Trump and Ukraine: Call it Bribery, Not Extortion

There is now overwhelming evidence that president Trump withheld Congressionally-approved aid to Ukraine to pressure that country to conduct investigations that would benefit Trump politically. As Congress begins public impeachment hearings, there is widespread disagreement over whether this conduct is best described as bribery or extortion. Based on this evidence you could say the president extorted Ukraine or you could say the president demanded a bribe from Ukraine — both would be accurate. But for purposes of impeachment, it’s better to call it bribery.

Impeachment is not a criminal proceeding, and it’s important not to buy into the argument that impeachment requires proof of a criminal offense. On the other hand, both bribery and extortion are in fact crimes, and deciding whether there was serious presidential misconduct justifying impeachment will inevitably be guided by reference to criminal law. In federal law, the elements of extortion by a public official and bribery are very similar. But if this were a criminal prosecution, there would be compelling legal reasons to charge bribery rather than extortion. And those same reasons, coupled with the language of the Constitution, mean that for purposes of impeachment it also is best to refer to the president’s conduct as bribery.

 

Giving bribe into a pocket

The Elements of Bribery

The federal bribery statute, 18 U.S.C. 201, makes it a crime for a public official to corruptly demand, seek, receive, accept, or agree to receive or accept anything of value in exchange for being influenced in the performance of an official act. In this case, the public official is president Trump. The thing of value he demanded was public investigations of his political rival Joe Biden and of a debunked conspiracy theory involving interference in the 2016 election and a computer server supposedly located in Ukraine.  And the official act Trump would perform in return would be releasing the approved military aid to Ukraine. Trump’s behavior toward Ukraine readily meets the elements of the bribery statute.

A key factor in this charge is the breadth of the term “thing of value.” It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

The Elements of Extortion

A person commits the crime of extortion when he induces the victim to part with something of value under some kind of duress. There are different kinds of extortion, including extortion by fear or threats of violence – the more familiar, mob-style, “pay up or we’ll break your kneecaps” scenario. But when it comes to extortion by public officials, the most commonly-charged theory is extortion “under color of official right” under a statute called the Hobbs Act, 18 U.S.C. 1951. That statute prohibits affecting interstate commerce through robbery or extortion, with extortion defined as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

In the 1992 case of Evans v. United States the Supreme Court held that Hobbs Act extortion under color of official right does not require any kind of express threat, demand, or shakedown by the public official. At common law, the Court held, this offense was the “rough equivalent of what we would now describe as ‘taking a bribe.’” All that is required is that the public official accept a payment to which he or she is not entitled, knowing it is being given in return for the performance of some official act. That does indeed sound just like bribery, which explains why extortion under color of official right is a common charge in cases where the conduct looks more like bribery than extortion.

The facts of the Ukraine case also suggest another extortion theory under the Hobbs Act: extortion by fear. Such a charge would allege that president Trump extorted Ukraine to begin the investigations through fear of the harm that would result, economically and militarily, if the approved aid continued to be withheld. This is a more classic extortion model (“Nice little country you got here, be a shame if something happened to it”). Trump’s coercive behavior toward a much weaker, vulnerable nation could readily be characterized as extortion by fear.

Map of Ukraine

Was Trump’s Behavior Bribery or Extortion?

As noted above, after Evans there is little difference between charging a public official with bribery or with extortion under color of official right. In many cases, either statute could be applied. Extortion under color of official right is a common charge in cases involving bribery of state and local officials, because the federal bribery statute applies only to federal public officials. For example, Virginia Governor Bob McDonnell was charged with multiple counts of extortion under color of official right, even though the conduct in his case was best described as bribery.

But a key distinction between the two charges is the legal status of the payor. In a bribery case, there generally is a two-sided, consensual transaction. The bribe payor and the bribe recipient enter into a corrupt agreement and both are culpable. The statute prohibits both sides of the transaction, and both may be charged.

In an extortion case, by contrast, the person who pays is generally considered a victim rather than a willing participant. Extortion statutes do not punish the payors, who are paying under duress. That’s certainly true in a case involving extortion by violence or fear. But it’s also true in extortion under color of official right – the Hobbs Act contains no provision for charging those who are, in effect, paying bribes. As a result, the Court’s interpretation in Evans created something of an anomaly: a bribery statute that punishes only one side of the transaction. This has led prosecutors in some cases to develop creative theories to pursue the bribe payors in a Hobbs Act case, such as charging them with Hobbs Act conspiracy.

