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: Continue reading

In Their Push for Investigations, Did Trump’s Associates Break Ukrainian Law?

The U.S. political news for the last month has been dominated by the explosive and fast-developing scandal involving reports that President Trump and his associates—including not only U.S. government officials but also Trump’s personal lawyer Rudy Giuliani and other private citizens—have been engaged in an ongoing behind-the-scenes campaign to pressure the Ukrainian government to pursue criminal investigations that would benefit President Trump politically. In particular, President Trump, Mr. Giuliani, and others pushed Ukraine to investigate supposed wrongdoing by Vice President Joe Biden and his son Hunter, as well as alleged Ukraine-based interference in the 2016 election on behalf of Democrats. (There is no credible evidence to support either allegation, and experts in President Trump’s administration repeatedly warned him against these unfounded conspiracy theories, to no avail.) The pressure brought to bear by President Trump and his associates on Ukrainian officials appears to have included not only general statements of interest in these allegations—allegations that the Ukrainian authorities viewed as baseless—but also included implicit or explicit threats that failure to comply would lead to various forms of retaliation, both symbolic (the refusal to invite newly-elected President Zelensky to the White House) and tangible (the withholding of desperately needed military aid).

While the main ramifications of this scandal are political rather than strictly legal, the U.S. media extensively discussed whether President Trump and his associates may have violated any U.S. laws, and commentators have suggested a number of potential legal violations. For example, asking a foreign entity for dirt on a domestic political rival might violate the provision of U.S. campaign finance law that makes it illegal to “solicit … a contribution or donation [to an election campaign] … from a foreign national,” where “contribution or donation” includes not only money but any other “thing of value.” President Trump and his associates may also have violated domestic anti-corruption law (the federal anti-bribery statute and/or the anti-extortion provision of the Hobbs Act) in conditioning the performance of an official act (such as the transfer of military aid) on the receipt of something of value from Ukrainian government officials (investigations into political rivals). Private citizens like Mr. Giuliani may have violated the Logan Act, which makes it illegal for private citizens, without the authority of the United States, to correspond with any foreign government or foreign 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.” And of course, the attempts to conceal all of these interactions may have amounted to obstruction of justice.

The focus in the U.S. media on whether President Trump and his associates may have violated U.S. law is entirely understandable, but seems incomplete. Strangely absent from the conversation is any mention, let alone sustained exploration, of the question whether any of President Trump’s associates may have violated Ukrainian law. At least this seems strange to me. Imagine that the situation were reversed. Suppose, for example, that a Chinese businessman, nominally a private citizen but known to have close ties to President Xi, approached the U.S. Attorney General and said something like, “We know your administration is anxious to cut a trade deal and would also like China’s assistance in addressing the North Korea situation. I’m sure President Xi could be persuaded to help you out. But you should help China out too. There’s a dissident, now an American citizen, who’s been writing a lot of damaging lies about President Xi, and he’s gaining a following in China and stirring unrest. Why don’t you publicly announce that the U.S. government is investigating him for running a ring of child prostitutes? That would really help us out.” If a story like this came out, I’m quite sure the U.S. media would be abuzz with discussions about which U.S. laws this businessman might have broken, and whether he might be prosecuted in U.S. courts if U.S. authorities managed to arrest him. But in the Ukraine case, we may have something similar—a private citizen (Giuliani) with close ties to a foreign political leader (Trump) apparently told senior political and law enforcement officials (the Ukrainian President and Prosecutor General) to pursue a bogus criminal investigation in exchange for that foreign government’s cooperation on important issues—and nobody seems to be even raising the possibility that this might violate Ukrainian law.

By the way, when I say nobody is talking about this, that apparently includes Ukrainian media and civil society. I don’t read Ukrainian and I’m by no means a Ukraine expert, but I have some friends and other contacts there, and they tell me that while the story is big news in their country, there hasn’t been any discussion about whether Trump’s associates may have violated Ukrainian law. That gives me pause, and makes me think that perhaps I’m totally off base in thinking there’s even an interesting question here. Nonetheless, at the risk of looking foolish (something that’s happened plenty of times before, I admit), I want to use this post to float this topic and see what others think. Continue reading