Assessing the Trump-Ukraine scandal

If what Trump is accused of doing is true, it is a kind of corrupt conduct that the criminal system is not equipped to handle. Labeling his behavior with criminal terms such as bribery and extortion not only misunderstands the statutory language, it gives Trump and his supporters ammunition with which to defend themselves, making impeachment—the proper constitutional remedy for presidential corruption—harder to achieve.


  Renato Mariotti @ Politico

Our jaws can drop no further, Renato. They've been on the floor for a couple of years already.

But the impulse to label this as a potential crime, as many respected former prosecutors and legal analysts have done, is flawed legally and even strategically. Even if true, this is not a case that would end up in a criminal proceeding even if Trump was no longer in office.

Why not, sir?

Even if Trump explicitly offered $250 million in military aid to Ukraine in exchange for an investigation of Biden’s son, that wouldn’t fit the federal bribery statute, which prohibits public officials for taking or soliciting bribes. In this case, Trump would be “bribing” the Ukrainians, who are not “public officials” for purposes of the statute.

Another law that needs to be revisited in the wake of a Trump presidency.

The argument would have to be that Trump is soliciting a bribe in exchange for granting foreign aid to the Ukraine, with the investigation of Biden’s son being the thing of value demanded in exchange for granting the aid. While the statute defines “anything of value” very broadly, it is odd to think of a foreign government launching an investigation as “payment” of a bribe. The investigation is itself an official governmental act and the result of the investigation is uncertain. What if the investigation turned up no wrongdoing by either Hunter Biden or his father? Would that still be a thing of value?

In fact, I seem to be hearing various comments about that being just the case.

The Constitution contemplates that the president will interact with foreign leaders and use his power to persuade them to do things that help the United States. What is abhorrent about the alleged conduct here is not that Trump is pushing a foreign government to do something, but rather that he might have used his presidential power to get a foreign government to help him win the next election.

I thought we were all already agreed on that point.

This is self-serving and corrupt, but it is difficult to think of this alleged activity as “extortion.” It is true that there are multiple federal statutes that make extortion a crime, but extortion is defined as “the extraction of anything of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any person.”

Leave it to a lawyer to pick down to the technicalities.

I have trouble believing that a federal judge would permit an indictment to move forward against a president for “extorting” a foreign government through his official duties as president.

This is not to say there aren’t crimes on the books that better match what Trump is alleged to have done. For instance, it is a campaign finance crime to knowingly and willfully solicit a campaign contribution from a foreign national.

Let's go with campaign finance crime, then. What can be done about that?

The bribery of a foreign official like the Ukrainian president can also be a criminal violation of the Foreign Corrupt Practices Act.

OK. I'll take that one, too. What can be done?

[B]oth of these statutes contain at least some of the problems presented by the bribery and extortion statutes. Courts won’t send presidents to prison for cajoling foreign governments to do things, even if that involves horse trading an official act by our government in exchange for an official act by someone else’s.

Especially not courts that have been packed by said president.

What Trump is alleged to have done is not a garden variety crime; it’s worse. It involved misusing $250 million in aid appropriated by Congress for his benefit—the kind of gross misconduct that easily clears the bar of high crimes and misdemeanors set by the Constitution when impeaching a president.

Now we're getting to it. Are you listening, Nancy Pelosi?

Which means the best way to hold Trump accountable for that misconduct isn’t a criminal trial; it’s for Congress to impeach him.

Pursuing criminal cases that won’t stand legal scrutiny, or arguing that Trump has violated a criminal statute, risks undermining that goal.

First, it gives the false impression that this is something the criminal justice system can deal with. But the criminal system is not built to handle misconduct by a president who is acting corruptly through the use of his immense constitutional powers in this manner.

Second, it suggests that if critics can point out that it is not really bribery or extortion, then it is not a huge problem, which is not true. This is already happening, as allies of the president assert that there was no explicit quid pro quo.

Add it to the list.

And he invited a foreign nation to influence the 2020 election on the heels of a nearly three-year investigation that proved Russia had tried to influence the last presidential election.

No one should expect law enforcement to act if our elected representatives are unwilling to do so.

Impeach the motherfucker.