Impeachment: Bribery

Any public corruption prosecutor familiar with the federal bribery statute and self-dealing cases will recognize that firsthand witnesses, such as Energy Secretary Rick Perry, Ambassador to the EU Gordon Sondland, Mulvaney, and Trump himself, have now offered evidence to all the elements of the offense. The bribery law—18 U.S.C. § 201(b)—is easy to understand. The elements, as they pertain here, are as follows:

Whoever, being a public official … corruptly directly or indirectly demands or seeks … anything of value for himself or some other person in return for being influenced in the performance of any official act …

has committed the felony. I believe the federal bribery crime, a felony punishable by up to 15 years in prison, also gets at the heart of the self-dealing issue more effectively than some alternative theories of criminal behavior, such as “honest services fraud” (which has some complex legal issues associated with it) or foreign campaign finance violations (which tend to involve monetary help apparently lacking here).

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Parnas and Fruman have already been indicted for the campaign finance violations allegedly committed in a bribery scheme (described in the indictment) to gain the dismissal of U.S. Ambassador to Ukraine Marie Yovanovitch, with the aid of then-Rep. Pete Sessions (who is cooperating with investigators).

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In late April, encouraged by Giuliani, Trump reportedly overrode State Department resistance and ordered the dismissal of Ambassador Yovanovitch.

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[Secretary of Energy Rick] Perry has publicly summarized the guidance he received from Giuliani in an interview with the Wall Street Journal. According to Perry, Trump and Giuliani in following weeks again and again reiterated several specific demands, of which information regarding the Bidens was only one. The demands were to be made under the guise of forcing Ukraine to undertake an “anti-corruption” effort. As Trump, Perry and Mulvaney directly attest, the actual demands were to find “evidence” for a Democratic-Ukrainian conspiracy in the election of 2016.

Specifically, they included demands:

To seek “evidence” that in 2016 Ukraine, not Russia, was behind the criminal cyberattacks against the Clinton campaign.
To seek “evidence” that in 2016 Ukrainians, perhaps with help from Clinton operatives, fabricated or corruptly released the “black ledger” of evidence about the relationship of the former, pro-Russia, Ukrainian regime to Trump campaign chairman Paul Manafort (which contributed to Manafort’s resignation that year and his later felony convictions).
To seek “evidence”that in 2016 Ukrainians had acted corruptly to help create the so-called “Steele dossier” of investigative speculation about the Trump-Russia relationships.
To seek “evidence” that in 2016 Vice President Biden had been acting to protect the interests of a Ukrainian firm, Burisma, and his son Hunter (then on a Burisma board of advisers) when he joined in the international effort to pressure then-Ukrainian President Petro Poroshenko to replace his prosecutor-general, Viktor Shokin.

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Federal bribery law does not require that the value be in money. As the Department of Justice Criminal Resource Manual points out, such things include “intangible as well as tangible things” and “have been broadly construed to focus on the worth attached to the bribe by the defendant, rather than its commercial value.”

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[A]ny prosecutor familiar with the federal bribery statute, and any lawyer familiar with self-dealing cases, will recognize all the elements of the offense. Under the law, the quid pro quo need not be explicit, and need only be intended, although in this case there was actually direct bargaining about how Ukraine must meet the demands as a condition of the various U.S. official acts to maintain good relations and aid. Even before Mulvaney’s public admission, the nature of the quid pro quo seems to have been unusually clear.

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There is no reliable evidence that the allegations about Ukrainian-Democratic collusion in 2016 are true. But Trump, Giuliani and Mulvaney can argue that, even if their 2016 conspiracy theories are false, they sincerely believed in them and thus did not act “corruptly.”

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Even if Trump and Giuliani sincerely believe that Trump was wronged in the 2016 election or that his opponents are criminals, this does not make their 2019 desire for vindication, revenge or political advantage into a public, rather than private, interest. If they think Americans have committed crimes, they could have brought those allegations to the public institutions that investigate such allegations, which must follow certain rules—including in an international investigation. Trump and Giuliani did not do that. What they therefore must prove, against the prima facie evidence of bad, private intent, is that they really believed—even falsely—that working on these 2016 allegations would help clean up Ukrainian politics in 2019.

There are four big problems with this defensive cover story.

First, Trump ran the bargaining with Ukraine through his private lawyer, Giuliani, not through public channels.

