It is no surprise House and Senate Republicans are finding it difficult to defend President Trump’s mixing political business with official business in his dealings with Ukraine. From the day they are elected, members are warned to keep the two separate lest they run afoul of the federal bribery law. Nor should it be a surprise that President Trump would mix the two, for by his own admission, as a New York City real estate developer he frequently did.
House and Senate Ethics Committee Manuals both tell members “the federal bribery statute makes it a crime for a public official . . . to ask for . . . gifts, money, or other things of value in connection with the performance of official duties.” The “connection” between the request and the duty performed need not be an explicit quid pro quo — contrary to what some Trump defenders say. Were that the standard, as Justice Kennedy explained in a landmark case, an official could easily escape sanction by resort to “knowing winks and nods.”
In advising on what could be construed as illegal wink or nod, the Senate ethics manual reminds Senators how application of that standard led to New Jersey Senator Harrison Williams’ 1982 bribery conviction. The Williams’ case also refutes another claim some offer in defense of Trump’s Ukraine dealings, that the requests he made to Zelensky in the now infamous call were not “something of value,” and thus neither a bribe nor a campaign donation. Williams tried that argument on appeal, contending that his conviction should be reversed because what he had received for helping a company win federal contracts, stock in a fictitious company the FBI had established as part of a sting operation, had no value on the open market. But the court ruled value is tested not by a thing’s market value but by whether the “officeholder agrees to misuse his office in the expectation of gain.” Trump presumably expected some benefit from asking Zelensky during the call to investigate Biden and to help discredit Mueller’s report. Otherwise why did he ask?
As the House and Senate ethics manuals both explain, the essence of bribery is intent. An example both present is helping a constituent, assisting someone get something they need from the federal bureaucracy – a permit, an overdue tax refund, or other service or benefit. Is the member’s motive solely to see the individual is treated properly? Or is the member motivated, in whole or even part, by a desire for something in return? When the desire is a campaign contribution or other re-election assistance, the member must be particularly careful. For the Supreme Court has held an officeholder intends to accept a bribe if he or she knows a political contribution “was made in return for official acts” (Evans v. United States).
Intent is inferred from the circumstances surrounding the official act and the contribution’s acceptance. To avoid the chance criminal intent might be found when a member receives or asks for a contribution from someone the member has helped, the Congressional ethics manuals both instruct members to go to great lengths to ensure the circumstances surrounding each are benign. Both endorse the “Douglas rule,” after Illinois Senator Paul Douglas, the first elected official to pay serious attention to the ethics of campaign fundraising. In his 1954 book Ethics in Government, he urged officeholders to allow a “decent interval” to pass between the help provided an individual and a request for a campaign contribution and that the request come from campaign staff not the member. Both manuals quote verbatim Douglas’ caution that “not the slightest pressure should be put upon the recipients of the favors in regard to the campaign.”
Until he ran for President, Trump’s main political experience was as a campaign donor, mostly to candidates for state and local offices in New York. To judge by media reports and the record of bribery convictions in New York, many candidates pay little heed to the Douglas rule and other strictures on mixing official business with political fundraising. Trump himself must not have heard of such rules; or if he has, he must think they do not apply in New York, for he often stresses how he used the influence his contributions bought to further his business needs. More than once, he has bragged that he has never given without expecting something in return.
The only hard and fast rule it seems many New York politicians observe is “avoid express quid pro quos.” The belief that one need only follow that rule to avoid a bribery charge would explain why Trump thinks his phone call with Zelensky was “perfect.” As he has said (and Tweeted) over and over, there was no explicit quid pro quo. He never clearly and unambiguously told Zelensky that Ukraine must investigate Biden and help discredit Mueller if it wants the arms released and a White House meeting.
When talking about the political contributions he has made, Trump sometimes makes it sound as though they were accompanied by knowing winks and nods. What Justice Kennedy says is enough to infer a bribe was offered and accepted, and why the Congressional ethics committees tell legislators to take care to avoid a wink, a nod, or anything else that could suggest a campaign donation or personal “favor” is linked to an official act.
Whether Trump’s dealings with Ukraine amount to bribery is of paramount importance. Along with treason, bribery is the only crime the Constitution identifies as an impeachable offense. The question for House and Senate Republicans is what standard they will apply in judging Trump’s Ukraine dealings. Will they turn to the rules Trump learned as a New York real estate developer? Or to those to which they and indeed all Americans are bound?