This factor may suggest that extortion is a better fit for the Ukraine scenario than bribery. Ukraine certainly seems more like a victim than a willing participant. On the other hand, the bribery statute does specify that a public official may “demand” a bribe – which suggests some degree of coercion or duress.

Factually, I think the Ukraine transaction could be described as either bribery or extortion. And I agree there is some force to the argument that extortion feels like a better fit, given the bullying nature of Trump’s behavior and Ukraine’s coerced participation. But legally – and politically —  there are compelling factors that favor characterizing Trump’s behavior as demanding a bribe.

The Hobbs Act Property Requirement

If this were a criminal case, there would be a significant hurdle to charging Hobbs Act extortion, either by fear or under color of official right. Extortion requires that the public official obtain “property” of the victim. This is narrower than the “thing of value” that will suffice for a bribery case. “Property” usually refers to a bundle of rights in something, tangible or intangible, that can be exclusively held and enjoyed and transferred to others. An investigation of a political rival could easily serve as a “thing of value” in a bribery case, but it’s much harder to argue that such an investigation would constitute property for purposes of the Hobbs Act.

In addition, under the Hobbs Act the property must be something the official “obtained” from the victim (or at least would have obtained if the extortion had been successful). For example, in a case involving anti-abortion protestors who blockaded abortion clinics, the Supreme Court held that Hobbs Act extortion did not apply because, even if a clinic’s medical practice was considered a property right, the defendants did not “obtain” it themselves by blockading the clinic to interfere with the clinics’ use of the property. Similarly, it’s not clear how an investigation by Ukraine could be property that could be obtained by the president.

If I were a prosecutor looking at bringing a criminal indictment in this case, I would be strongly leaning toward bribery charges rather than extortion charges under the Hobbs Act. Bribery fits the case factually and is a better choice legally, due to the breadth of the “thing of value” element.

Donald Trump

Bribery is Better

Once again, impeachment is not a criminal trial. Conduct does not have to meet all the elements of a federal criminal offense to be impeachable. We could call the president’s behavior extortion as it is commonly understood (even if not technically under the terms of the statute) and an abuse of power that justifies impeachment. But calling the behavior extortion creates potential arguments and muddies the waters. Bribery is better.

It’s easy to anticipate the arguments by president Trump’s supporters, some of whom have already claimed there can be no impeachment if there is no provable crime. If the president’s behavior is called extortion by the Democrats, a likely response will be: “But this wouldn’t qualify as extortion under federal criminal law. How can you impeach a president for something that is not a crime? How can that be a ‘high crime and misdemeanor’?” Although this argument has no constitutional force, it would create an easy talking point: Democrats are trying to impeach the president for a “high crime” that under federal law would not be a crime at all.

When it comes to bribery, on the other hand, all the elements of a criminal offense have been completed. As I’ve noted elsewhere, It doesn’t matter that the quid pro quo was never consummated: with bribery the crime is the corrupt demand, even if it was not ultimately successful. So although impeachment does not require an actual crime, in this case we have one. Republicans will still argue, of course, that the elements of bribery have not been satisfied. But legally the Democrats are on much stronger ground if the charge is that the president demanded a bribe.

Talking about extortion also puts the focus more on the president’s bullying and his demands from Ukraine. That in turn invites the response that sometimes in diplomacy you have to play rough to get other countries to do what you want – the Mick Mulvaney “get over it” defense. Many of the president’s supporters have already argued that bargaining and demands are common in diplomacy and so this was no big deal. That ignores, of course, that in this case the president was demanding a country do something because it would personally benefit him, not because it was in the best interest of the United States. But calling it extortion makes this argument easier by focusing more on what the president did and less on why he did it. Framing the conduct as bribery, on the other hand, puts the focus on the personal benefit the president sought to receive. Trump was not just playing hardball diplomacy, he was using the power of his office to personally enrich himself. That is the language of bribery.

But perhaps the best reason to prefer bribery to extortion is that bribery is specifically listed in the Constitution as a basis for impeachment. Article II, Section 4 provides: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Of course Democrats could argue that extortion qualifies as a “high crime,” and they’d be right. But they will face counter-arguments, particularly if some technical elements of the crime of extortion arguably are not present. When it comes to bribery, there is no ambiguity.

This makes the impeachment messaging extremely clear and simple:

1) Trump corruptly demanded something of personal value in exchange for official action.

2) That’s the legal definition of bribery.

3) The Constitution specifies bribery as grounds for impeachment.

