We are troubled by President Trump’s behavior in connection with the Ukraine scandal and believe it may warrant congressional censure, but is it cause for impeachment and removal? Since the beginning of the House’s impeachment inquiry, the President has been accused of several crimes, ranging from the ludicrous (treason) to the colorable (campaign finance violations). In this article, we take no position on whether the “high Crimes and Misdemeanors” contemplated by the Constitution’s Impeachment Clause (Art. II, Section 4) requires the commission of least one crime or violation under positive law. We similarly pretermit here any consideration of presidential immunity or privilege, or any extraterritoriality concerns. The question we ask is, if we assume no presidential immunity or privilege and no extraterritoriality concerns, did President Trump commit an act of bribery in violation of 18 U.S.C. § 201, the general federal bribery statute? Even if an impeachable offense possibly need not be a crime, it is useful to inquire whether the President committed one.
We focus on bribery although other federal offenses have been suggested; these include extortion, illegal campaign contributions by a foreign national, and one not suggested, the gratuities provision in § 201(c). It appears to us that bribery is the most plausible criminal charge. Bribery is specifically listed (along with treason) as a crime of impeachment in the Constitution, and, as a number of commentators have pointed out, Congressman Schiff’s questioning of Ambassador Gordon Sondland last Tuesday suggests it is likely to find its way into any articles of impeachment.
Per the text of § 201 and Department of Justice (DOJ)’s Criminal Resource Manual,§ 2041, Bribery of Public Officials, § 201 contains two sets of crimes: the giving and accepting of a bribe (§ 201(b)(1)-(2)) and the lesser offenses of giving and accepting a gratuity (§ 201(c)(1)-(2)). Because the charge that has been propounded thus far is bribery, we will focus on § 201(b), the text of which follows.
Whoever—
(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official . . . with intent—
(A) to influence any official act . . .
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person;
The federal offense of bribery thus contains five elements: (1) a public official (2) who demands, accepts, promises, etc. (3) “anything of value” (4) corruptly and with the intent to influence or be influenced in the performance of (5) an “official act.” Trump’s conduct clearly satisfies three of these elements. The remaining two elements—those relating to intent and “official act”—are less clear, depending on how one reads relatively recent court decisions.
The Easy Questions
- President Trump qualifies as a “public official” under § 201(a)(1). President Zelensky of Ukraine does not: the statutory definition is limited to U.S. federal government officials. Because Trump could not have bribed Zelensky under § 201(b)(1), the question becomes whether Trump sought a bribe under § 201(b)(2).
- As to the actus reus element, from the public record it appears that the President demanded or sought from Zelensky at least one of the following things: information, investigations, and/or a public declaration of a Ukrainian investigation into Burisma, the Bidens, and the 2016 election.
- For the third element of the bribery offense, the question is which, if any, of the items Trump demanded or sought count as “anything of value”?
All of them, most likely. For the purposes of § 201, courts have consistently found “anything of value” to include tangibles and intangibles, whether of commercial or subjective value. See, e.g., United States v. Williams, 7 F.Supp. 2d 40, 52 (D.D.C. 1998), vacated in part, United Staes v. Schaffer, 240 F.3d 35, (D.C. Cir. 2001) (“‘Thing of value’ . . . is to be constructed broadly to encompass intangible benefits . . . .”); see also United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979) (“The word ‘thing’ notwithstanding, the phrase is generally construed to cover intangibles as well as tangibles.”) (listing cases in which the “thing of value” is “amusement”, “the testimony of a witness”, “the promise of sexual intercourse”, “an agreement not to run in a primary election”, “a promise to reinstate an employee”). In Senator Bob Menendez (D-NJ) recent corruption trial, the indictment listed, among other things, the subjective value the Senator placed on legal contributions to an unassociated, independent expenditure PAC as a “thing of value.” United States v. Menendez, 132 F. Supp. 3d 635, 640 (D.N.J. 2015)
The evidence so far shows that Trump placed at least subjective value on the things he requested from Zelensky. The transcript from the July 25 call, the involvement of Trump’s personal lawyer, and Sondland’s testimony at a minimum provide a question of fact for the trier of fact.
The Harder Questions
The case against President Trump becomes more complicated when we consider the two remaining elements of a bribery charge: (1) that the request be “corruptly” made “in return for . . . being influenced ” in (2) “the performance of an official act.”
