Impeachment Evidence Not Even Close to Bribery, Heritage Legal Expert Says

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As impeachment hearings draw to a close, witnesses have failed to produce hard evidence of wrongdoing on the part of President Donald Trump. Heritage Foundation senior legal fellow Hans von Spakovsky will join the podcast to unpack what we learned this week—and what to expect going forward.

Read a lightly edited transcript of the interview, posted below, or listen to the podcast: 

We also cover the following stories: 

  • Israeli Prime Minister Benjamin Netanyahu indicted on charges of bribery, fraud, and breach of trust.
  • Senate approves a stopgap bill to prevent government shutdown.
  • House Democrats demand President Donald Trump fire top adviser Stephen Miller.

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Katrina Trinko: So, we have survived, or at least ostensibly survived, another week of impeachment hearings, and joining me to discuss is Hans von Spakovsky, a senior legal fellow at The Heritage Foundation. Hans, thanks for joining us.

Hans von Spakovsky: Sure, Katrina. Thanks for having me back on.

Trinko: All right. So before we get to the hearings, I want to talk about an interesting shift in rhetoric the left has made.

von Spakovsky: Right.

Trinko: We are no longer discussing quid pro quo. We are discussing bribery. Why have liberals shifted their rhetoric and is it significant?

von Spakovsky: I don’t think it’s significant because there’s so far been produced no evidence, really, of either one and the few witnesses who have talked about it dispute whether or not there was a quid pro quo. 

But apparently, the reason for this is there was a report recently, a news report, that the [Democratic National Committee] found that a focus group that they had conveyed didn’t really know what a quid pro quo was and they didn’t think anything of it. Whereas the word bribery sounds more sinister. So that, apparently, is why they have switched to using the term “bribery.” 

The one thing I will say is that what has come out so far doesn’t even come close to meeting the requirements of the federal bribery statute.

Trinko: And what are the requirements of that statute?

von Spakovsky: I mean, bribery, think of it in the common sense kind of term. Bribery is when, for example, a congressman is paid cash in order to vote a certain way on a bill. And the best example [of] that was … the Abscam investigation the FBI did early in 1970s where they caught Congressmen doing that on tape. 

But here, even if you assume what Democrats are claiming is true, and they haven’t proven it, all you have is a president being concerned about corruption inside a foreign country—some of which may have involved a former vice president of the United States and his son, who were obviously self-dealing in the business over there—and being concerned about corruption when we are providing that country with foreign aid. We’re always concerned with corruption in countries that we provide with foreign aid.

Not only that, but putting conditions on foreign aid is the way we’ve always provided foreign aid. So if we got a quid pro quo, well, that’s what we try to do with every bill for foreign aid we give to foreign countries.

Trinko: So, we’ve had roughly 30 gazillion hours of testimony this week, it feels like. Our reporter, Fred Lucas, has been glued to the hearings for hours and hours each day. … We’ll get into some more of the specifics later, but first of all, have we learned anything of importance that struck you from this week’s hearings?

von Spakovsky: No, I don’t think so. Again, we had many witnesses talking about things they heard thirdhand. Almost no one who had direct knowledge of what went on between … President [Donald] Trump and the president of Ukraine. And in fact, a lot of the discussions and testimony has been opinions, not facts—opinions and criticism of the way the president conducted a foreign policy.

Remember earlier in the week we had a lieutenant colonel who was providing advice on the Ukraine to the National Security Council. And the biggest part of his testimony was that he didn’t think the president used his talking points when he was having discussions with the Ukrainian president. 

Well, I hate to tell you this, lieutenant colonel, but it’s the president who’s the chief diplomat of the United States, and not only does he not have to follow the direction of junior officers in the Army, he also doesn’t have to follow what the State Department says or the advice given by the State Department. 

And that seems to have been most of the criticism by State Department officials is they didn’t like the way the president was conducting our diplomatic relations with Ukraine. None of this amounts to an impeachable offense.

Trinko: To get to the specifics, Pod Save America tweeted out this MSNBC clip featuring David Holmes, a diplomat in Ukraine. This is, of course, a liberal podcast. It’s run by former President [Barack] Obama staffers and they wrote in the tweet accompanying this, “David Holmes becomes the 500th staffer to lay out the quid pro quo between Trump and Ukraine.”

So let’s play that clip and then … I want to hear your response to it.

von Spakovsky: OK.

