Corruption Is the New Collusion

If we were creating one of those New Year’s “In and Out” lists, collusion would be “Out” and corruption would be “In.” Allegations of corruption are central to the Articles of Impeachment of president Trump, which charge that the president acted for “corrupt purposes” and with “corrupt motives” in his dealings with Ukraine. Trump supporters claim, however implausibly, that his actions were justified by his concerns about corruption in Ukraine. But “corruption” is not a criminal offense, so general claims of corruption don’t tell us much about the seriousness or criminality of the underlying behavior.

This reminds me of the debates about “collusion” over the past couple of years. During the Mueller investigation, allegations of collusion and whether it was a crime served primarily to muddy the waters. The term collusion can refer to a wide variety of actions that are not at all criminal. Trump and his supporters were thus able to argue that “collusion is not a crime” while ignoring that conduct that could be described as collusion could also, in some cases, violate criminal statutes.

Just as arguing about collusion was not illuminating, claims about corruption are similarly unhelpful. They allow supporters of the president to argue that everyone is corrupt and so what the president did was not unusual. Certainly, they claim, you can’t impeach a president for engaging in the kind of conduct that goes on every day in the Washington D.C. swamp. But general allegations of corruption obscure the critical differences between conduct that may be merely unseemly or “politics as usual” and conduct that is truly criminal and an abuse of office. As the impeachment proceedings move forward, that’s a distinction that should not be lost.

Special Counsel Robert Mueller
Special Counsel Robert S. Mueller III

The Special Counsel and Collusion

During the investigation by special counsel Robert Mueller, there were repeated allegations of possible collusion with Russians by members of the Trump campaign. As I’ve noted here before, there is no crime called collusion. Collusion refers to working with someone, usually in secret and toward some improper end. In criminal law, we call that a conspiracy. When Mueller issued his final report, he also noted that collusion is not a criminal concept. He examined the various contacts between Russians and the Trump campaign under the law of criminal conspiracy, and determined that none of them rose to that level.

Some found it difficult to accept that the campaign’s contacts with and willing acceptance of help from various Russian sources might not be unlawful. But there’s a great deal of conduct that may be reckless, bumbling, or dishonorable and still not be a crime. In other words, there’s a lot of collusion that isn’t criminal.

In the public debates during the Mueller investigation, the constant references to all Russian contacts as collusion mostly resulted in confusion. It allowed the president’s supporters to argue that because collusion is not a crime, if Mueller was looking at collusion the investigation must be a political witch hunt. Using the catch-all of collusion obscured the distinctions between acts that were simply deplorable and those that might have been truly criminal.

There’s No Crime Called “Corruption”

As with collusion, there is no crime called “corruption.” That term covers a multitude of sins, most of which are not criminal. Much of what goes on in the D.C. “swamp” every day involving the confluence of money, power, and politics may look inappropriate or sleazy and may be considered corrupt by many. But most of it does not run afoul of the criminal law.

The heartland of criminal corruption is crimes such as bribery, improperly using the power of a public office for personal benefit. As I’ve argued elsewhere (here and here, for example) president Trump’s dealings with Ukraine meet all the elements of federal bribery law: the president demanded a thing of value (announcing the investigation of a political rival) in exchange for his official acts of releasing the military aid to Ukraine and agreeing to a state visit at the White House with Ukraine’s president. This kind of quid pro quo deal by a public official is textbook criminal corruption. This is actual criminal conduct, and an abuse of the power of the presidency.

But consider a politician who takes hundreds of thousands of dollars in campaign contributions from the oil and gas industry and later supports legislation benefitting that industry. Or a cabinet official who resigns and becomes a highly-paid lobbyist, working on behalf of the industry she used to be in charge of regulating. Many might consider such actions corrupt, but they are common occurrences. Without much more, they don’t amount to a crime. We can deplore such actions and argue they suggest a need for better ethics laws or campaign finance reform. But for better or worse, with the system that we have, such actions are not criminal.

