I have mixed feelings about that letter and Mr. Giuliani in general. I have already admitted and will continue to concede, sending the President’s lawyer in a personal capacity to conduct what is effectively foreign policy, without letting the rest of the government know, is to invite confusion and inefficiency. Not to mention that the lawyer would effectively be sandbagging the foreign government (that is how I am used to seeing the verb “sandbag”, as a synonym for misrepresentation).
But the question here is not whether it is effective or even the right thing to do, it is whether it is a high crime or misdemeanor for the President to send a personal lawyer instead of a properly ordained official like a special envoy.
My short argument is that both the President and Mr. Giuliani could possibly violate the Logan Act, which is a high misdemeanor and therefore an impeachable and removable offense. But to answer the topic question, I would need more information and evidence.
The Logan Act is an eighteenth-century law that came out of the XYZ affair, and it basically says private citizens can’t go out and (directly or indirectly) influence foreign governments that the United States has a controversy with. So if Mr. Giuliani was a private lawyer representing a private citizen, communicating with a foreign government that the United States had a dispute with (the military aid, corruption, what have you), that could be illegal under the Logan Act, both for Mr. Giuliani and his client.
Even better, the Logan Act is a criminal law - the exact wordage in 1799 was “shall be deemed guilty of a high misdemeanor”. I will concede that a Logan Act violation, if you can make it stick, would be impeachable. The Logan Act is codified as 18 U.S.C. § 953, and reproduced in the spoiler below:
[SPOILER]Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.[/SPOILER]
The rationale of that act, as I understand it, stems from the President’s exclusive power to negotiate treaties and the government’s inherent power to regulate foreign intercourse. But would it really be a violation if the President himself, in personal and unofficial capacity, is the citizen charged with a Logan Act violation? Are we to draw a distinction between the President and Mr. Donald Trump? Is it possible for Mr. Donald Trump to perform some act without the President’s authority? I could see that question going both ways, but I’m leaning heavily towards yes, because the President doesn’t have the authority to do whatever he wants.
Reality check 1: did Mr. Donald Trump send a personal agent to Ukraine, with the intent of “meddling in an investigation” without the authority of President Trump?
Apparently Mr. Trump denies having directed Mr. Giuliani to do something, it says so right in your cite. We would need to overcome that denial first - which I have done here by writing the assumption into the original post.
Mr. Giuliani’s public remarks strongly suggest that the letter was referencing the investigations into Biden/Burisma and the DNC/Crowdstrike, but it is not a fact and in my idea of a trial Mr. Trump would have the opportunity to dispute that.
Reality check 2: Was the intent to meddle an intent to defeat some measure of the United States? Otherwise, was the investigation being meddled in is a dispute or controversy with the United States?
I have read that the phrase “to defeat the measures of the United States” may be vague enough to be unconstitutional. I actually have no idea what it means if not some publicly announced plans by U.S. officials that represent the United States as a nation. So if the President had publicly announced that the United States was opening an investigation into some airline crash in Ukraine, then Mr. Trump privately sent Mr. Giuliani to pressure Ukraine not to investigate the crash, that would meet my idea of intent to defeat the measures of the United States, despite Mr. Trump and the President being the same person. I doubt something similar holds with either Biden/Burisma or the DNC/Crowdstrike. If anything, the President in his official capacity went on television to push for the investigation of the Bidens.
In the alternative we have the question of whether either investigation is “a dispute or controversy with the United States”. Here I think there might be some room for an affirmative answer, at least on the DNC/Crowdstrike investigation, because the intelligence community has taken the position that Ukraine was not involved with the hacking of the DNC. But on the other hand, the intelligence community is wholly subservient to the President when it comes to foreign affairs, because they are properly his advisors in that field. So if there were some controversy between an ex-prosecutor and the U.S. government, or between Ukrainians and the U.S. government, then the answer to reality check #2 might be yes.
Reality check #3: were Mr. Giuliani’s actions in Ukraine intended to obtain redress for an injury done to his client, Mr. Donald Trump?
The Logan Act has an exception that would come in to play if Mr. Giuliani claims he was meddling in Ukraine for redress of an injury done to his client, Mr. Donald Trump. Any such affirmative defense would need to be overcome.
So where I have left room for Mr. Trump to defend himself, I would need more evidence or information before deciding whether the President should be convicted and removed for sending Mr. Giuliani to Ukraine.
~Max