David Holmes: Within a week or two, it became apparent that the energy sector reforms, the commercial deals, and the anti-corruption efforts on which we were making progress were not making a dent in terms of persuading the White House to schedule a meeting between the presidents. 

On June 27, [European Union] Ambassador [Gordon] Sondland told [acting Ukraine] Ambassador [William] Taylor in a phone conversation—the gist of which Ambassador Taylor shared with me at the time—that [Ukrainian] President [Volodymyr] Zelenskyy needed to make clear to President Trump that President Zelenskyy was not standing in the way of, quote, “investigations.” I understood that this meant the Biden-Burisma investigations that [Trump personal lawyer Rudy] Giuliani and his associates had been speaking about in the media since March. 

Well, Ambassador Taylor did not brief me on every detail of his communications with the “three amigos.” He did tell me that on a June 28 call with President Zelenskyy, Ambassador Taylor, and the three amigos, it was made clear that some action on [the] Burisma-Biden investigation was a precondition for an Oval Office visit.

Trinko: So what are your thoughts? Does that constitute proof?

von Spakovsky: He understands, that’s what it was. You notice how careful his wording was. He didn’t know it. He understands it. That’s what it was. 

I guess my reaction to that is, so what? It is perfectly legitimate, and in fact, I would think people would want to know whether or not a prior vice president of the United States used the powers of his office to stop a corruption investigation of a Ukrainian company that had hired his son for a job for which he was getting paid an enormous amount of money, $50,000 a month, when he had no qualifications for that job, didn’t speak the language. 

And I think [he] has admitted, and officials for the company admitted it, [that] the only reason they hired him was because he was the [vice] president’s son. And yet the vice president used the powers of his office to threaten to withhold aid unless a corruption investigation was stopped.

That raises serious concerns about self-dealing by the Biden family. And why in the world would it be an impeachable offense for a president to say, “We think that should be investigated.” In fact, it should be. And if that’s the kind of corruption that was happening, we would want it looked into. So my reaction to that is, so what? 

The other thing, Katrina, just very quickly, is my friend Andy McCarthy, who we recently had at the heritage foundation to talk about this—

Trinko: And on this podcast, he was a great guest.

von Spakovsky: Right. He’s come up with this great term that I think describes this very well. He calls it the “Seinfeld Impeachment.” 

Now, the reason he calls it that is because he points out that the Ukrainians were given the aid that we had promised them, aid that has provided them with the kind of defensive weapons they need to fight against the Russians, and Russian insurgents, something the Obama administration refused to give them. 

Zelenskyy got his meeting with the president, and as far as we know, there was never actually any investigation conducted and there was no public announcement of any investigation. So the reason he calls it the Seinfeld Impeachment is, nothing actually happened.

Trinko: Great show. So, to return to something you said a little bit earlier in your answer, you pointed out it’s reasonable for Hunter Biden and [former Vice President] Joe Biden to be investigated in light of what occurred with the younger Biden getting this sweet gig while his father was the vice president.

von Spakovsky: Right.

Trinko: The left seems to say that that in itself is an impeachable offense. … A sort of a thought experiment here, I mean, what would it take for Trump to have done an impeachable offense? Would it have to have been him saying, “I’m specifically looking into this only because I’m concerned about the 2020 election”? Or is there anything he could have done that would have made this seem like an impeachable offense?

von Spakovsky: … Remember that the Democrats are now using the term “bribery.” Right? OK. If you look at the discussions at the Constitutional Convention about the impeachment clause, and specifically you look at what they meant by bribery back then, bribery would be if the president of Ukraine sent a personal cash payment to the president in order to get aid. That’s bribery. Asking the president of Ukraine to take a look into possible corruption, that is not bribery. 

And in particular, what’s so odd to me about this is—contrast these two things. On the one hand, we have the vice president of the United States, former vice president, admitting on videotape that he threatened to withhold U.S. aid unless a corruption investigation was halted of his own family. Versus the Democrats getting upset that this president wanted a corruption investigation conducted by this foreign country to look into that matter. 

Now, which of those two is actual corruption and an actual problem? Well, it’s clear to me it’s the first one. But of course, the Democrats don’t want any information coming out about this, because as you know, they refused Republican calls for Hunter Biden to come in and testify about the over $3 million he got for being the vice president’s son.