The Zephyr Teachout Article

A great example of the problem with allegations of corruption is an article published this week in The Guardian by Zephyr Teachout, a law professor who has written a book about corruption in America and who has endorsed Bernie Sanders for president. The title is: “‘Middle Class’ Joe Biden has a Corruption Problem – It Makes Him a Weak Candidate.” Teachout argues that Biden “has a big corruption problem” that would make him a poor choice to take on president Trump. In support of her claim, she points to three areas — finance, health care, and energy — where she claims Biden has worked to benefit corporate interests that have funded his campaigns. She argues that Biden’s “record represents the transactional, grossly corrupt culture in Washington that long precedes Trump.” Teachout claims this “corruption” of Biden’s will enable Trump to “muddy the water, to once again pretend he is the one ‘draining the swamp’, running against Washington culture.”

There’s no allegation that Biden did anything illegal in any of the examples cited by Teachout. If he’s guilty of anything, it’s of simply playing the Washington swamp game as it currently exists. Many, including Teachout, might think that’s a problem and might decry the influence of money in politics. They might argue persuasively for the need for campaign finance reform. But politics as usual is not a crime. And although the behavior may be unseemly and undesirable, I wouldn’t label lawful political behavior as corrupt. It’s possible to argue for reforming the system without accusing those who are acting lawfully within that current system of corruption.

By calling Biden corrupt, Teachout obscures the differences between true criminally corrupt behavior and behavior that is legal, if swampy. She lumps Biden’s conduct together with Trump’s and labels it all “corruption,” although she agrees that Trump is worse. But any differences between them, apparently, are simply a matter of degree, not of substance. She’s helping Trump make the exact argument that she claims to fear: that everyone is corrupt and so Trump’s behavior is no different from any other politician’s. I think this is wildly misguided and plays directly into Trump’s hands.

(And as a political aside, I think Teachout is kidding herself if she believes that Bernie Sanders, who has spent his entire career in the Washington swamp, will somehow be inoculated against Trump’s attacks if he’s the nominee. For his part, Sanders has disavowed the Teachout article and apologized to Biden for it.)

Hunter and Joe Biden

The Burisma Allegations

Now consider the Ukrainian energy company Burisma, which put Joe Biden’s son Hunter on its board at a hefty salary despite his lack of obvious qualifications. The president and his supporters have urged that Hunter Biden’s appointment to the Burisma board should be investigated as “corruption.” Trump’s demand that Ukraine conduct such an investigation is part of the basis for the Article of Impeachment charging him with abuse of power.

Burisma no doubt hoped that adding such a high-profile American name to its board would provide some political or economic benefit or burnish its image. It may seem unfair or inappropriate that Biden was able to cash in on his family name like this. We may decry the existence of this American aristocracy (although it is richly ironic for Trump and his children to do so). Given the appearances it created, it was poor judgment for Hunter to accept the position. But hope, unfairness, bad judgment, and having a prominent family name are not crimes.

There is no allegation that Hunter actually did anything illegal, just a vague implication that there must have been something fishy going on. Hunter was a private citizen, so there can be no allegation of criminal public corruption directly related to his own actions. He was legally free to accept the job, even if he believed he was unqualified and that Burisma was a sucker to pay him so much money. In hindsight I suspect he would agree that it was dumb for him to take the board seat, given the problems he created for himself and his father. But creating a mere appearance of impropriety is likewise not a crime.

Because Hunter was not a public official, any allegations of criminal corruption would have to link back somehow to his father, who was vice-president at the time. Trump allies have tried to suggest a link between Hunter Biden’s position and then-vice president Joe Biden’s work to convince Ukraine to oust its top prosecutor Viktor Shokin. The allegation is that Shokin was forced out because he was threatening to investigate Burisma, but the facts don’t support that allegation. Just the opposite, in fact: numerous reports have noted that Shokin was ousted because he was too soft on corruption.

