Rep. Adam Schiff (D-Calif.), one of the key architects of President Donald Trump’s impeachment, used an analogy during his closing statement in the House to justify why Trump should be impeached. Emanating as it does from the loudest prosecutor of Trump, it illustrates everything that is wrong with this impeachment.
“Yes, the president got caught, but they got the money, no harm, no foul,” Schiff said. “It’s the equivalent of saying, ‘If you’re pulled over by a cop and you attempt to bribe the cop, and the cop doesn’t take the money but arrests you, where’s the crime in that?’”
The analogy doesn’t fit in the slightest. Presumably, in Schiff’s comparison, Trump is like the person pulled over by a cop; Ukraine’s President Volodymyr Zelensky must be the cop, because Schiff has alleged all along that Trump sought to bribe Zelensky to investigate the activities in Ukraine of former vice president Joe Biden and his son, Hunter. There are several problems with this analogy:
- First, when a police officer pulls over someone, that person is under a legal obligation to comply with the officer’s instructions;
- Second, he or she is subject to laws that prohibit the bribery of public officials; and
- Third, Schiff implies that the cop pulled a person over because he or she did something wrong.
None of this applies in Trump’s situation. The U.S. president is not under any legal obligation to Ukraine. As president, Trump is free to provide military aid to Ukraine or not — it is his decision. He is not subordinate to Ukraine, or required to follow instructions by them. He did not offer a bribe to Zelensky, and the call transcript is categorical on this. Trump expressed frustration that the United States does more to support Ukraine than its European allies, and he asked for a “favor” of helping to look into allegations against Hunter Biden as a board member of Burisma Holdings, the Ukrainian natural gas producer.
On the phone call, Trump did not offer money in exchange for Zelensky’s doing anything. The word “favor” was used in a loose sense and not connected with any financial promise, according to the transcript. Finally, the aid in question was provided without the U.S. receiving anything in exchange.
Even assuming that aid was withheld or stopped after the call, there is nothing in the exchange made public to suggest that Trump told Zelensky that his opening of an investigation was necessary for the aid’s resumption. Remember, Trump was not bound to provide aid — he generally has been skeptical about U.S. entanglements abroad and particularly reluctant to spend American money to fund the security of other countries, even longstanding allies. Ukraine is not a longstanding ally; it is not a contributor to U.S. security and not a NATO ally. Moreover, the U.S. aid will not make a difference in Ukraine’s conflict with Russia.
Therefore, it is entirely up to Trump, as president, to determine whether to commit taxpayer dollars to that country. To be sure, Democrats might disagree and believe that taxpayer funds should be provided to Ukraine — but they lost the White House in the 2016 election and don’t get to decide. Indeed, Schiff has portrayed the military aid to Ukraine as some monumental support that makes the difference between life and death. This is just as flawed as his cop analogy.
The inapt analogy underscores why this impeachment has such low public support. Unlike Schiff, the average American is able to see that the Framers did not intend for Congress to use its impeachment power for such partisan differences over policy. To the contrary, impeachment was intended, in the words of George Mason, for “great and dangerous offenses.” The Framers borrowed impeachment from British constitutional practice, and reviewing that history reveals that Trump’s impeachment is a far cry from how impeachment was employed across the Atlantic.
In fact, as the Framers were meeting in Philadelphia, a well-publicized impeachment attempt was proceeding in Westminster Hall. The accused was Warren Hastings, governor general of India, the crown jewel of the British Empire. Edmund Burke, who led the prosecution, declaimed during his speech: “I impeach him in the name of the people of India, whose laws, rights and liberties he has subverted; whose properties he has destroyed; whose country he has laid waste and desolate.”
Compared with Hastings’s sins of destroying a country, Trump’s “sin” apparently is a loosely worded phone call. The Framers’s understanding of impeachment as an antidote to bribery was developed in the context of the actions of King George III and colonialists such as Warren Hastings, not the loose employment of the word “favor.” No crime has been alleged or proved here, despite Congress attempting to leave no stone unturned. In Britain, Warren Hastings was acquitted, as the Framers knew — and they would be shocked to see Trump impeached on such thin grounds.
In their hatred for the president, Trump’s opponents have sought to fit the facts to a preordained conclusion. Unfortunately, their own weak analogies damn them.
Sandeep Gopalan (@DrSGopalan) is vice chancellor and executive vice president of academic affairs at Piedmont International University in North Carolina. He previously was a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He has co-chaired American Bar Association committees on aerospace/defense and international transactions, was a member of the ABA’s immigration commission, and was dean of law schools in Ireland and Australia. He has taught law in four countries.