The Rights of the President: Joe Biden, Trump and the Ukraine

The Rights of the President by Leon Kozak

Mr Trump, as President, has the Constitutional duty to enforce the laws of the land and to lead the way in the conduct of US foreign affairs. Thus, he is entitled to investigate acts that could be illegal under US law including the Foreign  Corrupt Practices Act which addresses certain acts of US persons taking place in foreign countries. Moreover,  a treaty with the Ukraine specifies that the US may ask the Ukraine to assist the US in investigating  potential criminal behavior of US persons under US law and the Ukraine is required to comply.

The President has significant discretion under the Constitution  in his use of foreign aid as a means of conducting foreign affairs and may withhold, delay or make it s release conditional in many circumstances.

In my view, the above Presidential powers are applicable even  if the target of the investigation is a potential political opponent of the President as long as there is at least some colorable claim that illegal activity under US law involving a foreign country or foreign officials  may have taken place. The threat to withhold US aid is a perfectly legitimate means of using these Presidential powers in the international context. Although  President Trump  is adamant that there was in fact no”quid pro quo” (ie, “quid”-investigate Biden in order to “quo”- get military aid from the US), it would not matter if there were  in fact a quid pro quo.

Was there at least a colorable claim that some illegal activity took place involving VP Biden? Here are some facts which make it clear that the colorable claim test has easily been met.

—Mr Shokin was the chief prosecutor in the Ukraine during some of the years of the Obama administration. His office had commenced an investigation of Burisma Holdings a Ukraine-based energy group. The investigation raised questions as to whether Burisma had violated the criminal corruption laws of the Ukraine and other countries. Officials of Burisma were reported to be concerned about the investigation.

—Mr Shokin has indicated in a signed affidavit  and in other documents that he was told to exercise caution in  proceeding with this investigation because of the connection of Burisma to powerful interests in the US government. Mr Shokin has also stated that he believes he was dismissed as prosecutor at the insistence of US government officials because of his office's investigation into Burisma. 

—Hunter Biden (son  of former VP Joe Biden) was given a Board position by Burisma during the years of the Obama administration. He was paid at least $50,000.00 per month as compensation for  serving in this position and much more for undisclosed activities. Prior to taking on this position, Hunter Biden had no experience in the energy sector, in corporate governance or in Eastern Europe. Hunter Biden admitted in a television interview that he likely would not have obtained the position but for his family connection to VP Joe Biden.

—-VP Joe Biden was given primary responsibility for dealing with Ukraine matters by Pres Obama.

—-VP Joe  Biden knew about Hunter s involvement with some company in Ukraine and told him to make sure he knew what he was doing. 

—-The staff of VP Joe Biden was informed by the staff of Pres Obama and by certain State Department officials that Hunter Biden's Ukraine activities represented at least a perception of a conflict of interest (and could be an actual conflict of interest) when considering VP Joe Biden's responsibilities with respect to the Ukraine.

—-At some point, VP Joe Biden flew to the Ukraine on official business. (The VP flew on Air Force #2. Hunter Biden joined him on the flight.) VP Joe Biden informed the government  of the Ukraine that the government needed to dismiss Mr  Shokin immediately. VP Joe Biden later admitted in a public conference (shown on television numerous times) that in the course of that visit to the Ukraine he informed the Ukrainian government officials that if Mr Shokin were not dismissed before VP Biden headed back home (six hours hence), the US would withhold $1 billion in foreign aid intended for the Ukraine.

—-Mr Shokin was dismissed on that day before VP Joe Biden left the country

[Thanks to Leon Kozak, Esq, for allowing circulation of this well-reasoned essay]

[Mr Kozak is an attorney living in northern New Jersey]
See two previous posts on Emet m'Tsiyon [here] and [here] and [here]