In addition, the vice president’s efforts to pressure Ukraine to get rid of Shokin took place in public. Corrupt acts usually take place in secret. Biden’s actions were in furtherance of official American policy and were supported by the entire European community. There’s no credible evidence that Joe Biden acted as part of a quid pro quo or to benefit his son. Such theories live on only in the fevered conspiracy dreams of the likes of Rudy Giuliani.   

Trump’s demands to Ukraine, on the other hand, took place on a private phone call that the White House promptly took steps to conceal by placing the transcript on a classified server. We only know about it now because of the whistleblower. And there seems to be universal agreement even among people in Trump’s own administration that his withholding of the military aid was contrary to U.S. national interests.

But none of this has stopped those who claim that Hunter Biden’s mere presence on the Burisma board is proof of “corruption” that may have somehow justified Trump’s actions. For example, George Washington University law professor Jonathan Turley recently wrote that Hunter Biden’s contract with Burisma “was so openly corrupt it would have made Jack Abramoff blush.” But Abramoff was actually convicted of federal crimes, as were more than two dozen people in his orbit including a U.S. Congressman. He went to prison as part of perhaps the biggest criminal corruption scandal in the last twenty years. Equating Hunter Biden’s legal (if unseemly) board seat with Abramoff’s criminal misdeeds is the kind of facile argument made possible only by ignoring the malleability of term “corruption.” It’s the same kind of error made by Teachout.

Focus on the Criminal Conduct

Characterizing all swamp-like behavior as corruption enables the kind of “whataboutism” so common in today’s political battles. It allows the president and his defenders to suggest that everyone is corrupt and that his behavior is not really unusual. But just as most collusion is not criminal, most behavior that is labeled corrupt is not a crime. Trump’s conduct, on the other hand, was in fact criminal and involved abusing the power of the presidency for his own personal benefit. It is different in kind, not just in degree, from D.C. swamp politics as usual. As impeachment proceeds, Democrats would be wise to emphasize the criminal – not just corrupt — nature of president Trump’s actions.

The Crimes in the Articles of Impeachment

Last week the House Judiciary Committee voted out two Articles of Impeachment of President Trump. The full House is expected to vote on them this week. Article One charges Trump with Abuse of Power for his actions toward Ukraine, and Article Two charges him with Obstruction of Congress. One common refrain among the president’s supporters is that impeachment is not appropriate because these articles do not allege the president committed a crime. But this is not correct: although the articles do not cite specific federal statutes, the facts they allege do establish several federal offenses. There are indeed crimes in the Articles of Impeachment.

But First: Impeachment Doesn’t Require a Crime

The Constitution provides the president may be impeached and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” Alexander Hamilton, in Federalist 65, wrote that impeachment is a remedy for abuse of office and is appropriate for “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

Although there is some debate about the exact meaning of “high Crimes and Misdemeanors,” there is a general consensus that impeachment does not require proof of a federal crime. Of the four law professor experts on impeachment who testified before the House Judiciary Committee on December 4, all four – including the expert called by the Republicans – agreed that impeachable offenses are not limited to conduct that violates federal criminal statutes. Professor Noah Feldman of Harvard Law School testified: “the essential definition of high crimes and misdemeanors is the abuse of office,” and that the “classic form … is using the office of the presidency for personal advantage or gain, not for the public interest.” He went on to note that: “the traditional meaning of high crimes and misdemeanors was not restricted to acts defined as ordinary crimes by statute.”

Even if you believed conduct should be criminal to be impeachable, that wouldn’t mean the conduct should have to track the precise elements of the current U.S. criminal code. The men who wrote the Constitution could not have been thinking of the federal criminal code because it did not exist at the time. Crimes such as bribery have been around as long as there have been politicians, and have common-law meanings not tied to the language of particular statutes. What’s more, the current federal criminal code contains a number of different statutes that prohibit bribery, and they do not all share the same definition of the offense.

