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Is It Ever OK for a President to Ask a Foreign Country to Investigate a Political Rival?

Edward B. Foley directs the Election Law program at the Ohio State University’s Moritz College of Law, where he also holds the Ebersold Chair in constitutional law.

Here’s the big question on which the potential impeachment of President Donald Trump could turn: Is it ever appropriate for a U.S. president to ask a foreign government to investigate a political rival?

Democrats seem to assume the answer is no, that this kind of request could never be proper, given the implications for our electoral system. “Smoking gun” is what they say about Trump’s urging Ukraine—and now also China—to investigate Joe and Hunter Biden. Republicans, meanwhile, contend that it is perfectly normal, and justified, for Trump as president to ask the Ukrainians to look into potential corruption that involves Americans and could, in theory, affect U.S. relations with that country.

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“This is not about politics. This is about corruption,” Trump told reporters outside the White House on Friday.

But the real answer to this question is more complicated. History shows that a president sometimes might be justified in asking a foreign country to investigate a political rival, including a former vice president. So, the mere fact of Trump’s request for an investigation into the Bidens, without considering the circumstances of the request, is not enough to impeach him.

In order to prove Trump abused his presidential powers to the point that he no longer can be trusted in exercising them—the constitutional standard for impeachment—Congress must establish Trump’s intent in making the request. Was it done in good faith, with U.S. foreign or domestic interests in mind, or in bad faith, merely for Trump’s personal and political benefit? To prove the latter, Congress can’t rely on Trump’s words alone; it must show that the charges of corruption against the Bidens are baseless and that Trump’s request to Ukraine is part of a pattern of bad faith demonstrating that the nation no longer can tolerate his incumbency.

Going back to America’s early days, there have been occasional instances in which presidents would have been justified had they sought foreign investigations into political rivals. In 1804, Aaron Burr contacted the British government, apparently to peddle a plan for severing part of the United States to form a new country in western territory. In response, President Thomas Jefferson had Burr prosecuted for treason, and he was found not guilty. We can stipulate that Jefferson was excessively involved in the treason trial. But had he instead simply asked for Britain’s assistance in gathering more information about Burr’s involvement in this plot, that would have been entirely appropriate given the high stakes for the country.

This is true despite the fact Jefferson was seeking reelection at the time and Burr, an incorrigibly ambitious politician, might still have coveted the presidency. It was unlikely that Burr would have been a serious rival to Jefferson’s reelection; the Federalist Party, which opposed Jefferson, hated Burr for having slayed its hero, Alexander Hamilton. But Burr was still active politically and could not be discounted completely. Whatever the circumstances of the electoral rivalries at that moment—and campaigns back then were, of course, very different from today—Jefferson as president would have been acting responsibly if he had requested Britain’s assistance in the investigation of Burr.

For a more recent example, look to 1968, when Richard Nixon was the Republican nominee attempting to wrest the White House from Democratic hands. During the campaign, Nixon went so far as to encourage an emissary, Anna Chennault, to intervene with President Lyndon B. Johnson’s peace talks to end the Vietnam War. Johnson by then had dropped out of the Democratic primary, but his vice president, Hubert Humphrey, would end up the party’s nominee—making Nixon, in effect, a political rival. Even so, it would have been completely legitimate if LBJ, who did get wind of what Chennault was doing, had decided to ask South Vietnam for information about whether Nixon was directly involved in this ploy.

Sometimes, there is an inevitable tension between the president’s obligation to defend the nation as commander in chief and the president’s role as a candidate for reelection. But presidents, unlike subordinates, cannot recuse themselves from their commander in chief responsibilities. Rarely, but occasionally, acting in good faith as commander in chief might require an incumbent president to seek foreign assistance in pursuing an investigation of a former vice president—like Burr and Nixon—who is opposing the president’s reelection. As long as the president acts in good faith, critics reasonably can question the soundness of the president’s decisions, but there would be no grounds for impeachment and removal of office.