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As a private citizen, Giuliani was unconstrained by ethics rules, conflict of interest rules or any other restrictions set in place to make sure that public work is done in the public interest. Since individuals like Parnas had, in fact, retained Giuliani too (paying him half a million dollars just last August, according to Giuliani), such concerns were hardly theoretical.

It is revealing that, when Trump escalated the pressure in July to withhold aid—something Giuliani could not do for him—Trump managed this through Mulvaney, as news reports have shown. He thus chose to bypass the national security adviser, John Bolton, and the National Security Council process. Again, this is evidence that the motives were essentially personal and not the design of a foreign policy move to help Ukraine.

Second, the Trump and Giuliani demands had nothing to do with the long-standing anti-corruption agenda with Ukraine. That agenda was well-known.

It is revealing that at no time did the Trump administration make any diplomatic effort to persuade others across the administration or in the IMF or the EU that its 2016 theories should be made part of the Ukraine anti-corruption policy agenda. It is also revealing that the government professionals actually working on anti-corruption efforts with Ukraine did not believe that these demands were part of that agenda, once they learned of them.

Third, the Trump and Giuliani demands would have actually knocked down the existing Ukrainian anti-corruption efforts. One of the main targets of anti-corruption efforts were corrupt and unqualified prosecutors general who stymied investigations and blocked prosecutions, like Viktor Shokin. Yet Shokin is an indispensable ally in Giuliani’s work. Shokin appears to have provided an affidavit fingering Biden to lawyers for Ukrainian oligarch Dmytro Firtash, who himself may have been in business with Parnas and Fruman and is seeking to avoid extradition to face federal charges in the United States.

One of the sad ironies of the Biden tangle is that the Western pressure to dismiss Shokin, in which Vice President Biden joined, was not likely to help Burisma, as Trump has alleged. On the contrary, it was likely to threaten Burisma.

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Fourth, at the time it began using the “anti-corruption” cover story, the Trump administration had just officially certified that Ukrainian anti-corruption efforts were satisfactory. Congressional aid could not be released unless the Trump administration certified to Congress that Ukraine was making adequate progress on corruption, at least as it might affect military aid. On May 23, the administration made that certification. [...] In July, when Trump and Mulvaney decided to claim “anti-corruption” as a cover story to block the aid, they did not withdraw the certification to Congress.

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Another cover story, that the aid was held up because Europeans were not contributing enough to help Ukraine, will not hold up well either. Both IMF and European contributions exceed the American effort. Nor did the Trump administration approach the Europeans after withholding aid to demand that Europe do more as a condition to release the U.S. aid.

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I believe that if Perry had consulted a good lawyer beforehand, he might not have given the interview he gave to the Wall Street Journal, in which he may have unwittingly incriminated himself before he was ready to handle this. He conceded that he accepted private direction to represent these private demands in his share of the bargaining with Ukraine over official acts to welcome the new government.

  Lawfare Blog

And Perry is getting a bus ride beneath the wheels for it.

Sondland, by contrast, has clearly consulted a good lawyer, since his prepared statement took great care to emphasize that he, Sondland, was unaware of the specific demands that were actually being made underneath the “anti-corruption” cover story. Sondland says that he was troubled by Giuliani’s role and that, once he found out the nature of the asks, he was shocked and then distanced himself from the work.

Unfortunately for Mr. Sondland, Ambassador Taylor has contradicted him, and Taylor has contemporaneous notes.

Volker’s situation depends on the evidence about his conduct as a go-between. It could be at least partly exculpatory if he kept trying, even if unsuccessfully, to convert Trump and Giuliani’s unlawful private demands into requests that would be at least harmless and in the public interest.

Mulvaney does not appear to have consulted a lawyer before he publicly admitted to the quid pro quo in the strongest possible terms (“absolutely!”). Then, presumably having obtained legal advice, the White House issued the written statement that tried to walk back his admissions. This is not likely to help Mulvaney much with prosecutors or jurors.

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The evidence so far presents a prima facie case of self-dealing meeting the elements of 201(b) (and also the “Bribery” offense that the Constitution says “shall” cause impeachment). The Trump and Giuliani demands to force Ukraine to seek evidence on their 2016 conspiracy theories were essentially private, in the pursuit of a very personal agenda. They were not policy choices developed to clean up Ukrainian politics. They would, in fact, have the opposite effect. Any knowledgeable official would have told them that—and my guess is that the evidence will show that every knowledgeable official in fact did try to tell them that.

...but hey, do what you want...you will anyway.