Linking impeachable offenses to particular acts of Congress would mean Congress effectively could amend the Constitution by passing criminal statutes. For example, if “bribery” in the impeachment clause is defined by the current federal bribery statute, Congress could amend that statute and thereby alter the standard for impeachable offenses, rather than going through the normal Constitutional amendment process. This is exactly backwards: the Constitution is the supreme law of the land. Acts of Congress must conform to the Constitution, not the other way around.

In the Judiciary Committee report released on December 16 to accompany the articles of impeachment, the Republican committee members who dissented from the report admitted that impeachments of past presidents have included articles of impeachment that did not allege a specific crime. But they claimed this is the first time a presidential impeachment has consisted solely of articles that do not state a criminal offense, and that this is improper. According to the Republicans, “The Majority’s Articles of Impeachment are unprecedented in American history because they are not based on criminality, as were all prior presidential impeachments.”

But the Republicans are wrong: there are crimes in the Articles of Impeachment, and they are indeed “based on criminality.”

A Crime By Any Other Name

The claim that these Articles of Impeachment do not allege criminality reminds me of the claim from the days of the Mueller investigation that “collusion is not a crime.” There was an almost obsessive focus on the label applied to the conduct under investigation. Yes, it’s true there is no crime called “collusion.” But if people agree to engage in criminal activity, that act of collusion may violate the federal conspiracy statute. There’s also no crime called “shooting someone until they are dead” – but if you do that, you will be prosecuted for the crime called homicide. What matters in criminal law is the conduct, not the label applied to that conduct.

The Articles of Impeachment don’t cite specific federal statutes that the president allegedly violated. As noted above, there’s no particular reason they would; impeachable conduct is not defined by the terms of federal criminal statutes, and this is not a criminal indictment. But the facts alleged in those Articles would, if proven at a criminal trial, establish the commission of a number of federal crimes.

Article One: Bribery and Honest Services Fraud

The blog Just Security just published a collection of articles about the crimes implicated by president Trump’s conduct, called “Federal Criminal Offenses and the Impeachment of Donald J. Trump.” (I wrote the piece on bribery for the collection.) It identifies a number of crimes that Trump may have committed in his dealings with Ukraine. The first Article of Impeachment most clearly establishes two of those crimes: bribery and honest services fraud.

Bribery

The first Article of Impeachment, charging Abuse of Power, focuses on Trump’s attempts to pressure Ukraine into announcing two investigations that would be personally beneficial to Trump. One investigation was into the Bidens and the Ukrainian energy company Burisma, and the other into a debunked conspiracy theory involving alleged Ukrainian interference in the 2016 election. It alleges that Trump acted with “corrupt purposes” in pursuit of this personal benefit. And it alleges that he “conditioned two official acts” on Ukraine’s public announcement of the investigations: release of the Congressionally-approved military aid to Ukraine, and agreeing to a White House meeting that was desperately sought by Ukrainian president Zelensky.

Although Article One does not cite the bribery statute, the Article’s language closely tracks that law’s requirements. The statute, Title 18, United States Code, Section 201, provides that a public official commits bribery if he corruptly solicits or demands a thing of personal value in exchange for being influenced in the performance of an official act. All of the elements of the offense are clearly alleged in impeachment Article One. It alleges that Trump acted to obtain a thing of personal value, that he acted corruptly, and that he was agreeing to be influenced in the performance of official acts in exchange. This is the language of bribery.

In the Just Security piece on bribery, and in other articles (here and here, for example), I’ve written in detail about how the elements of the bribery statute are satisfied here. President Trump is a public official, the announcement of the Ukrainian investigations would be a thing of personal value to him, granting the White House meeting and releasing the aid are both “official acts” under the statute, and he acted corruptly by wrongfully linking his official actions to his demand for the announcement of the investigations.

Again, what matters are the facts of the president’s conduct. You can call it Abuse of Power, or you can call it Bribery. But the largely uncontested evidence of the president’s conduct toward Ukraine does in fact constitute bribery under current federal law.

