Bribery and High Crimes and Misdemeanors

The Wall Street Journal reported Friday that in the course of his conversation in July with Ukrainian president Volodymyr Zelensky, Trump pressed him on eight separate occasions to investigate Democratic presidential contender Joe Biden.

Biden when vice president is known to have pressured the Ukrainian government to fire a prosecutor whom the International Monetary Fund and the Obama administration felt to be ineffective in dealing with corruption. The prosecutor had once upon a time investigated a company on the board of which Biden's son Hunter served. But by the time Biden exerted his pressure, that investigation was dormant and there were never any Ukrainian findings of corruption on the part of Hunter Biden.

This is a non-story, but Trump has a history of trumping up non-stories and using them to smear his opponents, as he and his surrogates did to Hillary Clinton in 2016.

Trump's pressure on Zelensky to investigate Biden constitutes asking a foreign country to intervene in a US election.

As the Law and Crime blog points out "It should be noted that the initial reporting on the whistleblower complaint said that concerns were raised about a 'promise' Trump made to a foreign leader."

We do not know what Trump might have promised Zelensky, but if he did suggest an inducement to the Ukrainian government to cooperate with Rudy Giuliani in investigating Biden, then Trump was offering a bribe.

We know that Trump has leverage over Zelensky, since Ukraine is facing Russian occupation of Crimea and an ongoing intervention in eastern Ukraine, and Trump can either help Kyiv or leave it to the tender mercies of Vladimir Putin.

In August Congress appropriated $250 million for Ukraine, but Trump stopped it from going to Zelensky. He recently reinstated it. All this is very mysterious. I had originally thought that Trump stiffing Ukraine was just one more of his weird attempts to appease Putin. But you have to wonder whether Trump's denial of aid was further pressure on Kyiv.

So bribery is an impeachable offense.

The US Constitution, Art. 2, Section 4, says,

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.

Philip Bobbitt, of the Columbia University Law School, pointed out a couple years ago at Just Security that bribery is actually two possible offenses here. One is to accept a bribe. The other is to offer a bribe.

Bobbitt argues that Trump appears to have offered Comey the possibility of keeping his job as FBI director if he would quash any investigation into Trump, and that this offer should be construed as a bribe.

It is probably far more consequential if Trump offered Zelensky a bribe, since his motive was to entangle a foreign country in interfering in the 2020 presidential election.

I think it could also be argued that Trump was soliciting from Zelensky a thing of value, i.e. oppo research of the sort political campaigns routinely pay investigative firms for.

The US civil code says,

52 U.S. Code SS 30121. Contributions and donations by foreign nationals

U.S. Code Notes

(a) Prohibition

It shall be unlawful for-- (1) a foreign national, directly or indirectly, to make--

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or (2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

So Trump may have broken two laws if the reporting on this incident is correct so far. One was to offer Zelensky a bribe, which is explicit constitutional grounds for impeachment.

The other was to solicit a campaign contribution of sorts from a foreign national. Surely that would fall under "high crimes and misdemeanors."

We do not have enough facts to make this determination yet, and the executive is blocking Congressional access to the whistleblower complaint, so nobody who doesn't work for Trump has the facts. But clearly people in the Trump administration are upset enough by all this to leak to the Wall Street Journal, the New York Times, and the Washington Post.

On the face of it, articles of impeachment could certainly be drawn up on this basis if the charges were proved.

My guess? They won't be. Nancy Pelosi doesn't want it because she doesn't want Democrats to lose the Blue Dogs elected from conservative districts that barely voted Democratic but perhaps have a sneaking admiration for Trump. Mitch McConnell doesn't want it because it could sink the Republican Party and put at risk the interests of the party's main backers, the billionaire class.