The U.S. political news for the last month has been dominated by the explosive and fast-developing scandal involving reports that President Trump and his associates—including not only U.S. government officials but also Trump’s personal lawyer Rudy Giuliani and other private citizens—have been engaged in an ongoing behind-the-scenes campaign to pressure the Ukrainian government to pursue criminal investigations that would benefit President Trump politically. In particular, President Trump, Mr. Giuliani, and others pushed Ukraine to investigate supposed wrongdoing by Vice President Joe Biden and his son Hunter, as well as alleged Ukraine-based interference in the 2016 election on behalf of Democrats. (There is no credible evidence to support either allegation, and experts in President Trump’s administration repeatedly warned him against these unfounded conspiracy theories, to no avail.) The pressure brought to bear by President Trump and his associates on Ukrainian officials appears to have included not only general statements of interest in these allegations—allegations that the Ukrainian authorities viewed as baseless—but also included implicit or explicit threats that failure to comply would lead to various forms of retaliation, both symbolic (the refusal to invite newly-elected President Zelensky to the White House) and tangible (the withholding of desperately needed military aid).
While the main ramifications of this scandal are political rather than strictly legal, the U.S. media extensively discussed whether President Trump and his associates may have violated any U.S. laws, and commentators have suggested a number of potential legal violations. For example, asking a foreign entity for dirt on a domestic political rival might violate the provision of U.S. campaign finance law that makes it illegal to “solicit … a contribution or donation [to an election campaign] … from a foreign national,” where “contribution or donation” includes not only money but any other “thing of value.” President Trump and his associates may also have violated domestic anti-corruption law (the federal anti-bribery statute and/or the anti-extortion provision of the Hobbs Act) in conditioning the performance of an official act (such as the transfer of military aid) on the receipt of something of value from Ukrainian government officials (investigations into political rivals). Private citizens like Mr. Giuliani may have violated the Logan Act, which makes it illegal for private citizens, without the authority of the United States, to correspond with any foreign government or foreign official “with the intent to influence the measures or conduct of any foreign government …. in relation to any disputes or controversies with the United States.” And of course, the attempts to conceal all of these interactions may have amounted to obstruction of justice.
The focus in the U.S. media on whether President Trump and his associates may have violated U.S. law is entirely understandable, but seems incomplete. Strangely absent from the conversation is any mention, let alone sustained exploration, of the question whether any of President Trump’s associates may have violated Ukrainian law. At least this seems strange to me. Imagine that the situation were reversed. Suppose, for example, that a Chinese businessman, nominally a private citizen but known to have close ties to President Xi, approached the U.S. Attorney General and said something like, “We know your administration is anxious to cut a trade deal and would also like China’s assistance in addressing the North Korea situation. I’m sure President Xi could be persuaded to help you out. But you should help China out too. There’s a dissident, now an American citizen, who’s been writing a lot of damaging lies about President Xi, and he’s gaining a following in China and stirring unrest. Why don’t you publicly announce that the U.S. government is investigating him for running a ring of child prostitutes? That would really help us out.” If a story like this came out, I’m quite sure the U.S. media would be abuzz with discussions about which U.S. laws this businessman might have broken, and whether he might be prosecuted in U.S. courts if U.S. authorities managed to arrest him. But in the Ukraine case, we may have something similar—a private citizen (Giuliani) with close ties to a foreign political leader (Trump) apparently told senior political and law enforcement officials (the Ukrainian President and Prosecutor General) to pursue a bogus criminal investigation in exchange for that foreign government’s cooperation on important issues—and nobody seems to be even raising the possibility that this might violate Ukrainian law.
By the way, when I say nobody is talking about this, that apparently includes Ukrainian media and civil society. I don’t read Ukrainian and I’m by no means a Ukraine expert, but I have some friends and other contacts there, and they tell me that while the story is big news in their country, there hasn’t been any discussion about whether Trump’s associates may have violated Ukrainian law. That gives me pause, and makes me think that perhaps I’m totally off base in thinking there’s even an interesting question here. Nonetheless, at the risk of looking foolish (something that’s happened plenty of times before, I admit), I want to use this post to float this topic and see what others think.
Let me start off by narrowing the domain of what I want to consider. Let’s put to one side issues related to actions by President Trump and any other U.S. government officials—not because there might not be relevant legal questions about their conduct, but because the legal regulation of official communications between governments raises complicated issues that I’d rather bracket for now. Governments raise issues related to individual investigations all the time, often for entirely legitimate reasons, and while there may be legal concerns if those discussions are tied to things like foreign aid, I’m reluctant to wade into the additional complexities that would arise if we asked whether pressure emanating from official U.S. representatives might have violated Ukrainian law. Let’s instead focus just on the alleged conduct of private citizens with no official U.S. government role, such as Mr. Giuliani.