Honest Services Fraud

When it comes to honest services fraud, the analysis is largely the same. Honest services fraud is a species of federal mail and wire fraud. In an honest services case, the defendant is charged with defrauding the victims of the right to fair, honest, and impartial services they are owed by someone. It’s most commonly used as a public corruption theory, with corrupt public officials charged with defrauding their constituents of the fair and honest services the officials owe the public.

In the 2010 case of Skilling v. United States the Supreme Court ruled that honest services fraud prosecutions are limited to cases involving bribery or kickbacks. The Court also held that it would define bribery for purposes of honest services fraud by using the definition in the bribery statute, 18 U.S.C. 201. As a result, the legal analysis for honest services fraud ends up mirroring the bribery analysis discussed above. As president, Trump owes a duty of honest services to the public. Because his conduct meets the elements of federal bribery, these facts also would qualify as honest services fraud. The only additional requirement would be proof that he used the mail or a wire or wireless transmission in furtherance of the fraud. The telephone call with president Zelensky would easily satisfy that requirement.

Article Two: Obstruction of Congress

The second Article of Impeachment charges the president with Obstruction of Congress. It alleges that Trump has improperly obstructed Congress’s impeachment inquiry by declaring it illegitimate and completely refusing to cooperate. He instructed numerous executive branch officials and key witnesses to defy subpoenas and refuse to testify. He also instructed the White House, State Department, and other agencies to refuse to turn over any documents in response to Congressional subpoenas. Article Two alleges that:  “In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors’”. 

Obstructing the impeachment inquiry itself was also one of the impeachment charges against presidents Nixon and Clinton. It relies heavily on the fact that the Constitution gives Congress the “sole power” to conduct impeachments. By declaring the entire inquiry illegitimate and refusing to cooperate, the Article alleges, Trump has “sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct.” This undermines the system of checks and balances set forth in the Constitution, which gives Congress the power to check a president’s conduct through impeachment. It is like a criminal suspect seeking to dictate to the FBI exactly how it should investigate him and what techniques it could use.

The president’s defenders argue that Congress should go to court and seek rulings on the president’s refusal to cooperate, rather than simply moving forward on impeachment. The House Report explains why the Democrats reject this claim. First, it would likely result in unacceptable delay, because court rulings and appeals can take months or even years. Particularly where the misconduct concerns an attempt to manipulate the upcoming 2020 election, the Democrats argue that they need to move quickly. Second, they argue that because the Constitution grants Congress the sole power to try impeachments, Congress has never relied on court review concerning its impeachment powers. The House Report states: “Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review.”

Unlike the term “Abuse of Power” alleged in Article One, “Obstruction of Congress” actually is a crime – although again, the Article of Impeachment does not cite any particular criminal statute. Obstruction of Congress may be prosecuted under at least two different federal statutes that prohibit obstruction of justice: Title 18, United States Code, Sections 1505 and 1512.  Section 1505 applies to anyone who “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House . . . . “  Section 1512(c)(2) punishes anyone who “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.”  “Official proceeding” is defined to include Congressional investigations. 18 U.S.C. 1515(a)(1)(B).

These statutes readily apply to conduct such as defying Congressional subpoenas and ordering subordinates not to testify. If this were a criminal prosecution, then as with most obstruction of justice cases the key issue would be proving corrupt intent. The president would argue he is simply asserting valid executive privileges in response to Congressional overreach and is not acting with corrupt intent. Congress would respond by pointing out the unprecedented nature and breadth of the president’s complete refusal to cooperate in the investigation or even to recognize its legitimacy.

It seems there would be a compelling case that by completely stonewalling Congress’s efforts to conduct an impeachment inquiry, the president did indeed act with the requisite corrupt intent to obstruct. And that’s a federal crime. The merits of the president’s defense would be up to the Senate during the impeachment trial. But there’s no question that Article Two contains allegations of criminality.

Conclusion: The Crimes Are In There

Once again, you don’t need to prove specific federal crimes for impeachment. But those who argue that these Articles of Impeachment are not based on criminal misconduct are wrong. The Articles may not cite specific federal statutes, but the conduct they describe would be indictable under several federal criminal laws.