inchoate, and the, no harm no foul argument sort of breaks down when you compare. It to an analogy, to something that we can 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 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. Solinsky says that he is going to do it effectively the, damage was done and the ask was, made and on November 20th Gordon Sandlin testified, that in exchange for the official, act of actually releasing, the four hundred billion dollars in aid, the Ukrainians, only had to announce. Investigations. Into the Biden's they actually didn't have to do the investigations. Into the Biden's 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 and now it's publicly announced, publicly now it's probably worth pointing out that the aide was released only after the Trump administration allegedly. Got caught, and as, 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 men's raya defense, and the variation, the too dumb to crime, defense, now, some crimes have a very specific intent. Requirement. Sometimes, called mens rea a' in, other words a lot of criminal laws require not only do you do the act that is considered criminal, the actus rheya 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 these specific, intent to solicit. A bribe, proving mens rea 'it sounds hard, it requires, proving. The mental, state of another. Person, and often, times that is very, difficult but it's also something that the criminal, justice system is very very familiar, with you. Use the witnesses other actions, and statements to show state. Of mind here, for the most part I think we're talking about 18, USC 201, B 2, 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 a 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 of the intent, requirement that, the, prosecutor, would have to show in order to prove solicitation. Of a bribe now here, on November, 20th Gordon sunland's said that the president conditioned, a White House meeting on, the, Ukrainians, providing. The investigation, into the Biden's and the Ukrainian. CrowdStrike, server, but, sawn hland also testified that he never heard the specific words that the four hundred million dollars in military aid was conditioned, on the Biden investigation, he said that, was his conclusion from all the instructions, that he received from McMullen, II 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 and, all 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 F for solicitation, of bribery would include, the July 25th, call with President Solinsky, the, July 26th. Call with Gordon Sandlin, 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 Sandlin, and the members of the State, Department in fact Gordon's, onlin testified, that he cleared everything with Mulvaney bolton and Pompeyo and he. Assumed, that if it came from those people that they came from orders, from the President himself on, the other hand defenders, of the administration, would point to other circumstantial, evidence that they would claim as evidence of lacking. The required, mens rea a' to. Effectuate. A solicitation. Of bribery and in fact gordon, Sandlin 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 well 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 uh you can also argue given the timeline that it's actually supports, a potential cover-up from, the president that given, the timeline that the political 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 Biden's that this, call. And the statement, that President. Trump made to Gordon, Sandlin is actually evidence that he was backtracking, and trying to cover up his tracks we can go both, ways that's, the, issue with circumstantial, evidence at Cannes, or 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, 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. The 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 powers doesn't. Act to absolve, the president of potentially. Untoward activity, which brings me to the next offense which is that the State Department or, Gordon, Sandlin went rogue. I think we're gonna be seeing more of this particular, defense in the wake of Gordon Salman's bombshell. Testimony, but, at base Gordon, Sandlin testified, that in, a few calls he had but the president he didn't explicitly link, releasing, the aide with investigations, into, the Biden's but that everyone knew that that was what the president, wanted that, was the understanding amongst, Pompeo Volcker, and Sandlin. The aka be 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 8th 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 slashed. 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. Volcker. And I. Worked. With mr. Rudy Giuliani, on Ukraine. Matters, at the. Express, direction. Of the, President, of the United States now. Gordon sunland 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 uh if there are multiple, reasons for committing, something if any one of those mental states is sufficient.
To Meet. The standard, of mens, rea oh that's 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 / corruption. Argument, then, the president, is absolved, but that. Actually goes the wrong way at least when you're talking about the, 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 saw investigations. Into burries mo to be separate, from, the Biden's. The former being okay the latter being improper. Quid, pro quo solicitation, of bribery there was no mention of Vice President, Biden. Rather. In referencing, burries MA and 2016, election interference, it was clear to me that he mr., e remark 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 have testified the, president Trump wasn't interested. In the investigation. Into the Biden so much as the announcement. Of the. Investigation. As I think a Sheeran Gotha 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 Biden's 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 frontrunner, 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 Biden's, three, times and similarly President Trump doesn't ask about Purisima, but about the Biden's 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 the 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, to 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 in 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 incarnate. But. President. Trump's axe 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 the president's, defenders, will retreat, to the position that it's bad but it's not impeach, ibly 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 Federalist 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, nothing. About that for one minute that does not make thing 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. 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 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 in American, history it's a fantastic, book in which for experts, on American presidency review. The only, three impeachment, cases from history against Andrew Johnson Richard Nixon and Bill Clinton and explored, the power and meaning of impeachment today and you can also listen to Neil cot y'all's audiobook, impeach the case against, Donald Trump catchy, I'll wrote the Independent, Counsel statute, under which Robert Muller 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 695. 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 slash legal, eagle which you can click in the link below or text. Legal eagle to five hundred five hundred 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 slash legal, eagle text, legal eagle - 500 500 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.