"There was no blackmail," Ukrainian President Volodymyr Zelenskiy said today, referring to his July 25 telephone conversation with Donald Trump, the focus of allegations that the president committed an impeachable offense by trading military aid for a Ukrainian investigation of former Vice President Joe Biden and his son. "They blocked the military aid before we had our conversation, but we did not discuss it. Later we discussed it with the defense minister and he said, 'We have a problem. They've blocked this money.'"
Zelenskiy's take on the conversation is relevant to the impeachment inquiry but not necessarily dispositive, as Trump unsurprisingly argues. "The President of the Ukraine just stated again, in the strongest of language, that President Trump applied no pressure and did absolutely nothing wrong," Trump tweeted this morning. "He used the strongest language possible. That should end this Democrat Scam, but it won't, because the Dems & Media are FIXED!"
Zelenskiy, who is counting on U.S. support against the military threat from Russia, understands that Trump is likely to remain president until January 2021 at least, and possibly for another four years after that. His benign interpretation of Trump's conduct therefore should be taken with a grain of salt. It is exactly what you would expect him to say, especially if he believes Trump is using foreign policy to advance his own personal and political interests. But even if Zelenskiy is being completely candid, his impression of Trump's intent does not prove that the president "did absolutely nothing wrong," that he is not guilty of "high crimes and misdemeanors," or even that did not violate any federal statutes.
Taking that last part first, a federal official can be guilty of soliciting a bribe under 18 USC 201 even if he is unsuccessful. That bribery statute applies to any official who "corruptly…seeks…anything of value…in return for…being influenced in the performance of any official act." Receiving the bribe is not a necessary element of the offense.
Would it matter if Trump had in mind a quid pro quo that Zelenskiy himself did not infer? That's hard to say.
A bribery conviction under 18 USC 201, the Supreme Court said in the 1999 case United States v. Sun-Diamond Growers of California, requires "a quid pro quo—a specific intent to give or receive something of value in exchange for an official act." But it's not clear how explicit that quid pro quo has to be.
Interpreting a different anti-corruption statute, the Hobbs Act, in the 1991 case McCormick v. United States, the Supreme Court said soliciting a campaign contribution amounts to extortion "only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act." But in another Hobbs Act case decided the next year, Evans v. United States, the Court held that "the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." In a concurring opinion, Justice Anthony Kennedy explained that "the official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods."
These decisions have created some confusion in lower courts. "The Court did not explain whether Evans established a separate standard for prosecuting bribery outside of the campaign contribution context or whether Evans modified the standard set forth in McCormick," notes a 2015 Journal of Constitutional Law article. "In addition, it remains unclear whether the explicit quid pro agreement as interpreted in McCormick and Evans applies to other federal bribery statutes."
Depending on the answers to those questions, Zelenskiy's understanding of Trump's intent could be important. If the Supreme Court's analysis of the Hobbs Act also applies to 18 USC 201, and if dirt on Biden, a leading contender to oppose Trump as the Democratic nominee in the 2020 presidential election, qualifies as a campaign contribution, the absence of an "explicit promise" would seem to preclude a bribery conviction, assuming that requirement still holds after Evans.
But if compromising information about Biden does count as a campaign contribution, that raises an issue under 52 USC 30121, which makes it a crime to solicit "a contribution or donation of money or other thing of value…in connection with a Federal, State, or local election" from a foreign national. Then again, treating information as a campaign contribution raises troubling First Amendment issues.
Another possibly relevant federal statute, George Mason law professor Ilya Somin notes in a Volokh Conspiracy post, is 18 USC 1601. That law applies to someone who "knowingly causes or attempts to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of…any payment or benefit of a program of the United States" if that payment or benefit "is provided for or made possible in whole or in part by an Act of Congress."
In this case, the "thing of value" would be dirt on Biden, which would clearly benefit Trump's re-election campaign. The "payment or benefit" would be congressionally approved military aid. And since the offense includes attempts, it would not seem to matter whether Trump got what he wanted, or even whether Zelenskiy understood what Trump was trying to do.
The question of whether Trump broke the law, while relevant to the impeachment inquiry, is by no means the only factor in deciding whether his conduct qualifies as "high crimes and misdemeanors." Some federal offenses—say, picking up an eagle feather or making an "unreasonable gesture" at a passing horse in a national park—might be minor enough that they do not justify impeachment. Conversely, some abuses of power might be outrageous enough to justify impeachment even if they are technically legal.
The president's own lawyer has conceded that, even though the Constitution imposes no limits on Trump's pardon power, "pardoning himself would just be unthinkable" and "would lead to probably an immediate impeachment." In other words, a president can be guilty of impeachable conduct even if he couldn't be convicted of a crime. The question is whether trading military aid for opposition research—assuming that is in fact what Trump tried to do—falls into the same category as a pre-emptive self-pardon.
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