In the video portion supplied, there is no evidence that Napolitano cited any statute whatsoever. Even by the definition set forth by Napolitano, "cash or emails or smearing your opponent" is a "thing of value" and therefore a crime. There is no evidence whatsoever that the president requested anyone of those three things.
Let us assume that the president did request something that is allegedly but subjectively improper even though we have no cited statute. Think of the state of our nation if this were in fact the law:
No president would ever be able to negotiate with any foreign entity because a partisan majority in Congress might regard that to be "a thing of value." No executive agreement could be undertaken by the president. No conversation can safely be had with any representative of a foreign government. Every diplomatic action of the United States would be subject to review by the Congress, not by drafting legislation or withholding legislation or assent to treaties, but by impeachment.
The result? The United States would have virtually no effective foreign policy. This goes far beyond the mere executive privilege necessary for the president to conduct foreign policy in secret, this goes to the immunity of the president of the United States in conducting that policy.
Even if Napolitano's test is accepted, and even if one concludes that asking a foreign power to investigate corruption in that country and in our own somehow constitutes "something of value," the request is nevertheless protected. The test cannot be whether or not there is "something of value" the test must be whether or not the president's act constitutes an intrinsic crime.
Every president uses leverage in negotiation with foreign powers, that's why he is called the commander-in-chief, that's why he is known as our chief diplomat, that is why he is the chief executive. Therefore, the test cannot be the application of pressure of some kind, including the granting or withholding of carrots, as to whether or not there is an intrinsic crime.
Nor can the test be whether there is "something" of value running to the president. That is entirely too subjective for the reasons cited above and because it would lead to shackling the foreign policy of the United States to the very whim of Congress, a situation which the constitutional debates unequivocally demonstrate was not to be an element of impeachment. To say that impeachment is whatever the House of Representatives says it is, is to do violence to the text of the Constitution and should be firmly rejected at every turn.
Finally, the test cannot be defined as Napolitano says, no matter how it is analyzed, the rule must be that so long as the president operates under colorable or plausible motive to further the interests of the United States, he is immune, not from political censure but from legal or impeachment liability even if his actions benefit himself either personally or politically, providing there is no intrinsic and commonly understood crime involved. This is essentially the ruling rendered by the government which already said there is no improper campaign contribution rendered or demanded in this conversation.
The need for this closely defined rule is also evident in the campaign contribution situation in which the Democrats insist that the president improperly failed to report a campaign contribution, or expenditure in this case, when he paid Stormie Daniels out of his own funds. The rule there was that if the president had a plausible personal interest quite apart from a campaign interest in securing his deal with Stormy, he was not obligated to report.
This is not to say that a president could not be liable to both legally and by impeachment if he were to say, I want Ukraine to be protected against Russia and I will authorize delivery of armaments to you providing you put $1 million into my personal account. Here, even though personal gain is coupled with colorable national interest, the crime is quite obvious.
But there is no crime here because the president sought to have Ukraine investigate corruption not to corruptly stop investigation of corruption. There is no intrinsic crime in fighting corruption or even implying that a carrot might be granted or withheld to secure investigation of corruption. That's why the founders drafted a constitution with separation of powers, so that one branch of government would expose the corruption of another. That is why political parties serve a great purpose, one political party is presumed to have an interest in ferreting out the corruption of another political party. There is no inherent crime in fighting corruption at home or abroad and the president is entitled to use all the tools and is his diplomatic pouch to do so.
Like the Prussian army when it was in search of a country, judge Napolitano is a political hack in search of a crime.