Trinko: Speaking of that, we might be at the end of [the] hearings. The committee hasn’t announced formerly yet what they’re going to do, but as you just said, the Democrats would not let Hunter Biden and a couple of other figures Republicans wanted to testify testify. Do you think that’s a problem?

von Spakovsky: I think it is, because look, the one thing you can say about prior impeachment investigations, specifically talking about [former President] Bill Clinton and Richard Nixon, is that the rules were set up in both of those to make it a bipartisan effort. The rank, the majority parties in both of those instances were given the ability to also investigate, call witnesses they thought were important. 

Here, Democrats have totally denied Republicans the ability to not only bring in witnesses they want, but as you know, [House Intelligence Committee Chairman] Adam Schiff has at times instructed witnesses not to answer the Republicans’ question. All of that makes this look like a partisan political effort, not a real objective impeachment investigation. 

And if that’s the way Democrats continue to do this, and they don’t actually establish any real evidence of an impeachable offense, which is serious misconduct by a president, I think they’re going to reap the political whirlwinds, and they’re going to find that they are greatly critiqued by the American people and they may suffer the consequences of that at the ballot box, as Republicans did after they impeached Bill Clinton.

Trinko: Let’s circle back to the hearings this week. What did you think of Ambassador Sondland’s testimony on Wednesday? It seemed to me, looking at Twitter, that it was, I don’t even know how to describe it. Both the left and the right were circulating quotes by him, and one in which he appears to say there was quid pro quo, one in which he appears to deny there was any quid pro quo. Was he contradicting himself? Did he say anything of importance? This seems to be the most crucial testimony we’ve had.

von Spakovsky: He was inconsistent, and you cannot prove a case with a witness who is inconsistent and says one thing one time and something else the other time. Which time is it true? And that is a kind of inconsistency that a prosecutor in a criminal case, he would never put up a witness like that—a witness who was inconsistent in his testimony—if he’s trying to prove a case. …

Again, I don’t think he’s made the case for the Democrats. And so far the evidence just does not meet the standard, the historical standard of showing serious misconduct by a president of such a nature that he should be removed immediately from office, rather than waiting for the next election and letting the American people make the choice when they go to the voting booth.

Trinko: All right, so let’s talk about [the] former aid to John Bolton, Fiona Hill. She testified on Thursday and dismissed the idea that Ukraine had been in any way involved in the 2016 election, saying this:

Fiona Hill: Some of you on this committee appear to believe that Russia and its security services did not conduct a campaign against our country and that perhaps, somehow, for some reason, Ukraine did. This is a fictional narrative that has been perpetrated and propagated by the Russian security services themselves. 

The unfortunate truth is that Russia was the foreign power that systematically attacked our democratic institutions in 2016. This is the public conclusion of our intelligence agencies confirmed in bipartisan congressional reports. It is beyond dispute.

Trinko: So you, of course, follow elections pretty darn closely.

von Spakovsky: Right.

Trinko: Is there any reason to believe Ukraine was involved in the 2016 election?

von Spakovsky: Well, we don’t know, because it hasn’t been really investigated. And with all due respect to Ms. Hill, these are the same intelligence agencies that she says, “Oh, should be the final word on this.” 

These are the same intelligence agencies that helped launch a surveillance operation against this president based on political opposition research that had not been checked and verified. Based on a false claim that there had been a collusion between the Russian government and the Trump campaign. 

And these are the same intelligence communities, intelligence agencies, where the whistleblower, which nobody wants to name, everybody knows who it is, is a CIA analyst who … is a Democratic activist. 

So, frankly, her call that we should just trust the intelligence agencies on this, I think she and others have done great damage to their credibility.

Trinko: Hill mentioned, and she is far from the only one, too, Rudy Giuliani’s role in all this. At this point, it doesn’t look like he’s going to testify. That could change.

von Spakovsky: Right.

Trinko: What do you think of his conduct from what we know, as Trump’s personal lawyer and his engagement with Ukraine? Is there anything that we should be concerned about?

von Spakovsky: I’ve heard some people try to claim that there was something wrong in this, and again, my reaction to that is, presidents are not required by the Constitution or any law to only use State Department officials. … 

Presidents have used private individuals in many instances in the past to engage in foreign policy missions for them. There’s nothing illegal or unlawful. … I guess you can debate the wisdom of it, but again, we’re not supposed to be here talking about the wisdom of the president’s conduct of foreign policy.

