For weeks President Trump’s defenders have claimed he did not demand Ukraine investigate the Bidens in return for approving the delivery of weapons to Ukraine. In legal terms, the argument was that there was no exchange of one for the other, no quid pro quo, the cornerstone of the crime of bribery. That defense has now collapsed (here and here). The evidence that Trump sought a “quo,” a personal favor in the form of an investigation of the Bidens, in return for a “quid,” weapons, is overwhelming (here). His defenders have thus now fallen back to a secondary defensive line: there was a quid pro quo but it was merely an “inappropriate” one. It was not, defenders insist, an impeachable quid pro quo.
Whether this new defense will carry the day remains to be seen. No American president has ever faced impeachment for soliciting a bribe. There is thus no standard jurors in a Trump impeachment trial, the 100 members of the United States Senate, can consult in deciding whether Trump’s attempt to use the power of the presidency to obtain a personal benefit is impeachable. But as Senators construct a standard, they might consider the one a 12-person jury of lay people in a criminal trial must use when a public servant is accused of soliciting a bribe.
That standard is found in section 201 of title 18 of the United States Code, the general federal antibribery statute. It provides that for a quid pro quo to constitute the crime of bribery it must be done “corruptly.” This “fudgy adverb,” as Albert Alschuler calls it in a seminal exposition of bribery law, has lent itself to several interpretations. The most thoughtful one is that authored by the intellectually renowned (conservative) federal jurist Alex Kozinski. A quid pro quo is done corruptly, Kozinski wrote, if its imposition is “an improper way for a public official to benefit from his job.”
Kozinski recognized that “what’s improper turns on many different factors, such as tradition, context and current attitudes about legitimate rewards for particular officeholders.” Last week, in an exchange during the hearing on his nomination to be Ambassador to Russia, Senators queried Deputy Secretary of State John Sullivan on whether it was “ever appropriate for the president to use his office to solicit investigations into his domestic political opponents,” he replied: “I don’t think that would be in accord with our values.” Not one Senator attending the hearing dissented.
If the House of Representatives impeaches Trump, it will be up to the Senate to decide whether Trump’s request of political dirt on Biden in return for the weapons shipment was done “corruptly.” Whether, in Judge Kozinski’s formulation, American traditions, the context of the request, and current attitudes about legitimate rewards for particular officeholders countenance a president conditioning the delivery of defensive weapons to a friendly government to ward off an aggressor on it helping him win reelection. If Senators decide that “corruptly” is not fudgy enough to cover that sort of conduct, Americans can only fear what else is not covered.