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Hiding in Plain Sight

by Andrew P. Napolitano
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Things are seldom what they seem,

Skim milk masquerades as cream…

—Gilbert and Sullivan, "HMS Pinafore"

Last week found Republicans in Congress complaining loud and long that the House Permanent Select Committee on Intelligence, along with the House Oversight and Foreign Affairs committees, all bipartisan and under the leadership of Rep. Adam Schiff, were violating the rules of the House of Representatives by interviewing witnesses about impeachment behind closed doors. They derided Schiff's hearings as a "secret impeachment."

President Donald Trump called the hearings a hoax. When some pointed out that the initial round of government interviews of witnesses is always conducted behind closed doors to facilitate candor, Senate Republicans supported the president and condemned the House process. Nevertheless, the House rules, which were adopted in 2015, when Republicans had the majority, clearly authorize the process Schiff is utilizing.

Not to be overshadowed by their Senate counterparts in their anger over this process, about 30 House Republicans, not on the interviewing committees, physically stormed the Intelligence Committee hearing room last Wednesday morning and occupied it so as to bar the scheduled interviews. By midafternoon, they had tired of their stunt and peacefully departed.

Last Friday, in response to a rejected subpoena the House Judiciary Committee sent to the Department of Justice, a federal court ruled that the House committees' preliminary impeachment inquiries are lawful and constitutional, and ordered the DOJ to comply with the congressional subpoena it received and turn over secret grand jury transcripts to House investigators. This is a delicious irony since the DOJ serves more subpoenas on Americans than any government entity, and here it got a dose of its own medicine.

The White House continued to argue that the impeachment investigation is illegitimate and unconstitutional because it has not been authorized by the full House. The president called Republicans who support impeachment "human scum." On Sunday evening, the president invited the ringleader of the disruption of the House committee interviews to his box at the fifth game of the World Series.

Early this week, Speaker of the House Nancy Pelosi, giving Republicans what they asked for, announced that the full House will vote on initiating an impeachment investigation of the president by the end of this week.

What's going on here?

Congressional Republicans should be careful what they ask for. Their defense of the president has addressed process, not proof. The proof is largely undisputed, except by the president himself. It consists of admissions, testimony and documents, which show that Trump sought to induce the government of Ukraine to become involved in the 2020 presidential election.

Specifically, Trump held up $391 million in American military hardware and financial aid to Ukraine — which is at war with Russia after the Russian seizure and continual occupation of what was until 2014 a Ukrainian province — until Ukrainian prosecutors commenced a criminal investigation of former Vice President Joe Biden and his son, Hunter.

That is a mouthful of facts to swallow in one bite, but the legal implications are straightforward and profound. Whether one agrees with federal law or not, it is a crime to solicit assistance for a federal campaign from a foreign government. As well, the crime of bribery consists of a government official refraining from performing a legal duty until a thing of value is delivered to him.

Trump admits he held up the $391 million. He admits he asked for a favor from the Ukrainian president. And he admits that the favor was to dig up dirt on Joe Biden and his son. He even gilded the lily by publicly asking the Chinese government to investigate Biden.

Enter Attorney General William Barr. After knowledge of the presidential holdup of the $391 million in aid to Ukraine became public, the president asked Barr for a formal legal opinion that dirt on a political opponent is not a thing of value.

Barr had his researchers and writers in the Office of Legal Counsel oblige. That legal opinion, which Trump has touted as a form of exoneration, has been so widely mocked in legal and political circles — because dirt on an opponent is the most valuable commodity for a political campaign, and candidates pay dearly for it — that congressional Republicans have stopped referring to it. They know better.

The president was just investigated by Robert Mueller and his crew upon the allegation that he and his campaign unlawfully collaborated with the government of Russia to help him win the 2016 election. That investigation found some evidence of collaboration but not enough to indict. And now, incredibly, Trump has admitted seeking to involve the government of Ukraine in the 2020 presidential election.

One can see that the reason Republicans have been attacking the process of impeachment is largely because there is no credible defense to the proof of impeachment. That proof has been hiding in plain sight — in the president's public words and the context to be provided by witnesses — and will soon be revealed.

Why and how will all this be revealed? Enter Nancy Pelosi. The "why" will be answered this week by the House vote to commence an impeachment investigation formally; it's legally unnecessary but politically devastating to the Republicans' process arguments. The "how" will be answered when all this — the testimony of now interviewed and debriefed witnesses — goes public.

With the process soon to be as Republicans have demanded, and with the proof of impeachable offenses plain to see, to what will the president's allies resort as a defense? They will claim that that the federal crimes of soliciting campaign assistance from foreign governments and bribery aren't impeachable offenses and that Trump was misunderstood because he exaggerates all the time and often doesn't mean what he says.

And then the American public will decide if all this is skim milk or cream.

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