As to the first of these elements—that of intent—Benjamin Wittes of the Lawfare blog and others assert that soliciting “investigations of political foes for personal political gain is prototypically corrupt.” We think this is a misstatement of the law of bribery.
To understand the meaning given to “corruptly” in § 201(b), one must remember that, since at least the 1970s, courts have understood bribery to require a quid pro quo. See, e.g., United States v Brewster, 506 F.2d 62 (D.C. Cir. 1974); see also United States v. Biaggi, 674 F. Supp. 86, 88 (E.D.N.Y. 1987) (listing thirty-eight state bribery statutes requiring a quid pro quo). The reason for this is that § 201 contains two pairs of crimes: the giving and soliciting of bribes, and the giving and soliciting of illegal gratuities. The former contains the language about “corruptly” intending “to influence.” The latter, § 201(c), prohibits merely the acceptance of “anything of value” “otherwise than as provided by law for the proper discharge of official duty. As a unanimous Supreme Court determined in United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999), the difference is one of intent: “Bribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act. . . . In other words, for bribery there must be a quid pro quo—a specific intent to give or receive something of value in exchange for an official act.” (emphasis in original).
Given bribery’s quid pro quo requirement, “corruptly” is described in the DOJ’s Criminal Resource Manual as simply meaning “willfully” entering into the unlawful quid pro quo. The DOJ also offers another definition, “for bad or evil purpose.” But, again, that evil purpose is to obtain the payment or other “thing of value” for an official act, i.e., the quid pro quo. The question under the bribery statute is not how “corrupt” Trump’s conduct was, but whether he willfully solicited a thing of value in exchange for an official act—a quid pro quo. This question is more complicated than it may seem.
Consider the trial of former Governor Rod Blagojevich of Illinois. Among the many charges against him were allegations that he solicited bribes in exchange for filling the U.S. Senate seat vacated by President-elect Obama in 2008. Wiretaps revealed that Blagojevich offered to appoint Obama’s adviser Valerie Jarret to the seat if Obama would appoint Blagojevich to his cabinet. In lieu of a cabinet appointment, Blagojevich was also willing to accept $10 million. Both are clear quid pro quos and both give off more than a whiff of corruption.
When the case reached the Seventh Circuit, however, Judge Easterbrook, who wrote for the panel, took issue with describing both quid pro quos as bribery: “A proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015). A prosecution could proceed against Blagojevich for the quid pro quo involving a personal payment, but not for the attempt to obtain a spot in Obama’s cabinet.
Judge Easterbook did not cite any legal authority for this interpretation. Indeed, that was part of his reasoning: neither the prosecutors nor the Seventh Circuit could find any case in which “logrolling had been the basis of a criminal conviction in the history of the United States.” Yet, “[g]overnance would hardly be possible without these accommodations” that allow public officials to exchange official acts as political favors.
It is not clear what role the adverb “corruptly” plays in the Seventh Circuit’s analysis. In discussing 18 U.S.C. § 666 (bribery in connection with programs receiving federal funding), one of the crimes Blagojevich was charged with, the court states: “‘Corruptly’ refers to the recipient’s state of mind and indicates that he understands the payment as a bribe or gratuity” but “[i]t would not be plausible to describe a political trade of favors as an offer or attempt to bribe the other side.” Does this mean that in a “political trade of favors” we should not assume a corrupt motive simply because the politicians have both a political and private motive but, rather, the prosecution must prove that the trade would not have occurred but for the private, corrupt motive? Or does “corruptly” come into play only when dealing with transactions not only involving the exchange of one public act for another?
That Blagojevich sought the cabinet appointment for himself did not make the request any more corrupt under the bribery statute. Cabinet officials, ambassadors, and even Supreme Court justices often “come from the House or Senate (or from state politics) as a part of political deals.” Thus, commentators from the New York Times editorial board to Ben Berwick and Justin Florence at Lawfare are mistaken to state that “the key factual question to consider” is whether Trump was “acting for his own personal interests in seeking an announcement of Ukrainian investigations.” This is relevant but not the only key question.
