Imagine for a moment a man peeking through the slats of his blinds to watch a neighbor returning to her house with a cup full of a white powdery substance. The nosy man calls the police to report the presence of drugs in his neighborhood. Law enforcement officers crash through the neighbor lady’s door. In a matter of hours, they leave behind slashed furniture cushions, pulled-up floorboards, and torn out drywall until one observant officer spies the suspicious cup (now empty) with a white powdery residue still coating the inside. Law enforcement officers carefully bag and label the cup, a vanilla pound cake, and the adjacent recipe book (also bearing the residue).
In a few days, the lab reports the results: the cup tests positive for sugar.
In America, at least before the “get-Trump” movement, we would not have tolerated this kind of invasion of privacy based upon the neighbor’s suspicion that the powder was drugs. An experienced judge would have refused to sign the warrant until law enforcement demonstrated good reason to believe the white powder the nosy neighbor reported was the fruit of a drug deal, and not—as it later proved to be—a cup of sugar borrowed from a neighbor to finish a cake recipe. Sure, it might have been cocaine. But the Fourth Amendment does not allow the destruction of a sacred constitutional right based upon a flimsy hunch.
Neither should the U.S. Senate allow the destruction of the sacred confidentiality between a president and his close advisors based upon U.S. Representative Adam Schiff’s (D-Calif.) flimsy hunch that the president was up to no good when he briefly suspended U.S. aid to Ukraine. The ability of the president to have confidential conversations with his advisors is essential to our form of government. We should not let Schiff root around in those conversations unless he can show a good faith basis for believing the cup of powdery substance could not have been sugar.
There are two possible interpretations of the pause in Ukraine’s aid. In the “cocaine” scenario, as charged by the articles of impeachment, President Trump “corruptly” solicited “the Government of Ukraine to publicly announce investigations into a political opponent, former Vice President Joseph R. Biden, Jr.,” for “corrupt purposes in pursuit of personal political benefit.” Under the “cocaine” scenario, investigating the Bidens has no public purpose.
Under the “sugar” scenario, the investigations of the Bidens did have a public purpose. As Trump said in his July 25 phone call to Ukraine President Volodymyr Zelensky, “I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved.”
So before we figuratively slash open the furniture cushions and break down the drywall by invading the confidential communications of the president, it’s worth asking whether we can use less-invasive means to evaluate whether we’re looking at cocaine or sugar.
House manager Schiff issued a 300-page report stating his impeachment case against the president. He argues that the president acted on corrupt motives when he asked about Biden getting the Ukrainian prosecutor fired because the firing was justified for other reasons.
“President Trump then asked President Zelensky ‘to look into’ former Vice President Biden’s role in encouraging Ukraine to remove a prosecutor widely viewed by the United States and numerous European partners to be corrupt,” Schiff wrote. “In so doing, President Trump gave currency to a baseless allegation that Vice President Biden wanted to remove the corrupt prosecutor because he was investigating Burisma, a company on whose board the Vice President’s son sat at the time.”
To prove Trump’s corrupt motive then, Schiff must establish that Biden wanted to remove the prosecutor because the prosecutor was “corrupt,” and that the alternate view that Biden wanted to protect his son’s company was “baseless.”
We do not need to hear from any of Trump’s inner circle to probe whether the cup may have contained sugar—i.e. that the prosecutor was investigating Burisma and that Biden was interested in protecting his son. Trump actually doesn’t even need to prove he was right. He just needs to show that a reasonable person could believe that what Joe Biden did was worthy of a closer look based upon a legitimate concern over Biden abusing his office for his son’s financial benefit.
For that, we can (yes) ask Biden directly whether his interest in the prosecutor had anything to do with Burisma. As John Solomon points out, the timeline of events is damning.
On January 18, 2015, Ukraine’s prosecutor general’s office declared Burisma Holdings founder Mykola Ziochevsky a fugitive and “wanted in Ukraine.” On December 8, 2015, the New York Times published an article questioning whether Hunter Biden’s participation on the Burisma board might be undercutting Biden’s “anti-corruption” agenda. On February 4, 2016, the Ukrainian prosecutor announced the seizure of Ziochevsky’s assets.
Biden reportedly demanded the prosecutor’s termination during a March 22, 2016 phone call with the president of Ukraine at the time, Petro Poroshenko. Biden has since boasted that he directly conditioned U.S. aid upon getting the prosecutor fired. The prosecutor was fired a few days later. Within a year, all charges against Burisma were dropped or settled under the supervision of the new Biden-approved prosecutor.
There’s pressure to add “witnesses” to the already too-long trial in the Senate. Should the Senate approve witnesses from his inner circle of advisors, the president will rightly assert executive privilege to protect confidential communications. The House already should have fought these protracted court battles before dumping the matter on the Senate. These fights will further delay a return to normal in both the Senate and in the 2020 election process.
Remember, Schiff is holding at least three Democratic candidates hostage in the run-up to next week’s critical Iowa primary. And because we can discern between the “cocaine” and “sugar” scenarios without ripping up the executive privilege floorboards, the president will likely prevail in court on his executive privilege claims—that is, provided turncoat advisors don’t dishonor their sacred constitutional duty to keep confidential their conversations with the president. (I’m looking at you, John Bolton.)
But that’s putting the cart before the horse. Before we tear up executive privilege, Schiff should first be required to prove that the original prosecutor was “corrupt” and that the inquiry into Biden’s involvement in his removal was “baseless.” If he can’t produce evidence that unambiguously proves both of those contentions, he shouldn’t be allowed to shred executive privilege. Just as in the cup of sugar example, the Constitution places the burden on the accuser to justify trampling the rights of the accused to privacy.
Senate Majority Leader Mitch McConnell (R-Ky.) has demonstrated exemplary leadership. He has so clearly appraised the House impeachment effort for the political dirty trick that it is. There’s reason to hope that “Cocaine Mitch” will promptly restore order as he easily differentiates between the cocaine and sugar scenarios.