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.

New Video: Collusion 101

You frequently hear Rudy Giuliani and other Trump supporters claim that “collusion is not a crime.” As I wrote in this post back in the summer of 2017, that claim is nothing but a smokescreen. It’s true there is no crime called collusion. There’s also no crime called “shooting someone until they’re dead” or “breaking into a house and stealing a laptop.” But of course that doesn’t mean those acts are not criminal – the crimes are called homicide and burglary. What matters in criminal law is what you do, not what label someone chooses to put on it.

Collusion is generally defined as joining with someone else to achieve some improper end. In criminal law we call that a conspiracy. The federal conspiracy statute prohibits two different types of conspiracies: conspiracy to commit an offense against the United States, and conspiracy to defraud the United States. Bob Mueller has already used both types of conspiracy charges in his cases against Russian actors for attempting to interfere with the 2016 election. In addition, a federal judge recently upheld the legal theory that Mueller used to charge Russian actors with conspiring to defraud the United States by improperly seeking to influence the election.

Recently I made this video for the Washington Post discussing collusion and the law of conspiracy:

If members of the Trump campaign or other Americans were involved with Russians seeking to influence the election, they could find themselves on the hook for the same kind of conspiracy with which Mueller has charged the Russians. Other conspiracies are possible as well, including a conspiracy to take government steps favorable to Russian interests in exchange for Russian actions that would either help Trump win the election or benefit Trump business interests, such as the Moscow towerTrump was negotiating over while he was campaigning for president. Any such deals could be described in non-legal terms as “collusion” – an agreement to do something improper.

It remains to be seen whether Mueller will bring any additional conspiracy indictments. But no one should be fooled by the continuing claims of Trump supporters that collusion is not a crime.

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