America has unfortunately plunged into what is likely to be a long and divisive debate about corruption. Media reports of a conversation President Trump had July 25 with Ukrainian President Volodymyr Zelensky have swirled since allegations surfaced that President Trump had there asked President Zelensky to investigate former Vice President Biden for corruption. In the hopes of ending speculation about what he said, earlier today President Trump released a memorandum recounting the call. [Update: The controversy leading to release of the memorandum was sparked by reports an intelligence professional had filed a whistleblower complaint concerning President Trump and Ukraine. That complaint, released the morning of September 2, is here].
Unfortunately, the release is likely only to fuel ever more nasty, partisan debate. One controversy certain to arise is the memorandum’s accuracy. It is not a verbatim transcript of what the leaders said, a transcription of an audio recording of the call. Rather, it represents what one or more staff huriedley scribbled down while the two spoke; later others reviewed it. Did someone “scrub” more incriminating comments from the memo before its release? Is there a better record of the call? Will the person or persons who actually listened to the call come forward to testify to its accuracy? Or contest the accuracy?
A more critical point of contention is whether what President Trump said during the call is on its face a crime under American law. President Trump clearly asked President Zelensky to investigate former Vice President Biden for criminal activity. The Federal Election Campaign Act makes it a crime for presidential candidates to receive contributions, defined as “anything of value,” from foreign citizens or governments. President Trump is a candidate for president in the 2020 election as is the former Vice President. Had Ukraine actually initiated an investigation of the Vice President, would that have been something of value under the election law? If it would have been, was President Trump’s solicitation of such a contribution a violation of the law? Or any other U.S. laws?
Is the fact that Mr. Biden is seeking the 2020 Democratic presidential nomination relevant to the inquiry? That, were he to be the Democratic nominee, current polls show him decisively defeating President Trump?
Some reports allege President Trump personally held up critical military and economic assistance to the government of Ukraine, only releasing it under Congressional pressure. That will surely be the bitterest bone of contention, for if he used a denial or delay in providing aid as leverage to force Ukraine to open an investigation, that would constitute attempted bribery under American law and thus strong grounds for impeachment and removal from office.
Was there such a threat? As students of U.S. bribery law know, it need not have been overt; “a wink and a nod” suffices. Expect a great deal of argument over “winks and nods,” with partisans seeing none opponents seeing them everywhere
The only bright spot in this very dismal chapter in American history is release of memorandum of conversation. It provides at least some uncontested facts upon which partisans can build their cases. For those who have yet to read it, here it is Memorandum telephone conversation between Presidents Trump and Zelenskyy
Just as a clarification: while it is of course convenient to speak of attempted bribery when the offer of a bribe is not accepted or the bribe is not paid for any other reason, technically, the bribery offense is already complete with the offer of a bribe and what happens to the offer does not make a difference.
Thanks very much for the correction. You are quite right. American federal law provides that anyone who “gives, offers, or promises anything of value” to a public official commits the crime of bribery and “shall be fined. . . not more than three times” the amount of the bribe or “imprisoned for not more than fifteen years, or both. . . .” Section 201, title 18 of the United State Code. Article 15 of the U.N. Convention Against Corruption, Bribery of National Public Officials, is the same. It requires states parties to make “the promise, offering, or giving” of an “undue advantage” to a public official a crime.
I would like to pose a question and then a cursory answer based on the above post. First the question: do Trump’s actions vis-a-vis Ukraine meet the standard for public corruption under McDonnell v. United States? (The paper Mr. Messick cites to support his assertion that “winks and nods are sufficient” was written before McDonnell, which significantly restricted the tradition “stream of benifits” theory of public corruption).
Now to the possible answer: I think it depends on how clearly the evidence shows the President decided to withhold aid to Ukraine as leverage to encourage an investigation into his political rival. McDonnell’s narrowest holding requires an exchange of specific benefits for specific services. If the President made an independent policy decision to withhold aid and then subsequently requested the Ukrainian President investigate former Vice President Biden (without planning to restart aid based on President Zelensky’s decision) it likely does not meet a narrow reading of McDonnell. While Zelensky might be doing President Trump a “favor,” as long as he and his government is not receiving anything in return, a quid pro quo action (again, as per McDonnell) did not occur.
