The White House filed its official brief in response to the House of Representatives’ articles of impeachment on Monday, arguing that it had been entirely “appropriate” for President Donald Trump to raise questions in a phone conversation last July with Ukrainian President Volodymyr Zelensky about former Vice President Joe Biden’s conflict of interest regarding his son, Hunter Biden, who was on the board of a the Ukrainian energy company, Burisma.
The lengthy memorandum takes aim at the constitutional basis for the articles of impeachment, arguing the “abuse of power” alleged in the first article is a vague and subjective standard that weakens the presidency, and that “obstruction of Congress” as alleged in the second article interferes with the balance of powers and the rights of the executive.
In addition, however, it argues that Trump had a legitimate public interest in asking about past Ukrainian interference in U.S. elections, as well as about allegations of corruption surrounding the Bidens and Burisma (original emphasis):
It also would have been legitimate to mention the Biden-Burisma affair. Public reports indicate that then-Vice President Biden threatened withholding U.S. loan guarantees to secure the dismissal of a Ukrainian prosecutor even though Biden was, at the time, operating under what appeared to be, at the very least, a serious conflict of interest. The prosecutor reportedly had been investigating Burisma—a Ukrainian energy company notorious for corruption—and Biden’s son, Hunter, was sitting on Burisma’s board. Unless being son of the Vice President counted, Hunter had no apparent qualifications to merit that seat, or to merit being compensated (apparently) more richly than board members at Fortune 100 energy giants like ConocoPhillips. In fact, numerous career State Department and NSC employees agreed that Hunter Biden’s connection with Burisma created, at a minimum, the appearance of a conflict of interest, and The Washington Post reported as early as 2014 that “[t]he appointment of the [V]ice [P]resident’s son to a Ukrainian oil board looks nepotistic at best, nefarious at worst.” More than one official raised the issue with the Vice President’s office at the time, but the Vice President took no action in response.
On those facts, it would have been appropriate to raise this incident with President Zelenskyy. Ukraine cannot rid itself of corruption if its prosecutors are always stymied. Here, public reports suggested that Vice President Biden played a role in derailing a legitimate inquiry while under a monumental conflict of interest. If Biden were not running for President, House Democrats would not argue that merely raising the incident would have been improper. But former Vice President Biden did not immunize his past conduct (or his son’s) from all scrutiny simply by declaring his candidacy for the presidency.
Importantly, even under House Democrats’ theory, mentioning the matter to President Zelenskyy would have been entirely justified as long as there was a basis to think that would advance the public interest. To defend merely asking a question, the President would not have to show that Vice President Biden (or his son) actually committed any wrongdoing. By contrast, under their own theory of the case, to show “abuse of power,” the House Managers would have to prove that the inquiry could have no public purpose whatsoever. They have no such evidence. The record shows it would have been legitimate to mention the Biden-Burisma affair.
Later, it adds: “House Democrats’ theory that there could not have been any legitimate basis for a President of the United States to raise the Biden-Burisma affair with President Zelenskyy is also wrong.” After citing publicly reported facts for several pages, the memo rips into the Democrats’ theory that the request had no public purpose (original emphasis):
On these facts, it would have been wholly appropriate for the President to ask President Zelenskyy about the whole Biden-Burisma affair. The Vice President of the United States, while operating under an apparent conflict of interest, had possibly used a billion dollars in U.S. loan guarantees to force the dismissal of a prosecutor who may have been pursuing a legitimate corruption investigation. In fact, on July 22, 2019—just days before the July 25 call— The Washington Post reported that the fired prosecutor “said he believes his ouster was because of his interest in [Burisma]” and “[h]ad he remained in his post . . . he would have questioned Hunter Biden.” Even if the Vice President’s motives were pure, the possibility that a U.S. official used his position to derail a meritorious investigation made the Biden-Burisma affair a legitimate subject to raise. Indeed, any President would have wanted to make clear both that the United States was not placing any inquiry into the incident off limits and that, in the future, there would be no efforts by U.S. officials do something as “horrible” as strong-arming Ukraine into dropping corruption investigations while operating under an obvious conflict of interest.
As the transcript shows, President Zelenskyy recognized precisely the point. He responded to President Trump by noting that “[t]he issue of the investigation of the case is actually the issue of making sure to restore the honesty[.]”
It is absurd for House Democrats to argue that any reference to the Biden-Burisma affair had no purpose other than damaging the President’s potential political opponent. The two participants on the call—the leaders of two sovereign nations—clearly understood the discussion to advance the U.S. foreign policy interest in ensuring that Ukraine’s new President felt free, in President Zelenskyy’s words, to “restore the honesty” to corruption investigations.
Moreover, House Democrats’ accusations rest on the false and dangerous premise that Vice President Biden somehow immunized his conduct (and his son’s) from any scrutiny by declaring his run for the presidency. There is no such rule of law. It certainly was not a rule applied when President Trump was a candidate. His political opponents called for investigations against him and his children almost daily. Nothing in the law requires the government to turn a blind eye to potential wrongdoing based on a person’s status as a candidate for President of the United States. If anything, the possibility that Vice President Biden may ascend to the highest office in the country provides a compelling reason for ensuring that, when he forced Ukraine to fire its Prosecutor General, his family was not corruptly benefitting from his actions.
Importantly, mentioning the whole Biden-Burisma affair would have been entirely justified as long as there was a reasonable basis to think that looking into the matter would advance the public interest. To defend merely asking a question, the President would not bear any burden of showing that Vice President Biden (or his son) actually committed any wrongdoing.
By contrast, under their own theory of the case, for the House Managers to carry their burden of proving that merely raising the matter was “illegitimate,” they would have to prove that raising the issue could have no legitimate purpose whatsoever. Their theory is obviously false. And especially on this record, the House Managers cannot possibly carry that burden, because no such definitive proof exists. Nobody, not even House Democrats’ own witnesses, could testify that the Bidens’ conduct did not at least facially raise an appearance of a conflict of interest. And while House Democrats repeatedly insist that any suggestions that Vice President Biden or his son did anything wrong are “debunked conspiracy theories” and “without merit,” they lack any evidence to support those bald assertions, because they have steadfastly cut off any real inquiry into the Bidens’ conduct. For example, they have refused to call Hunter Biden to testify. Instead, they have been adamant that Americans must simply accept the diktat that the Bidens’ conduct could not possibly have been part of a course of conduct in which the Office of the Vice President was misused to protect the financial interests of a family member.
The Senate cannot accept House Democrats’ mere say-so as proof. Especially in the context of this wholly partisan impeachment, House Democrats’ assurance of, “trust us, there’s nothing to see here,” is not a permissible foundation for building a case to remove a duly elected President from office—especially given Chairman Schiff’s track record for making false claims in order to damage the President.
The president’s Senate trial will officially begin on Tuesday at 1:00 p.m. ET.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.