TOENSING: If The Senate Votes For Witnesses, Due Process Requires Hunter To Be Questioned

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Repeatedly, Democrats claim Hunter Biden is not relevant as a witness in the Senate impeachment trial.  But it is their accusations in Article I – Abuse of Power — which have made his testimony relevant.

Before addressing the issue, I want to make clear that the House case, as described by White House counsel, is “constitutionally invalid” having cited no crime or conduct even conceivable as criminal.  Thus, the correct process would be an outright dismissal because there is no “high crime [] or misdemeanor []” as required by the U.S. Constitution.  Such dismissal would be akin to a judge, after reviewing an indictment claiming only that the defendant asked a police officer to investigate a neighbor’s conduct, finding no crime was charged.   But in the political arena perception rules.  Few Senators have the courage to vote for the correct process, instead preferring to show their constituencies they listened to all the evidence and then decided.  So Senators have a choice: listen only to House arguments or continue the proceeding by voting that witnesses may be called.  Only 51 votes are required.

Suppose that a few Republican senators (Romney, Murkowski, Gardner, and Collins come to mind) provide the votes needed to permit Democrats to call their witnesses.  Due process requires that Hunter be questioned on behalf of the President Donald Trump’s case.

Democrats charge in Article I that the president abused his power by “corruptly solicit[ing]” Ukrainian president Volodymyr Zelensky “to publicly announce” an investigation of his “political opponent,” former Vice President Joe Biden.

It is beyond dispute that the president, as the Chief Law Enforcement officer of the United States, has unfettered authority under Article II of the Constitution to request an investigation of criminal conduct…by anyone.  By describing the solicitation as “corrupt,” Democrats attempt to claim the abuse of power was that Trump did so without basis and only to do away with a political foe.

Most constitutional scholars agree that a president’s motive for carrying out a constitutionally authorized act cannot be questioned.  But the House’s “corrupt” impeachment language has challenged that constitutional authority and put at issue the veracity of the underlying facts.

The standard for prosecutors to open an investigation is whether there is a “factual basis” for doing so.  It is unethical for a prosecutor to target a person and then search for the crime.  For example, the Obama White House’s January 2016 request to personnel from the Ukrainian Embassy to get information on Paul Manafort flunks the factual basis test.

To defend against the House’s charge, the president must be permitted to show that the facts he knew on July 25, 2019, the date of the telephonic request, were such that there was a basis to investigate the Biden conduct.

Former Ukrainian Prosecutor General Viktor Shokin had claimed early in 2019 that Biden directed the president of Ukraine, Petro Poroshenko, to fire him because he refused to close the investigation of Burisma, the company where Hunter sat on the Board.  While omitting the role of Hunter, Biden had touted in January 2018 on a much distributed video that he had threatened to withhold over $1 billion in U.S. aid to Ukraine unless Shokin was fired.  Biden admitted to the very conduct Shokin alleged was done with corrupt intent.

The president was aware of these facts. If Shokin’s statement is true, Biden has committed extortion and bribery, the very crimes Democrats periodically throw at the president.  The facts known to the president also raise the question of whether Biden had any role in obtaining Hunter’s $80,000 plus monthly position when the son knew nil about energy or Ukraine.  At the very least, such role would be a conflict of interest for Biden.  Depending on the facts, it could also be bribery or extortion.

Thus, it cannot be refuted that the president had a factual basis to ask Ukraine to investigate the Biden issue.  But because the Senate trial is “political” and because the House has charged the request to be “corrupt,” it is relevant for members to discover what additional information questioning Hunter would reveal.  Perhaps:

  • What was your background for being put on Burisma Board?
  • About how many hours monthly did you work for $80,000 plus salary?
  • Did you ever discuss the position with your father? If so, what was said?
  • Were you interviewed for the position by Mykola Zlochevsky, the corrupt Ukrainian oligarch who owned Burisma? Do you know him?
  • How and when did you learn Burisma was under investigation by Shokin?
  • Did you or any representative of Burisma discuss its investigation with anyone at the Department of State?
  • If Burisma was no longer under investigation when Shokin was fired (March 2016) why did Burisma legal counsel meet with Shokin’s successor days after he was fired?

If the answers confirm criminal, or even unethical, conduct by Biden, doesn’t the voting public have a right to know? Much ado was made by Democrats that Gen. Michael Flynn could be blackmailed for “lying” privately to Vice President Mike Pence about a conversation with Russian Ambassador, Sergey Kislyak.  Depending on the answers to the above questions, the public will learn whether the Ukainian government or even oligarch Zlochevsky could strong-arm a President Biden.  More importantly, the Senators will know whether Trump’s request for an investigation was “corrupt” or valid.

Victoria Toensing served as deputy assistant attorney general in the Criminal Division of the U.S. Justice Department from 1984-1988, where she established the department’s Terrorism Unit. She is founding partner of the Washington, D.C. law firm diGenova & Toensing, LLP.