You can’t get much cleaner than that. When described as bribery, there’s simply no room to argue this was not an impeachable offense. Republicans who wish to defend the president will have to do so based on the facts of his behavior, not on claims about legal technicalities.

Call it what it was.  Call it bribery.

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President Trump’s Dwindling Defenses

President Trump and his supporters have repeatedly retreated to new lines of defense as the scandal surrounding the president’s interactions with Ukraine has continued to unfold. Their responses remind me of those movie scenes where troops defending a castle repeatedly withdraw to a new position further and further inside as the attackers breach yet another wall. And just like those castle troops, the Republicans are rapidly running out of room to maneuver.

President Trump

“It’s Hearsay!”

The Ukraine scandal was first revealed in a complaint by an anonymous whistleblower. Trump’s initial defense was that the complaint was nothing more than unreliable hearsay and should not be believed. The complaint did contain some reports of what others had said and noted that the whistleblower did not personally witness those events. Some of those statements might be hearsay if they were offered at a trial – but that was never really the point. The complaint was not intended to serve as the full body of evidence against the president, but merely to prompt an investigation.

There’s nothing at all improper about investigations being prompted by hearsay reports, anonymous tips, or other information that ultimately might not be admissible at trial. The point is to investigate to see whether that information can be corroborated through other evidence that would be admissible. That’s exactly what happened here.

The hearsay claim was quickly overtaken by events. The White House released a memo summarizing Trump’s call with Ukrainian president Zelensky that largely confirmed the whistleblower’s allegations. That memo would not be hearsay in a courtroom. Contrary to Trump’s repeated claims that the call was “perfect,” the transcript showed that it was in fact deeply troubling, with the president insisting that Zelensky do him a “favor” by opening investigations concerning Joe Biden and the 2016 election. The investigation in Congress quickly led to multiple witnesses with first-hand knowledge of the president’s attempted shakedown of Ukraine – also not hearsay.

Despite laws protecting the whistleblower’s identity – and despite the initial claims that his or her testimony would be worthless hearsay – the president and some of his allies continue to call for the whistleblower to be revealed and to testify. But such calls seem increasingly irrelevant and desperate. This investigation has already confirmed the whistleblower’s allegations and moved far beyond them. There is no need for the whistleblower to testify. Focusing on the whistleblower at this point is like arriving to find a building in flames and worrying about who pulled the fire alarm instead of fighting the blaze.

Gordon Sondland

Gordon Sondland

“There Was No Quid Pro Quo!”

The next line of defense was that there was no quid pro quo. The president and his allies claimed he did not withhold military aid to Ukraine to pressure that government to investigate his political rival, and that the memo of the phone call with Zelensky confirmed it. That defense collapsed pretty quickly when most observers agreed that the memo, coupled with the surrounding circumstances, did indeed demonstrate a quid pro quo. In addition, a parade of witnesses all testified to the existence of a quid pro quo, based not just on the phone call but on other conversations and meetings between Ukrainian officials, Trump’s attorney Rudy Giuliani, and Gordon Sondland, Trump’s ambassador to the European Union. Sondland himself confirmed the quid pro quo when he “updated” his original Congressional testimony this week.

In the face of such overwhelming evidence, most of Trump’s defenders have realized the “no quid pro quo” claim is unsustainable – although the president himself continues to maintain it. That could make for an interesting conflict in defenses down the road. Republicans may admit there was a quid pro quo but deny it was serious enough to remove the president from office, while the president himself continues to deny the quid pro quo even existed. It’s tough to defend someone when he denies the facts essential to your defense.

“It was a GOOD Quid Pro Quo!”

Next came the claim that even if there was a quid pro quo, it was perfectly legitimate. Some noted that the U.S. routinely engages in back-and-forth bargaining with other nations and attach strings to foreign assistance. For example, suppose the president was speaking to the president of Mexico and suggested that more U.S. aid might be forthcoming if Mexico were to step up its efforts to fight internal corruption. You could consider that a quid pro quo, and it would be no problem.  In other words, the argument goes, this was all just diplomacy as usual and the country should “get over it.”

The problem with this defense is that the “quo” Trump sought here was not a general government policy or action that would benefit U.S. interests but a specific act to help the president’s personal political fortunes. That personal benefit provides the element of corrupt intent that differentiates Trump’s misconduct from routine, legitimate foreign policy.

Those making this argument try to claim that Trump was simply interested in fighting corruption, which is a good thing. But considering that the president has shown little interest in encouraging other nations – Russia, for example – to fight internal corruption, it’s laughable to argue that he just happened to develop an overwhelming concern about general corruption in Ukraine. In his call with president Zelensky Trump expressly mentioned Biden, and Rudy Giuliani had been focusing on getting Ukraine to investigate the Bidens for months. The president was not concerned with corruption in general, but with seeking a particular investigation that would damage his political rival.