That is not an impeachable offense. What we’re supposed to be talking about is anything that was unlawful or illegal conduct. And the fact that Rudy Giuliani, as the president’s personal lawyer, was talking to officials in Ukraine, there’s nothing illegal about that. And it certainly is not impeachable. 

Oh, but it’s very clear that it really annoys State Department officials, which to me is actually a good thing given how many times in the past State Department officials have acted in ways in which they seem to feel like the foreign countries they’re stationed in are really their clients, not the United States.

Trinko: So do you want to wager any predictions on what happens next in the impeachment process?

von Spakovsky: Oh, I think it’s pretty likely that the House will vote to approve articles of impeachment because they’ve been wanting to do that since the first week the president was inaugurated. And they really don’t care about what the evidence shows or doesn’t show. … 

The way this has been conducted, the witnesses they have brought forward makes it look like this is really a political stunt intended to try to damage the president in order to prevent him from getting reelected. It’s just not being conducted like an actual legitimate impeachment inquiry as prior impeachments have been. 

This is particularly true because I think Democrats should probably know, since they’ve not been able to produce any real evidence, that there’s no way the Senate is going to convict the president and remove him from office when there’s been no serious misconduct.

Trinko: You mentioned the whistleblower. Do you think it is important that that person be known? Be questioned?

von Spakovsky: Yes, absolutely. Because, look, there is no more serious undertaking by the U.S. House of Representatives other than declaring war, except for impeachment. And if you are going to take what is a step that has only been attempted to be taken twice in American history to remove a president, duly chosen and elected by the American people, then there should be no anonymous accusers. 

And I think we should not only make public who the whistleblower is, I think he should be called in as a witness—as Republicans wanted, and Adam Schiff refused—because one of our most basic due process rights is the ability to confront your accuser. When you aren’t able to do that, then that means that Adam Schiff and his committee are running this like a star chamber, not a proceeding in which they’re actually trying to get at the truth.

Trinko: To play devil’s advocate here, does he need to face his accuser if the president already has a chance to respond to the accusations? Does it matter who made them?

von Spakovsky: It does matter who made them because when someone makes accusations, it’s not just the supposed facts that they’re asserting, it’s their credibility. Can you believe what they’re saying? Do they have credibility in the accusations they are making? 

I’m sure one of the reasons this particular whistleblower doesn’t want his name to come out is because we know, for example, that the lawyer he hired two years ago was sending out tweets publicly talking about how they were going to organize a coup to take down this president. And that brings up a lot of questions about this whistleblower, his credibility, whether this is an organized effort to bring down the president where there’s no real wrongdoing at issue. Who he’s had contact with, including Adam Schiff and others, prior to even filing the whistleblower complaint.

All of that’s very important for us to be able to judge what is really going on here.

Trinko: To wrap up, how do you think history is going to view these impeachment hearings? And do you think this could usher in a new era for the United States in the sense of “I’m struck by how the media is always, always accusing the Trump administration of norm-breaking, etc.,”? But by your account really, this impeachment process is a kind of norm-breaking.

von Spakovsky: Yeah, no, it is. And I think if Democrats continue to go forward with this, they are initiating a very dangerous precedent. I think historians are going to look at this the way they today look at the attempted impeachment of Andrew Johnson. 

Andrew Johnson was the first president impeached by the House. He was acquitted in the Senate. He was the vice president, took over when Abraham Lincoln was assassinated. And historians all agree that that was an improper impeachment.

They impeached him, not because he had done anything wrong, but because they didn’t like him and they didn’t like his policies toward the Southern states, and they didn’t like his attitude toward reconstruction. It was a purely political impeachment. 

They wanted to get rid of somebody they didn’t like, not a president who would actually engage in any kind of misconduct. And the parallels between that and what’s going on today are actually kind of eerie. 

One of the paragraphs in the articles of impeachment of Johnson even complained about the president saying nasty things about Congress. Does that sound familiar, Katrina?

Trinko: A little bit.

von Spakovsky: … I’m sorry, but saying nasty things about the Congress, that is not an impeachable offense.

Trinko: At least Andrew Johnson didn’t tweet. Right? Well, thanks so much for joining us.

von Spakovsky: Sure, thanks for having me.

Katrina Trinko is editor-in-chief of The Daily Signal and co-host of The Daily Signal PodcastSend an email to Katrina. Reproduced with permission. Original can be viewed here.