Another complicating factor here is that exactly what Mr. Giuliani or others may have said to Ukrainian officials is not yet fully known. To keep the focus on the legal issues, let’s assume a version of the facts that looks really bad for Mr. Giuliani. For example, let’s imagine that evidence comes to light that Mr. Giuliani approached the Ukrainian Prosecutor General and said something along the lines of my imaginary Chinese businessman in the earlier example—something like: “I know you want the U.S. government to release military aid and invite President Zelensky to the White House. I’m President Trump’s friend and attorney, and I can make all that happen. But in exchange, you need to help out President Trump politically by announcing that you’re going to pursue a criminal investigation of Vice President Biden’s son, as well as an investigation into efforts by Ukrainian hackers to help Democrats in the 2016 election.” Of course it’s unlikely that even Mr. Giuliani would have been quite so blatant. But suppose we did have evidence of a conversation along these lines. Would that break any Ukrainian laws?
I really do mean that as a question, and I hope our Ukrainian readers, and other experts in Ukrainian law, will weigh in. But let me try to stimulate some more conversation along these lines by pointing to a few Ukrainian laws that might be implicated, and raising some questions about whether or how these laws might apply.
- First, Article 369 of the Ukrainian Criminal Code (available in a somewhat outdated English translation here) prohibits “an offer or promise of a bribe” (alternatively translated as an “unlawful benefit”) to a public official in order to induce that public official to exercise his or her authority for the benefit either of the person offering the bribe or of some third party. Article 1 of the Ukrainian Law on Corruption Prevention defines a bribe/unlawful benefit as “funds or other assets, benefits, privileges, services or non-material valuables that are promised, proposed, provided or received with no legal grounds.” It’s possible that an offer of the sort hypothesized above—I’ll use my influence with a foreign leader to secure a favorable policy decision in exchange for you exercising your official authority to pursue a criminal investigation—might count as a bribe/unlawful benefit under Article 369. But there are some potential problems with this theory, even if the facts are as bad as I’ve stipulated. For starters, the “bribe” offered here is not a personal benefit for the Ukrainian official, but rather a policy decision that would benefit Ukraine as a country. It’s not clear whether this can count as a bribe. (This is an issue I’ve stumbled into before, in a very different context—and as was pointed out to be then, the official U.S. government position, at least with respect to the Foreign Corrupt Practices Act, is that offering something of value to a foreign government, as opposed to a foreign government official, does not qualify as an unlawful bribe. I’m not sure whether Ukraine takes a similar position with respect to its law.) Additionally, while I’ve stacked the deck in favor of a finding of illegality by imagining evidence of an explicit quid pro quo, that’s probably not realistic—even if there were a quid pro quo, it was likely implicit rather than quite so brazen, and I’m not sure whether Ukrainian bribery law would cover what we might call “strong hints,” or simply the pressure implicit in the U.S. President’s attorney saying something like, “This is what the President wants.”
- Second, the next section of the Ukrainian Criminal Code, Article 369-2 (which doesn’t appear in the outdated English translation I found, so here I’m relying on Google translate and some help from Ukrainian friends), prohibits “influence peddling.” More specifically, this section criminalizes (in my rough translation): “The offer, promise or rendering of an undue benefit to a person who offers or promises [in exchange] … to influence the decision-making by a person authorized to perform the functions of the state.” The arguments here would parallel the arguments regarding bribery under Article 369: If what Mr. Giuliani offered to Ukrainian officials could be construed as an “undue benefit,” provided to influence their official decision-making, then this could be a violation of Article 369-2, but it’s not clear whether offering to influence U.S. policy would count as an “undue benefit” to the officials in question, and finding the requisite quid pro quo might be challenging.
