Thanks to the Trump impeachment imbroglio, Americans are brushing up on Latin. Or at least on the Latin phrase quid pro quo. Though Trump’s partisans and opponents are at each other’s throats about virtually everything, a consensus has emerged that if his dealings with Ukraine involved a quid pro quo, he is in trouble. The reason: the U.S. Supreme Court has repeatedly held (examples here and here) that the touchstone of the American federal crime of bribery is the presence of a quid pro quo. If the impeachment investigation were to uncover one in his Ukraine dealings, Trump would be guilty of bribery, one of three crimes, along with treason and high crimes and misdemeanors, for which he can be removed from office under Article II of the U.S. Constitution.
Quid pro quo means “this for that,” the archetypal example being someone who provides “this money” for “that action” by a public official. But the translation misleads by its simplicity, glossing over critical questions which Congress will have to answer in deciding whether Trump should be removed from office for his actions involving Ukraine:
Must the “this for that” be in the form of an explicit agreement? Must, that is, there be a meeting of the minds between the two?
Or is a promise enough? That the payer or the recipient merely asked for something – a payment, the performance of an official act — from the other.
Must the terms of the agreement or promise be express? Stated clearly, leaving nor room for doubt. Explicit? Put into words whether written or not.
The Supreme Court, the lower courts, and academic commentators have wrestled with these questions for decades, and while not bound by their answers in an impeachment proceeding, Congress should surely pay heed to them. The federal judiciary arrived at them not during a white-hot partisan debate, with one eye on the effect of one’s chances for reelection. Instead, the answers were reached after deliberate, studied attention to the facts, to answers reached in previous cases, and to the consequences the answers would have on public servants’ future conduct.
Members of the House and Senate are not the only ones that would profit from a study of the American law of quid pro quo. Prosecutors, judges, and legislators in other nations would as well, for the quid pro quo requirement is part of all nations’ antibribery statutes (expressly stated in article VIII of the InterAmerican Convention Against Corruption and article IV of African Union Convention on Preventing and Combatting Corruption and following directly from the texts of the United Nations Convention Against Corruption (article 15), the Council of Europe Criminal Law Convention on Corruption (article 2) and the OECD Antibribery Convention (article 1)). The United States is not the only nation with a bribery jurisprudence (here and here), but thanks to its size, aggressive law enforcement, and quality of its judiciary, its case law applying the quid pro quo standard is surely richer than most if not all.
A primer on it is below.
Why quid pro quo
One question is why bribery should require a quid pro quo at all. Shouldn’t it be enough, as a recent commentator argues, if an officeholder “gets money, vacations, Rolexes, other gifts and fancy things . . . and then does things that benefit that person”? Doesn’t imposing a quid pro quo requirement, he complains, legalize corruption?
What the writer and others questioning the quid pro quo requirement (here) overlook is what the late judge and law professor John Noonan calls in Bribes, his definitive account of the moral and legal basis for outlawing bribery, the reciprocity issue. The closeness in time between two otherwise unrelated acts. The starkest example is a gift to a public servant. Without the quid pro quo proviso– the requirement that is received be in return for a specific act — anything the official later did that benefited a gift giver would immediately turn the both into criminals.
Distinguishing gifts from bribes is especially challenging where, as in the United States, candidates for public office depend upon contributions from individuals to mount a campaign. Donors give money and officeholders take decisions; they vote on legislation, issue regulations, decide who wins a public contract. Without the quid pro quo requirement the entirely lawful act of donating to a political candidate would, if later the recipient did anything that benefited the contributor, again make both guilty of bribery.
A promise is enough
Contrary to what some Trump supporters say, the courts have ruled that a quid pro quo does not require that the one paying a bribe and the one receiving agree to swap “this” for “that.” In a tightly reasoned exposition of federal bribery law sparked by a particularly complex bribery prosecution before him, Federal District Court Judge Myron Thompson explained why (Thompson analysis). Although an agreement “is the paradigmatic example of a corrupt quid pro quo,” it is not the only form an unlawful “this for that” takes. For such an interpretation would lead to an absurd result. “An extortionate politician,” he writes, would “go free merely because the victim refuses the corrupt bargain.”
Judge Thompson expands on the point in a series of hypothetical cases:
Quid Pro Quo Agreement: Mayor Doe tells businesswoman Jones that he will award her company a contract if she donates $ 5,000 to his campaign. Jones responds by affirming that she will send a check for $ 5,000 to Doe’s campaign the next day.
Quid Pro Quo Promise: Businesswoman Jones tells Mayor Doe that she will donate $ 5,000 to Doe’s campaign if he awards her company a contract.
Quid Pro Quo Solicitation: Mayor Doe tells businesswoman Jones that he will award her company a contract if she donates $ 5,000 to his campaign.
Under American law, a crime been committed in all three cases. In the first, both Doe and Jones are guilty of bribery. In the second, Jones has committed the crime of offering a bribe and in the third Jones has actually committed two: the solicitation of a bribe, and extortion (in common parlance a “shakedown”), attempting obtain something from another under color of official right.
(Note to Trump defenders: under federal bribery law, Ukraine’s failure to investigate the Bidens is thus irrelevant. It is enough if, in his dealings with Ukraine, Trump intended to condition the weapons’ delivery or a White House meeting with Ukrainian President Zelensky on the opening of an investigation.)
The promise or agreement must be explicit but need not be express
The requirement that the quid pro quo be explicit is grounded again in the need to differentiate between campaign contributions and bribes. Otherwise, as Professor Altusher explains in a leading article on federal bribery law, a contribution given with a “generalized hope or expectation of ultimate benefit on the part of the donor” would be illegal. A campaign contribution is only criminal, as the Supreme Court held in a case finding what defendant claimed were contributions were actually bribes, when “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”
In a bribe solicitation case, that would mean the officeholder said more to a donor when asking for a contribution or other “favor” than that he or she would support policies the donor favors if the donor made a contribution. That “more”: the officeholder would take specified, identifiable actions in return. In Trump’s case, this would mean Trump would release the arms shipment or agree to a White House meeting if Ukrainian President Zelensky investigated the Bidens.
But although the quid pro quo must be explicit,” it need not be expressly stated in words. If that were the case, as Justice Kennedy writes in an oft cited concurring opinion, the antibribery law could easily be evaded “by knowing winks and nods.” Hence, the law allows a quid pro quo to be “implied from [an official’s] words and actions.” The official is guilty of soliciting a bribe so long as he or she “intends” to request a “that.” Justice Kennedy continues:
“The criminal law, in the usual course, concerns itself with motives and consequences, not formalities. And the trier of fact is quite capable of deciding the intent with which words were spoken or actions taken as well as the reasonable construction given to them by the official and the payor.”
Were the Trump-Ukraine case to be tried in a federal court, a jury could therefore find Trump guilty if it inferred the existence of a quid pro quo from the surrounding circumstances. As Noonan wrote in Bribes, these could include in the Trump case whether his request exploited a Ukrainian need or weakness; whether Trump was seeking to manipulate events, and whether he took steps to keep the request secret (pp. 690 – 97).
No matter the outcome of the proceedings, the Trump impeachment affair has already done great harm to America, driving its citizens further apart and thus making the realization of the Founders’ dream — captured in another Latin phrase, e pluribus unum, from many one – that much harder to achieve. The only consolation may be that this great harm is offset to at least some degree by what it teaches the citizens of all nations about the crime of bribery.