By Dave Van Zandt
Over the last two weeks there has been many questions raised regarding the legality of President Trump’s phone call with Ukrainian President Volodymyr Zelenskiy. According to the transcript of the phone call, President Trump asked President Zelenskiy to investigate Hunter and Joe Biden. Hunter is the son of Democratic Presidential candidate Joe Biden. This phone call has led to an impeachment inquiry that is ongoing as of this writing.
After the phone call transcript was published, some news organizations and political pundits have opined that the President has the right to make this request under the Mutual Legal Assistance Treaty, signed with the Ukraine in 1998 by the Clinton Administration. Quite simply, the treaty allows the free flow of information between countries, regarding criminal investigations. Each country is obliged to provide information to the other along a set of guidelines laid out in the treaty. The United States has signed this treaty with numerous countries around the world.
The purpose of this fact check is not to determine if the President did anything illegal or wrong, but rather if he is protected under this specific treaty as some have claimed.
Claim: President Trump has the right to ask for information or an investigation from the Ukraine and he is protected by the Mutual Legal Assistance Treaty.
Analysis: The Mutual Legal Assistance Treaty signed with the Ukraine has specific guidelines for its application. This fact check is simple and conclusive based on Article 2 that “provides for the establishment of Central Authorities and defines Central Authorities for purposes of the Treaty. For the United States, the Central Authority shall be the Attorney General or a person designated by the Attorney General. For Ukraine, the Central Authority shall be the Ministry of Justice and the Office of the Prosecutor General. The article provides that the Central Authorities shall communicate directly with one another for the purposes of the Treaty.”
In other words, the request for information or an investigation must come from the Attorney General and not the President. Further, there needs to be a domestic investigation or at least suspicion in order to request information from a foreign country. In this case there was not a current domestic investigation into Hunter or Joe Biden, rather the President was asking the Ukraine to open an investigation.
Article 4 of the treaty also demonstrates that there are specific actions that need to be taken once an agreement is struck. It states “The article permits other forms of requests in emergency situations but requires written confirmation within ten days thereafter unless the Central Authority of the Requested State agrees otherwise.”
Article 4 describes that once the Attorney General has communicated with the Ministry of Justice, he must then provide a written confirmation within 10 days. In the President’s case, the Attorney General was not involved.
The proper procedure under the treaty would be for the President to first ask the Attorney General to open a domestic investigation. The Attorney General would then contact the Ukraine and specify what they want, followed by a written confirmation of the order
The President cannot ask for an investigation with a foreign nation based on the Mutual Legal Assistance Treaty. Any investigation or request for information must come from the Attorney General or a person he/she designates. This does not imply that the President acted illegally, merely that he cannot use the Mutual Legal Assistance Treaty as a defense for his actions.
This fact check is only looking at the wording of the treaty. As of this date there has not been a legal precedent set regarding the application of the Mutual Legal Assistance Treaty. Based on the wording of the treaty we conclude that the President cannot ask for an investigation in the manner that he did.