The unethical behavior of both Joe and Hunter Biden in dealing with Ukrainian matters is a legitimate matter of congressional interest. But it should not have any bearing on the Senate impeachment trial of President Trump.
Tomorrow, I will explain why separate Senate hearings on the Bidens, unrelated to the impeachment trial, might be merited, and what the relevant questions would be. The public deserves a thorough exposition of the recent history of U.S. policy vis-a-vis Ukraine since the subject has completely roiled American political waters.
But in the meantime, there is no good constitutional or legal reason for either Biden to testify during the Senate trial. What the Bidens did is immaterial to the case against Trump. Considerations of prudential politics might argue in favor of testimony by the Bidens, but nothing they say should matter in determining Trump’s guilt or innocence, or in deciding if his actions merit removal.
U.S. presidents do not possess any inherent power to police random “corruption” anywhere in the world. Trump’s job was to execute the laws of the United States faithfully, not to seek and punish perceived ethical transgressions by U.S. citizens abroad. His power against “corruption” extends only as far as American law is implicated.
In fact, mutual legal assistance treaties that are standard among allies, including specifically the one between the U.S. and Ukraine, set out extremely specific parameters about whether, when, and how one nation is to request another nation’s help. None of those conditions applied to the Biden affair.
If the Justice Department had identified a specific law the Bidens were suspected of violating or had an official investigation into the Bidens based on ordinary prosecutorial standards, then the Bidens’ behavior would be relevant to the impeachment trial. No such specific allegation or investigation existed then or now.
Moreover, there has been no suggestion that the Bidens’ alleged tawdriness had the slightest relation to whether the military aid package to Ukraine was being misused. Thus, Trump’s concerns about “corruption” were completely unrelated to the question at hand.
Note that this is also unlike the case of the loan guarantees that Joe Biden threatened to withhold from Ukraine, where allegedly corrupt actors in Ukraine were in position to get their hands specifically on those monies if the Ukrainian prosecutor in question refused to stop them.
Absent a U.S. law being implicated and absent any threat to the valid use of U.S. aid, Trump’s concern as president should be to protect U.S. citizens from sketchy foreign prosecutions, not to invite foreign governments, without the same civil-procedural standards U.S. citizens enjoy, to target U.S. nationals.
Trump had another option. Unethical or even sleazy behavior by the Bidens would be a legitimate matter for his campaign team to investigate as part of standard political “opposition research.” But this has nothing to do with Trump, in his official capacity as president, using American diplomatic resources and the weight of his office to secure a favor from a foreign government.
The question for the Senate, then, has nothing to do with whether the Bidens behaved unethically. The only legally relevant questions involve what Trump did and under what specific authority and then whether whatever he did was wrong enough to justify removal from office.
Senators may decide to call the Bidens as witnesses anyway in a deal to allow testimony from former national security adviser John Bolton. Sometimes, political deals are necessary to provide covers for derrieres and sometimes for the purpose of greater public understanding. However, senators should not pretend that any tawdriness from the Bidens provides a legal defense for Trump.
