Desperate to acquit Donald Trump of impeachment charges, Senate Republicans have seized on Harvard Law Professor Alan Dershowitz’ two part defense. That conviction requires Trump to have committed a crime and that it was no crime for Trump to condition aid to Ukraine and a meeting with its president on Ukraine investigating Trump political rival Joseph Biden. There is but one flaw in Dershowitz’ argument. It is flat wrong. Section 201 of title 18 of the United States Code makes it a crime for a public official to solicit a bribe. And that is exactly what Trump did.
An earlier post explained that the cornerstone of section 201 is the exchange of one thing for another, in Latin a quid pro quo. Not even Trump’s staunchest Senate defenders now deny that Trump sought a “quo,” an investigation of Biden, in return for a “quid,” aid and a meeting. The escape Dershowitz offers is that by itself a quid pro quo is not a crime.
“Let’s assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building settlements. Quid pro quo . . . but it would not constitute [the crime of] abuse of power.”
Dershowitz is correct — as far as he goes. A quid pro quo by itself does not violate section 201. Otherwise the Democratic president’s dictate Dershowitz conjured up would indeed be criminal.
What the professor neglects to say is that a quid pro quo is a crime when, as section 201 states, it is done “corruptly.” This “fudgy adverb,” as Albert Alschuler calls it in a seminal exposition of bribery law, has lent itself to several interpretations. Perhaps the most thoughtful is one advanced by the intellectually renowned (conservative) federal jurist Alex Kozinski. A quid pro quo is done corruptly, Kozinski has written, if its imposition is “an improper way for a public official to benefit from his job.”
“What’s improper turns on many different factors,” Kozinski wrote, “such as tradition, context and current attitudes about legitimate rewards for particular officeholders.” During the hearing on his nomination to be ambassador to Russia, then Deputy Secretary of State, and now Ambassador John Sullivan told Senators it would never be appropriate for the president to use his office to solicit investigations into his domestic political opponents. No Senator disagreed.
Whether, in Judge Kozinski’s formulation, a legitimate reward for being president is the power to condition aiding an ally ward off an aggressor on its government helping the president win reelection is the question now before the Senate. If it decides that “corruptly” is not fudgy enough to cover that sort of conduct, Americans can only fear what else is not covered.