Ask PolitiFact: Answers to reader questions about the Trump impeachment inquiry, Hunter Biden

Our reporters investigated questions from readers about the House impeachment inquiry into President Donald Trump, as well as Joe and Hunter Biden, and the whistleblower who set the investigation into motion. 

In this edition, we'll answer questions about when Ukraine knew its aid dollars were frozen, whether whistleblower rules were changed to include second- and third-hand information, what we know about a complete transcript of Trump's July phone call with the Ukrainian leader, and how the younger Biden ended up with a seat on the Ukrainian energy company board in the first place.

Do you have a question for us? Email us at [email protected], and we’ll try to answer it in our next batch of reader responses. Put "Ask PolitiFact" in the subject line.

IMPEACHMENT PROCESS

How are the president's powers limited while under an impeachment inquiry?

The president retains his normal powers — to sign bills, direct agencies, issue executive orders and so on — while an impeachment goes on. 

But there are some subtleties. Some legal experts believe an impeachment inquiry shrinks the president's power to withhold records from Congress.

Kel McClanahan, a national security lawyer, said courts would be more likely to side with Congress if a president under an impeachment inquiry tried to use executive privilege to shield information from lawmakers.

"The balancing test between his need to withhold it and their need to obtain it shifts in Congress's favor," McClanahan said.

But most legal experts we spoke to were skeptical that an impeachment probe gives Congress new power to circumvent executive privilege.

Informally, the president's political power could be constrained by an impeachment inquiry if it makes negotiations with Congress or foreign leaders more difficult, or if it diminishes his standing with the public.

"The inquiry may distract the president or limit his ability to convince lawmakers to go along with his proposals," said Andrew D. Leipold, a law professor at the University of Illinois College of Law. "But I do not think the president’s powers are legally affected."

How long can an impeachment inquiry last? Could this theoretically last after the votes have been cast in 2020?

The constitutional process for impeachment does not set a time limit. However, experts we spoke with say the current process should wrap up before Election Day 2020.

Here’s a refresher on the mechanics: First, articles of impeachment must pass the full U.S. House of Representatives with a simple majority. Those articles are then sent to the Senate for a trial. A two-thirds Senate vote is required to convict — that is, remove — the president.

"All signs point to a relatively speedy impeachment inquiry, although the torrent of new info could string it out," said Burdett A. Loomis, a political scientist at the University of Kansas.  

James D. Robenalt, an attorney and creator of a continuing legal education class on Watergate, laid out an estimated timeline that would see an impeachment trial coming to a close in spring 2020 — well in advance of the election. 

"If true to form, the Senate trial would take place within three months, perhaps faster," he said, citing the impeachment trials of Presidents Andrew Johnson and Bill Clinton.

None of the experts we spoke to believe the Republican-held Senate would muster the two-thirds votes needed to remove Trump, which could expedite the trial phase.

"It is highly unlikely that this process will stretch past the election in November 2020," Robenalt said. "Instead, it is more likely to be a campaign issue that will be used by both sides."

Specifically what laws have been broken?

A president can be impeached if his or her acts are inconsistent with their presidential duties, whether or not it violates criminal law.

That said, articles of impeachment tend to loosely follow a criminal law model, even if they don’t directly accuse the president of having violated a specific law, said Stephen M. Griffin, a Tulane University law professor.

"They are written as if they are accusing the president of crimes," he said.

Still, it’s possible that Trump may have violated federal statutes, experts told PolitiFact 

Federal bribery laws could apply to withholding foreign aid in exchange for political favors, said Louis Seidman, a Georgetown University law professor.

"It is a criminal offense to receive something of value in exchange for a governmental act," Seidman said.

Additionally, Trump may have run afoul of laws prohibiting foreign officials to provide campaign contributions, Seidman added. Federal election law says a campaign contribution can include anything of value, which may include supplying political opposition research.

THE WHISTLEBLOWER/UKRAINE PHONE CALL

Is there any actual recording of the call? 

We can’t confirm or debunk this. The White House did not respond to our inquiry on whether there was a recording of the call, an extended memorandum or a complete verbatim transcript. 

According to the whistleblower complaint, White House officials intervened to restrict access to an official word-for-word transcript. This might be a more detailed account of the conversation than was released by the White House. The complaint does not mention a recording.

RELATED STORY: Here’s the readout of Trump’s call with Ukrainian President Volodymyr Zelensky

The complaint says that White House officials told the whistleblower that they were "directed" by White House lawyers "to remove the electronic transcript" from a computer system where such transcripts are typically stored.

The transcript of Trump’s July call with Zelensky was loaded into a separate electronic system used for classified information "of an especially sensitive nature," the whistleblower wrote. One White House official described the action as an abuse of the electronic system because the call did not include "anything remotely sensitive from a national security perspective," the whistleblower complaint said.

The whistleblower did not know if similar measures were taken to restrict access to other records of the call, such as contemporaneous handwritten notes taken by people who listened in on the call.

Is it true that rules were changed to protect "whistleblowers" with second- and third-hand information, having not witnessed an event first-hand?