This because a personal interest is almost always present when politicians act. Some personal benefit is assumed by virtue of the expansive reading given to “anything of value” and the requirement of a quid pro quo. Without some personal or political benefit there could be no “thing of value” and no quid pro quo. It would be a strange statute indeed that prohibited politicians from making deals to advance their often inseparable personal and political interests. Rather, the key factual question is whether Trump acted “corruptly,” that is, with an understanding that he was soliciting a bribe, a “thing of value” beyond the privileged sphere of political, or in the Ukraine case diplomatic, logrolling.
International negotiations between heads of state are, after all, an archetypical setting for logrolling and horse-trading. Vice President Biden himself boasted to the Council of Foreign Relations that he obtained the dismissal of Ukraine’s prosecutor general by threatening to withhold aid from the country.
We are not necessarily suggesting here that Biden’s actions in Ukraine were unlawful. Our point is that quid pro quos are par for the course in diplomatic negotiations, and that presidents are generally free to disagree with advisors, favor one faction over another in an overseas (or domestic) power struggle, and, yes, even urge investigation of activity of Americans abroad and rely on the advice and efforts of people outside the cabinet as an additional channel for diplomacy. In other words, the difference between Biden’s and Trump’s quid pro quos is not that one was “good” for the country and the other was “bad.” A politician acts “corruptly” under § 201 when exchanging an official act for private gain.
That being said, the peculiar circumstances of Trump’s actions may indicate a corrupt or willful motive, as efforts to conceal often are. Then again, politicians often seek to hide political sausage-making from constituents and present themselves as motivated by more noble ideals than political advantage.
So, we have simply returned to the question: was it permissible logrolling or was it an unlawful bribe? Taking Judge Easterbrook’s definition of logrolling—“the swap of one official act for another”—we think the answer lies in the meaning of the last element of the bribery offense, the “official act.”
Official Acts
A unanimous Supreme Court laid out the test for the “official act” requirement in McDonnell v. United States, 136 S.Ct. 2355 (2016). In that case, a former Governor of Virginia, Bob McDonnell, was convicted of bribery for having arranged meetings, made phone calls, and hosted events in support of a political, and personal, benefactor who sought state business in exchange for loans, gifts, and other benefits. The parties agreed to use § 201, inter alia, to define what constituted an “official act.” None of McDonnell’s actions, the Court found, met that definition.
Section 201(a)(3) defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”
The McDonnell Court held that this definition “sets forth two requirements for an ‘official act’: First, the Government must identify a “question, matter, cause, suit, proceeding or controversy’ that ‘may at any time be pending’ or ‘may by law be brought’ before a public official. Second, the Government must prove that the public official made a decision or took an action ‘on’ that question, matter, cause, suit, proceeding, or controversy, or agreed to do so.” In other words, there must be an underlying “question, matter, cause . . .” and a decision or action on that matter.
The Court’s instructions to the trial court on remand give further details on what a jury must find to fulfill each of these “official act” components. First, “it must identify a ‘question, matter, cause, suit, proceeding or controversy’ involving the formal exercise of government power.” Second, “the pertinent ‘question, matter, cause, suit, proceeding or controversy’ must be something specific and focused that is ‘pending’ or ‘may by law be brought before any public official.’” Third, the jury has to find that the defendant “made a decision or took an action—or agreed to do so—on the identified question, matter . . . .” Finally, the Court held that “merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter.”
From McDonnell, then, we can see which of Trump’s actions count as official acts for purposes of the bribery statute, and which of Zelensky’s acts might also qualify as official acts. If it turns out that we only have an exchange of official acts by Trump for official acts by Zelensky, that would be political-diplomatic logrolling, not bribery.
We begin by laying out the quids and the quos. The quids were: Trump would (1) release aid to Ukraine that he had stalled and/or (2) host Zelensky at the White House. In return, the quos Trump wanted were (1) Zelensky would arrange for Ukrainian investigations, and (2) make a public announcement of the commencement of those investigations.
The decision to delay or release the military aid is clearly a decision on a question or matter involving the formal exercise of government power (when to distribute of aid). Appropriations are controlled by Congress but the timing of disbursement is likely in the executive’s control and could turn on the kinds of considerations—such as whether Ukraine prepared to tackle corruption—that Trump’s advocates have advanced. It would, therefore, be an “official act” for purposes of the bribery statute.