Of course a president can conduct foreign policy that includes negotiating with world leaders concerning policies and actions in the U.S. interest. What he can’t do is leverage the power of his office with the corrupt intent to act not in the national interest but to benefit himself.

“It Was a Failed Crime!”

The next fallback position was: Okay, maybe there was a quid pro quo, and maybe it was bad, but it is not a big deal because it was not successful. Ukraine apparently did not begin the requested investigations of the Bidens, and the military aid was ultimately released (although only after Capitol Hill began asking questions). Fox News commentator Brit Hume recently characterized the events as a “failed crime,” and claimed impeachment would therefore be inappropriate. So maybe the president was trying to do crimes, but in the end he didn’t succeed, so – no harm, no foul.

This argument is flat wrong as a matter of criminal law. The crime of bribery is complete with the offer of a corrupt deal – when the public official agrees to be influenced in exchange for something of value. Bribery law does not require that the quid pro quo be consummated. It doesn’t matter if the official act is never actually performed, or if the bribe is never paid. If this were a criminal trial the jury would be instructed that it is not a defense if Ukraine never opened the investigations or if the aid ultimately was delivered anyway.

But of course this is not a criminal proceeding. The issue isn’t whether the president’s conduct met all the elements of the criminal offense of bribery – although there is compelling evidence that it did. The issue is whether he has abused his power in such a way as to justify removal from office. Watergate, after all, was a “failed” burglary and cover-up – but that still fully justified the proceedings to remove Nixon from office. The idea that a president who tries to commit a crime should be given a pass on impeachment if he does not succeed or gets caught does not make much sense. But in any event, this crime wasn’t failed at all — it was completed.

Lindsey Graham

Lindsey Graham

The Process Arguments

A flanking maneuver accompanying the ever-shifting quid pro quo defenses has been the process arguments. Republicans have attacked the Democrats for holding closed-door, “star chamber” hearings to investigate the Ukraine allegations. They stormed the closed hearing room claiming they were being shut out of the process – even though a number of the Republican Members participating in the protest were members of the committee and were allowed to attend the hearings and ask questions.

These process claims were always baseless. It’s common to have closed-door hearings during the investigative stage. As it does with a grand jury, secrecy can help protect the integrity of the investigation and help reassure reluctant witnesses. It helps to prevent witness tampering and prevents witnesses from reviewing other testimony to “get their stories straight.” If the Department of Justice had done an investigation when it first received the Ukraine allegations, that investigation would not have been public.  Congress is simply doing some of the investigative work that DOJ declined to do. And because Republican members of Congress are on the relevant committees and able to ask questions, the president already has far more representation during the investigative stage than a typical criminal defendant would receive.

Democrats are now moving to public hearings and have begun releasing the transcripts from the closed depositions, largely giving the Republicans what they claim they always wanted. Now that the investigation has entered the public stage, the process arguments have even less force. Some Republicans are still claiming the entire process is forever tainted, but as more and more facts become public these arguments too seem destined to fade.

A variation of this argument is the current position of South Carolina Republican Senator Lindsey Graham, who recently said he was not going to look at the newly-released transcripts because he has written the whole process off as a sham. In other words, although the Constitution makes Graham a juror in the case, he is going to simply refuse to look at the evidence. This is a remarkable abdication of responsibility and violation of his oath of office. It’s the equivalent of a child sticking his fingers in his ears and saying, “la, la, la, I can’t hear you!” But I guess it is one way to avoid being forced to take a position on the president’s behavior.

“OK, OK, He Did It – So What?”

It’s becoming increasingly clear that the president and his supporters will be forced to retreat to their final line of defense: yes, Trump did it, and it was bad, but it’s not bad enough to justify removing him from office. White House counselor Kellyanne Conway already tried out this defense last weekend on CNN. As all of the other potential defenses fall away, the bottom line of  “we don’t care” becomes inevitable.

And that’s the final line of defense. At the (now seemingly inevitable) impeachment trial, Republic Senators who support Trump will argue that if a president withholds congressionally-approved military aid to a vulnerable foreign nation unless it agrees to investigate his political rival to help him win re-election, that is not an abuse of power that justifies removal. Republican Senators do have the power to make that decision. But like that final ring of walls inside the castle, it’s going to be an incredibly tough position to defend.

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