It’s been almost two weeks since House Intelligence Committee Chairman Adam Schiff released the August 12, 2019, “whistleblower” complaint accusing President Donald Trump of “a serious or flagrant problem, abuse, or violation of law or Executive Order,” quoting Section 3033 of Title 50, United States Code, which is titled, “Inspector General of the Intelligence Community,” a.k.a. ICIG. The complaint focuses on President Trump’s July 25, 2019, telephone call with Ukrainian President Volodymyr Zelensky.
Nowhere in the August 12, 2019, complaint is there a citation to another legal standard that President Trump allegedly violated. There is no alleged violation of any “high Crimes or Misdemeanors” that would warrant impeachment under Article II, Section 4, of our Constitution.
Eight weeks later, the legal standard allegedly violated by President Trump remains vague.
When I was serving as the Senate-confirmed Inspector General of the Department of Defense (2002-05), I publicly announced this rule: “if it takes the Office of Inspector General lawyers more than a week to tell the IG what the legal standard is, the IG will not hold anybody else accountable to that standard — because that would be a Caligula-esque method of enforcing laws. . . . It’s not part of the American system of transparent and accountable government.”
The background of this anti-Caligula rule is described in my 2013 book, “The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic’,” on page 38: “In 1765, Sir William Blackstone explained . . . . the essential properties of all man-made law (as opposed to Divine Law and Natural Law):
"[M]unicipal or civil law [is] the rule by which particular districts, communities, and nations are governed; . . . Let us endeavour to explain its several properties, . . . first, it is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. . . . It is likewise ‘a rule prescribed.’ But farther: municipal law is ‘a rule of civil conduct pre-scribed by the supreme power in a state.’"
These are the enduring properties of all man-made laws in the Anglo-American tradition of transparent government. In describing these properties, Sir William Blackstone wrote that the government must promulgate its laws in the “most perspicuous manner” available, “not like [Emperor] Caligula, who . . . wrote his laws in very small character, and hung them up upon high pillars, the more effectually to ensnare the people.”
In American jurisprudence, these properties manifest themselves in basic principles of due process (and fairness) through, among other things, the two ex post facto clauses of our Constitution, and our Supreme Court’s “void for vagueness” doctrine.
Although the August 12, 2019, complaint does not cite any “high Crimes or Misdemeanors” standard that President Trump allegedly violated, even before President Trump released publicly the transcript of his July 25, 2019, call with Ukrainian President Zelensky, Speaker of the House Nancy Pelosi announced on September 24, 2019: “the President has admitted to asking the president of Ukraine to take actions which would benefit him politically. The actions of the Trump presidency revealed the dishonorable fact of the President's betrayal of his oath of office, betrayal of our national security, and betrayal of the integrity of our elections. . . . Therefore today, I'm announcing the House of Representatives is moving forward with an official impeachment inquiry.”
To be clear, the ICIG’s August 26, 2019, letter to Acting Director of National Intelligence Joseph Maguire notified the Acting Director that, “the Complainant's Letter alleged, among-other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelensky on July 25, 2019, ‘sought to pressure the Ukrainian leader to take actions to help the President's 2020 reelection bid.’ U.S. laws and regulations prohibit a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation in connection with a Federal, State, or local election,” citing “See, e.g., 52 U.S.C. § 30121(a)(l)(A); 11 C.F.R. § 110.20(b).”
It appears to have taken the ICIG’s lawyers two weeks to tell the IG what the legal standard raised in the August 12, 2019, whistleblower complaint was, and another month later the legal standard allegedly violated by President Trump remains vague — while an “official impeachment inquiry” is in full force in the House of Representatives by edict of the Speaker.
It doesn’t get much more Caligula-esque.
If I had been the ICIG, I would have admonished my staff not to hold anybody else accountable to the standard alleged by the “whistleblower” — because that would be a Caligula-esque method of enforcing laws. It’s not part of the American system of transparent and accountable government.
Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’" Read more reports from Joseph E. Schmitz — Click Here Now.
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