No, the rules for whistleblowers have not changed since the law protecting intelligence staffers was passed in 2014. We got our hands on one of the earliest templates for filing a whistleblower complaint. Dating from 2014, a whistleblower could come forward with "direct and indirect evidence."

The Intelligence Community Inspector General issued a statement Sept. 30 that specifically noted that whistleblowers "need not possess first-hand information in order to file a complaint." 

The 2014 guiding rule set down in Intelligence Community Directive 120 defines a protected disclosure as one that the employee "reasonably believes" is evidence of  a violation of a law, a rule or a regulation. 

The form filled out by the whistleblower in the Ukraine affair had checkboxes for first-hand and second-hand information. The whistleblower checked both.

There was a superficial change to the whistleblower forms in 2019, but there was no change in the rules.

RELATED STORY: Donald Trump’s false claim about a change in whistleblower rules

HUNTER BIDEN AND UKRAINE

Why was Hunter Biden working for a Ukrainian oil company?

The position with Burisma came at a time when the younger Biden had joined with Christopher Heinz (the stepson of then-Sen. John Kerry, D-Mass.) and Devon Archer (a Kerry family friend) in a string of investment and consulting firms. Firms run by Biden and Archer "pursued business with international entities that had a stake in American foreign policy decisions, sometimes in countries where connections implied political influence and protection," the New York Times reported.

Biden joined Burisima as its owner Mykola Zlochevsky, a minister under Ukraine’s former president Viktor Yanukovych, faced accusations of money laundering, fraud and tax evasion. (Zlochevsky and the company have denied the allegations.) Burisma Holdings said it appointed Hunter Biden to its board of directors to help the energy company improve its corporate governance and adopt Western-style transparency. 

As a director, Biden made up to $50,000 per month some months, according to the New York Times. He left Burisma in spring 2019, around the time that the elder Biden announced his 2020 presidential run. Biden’s campaign, Hunter Biden’s attorney, Burisma Holdings and a lawyer for the company did not respond to multiple requests from PolitiFact for the date of Hunter Biden’s departure.

At the time of Hunter Biden’s hiring, Reuters reported that a statement on the company’s website said he "would help the company with "transparency, corporate governance and responsibility, international expansion," and other issues. The company also retained the law firm where Biden had been working, Boies Schiller Flexner.

Hunter Biden faced criticism for his decision to join the Ukrainian company at the same time his father, then-Vice President Joe Biden, had assumed a lead role in U.S. diplomacy there on the heels of a popular revolution that saw Yanukovych flee to Russia. There is no evidence Joe Biden took positions that would have helped his son; the vice president’s actions were consistent with both U.S. and European policy positions at the time to encourage anti-corruption efforts.

Was Hunter Biden investigated or under scrutiny for his dealings in Ukraine?

We found no evidence that Hunter Biden was personally investigated by Ukrainian or American authorities for his role as a board member of Burisma. Ukraine’s top prosecutor recently said he has no evidence of wrongdoing by the younger Biden.

However, we did find wide agreement among Ukraine policy experts that Hunter Biden’s decision to become a director during his father’s vice presidency presented a serious conflict of interest.

"It’s not a crime, but it is a lapse," said Lincoln A. Mitchell, a research scholar at Columbia University who has written about governance in the former Soviet Union. "It’s troubling."

Burisma’s owner Zlochevsky has been accused of using his role as a minister under Yanukovych to grant licenses to energy companies that Burisma later acquired. It’s unclear whether this alleged self-dealing is among the issues that Ukrainian authorities are reviewing. Either way, the conduct in question predated Hunter Biden’s role on Burisma’s board.

Ukraine’s top prosecutor, whom the new president Zelensky appointed in late August, announced on Oct. 4 that his office would review 15 cases involving Zlochevsky. According to NPR, when Prosecutor General Ruslan Ryaboshapka was asked whether he’s uncovered wrongdoing by Hunter Biden, he responded, "I have no such information." 

Was Ukraine aware of the fact that the military aid funds were frozen?

Media reports say the Ukrainian government did not learn that nearly $400 million in U.S. aid had been frozen until weeks after Trump’s July 25 phone call with Ukraine President Zelensky.

Two Ukrainian officials, speaking on the record to BuzzFeed News, said that at the time of his call with Trump, Zelensky believed the funds were already en route to Kiev. One of the officials quoted in the story, Olena Zerkal, the deputy foreign minister who was acting minister at the time of the call, said Ukraine’s government learned about the freeze in late August, nearly a month after the leaders’ phone call. Their timeline was confirmed by an unnamed U.S. official.  

Zerkal couldn’t recall the exact date they learned of the holdup. But she said word came via a "letter sent to us from our Washington Embassy" that contained no explanation. She said the letter arrived at some point prior to an Aug. 28 Politico report that broke the news of the delay.

Zelensky told reporters Oct. 1 that the reason for the delay "wasn’t explained to me." 

The New York Times cited an unidentified Ukrainian official who said Zelensky’s government did not learn of the delay until about one month after the call. 

While U.S. aid to Ukraine that Trump froze has since been released, the nearly $400 million package is likely to remain central to House Democrats’ impeachment inquiry into Trump’s possible abuse of power for political gain.