Lots of ink has been spilled over what qualifies as “high crimes and misdemeanors.” Going into that is far outside the scope of this reply. However, it may be enough to note that if the President pursues an investigation into his political rivals based solely on a personal vendetta, that might be sufficient grounds to impeach and remove him. But whether that meets the current standard of quid pro quo public corruption depends on what discrete personal benefits were traded for specific “official actions.”
There is no offense denominated “public corruption” in the federal criminal code. Based on the facts disclosed so far, the conduct most closely resembles that proscribed by the Hobbes Act. That act provides that “[w]hoever in any way or degree . . . affects commerce . . . by . . . extortion” commits a crime punishable by up to 20 years in prison. “Extortion” includes “the obtaining of property from another, with his consent, induced by . . . actual or threatened force . . . or under color of official right.” 18 U.S.C. §1951.
For many years, courts struggled with whether the word “induced” applied to obtaining property under color of law. Did a public official have to promise the property owner something, i.e. “induce” them to provide it, to criminally extort the property. Or was it a crime if the official simply “used” his or her office to obtain the property. As the Ninth Circuit put it in a 1988 en banc opinion, was it enough that the provision of the property “was an ‘expectation’ such as might have been communicated by the nature of defendant’s prior conduct of his office.” United States v. Aguon, 851 F.2d 1158, 1166 (9th Cir. 1988). Four years later, in Evans v. United States, 504 U.S. 255 (1992), a divided Supreme Court, in upholding a conviction for extortion, held an expectation was all that was required. That a public official need not take steps to induce the extortionate payment.
The dissenters contended, as President Trump’s supporters argue today, that for there to be a crime, the public official must have promised the payor something in return for the property. There must in other words be a quid pro quo. An expectation in the payor’s mind was not enough.
Given how blatant the defendant-public official’s conduct had been in Evans, Justice Kennedy agreed with the result. But as the only member of the Court with practical political experience, he had been a part-time lobbyist in California before taking the bench, he could not agree with the plurality’s holding that a public official could be guilty of a crime simply because of what was in the mind of the payor. That was going too far given the realities of the political world.
He thus sided with the dissenters’ view that there must be a quid pro quo. But again relying on his practical experience in the political world, he rejected any suggestion that the public official and the payor must expressly agree that this quid will be provided in return for that quo: “otherwise the law’s effect could be frustrated by knowing winks and nods.” In Kennedy’s view, it was a crime whenever, from a public official’s “words and actions,” one could infer that the official:
‘Intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied.” 504 U.S. at 278.
While I am not an expert on the post-Evans case law, I suspect that as a practical matter Justice Kennedy’s opinion is controlling. I find it hard to believe a prosecutions could succeed without some evidence — even if just winks and nods — that the payor was going to get something in return for his or her property.
Thanks for your post. An interesting part of this is also that Ukraine has publicly focused so heavily on anti-corruption efforts. On July 25, President Zelensky’s press office put out a statement that on a call between the two leaders, they discussed Ukraine’s anti-corruption efforts and President Trump was confident that Ukraine would now be able to complete investigations into corruption cases. Additionally, on Monday, September 23, after the scandal was already in the press, President Zelensky posted a video on Facebook urging citizens to call a corruption hotline, and Ukraine’s Anti-Corruption Bureau responded that this would actually flood the hotline with calls that were not even within the Bureau’s jurisdiction. The leaders can point to this kind of activity and say that they were actually concerned about fighting corruption.
Thanks Rick for your post on this topical issue. On your first point regarding the transcript itself, it seems incredible that there is no process of recording the actual conversation verbatim, as one would expect for all presidential matters (the Kennedy School library has a whole shelf of bound books of Presidents entire correspondence with their foreign counterparts).
On your second point on whether this would constitute corruption and/or violate laws in any way, I thought Masha’s comment to hold some important contextual clues for the threshold of public perceptions on corruption.
On the one hand, there seems to be actual disappointment in Ukraine that this President was going about things in a “business as usual” manner, given that he represented a fresh non-establishment voice in their politics (https://foreignpolicy-com.ezp-prod1.hul.harvard.edu/2019/09/26/ukraine-reacts-putin-is-loving-this/). Therefore people actually feeling let down by this conversation and also this example of being told to use a hotline that might actually be a dead end.
On the other hand, in the United States, also with a non-establishment President, there seems to be an inevitability in their President finally getting caught with a documented impropriety, possibly illegal and enough to initiate an impeachment inquiry.