Ukrainian investigations into Burisma, the Bidens, and the 2016 elections also appear to be decisions (to open an investigation) on a question or matter involving the formal exercise of government power (whether to initiate a possibly criminal investigation). They would thus count as “official acts” sought from Zelensky.
Granting a White House meeting to a Ukrainian head of state would also appear to be an “official act”. Consider the following exchange between Congressman Schiff and Ambassador Sondland:
Schiff: Now that White House meeting was going to be an official meeting between the two presidents, correct?
Sondland: Presumably.
Schiff: It would be an Oval Office meeting, hopefully?
Sondland: A working meeting, yes.
Schiff: A working meeting. So an official act.
Sondland: Yes.
Yet, there is language in the Court’s decision in McDonnell that “a typical meeting, call, or event arranged by a public official . . . does not qualify as a ‘question’ or ‘matter’ under 201(a)(3).” Lacking is the “formal exercise of governmental power” similar to “a lawsuit before a court, a determination before an agency, or a hearing before a committee.”
Nor does “[s]etting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather information . . . qualify as a decision or action on the pending question of whether to initiate the study.” Unless “the official was attempting to pressure or advise another official,” or otherwise affect the outcome of the meeting—that is, force a decision on a pending question—meetings do not qualify.
Although far from indisputable, we think that an official White House visit with Ukraine qualifies as an “official act” under McDonnell. Here, the Ukrainians had been seeking to arrange an official White House visit for the purpose of having an official White House visit, with all the symbolic valence such visits entail, in particular as a message to Russia about the strength of the Ukraine-U.S. alliance. It was not, as in McDonnell, simply putting a constituent in touch with the right person at the right government agency—a typical act of constituent services that “conscientious public officials” do “all the time.” Official state visits are a “formal exercise of governmental power”—consider the kerfuffle accompanying recent meetings with Turkey, North Korea, Saudi Arabia, Denmark and the United Kingdom—that the Constitution would seem to contemplate such official acts of diplomacy as an executive prerogative in Art. II. Sec. 3. (“he shall receive Ambassadors and other public Ministers”).
A phone call between Zelensky and Trump—also desired by Ukraine—would not qualify as a question or matter involving the “formal exercise of governmental power,” but an official White House visit would. Presumably, the call was a prelude to the planned visit and should be considered in tandem. The decision to grant such a visit would count as a decision on that matter. It is therefore an official act.
Finally, we have the issue of Zelensky’s public announcement of investigations as a possible quo. As Lawfare’s Wattes and others have pointed out, one piece of Sondland’s testimony is particularly important here:
Schiff: But he had to get those two investigations if that official act was going to take place, correct?
Sondland: He had to announce the investigations. He didn’t actually have to do them, as I understood it.
If Sondland is to be believed, this all but forecloses the possibility of considering the announcement of investigations as an official act. Indeed, in 2007 the appeals court in Valdes v. United States, 475 F.3d 1319, 1326 (D.C. Cir. 2007), considered a similar situation, in which a police officer ran license plate numbers for pay, unrelated to any active investigation. The majority opinion, joined by then-Judge Kavanaugh, stated that though “a police investigation is in the same class of processes as a ‘question, matter, cause, suit, proceeding, or controversy” the defendant’s decision to run license plates “belonged to no such active or incipient police investigation.” A decision or action on a pending question or matter could not qualify as an official act if the underlying question or matter was “some imagined investigation” that was “pure fiction.”
Recall that the inquiry under the federal bribery statute is not whether Trump sought to influence Zelensky in an official act (i.e., that Trump sought to bribe Zelensky) but whether Trump can be said to have acted “corruptly,” by soliciting an act from Zelensky beyond the normal bounds of political-diplomatic logrolling. Whether the announcement of an investigation may, in other circumstances, qualify as an official act is therefore not the question. To the extent Trump solicited an announcement unrelated to any actual investigation, he was not soliciting an official act that may be described as part of “logrolling.” Trump thus went beyond the exchange of public acts that constitute political or diplomatic logrolling. His conduct would support a finding of an exchange of official acts (by Trump) for things of value (the public statement sought from Zelensky) and as no public justification for seeking the statement has been offered, the corrupt intent necessary to maintain a bribery charge.