In fact, some prominent Republicans have even expressed distress at the president's remarks but are never compelled to identify an impeachable element. Democrats have adopted these rinos' looseness of expression and analysis and have begun shifting from an allegation of "high crime" violation of 30121 (see below) to a vague allegation of unfitness.
I have thought about the possible impeachable offenses contained in the transcript of the President's conversation with the president of Ukraine and concluded there is no possible impeachable offense -even if there were a quid pro quo (and there is not) that directly aided him in his campaign (and one can contrive to find that only by willful leap of imagination) for the reasons expressed below adapted from another reply:
The statute in question reads as follows:
§30121. Contributions and donations by foreign nationals
(a) Prohibition It shall be unlawful for-
(1) a foreign national, directly or indirectly, to make-
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (emphasis supplied)
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
So there are several layers of questions to be worked through before we can say that the president is guilty of a violation of this “high crime.”
The first thing that leaps out is the statutory language, “or other thing of value,” which, unless it is to have no meaning because it means everything, must be limited to that which can be quantified or at least identified as something akin to an “expenditure” or a “disbursement.” One can fairly extract that meaning from the context and, without that limitation of meaning, the phrase "or other thing of value" becomes so broad as to become unconstitutionally vague.
I have not had time to chase down whether there are any cases or regulations further defining “or other thing of value” but one can certainly understand that a statue could be void for vagueness for being too broad, as this certainly is.
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 because the House of Representatives contrives to believe that a political campaign advantage somehow flowed to the president.
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.
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. And then, the intrinsic crime must be a quid pro quo for the granting or withholding of a presidential power. In other words, no intrinsic crime, no impeachable offense; no quid pro quo, no impeachable offense. Otherwise the president must be immune from legal and impeachable consequences in these dealings. To conclude otherwise is to do violence to the principle of separation of powers, to ignore the reality of the singular executive, to cripple American foreign policy.
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 in 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, does violence to the text of the Constitution and should be firmly rejected at every turn.
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. The fact of a quid pro quo is of no matter if there is no intrinsic crime.
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 Department of Justice which has already said in its written opinion that there is no improper campaign contribution rendered or demanded in this conversation.
By analogy, 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 and committed no crime or violation.
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 because bribery is inherently a crime.
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 when 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. 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.
I believe these arguments apply, or should apply even if the statutory provision “thing of value” is so defined that a contribution could be inferred in the exposure of a political opponents corruption in a foreign land. Of course, the question of whether such inference can be factually supported from the verbiage of the transcript is open and, in my view, a leap that cannot be supported by the words out of the president’s mouth.
Finally, we have the treaty between Ukraine and the United States providing for cooperation respecting corruption and we have the long-established practice of the present United States soliciting cooperation from foreign powers respecting matters of law enforcement. One can fairly draw no conclusion other than the president in fulfilling his duty to see that the laws were faithfully executed, and was in fact operating within the black letter of the written law.
For any of these reasons, the president committed no impeachable offense.
