In Pressuring Ukraine To Open Criminal Investigations, Trump’s Associates May Have Committed Many Crimes. But Violating the Foreign Corrupt Practices Act Probably Wasn’t One of Them.

Right now, the biggest corruption story in the U.S., and probably the world, concerns efforts by President Trump and his associates, both inside and outside the U.S. government, threaten to withhold U.S. military aid from Ukraine in order to pressure the Ukrainian government into opening investigations that would help Trump politically. It’s clear at this point, except perhaps to the most rabid partisans, that there was indeed a “quid pro quo,” and the discussion has now turned to the question whether, with respect to President Trump specifically, he should be impeached for his conduct related to this episode (the issue that Rick focused on in yesterday’s post), and, with respect to whether Trump, his private lawyer Rudy Giuliani, or anyone else committed any crimes.

On that second question, commentators have suggested a whole range of criminal laws that some or all of the parties involved might have broken, including:

  • The section of the campaign finance laws that prohibits the “solicit[ation” from a foreign national of a “contribution or donation” to an election campaign of any “thing of value”;
  • The federal anti-bribery statute’s prohibition on any federal public official “directly or indirectly, corruptly demand[ing or] seek[ing] … anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act”;
  • The anti-extortion provision of the Hobbs Act, which prohibits “the obtaining of property for another … under color of official right” (as well as the attempt or conspiracy to do so);
  • The wire fraud statute, which prohibits the devising of any “scheme or artifice to defraud” that involves use of any interstate (or international) wire communication (such as a phone call), where the term “scheme or artifice to defraud” is specifically defined elsewhere in the statute as including a scheme “to deprive another of the intangible right of honest services.” (This may seem a bit opaque to readers unfamiliar with this corner of U.S. law, but in a nutshell, so-called “honest services fraud” is a theory that when a public official, or some other person in a position of trust, engages in a corrupt scheme to, say, solicit bribes, that individual defrauds her principals by depriving them of her honest services. For an explanation of how this could apply to Trump in the Ukraine case, see here.)
  • In the case of Mr. Giuliani and other parties who do not work for the U.S. government, the Logan Act, which prohibits private citizens from corresponding with any foreign government or foreign government 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.”
  • Various provisions of Ukrainian law.

In addition to all of these possibilities, which strike me as at least facially plausible given the evidence that has come to light so far, some commentators have suggested that President Trump’s associates, such as Mr. Giuliani, may have violated the Foreign Corrupt Practices Act (FCPA) (see here and here). This argument hasn’t gotten much traction, in my view for good reason. Even for someone like me, who generally has a more expansive view of the FCPA than do some other commentators, it’s hard to see how the evidence we have so far would suggest a plausible FCPA violation. There are two main reasons for this:

  • First, the FCPA does not prohibit all bribes of foreign officials—it only covers those bribes that are for the purpose of “obtaining or retaining business for or with, or directing business to, any person.” This “obtain or retain business” prong of the FCPA has generally been interpreted sufficiently broadly to include things like bribes to lower taxes or customs duties, on the logic that these benefits give the firm that receives them a competitive advantage, and so are (indirectly) for the purpose of obtaining business. But this prong still has meaning, and limits the scope of what the FCPA covers to bribes that are intended to secure some sort of commercial/economic advantage. The allegations in the Trump-Ukraine affair are that President Trump and his associates offered to release military aid (and to invite Ukrainian President Zelensky to the White House) if Ukraine opened certain criminal investigations that would benefit Trump politically. Even if we stipulate that this was a corrupt offer of a thing of value to a foreign government official (which I think it clearly was), it’s hard to see how the purpose of this bribe is to “obtain or retain business.” The purpose, rather, is to damage a political rival. But that seems beyond the scope of what the FCPA covers.
  • Second, the agencies responsible for enforcing the FCPA (the Department of Justice and the SEC) have clearly stated that, in their view, offering something of value to a foreign government, rather than to a foreign official, is not a violation of the FCPA. In other words, if a firm says to the mayor of a foreign city, “I’ll give you ten thousand dollars if you approve my permit application,” this violates the FCPA, but if the firm instead says to the mayor, “I’ll give your city ten thousand dollars (or ten thousand dollars’ worth of goods or services) if you approve my permit,” this is not a violation of the FCPA. The underlying idea seems to be that the FCPA is about preventing bribes that induce foreign officials to fail to act as faithful agents of the governments they are supposed to serve. Now, I’m not entirely convinced that this is necessarily correct. I’ve previously suggested (though I admit I have not adequately developed or defended) the idea that under some circumstances a party who tries to corruptly influence a foreign official by promising to confer a benefit on that official’s country could violate the FCPA in the same way that one can violate the FCPA by trying to influence a foreign official by corruptly promising to confer a benefit on that official’s favorite charity. But I acknowledge that this would be a novel and aggressive interpretation of the statute, and even on this view it might not extend to the Ukraine situation, where the offer in question is mainly an offer to government officials in their official capacity.

I understand the impulse, in a case like this, to throw everything against the wall and see what sticks, but for the reasons sketched above, I don’t think the FCPA allegation is likely to prove terribly sticky. But, again, there are plenty of other crimes that likely were committed here, and impeachment does not necessarily require a violation of the criminal law, so ultimately this is a minor issue, and probably a bit of a distraction.

2 thoughts on “In Pressuring Ukraine To Open Criminal Investigations, Trump’s Associates May Have Committed Many Crimes. But Violating the Foreign Corrupt Practices Act Probably Wasn’t One of Them.

  1. Thank you for the post. I am curious if there would be any particular appeal of arguing for a FCPA violation. Is there any reason why those seeking to build a case against President Trump might prefer to argue for this sort of violation, as opposed to one of the other possibilities that you had mentioned? Perhaps it is truly a non-issue, but I was wondering if violations of this law would carry especially harsh punishments (if brought in a criminal trial) or perhaps are seen to carry greater political weight.

    • Good question. I’m not really sure–I suspect that in a case like this, people are understandably exploring every different angle. I don’t think it’s because FCPA violations are generally easier to prove and/or have harsher penalties than other criminal statutes that Giuliani & co. might have violated. And it’s understandable to me that many might have the initial instinct that there could be an FCPA violation here–after all, you have a U.S. national offering something of value to a foreign government official as part of what looks like a corrupt quid pro quo. But on closer inspection, as I say in the post, I don’t think the FCPA quite fits the (mis)conduct alleged here.

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