When discussing the Ukraine scandal, Trump apologists frequently fall back on trite whataboutism, alleging that Joe Biden did much the same thing. In Monday’s impeachment hearing, Republican Rep. Doug Collins of Georgia did it again while rudely yelling at a witness.
In truth, though, Biden’s quid pro quo was not in the same ethical or legal universe as President Trump’s.
The former vice president’s threat to withhold a loan guarantee from Ukraine involved financing that was entirely at the executive’s discretion. And his threat was made in the service of the unified, official public policy of the United States. It did not involve legally mandated federal appropriations. Trump’s withholding of military assistance from Ukraine involved improper delay of congressionally authorized federal appropriations that were not at his discretion, and it contradicted unified, public, official policy of the United States.
Those two differences are huge.
In Biden’s case, the imperative to fire the corrupt Ukrainian prosecutor came up from the ranks of the diplomatic corps. At all known levels of the U.S. government, there was unified agreement that the prosecutor impeded fighting corruption. Moreover, the corruption he enabled was directly harmful to the efficacy of the economic assistance the United States was offering to Ukraine. The prosecutor was lax on, or obstinately opposed to, investigating the very oligarchs who were in positions to misuse the aid for corrupt purposes. (The European community strongly agreed with this assessment of the prosecutor, by the way — a fact not ethically binding but still relevant to the intention behind forcing him out.)
Meanwhile, the financial assistance in question when Biden was in Ukraine was not an appropriation passed by Congress and signed into law. Rather, it was a loan guarantee that could be issued on State Department and executive branch authority. President Barack Obama, acting through Biden, was perfectly free by law to offer or withdraw this guarantee. And he was right to threaten to withdraw it because the loan was likely to be misused if the prosecutor remained in place. It made perfect sense, and it was legal for the Obama team to condition the loan guarantee on the eviction of the prosecutor.
So there was absolutely nothing wrong with what Biden did, and indeed, everything right with it. Moreover, it is absurd to say Biden’s son’s position on the board of the Burisma energy company had anything to do with the quid pro quo. The alleged illegalities by the head honcho of Burisma (not by the whole board) occurred before Hunter Biden ever joined the board. Hunter Biden was in no way implicated, regardless of which prosecutor might press the case.
By contrast, Trump denied military assistance appropriated by law. Legal counsel for both the State and Defense departments concluded that it was illegal to withhold the aid. It was mandatory, not discretionary. Furthermore, the investigation Trump demanded had no bearing on the mandated military assistance. The assistance was not at risk of being misused if the investigation was not conducted. Trump was linking unrelated considerations, for political advantage, rather than (as Biden did) conditioning aid on resolution of a situation bearing directly on the aid’s efficacy.
Finally, Trump’s quid pro quo contradicted not just the advice and unified position of the entire U.S. government, but also his own public, official position. Remember, the president’s official position was in favor of the assistance, which is why he signed the appropriation for it in the first place.
Biden quite publicly furthered official (and wise) U.S. policy, with no apparent effect on his son’s situation, but Trump secretively subverted actual U.S. law, for no broader purpose than his own political advantage.
Therein lie the crucial distinctions, no matter how loudly Collins yells.
