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What If Trump Actually Believed That Biden Was Corrupt?

Cass R. Sunstein

(Bloomberg Opinion) -- For all the rhetoric and theatrics, the first day of public impeachment hearings in the House of Representatives on Wednesday produced a surprising amount of light.

Let’s put partisanship to one side and try to find that light, isolating the relevant issues of law and fact, and bracketing the question of whether Donald Trump is a terrific president or a terrible one.

Everyone agrees that if Trump withheld U.S. military aid from Ukraine in order to encourage it to combat corruption in general, there would be no problem.

At the same time, almost everyone seems to agree that Trump should be held to account if (1) he withheld the funds from Ukraine in order to get it to mount a baseless criminal investigation of a political rival, Joe Biden, or Biden’s son, Hunter, and (2) Ukraine did in fact launch that investigation.

The arguments from Republican members of Congress are best taken to concede that impeachment would be necessary in those circumstances.  

If we put these propositions together, two questions remain.

Is it relevant that Ukraine did not launch the requested investigation? Is it relevant whether Trump actually believed, in good faith, that the Bidens engaged in corruption?

The answer to the first question seems straightforward enough. Yes, it’s relevant.

If a president succeeds in using federal funds to encourage a foreign country to mount an investigation of a political opponent or his family, it’s definitely worse than if he tries and fails to do so. Consider the criminal-law analogy: A theft that was actually committed is likely to be punished more severely than a theft that was merely attempted.

At the same time, an attempted crime is still a crime. So the question becomes clearer still: Is an unsuccessful effort to get a foreign country to launch a criminal investigation of a political opponent an impeachable offense?

As of now, some of Trump’s defenders want to answer “No.” But justifying that answer is not easy. After all, U.S. military aid appears to have been delayed in order to pressure Ukraine to initiate the investigation. That delay, for that reason, is a serious wrong in itself. And if a president merely attempts to commit treason, should he not be impeached?

Now suppose that Trump actually believed, in good faith, that Hunter Biden or his father engaged in corrupt behavior, and so should have been investigated by Ukrainian officials. Those who appreciate the gravity of impeachment, and its suitability only for the most extreme situations, might reasonably ask: Are you really going to impeach a president, and potentially remove him from office, merely for seeking an investigation of what he sincerely believed to be crimes?

One response would fight the premise of the question: Maybe Trump did not really believe that the Bidens committed crimes. Or maybe any such belief, on his part, was so unsupported by evidence that it could not be deemed reasonable.

But let’s accept the premise. Under both Republican and Democratic presidents, the standard advice from presidential advisers (certainly from White House counsels) in such circumstances would be clear and simple: “Mr. President, please don’t speak to foreign leaders about initiating a criminal investigation of one of your political opponents, even if you think they did something terribly wrong. You’ll be venturing in uncharted waters, and you will be inviting impeachment.”

Even so, the best argument, for those who seek to defend the president, might be that he actually believed that Hunter or Joe Biden committed crimes. But in view of the sheer egregiousness of asking a foreign government to investigate a potential political opponent, it’s not easy to defend the proposition that impeachment should rise or fall on what Trump actually believed.

It’s early days. But we can already see that those who are hoping to defend Trump against impeachment are in a singularly challenging position.

To contact the author of this story: Cass R. Sunstein at csunstein1@bloomberg.net

To contact the editor responsible for this story: Jonathan Landman at jlandman4@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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