Forgotten Treaty, Dispositive Law, Innocent President
Barring a political retreat by the House Democrats in their impeachment drive, incontrovertible facts and provisions of “black letter” law suggest dark days lie ahead for our Republic – and in a year’s time, for the Democrats as well. Let’s consider a sequence of “what if” questions. Reach your own conclusions.
What if … a treaty assuring “mutual legal assistance in criminal matters” had been signed by a president of the United States in Kiev, Ukraine, in July 1998, submitted to the US Senate in October 1999, and ratified without dissent in October 2000 by the Senate?
What if … in a president’s 1998 letter of transmittal, he assured the US Senate that “the treaty is one of a series of modern mutual legal assistance treaties being negotiated by the United States in order to counter criminal activities more effectively,” confirming that treaty should be used “to assist in prosecution of a wide variety of crimes”?
What if … that ratified treaty contained provisions assuring both countries that, in the future, mutual cooperation against crime would include “taking the testimony or statements of persons; providing documents, records, and other items of evidence; locating or identifying persons or items; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; assisting in proceedings related to immobilization and forfeiture of assets, restitution, and collection of fines; and rendering any other form of assistance,” noting “the scope … includes not only criminal offenses, but also proceedings related to criminal matters, which may be civil or administrative in nature”?
What if … that treaty assured that “assistance shall be provided without regard to whether the conduct involved would constitute an offense under the laws of the Requested State” – that is, not just in Ukraine but also under US law – and “is not intended to create rights in private parties to obtain, suppress, or exclude any evidence, or to impede the execution of a request”?
What if … separately, a US law called the Foreign Corrupt Practices Act (FCPA) made clear a felony is committed under anti-bribery provisions if any corrupt payment – or the withholding of a payment – to a “foreign official” occurs “to obtain or retain business,” such as for oneself, a relative, or a relative’s company?
What if … the term “foreign official” included all traditional foreign government officials, including the prime minister, attorney general, prosecutor, and employees of any foreign “department” or “agency?”
What if … those subject to prosecution included not just corporate executives but “any individual who is a citizen, national, or resident of the United States”?
What if … the statute of limitations for the violation of the FCPA were 5 years, although some resolutions went out to 15 years after the event, but clearly allowed prosecution within 3 years?
What if … the vice president of the United States – a citizen – traveled to Ukraine and – as duly reported by John Solomon of The Hill – “threatened Ukrainian President Petro Poroshenko in March 2016 that the Obama administration would pull $1 billion in US loan guarantees, sending the former Soviet republic toward insolvency, if it didn’t immediately fire Prosecutor General Viktor Shokin”?
What if … this transparently benefited the vice president’s son and his son’s business, who, at the time, were both under investigation by this same prosecutor?
What if … the vice president later bragged before the Council on Foreign Relations about doing exactly this, in an extraordinary admission against interest?
What if … as reported by Solomon, “interviews with a half-dozen senior Ukrainian officials confirm[ed] Biden’s account, though they claim[ed] the pressure was applied over several months in late 2015 and early 2016, not just six hours of one dramatic day”?
And what if … consistent with the mutual obligations in that ratified 2000 US “Mutual Assistance in Criminal Matters” treaty with Ukraine, a different president of the United States asked for assistance in understanding whether facts existed to confirm the violation of the Foreign Corrupt Practices Act based on that former vice president’s admitted threats, promises, and removal of the prosecutor investigating his son and son’s business?
Every “what if” scenario here really happened. The answer to the question “did the vice president violate the FCPA,” however, remains unresolved. However, given the predicate facts not in dispute – namely, the former vice president’s public admission, his promise to deliver money to Ukraine if the prosecutor investigating his son’s business was fired, the sudden end to an investigation into the younger Biden’s business, the text of the Foreign Corrupt Practices Act and the ratified US–Ukraine treaty – no obvious basis exists for impeaching a president seeking information under the treaty to corroborate a potential FCPA violation.
If facts and “black letter” law support President Trump, what could the basis for a lawful impeachment be? If the basis is pure politics – an attempt to disenfranchise the American public by misapplying an extreme constitutional remedy – the American public should be upset.
Bottom line: This may be the most audacious act of political deception, the most extralegal power play – embroidered by conscious congressional lies – in the Republic’s long history. If so, barring political retreat, dark days lie ahead for the Republic – and even darker days for the Democrats in 2020.
Robert Charles is a former assistant secretary of state for President George W. Bush, former naval intelligence officer and litigator. He served in the Reagan and Bush 41 White Houses, as congressional committee counsel for five years, and wrote “Eagles and Evergreens” (2018), about influence of WWII veterans on a small Maine town.