- Third, the Ukrainian Criminal Code contains, in Article 343, a prohibition on “interference with activity of a law enforcement officer,” a category I gather from Ukrainian colleagues includes not only police but also prosecutors and judges. That section expressly prohibits “any influence on a law enforcement officer for the purpose of interfering with his official duty.” Exerting political pressure or offering an implicit foreign policy quid pro quo to get a prosecutor to pursue a criminal investigation the prosecutor believes to be unwarranted would certainly seem like “influence … for the purpose of interfering with [the prosecutor’s] official duty.” A parallel provision in Article 344 likewise prohibits “unlawful influence on the President of Ukraine,” and other high-level officials, “for the purpose of preventing them from performance of their official duty or obtaining any unlawful decisions.” If Mr. Giuliani pressured Ukrainian prosecutors, or high-level officials, might this have violated Article 343 and/or Article 344? I’m genuinely uncertain, because my unfamiliarity with the Ukrainian legal system means that I’m not sure how the term “influence” (or “unlawful influence”) in these sections have been construed by Ukrainian courts; I’m similarly uncertain as to what sorts of pressure might count as “interfer[ence]” with official duties. (I have heard from at least one Ukrainian source that these provisions have not yet been tested in court, at least not in anything resembling this context.) But the idea that Mr. Giuliani or other Trump associates might have violated these provisions in their meetings with Ukrainian authorities seems at least plausible. And intriguingly, the possibility that U.S. interference with Ukrainian prosecutorial decisions might violate Article 343 has been floated by Ukrainians in the past. Back in early 2019, former Prosecutor General Yuriy Lutsenko alleged that then-U.S. Ambassador Marie Yovanovitch had given him a list of people who should not be prosecuted—an unsubstantiated allegation that Mr. Lutsenko eventually admitted wasn’t true. But in the wake of the initial allegation, at least one Ukrainian Member of Parliament asserted that in giving the Prosecutor General a “do not prosecute” list, the U.S. Ambassador had violated Article 343 by attempting to interfere with the activities of a law enforcement officer. Maybe that statement was groundless political grandstanding, but I’m genuinely curious why there don’t seem to have been any Ukrainian voices raising the possibility that President Trump’s associates may have violated Article 343 by, in essence, giving the Prosecutor General a “do prosecute” list.
- Fourth, Ukraine’s Law on the Public Prosecutor’s Office (available in English translation here) contains a provision, Article 16, which states that the “independence of a public prosecutor shall be guaranteed by … prohibition on illegal influence, pressure and interference with the exercise of the Public Prosecutor’s powers.” Here, yet again, my lack of expertise in the Ukrainian legal system limits my ability to draw strong conclusions about the potential relevance of this section to the activities of Mr. Giuliani and other Trump associates, but it certainly seems like, if the facts are anywhere near as bad as I’ve assumed for purposes of this discussion, there may well have been “illegal influence [and] pressure” on the public prosecutor. Of course, I’m not sure if those terms have a settled meaning in Ukrainian law. Furthermore, I gather that Article 16 is not a stand-alone, independently enforceable provision of Ukrainian law, so at most this provision would be relevant (I think) in influencing the interpretation of other parts of the Ukrainian Criminal Code.
So that’s what I’ve come up with so far. But again, as an outsider who doesn’t speak the language and has been to the country a grand total of twice, I’m not really the right person to pursue this issue, or decide whether it’s worth pursuing. My motivation in writing this post was a sincere puzzlement about why this question hasn’t come up, especially in the Ukrainian discussions.
One possibility, of course, is that I’ve misunderstood the law, and that even on the worst possible assumptions about the facts, there’s no plausible basis for asserting a violation of Ukrainian law. (If that’s the case, then I’d humbly submit that there’s a gap in the Ukrainian legal code that needs plugging.) Another possibility is that so far both Ukrainian officials and the U.S. parties are denying, as a factual matter, that anything like my hypothesized quid pro quo, or even overt pressure, took place. (That’s certainly possible, but I’d still be a bit puzzled why Ukrainian media and civil society organizations would take the factual assertions at face value.) A third possibility, suggested to me by a Ukrainian colleague, is that these provisions are so difficult to enforce in Ukraine even in the best of circumstances that most Ukrainian activists don’t bother worrying about whether this or that provision of the Criminal Code was violated in a case like this. Yet another, related possibility is that it’s so implausible that Ukraine would seek to charge Mr. Giuliani or any other Trump associates with a crime, given just how much Ukraine depends on U.S. support, that it’s just not worth devoting any time to talking about possible violations of Ukrainian law. That may well be, though of course the Trump Administration may not be long for this world, and maybe things will look different in January 2021.
There may be other explanations as well—I highly doubt that the above ideas occurred to me before they at least crossed the mind of Ukrainian lawyers and activists. I’d very much welcome further discussion from those who know more than I do about whether, in addition to potentially violating U.S. law, Trump’s Ukraine gang may have violated Ukrainian law as well. Even if it’s unthinkable that a Ukrainian prosecutor would actually bring a case against Mr. Giuliani or any other of Mr. Trump’s agents, perhaps it might be worth at least raising in the public discussion the extent to which Mr. Trump’s associates have been showing contempt not only for American law, but for Ukrainian law as well.