The scandal surrounding President Donald Trump pushing Ukrainian President Volodymyr Zelensky to investigate the son of Democratic presidential candidate Joe Biden in order to damage Biden’s candidacy is more problematic than what has been reported.
It turns out, by withholding military aid, Trump committed bribery or extortion, legal experts say.
As noted by Politico’s Legal Affairs Columnist Renato Mariotti, Trump’s behavior “is a kind of corrupt conduct that the criminal system is not equipped to handle. Labeling his behavior with criminal terms such as bribery and extortion not only misunderstands the statutory language, it gives Trump and his supporters ammunition with which to defend themselves, making impeachment—the proper constitutional remedy for presidential corruption—harder to achieve.”
He adds: It’s easy to see why Trump’s alleged conduct has generated outrage and why lay people have rushed to describe it as categorically criminal. Using presidential power to withhold aid to a nation that was recently invaded by Russia unless its investigates your political rival sounds like the definition of a criminal quid pro quo. The possibility that Trump pressured another nation to interfere in the next presidential election on his behalf—not long after the completion of a multiyear investigation into interference in the 2016 presidential election by Russia on his behalf—is jaw-dropping.
But the impulse to label this as a potential crime, as many respected former prosecutors and legal analysts have done, is flawed legally and even strategically. Even if true, this is not a case that would end up in a criminal proceeding even if Trump were no longer in office.
Let’s look at the actual law. Even if Trump explicitly offered $250 million in military aid to Ukraine in exchange for an investigation of Biden’s son, that wouldn’t fit the federal bribery statute, which prohibits public officials from taking or soliciting bribes. In this case, Trump would be “bribing” the Ukrainians, who are not “public officials” for purposes of the statute.
The argument would have to be that Trump is soliciting a bribe in exchange for granting foreign aid to the Ukraine, with the investigation of Biden’s son being the thing of value demanded in exchange for granting the aid. While the statute defines “anything of value” very broadly, it is odd to think of a foreign government launching an investigation as “payment” of a bribe. The investigation itself would be an official governmental act and the result of the investigation would be uncertain. What if the investigation turned up no wrongdoing by either Hunter Biden or his father? Would that still be a thing of value?
Besides, presidents push foreign governments to take official acts all the time. The Constitution contemplates that the president will interact with foreign leaders and use his or her power to persuade them to do things that help the United States. What is abhorrent about the alleged conduct here is not that Trump is pushing a foreign government to do something, but rather that he might have used his presidential power to get a foreign government to help him win the next election.
This is self-serving and corrupt, but it is difficult to think of this alleged activity as “extortion.” It is true that there are multiple federal statutes that make extortion a crime, but extortion is defined as “the extraction of anything of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any person.”
It is hard to construe the alleged conduct as a “threat” against Ukraine in the manner contemplated by the extortion statute. Presidents threaten to withhold aid, send troops, or impose sanctions against foreign governments. I have trouble believing that a federal judge would permit an indictment to move forward against a president for “extorting” a foreign government through his or her official duties as president.
This is not to say there aren’t crimes on the books that better match what Trump is alleged to have done. For instance, it is a campaign finance crime to knowingly and willfully solicit a campaign contribution from a foreign national. Given that Biden could be Trump’s next political opponent, an argument can be made that the Ukrainian investigation would be an in-kind contribution—a “thing of value,” as defined by the statute—to Trump’s campaign. The bribery of a foreign official, such as the Ukrainian president, can also be a criminal violation of the Foreign Corrupt Practices Act.
But both of these statutes contain at least some of the problems presented by the bribery and extortion statutes. Courts won’t send presidents to prison for cajoling foreign governments to do things, even if that involves horse trading an official act by our government in exchange for an official act by someone else’s.
What Trump is alleged to have done is not a garden variety crime; it’s worse. It involved misusing $250 million in aid appropriated by Congress for his benefit—the kind of gross misconduct that easily clears the bar of high crimes and misdemeanors set by the Constitution when impeaching a president. Which means the best way to hold Trump accountable for that misconduct isn’t a criminal trial; it’s for Congress to impeach him.
Pursuing criminal cases that won’t stand legal scrutiny, or arguing that Trump has violated a criminal statute, risks undermining that goal.
First, it gives the false impression that this is something the criminal justice system can deal with. But the criminal system is not built to handle misconduct by a president who is acting corruptly through the use of his or her immense constitutional powers in this manner.
Second, it suggests that if critics can point out that it is not really bribery or extortion, then it is not a huge problem, which is not true. This is already happening, as allies of the president assert that there was no explicit quid pro quo.
Third, it may give the public a false impression about what happened. Impeachment in many respects is a political act, and that means Congress needs public support to pursue it. Anything that confuses or fails to convince the public is therefore counterproductive.
Finally, it understates the magnitude of the alleged misconduct. Labeling Trump’s alleged conduct as “bribery” or “extortion” cheapens what is alleged to have occurred and does not capture what makes it wrongful. It’s not a crime—it’s a breach of the president’s duty to not use the powers of the presidency to benefit himself. And he invited a foreign nation to influence the 2020 presidential election on the heels of a nearly three-year investigation that proved Russia had tried to influence the 2016 presidential election.
No one should expect law enforcement to act if our elected representatives are unwilling to do so.