What about Trump’s requests for foreign investigations of former Vice President Biden? Can they be defended from an impeachment charge on the ground that Trump was acting in good faith?

Maybe good faith wouldn’t be an adequate defense if Trump violated campaign finance laws by seeking a “thing of value” from foreign governments in support of his reelection campaign. But I would argue that some presidential conversations with foreign leaders must be considered beyond the scope of campaign finance regulation. The exercise of commander in chief responsibility in pursuit of the national interest should not get caught up in the interpretation of regulations that fundamentally are designed to protect American elections from foreign money.

Nor is a quid pro quo offer—if that is what Trump made to Ukraine when asking for an investigation—necessarily a sign of bad faith. Such an offer could be considered legitimate if it is in the service of a valid foreign policy objective, as Michael McFaul, President Barack Obama’s ambassador to Russia, recently observed.

These points are not to suggest that Trump was justified in requesting foreign investigation of Biden. Rather, they help point the focus of the inquiry where it belongs: on Trump’s motive. Congress must determine whether the president had a good-faith basis for believing that Biden engaged in any impropriety, comparable with Nixon’s or Burr’s, that could justify the kind of requests Trump made to Ukraine and China. From all the available evidence right now, it strains credulity for Trump’s defenders to claim he is acting in good faith, but Congress must make an official judgment as part of any formal impeachment proceedings.

How can Congress establish that Trump’s motive was nefarious? For starters, the House will need to show that the Biden allegations are so spurious as to be necessarily made in bad faith. That will open the impeachment inquiry to whatever contrary evidence Trump can muster, unavoidably making Biden a focus of the inquiry—something Democrats presumably would prefer to avoid.

Members of Congress also will need to draw on their assessments of Trump’s character and behavior generally. For representatives in the House deciding whether to impeach, as well as potentially senators deciding whether to convict, if Trump is viewed as regularly acting in bad faith, then it is easier to rule out any defense of good faith as exonerating his conduct with regard to Ukraine.

Impeachment advocates will need to decide how much general character evidence they wish to pursue as a formal part of the process. Because impeachment is not a conventional criminal prosecution, they could rely on more of it than would be permitted in a courtroom. But doing so would go against the strategy of keeping impeachment proceedings narrowly focused.

This puts impeachment advocates in something of a procedural bind. They can limit their evidence solely to facts that directly relate to the president’s request for foreign investigation of the Bidens, like the recently revealed text messages among U.S. diplomats working on the issue. This strategy might end up being enough, but it risks leaving wiggle room for those in Congress inclined to give the president the benefit of the doubt on the Ukraine matter. Conversely, impeachment advocates could widen the range of evidence—pointing to all the ways that Trump has arguably abused the powers of the presidency for personal gain throughout his time in office—but this approach risks the accusation that Democrats are just relitigating matters that the voters want to decide for themselves at the ballot box.

The Goldilocks approach to impeachment evidence might be to focus on facts that demonstrate a specific form of bad faith and why it necessitates impeachment. This evidence would show not merely that Trump acted for reasons of personal electoral advantage in his dealings with Ukraine and China, but that he can never be expected to exercise his presidential powers on behalf of the public, as his oath of office requires, in the midst of a reelection campaign when his own interests are at stake. Proof of his incapacity to elevate national over self-interest can help convince the public that impeachment truly is about the future, not the past—and, even more important, that the remedy of impeachment is necessary, because voters’ power to choose their president without improper interference cannot be safeguarded otherwise.

Of course, Trump might end up, in a sense, impeaching himself, if he continues to act in ways that can be only construed reasonably as bad faith. And evidence of U.S. envoys saying things like, “I think it’s crazy to withhold security assistance for help with a political campaign,” would go far in demonstrating that Trump’s sole motive is (and will continue to be) an improper desire to secure an electoral advantage. Yet impeaching Trump for seeking a foreign investigation of Biden will require the conviction to be based not on his words alone, but on what was in his heart when he uttered those words. That is a tricky—but not impossible—bar for Congress to clear.

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