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How (and how not) to think about impeachment

How (and how not) to think about impeachment
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As we move from the investigation phase into actual consideration of impeachment, it’s important to understand the applicable legal standards. While the Constitution refers to “Treason, Bribery, and other high crimes and misdemeanors,” impeachment doesn’t require actually violating criminal statutes. “High crimes and misdemeanors” was a term of art borrowed by the Founders from English impeachment law, and can refer to any significant breach of public trust or abuse of authority.

But those statutes are still relevant. The closer President TrumpDonald John TrumpUSAID administrator tests positive for COVID-19 Kamala Harris, Stacey Abrams among nominees for Time magazine's 2020 Person of the Year DOJ appeals ruling preventing it from replacing Trump in E. Jean Carroll defamation lawsuit MORE’s acts come to violating a statute, the stronger the case for impeachment, and vice versa. While DOJ policy  prevents indicting a sitting president, the officials who helped Trump deal with Ukraine could be on the hook for those offenses, too, either directly or as co-conspirators. And  many advocate for prosecuting Trump after he leaves office

Soliciting Foreign Campaign Help

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House Democrats allege that Trump oversaw a secret campaign among U.S. officials that used U.S. military aid to Ukraine, and a sought-after Oval Office meeting with Trump, as leverage to pressure Ukraine to launch investigations into both (a) Joe BidenJoe BidenHarris says she has 'not yet' spoken to Pence Kamala Harris, Stacey Abrams among nominees for Time magazine's 2020 Person of the Year Obama: Republican Party members believe 'white males are victims' MORE and also (b) a separate conspiracy theory, involving a U.S. company called “Crowdstrike,” that it was Ukraine and not Russia that had interfered in the 2016 presidential election. While some facts are contested, there doesn’t seem to be much dispute, given the official "read-out" of the (in)famous July 25, 2019, phone call, that Trump did indeed ask the Ukrainian president to investigate the Bidens and the Crowdstrike theory. 

Even without a direct tie to military aid or a White House meeting, merely asking President Zelensky could by itself constitute a federal crime. Federal law bars receiving, accepting or soliciting (explicitly or implicitly) from a foreign national any money donation or any other “thing of value” if “in connection with” a U.S. election. 

Biden was at the time the Democratic front-runner, and the Crowdstrike theory would undercut much of the Democrats’ Mueller Report-fueled criticism that President Trump knew about and welcomed the 2016 Russian interference while lying about it publicly.  Thus, these investigations could be seen as being “in connection with” a U.S. election.

But are the two investigations a “thing of value”? Maybe, if they’re what political operatives call “opposition research.” The Federal Election Commission has said that opposition research can be a “thing of value.” Courts have given a broad reading to “thing of value” as it appears in the analogous bribery and extortion statutes. There, “thing of value” includes intangible as well as tangible things. If the official subjectively considers it to be of significant personal value, then it’s a “thing of value.”

So, if either investigation is opposition research that Trump placed a high subjective personal value on, there’s a pretty strong case he illegally solicited foreign campaign assistance. If not, then not only is President Trump off the hook on this charge, but also for bribery and extortion as well.

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Bribery and Extortion

Bribery and extortion are related and simple concepts. Generally, if a citizen pays an official money to perform an official act, both are guilty of bribery. If the official threatens or bullies the citizen by saying, “Pay me money if you want me to do right by you,” the official commits extortion, and the citizen is the extortion victim.           

The relevant extortion statute is the Hobbs Act, which is  “obtaining of property from another…under color of official right.” The sticking point, though, is the use of “property,” which seems narrower than “thing of value.” The Supreme Court has interpreted the term narrowly to apply to something that is “transferable,” as in “capable of passing from one to another.” While this could conceivably include something as intangible as “goodwill and customer revenue” extorted by threats from a competitor, it seems a stretch to apply that definition here.

Bribery, which uses the phrase “thing of value,” seems likelier. The federal statute says bribery occurs when a government official, acting “corruptly,” “seeks” or “agrees to receive … anything of value personally… in return for being influenced in the performance of any official act.” Bribery requires the much-discussed “quid pro quo” — a tit-for-tat understanding that the official will perform the official act in exchange for the valuable item(s).   

Providing the military aid, or even granting an Oval Office visit, would be “official acts” here. And merely “seeking” to receive the valuable item, or “agreeing” to receive the item, suffices. Thus, if Trump at any point tried to exchange the military aid or Oval Office visit for one of the investigations, that’s bribery, even if they never completed the corrupt deal, and even if the military aid ultimately got sent. And while some have asked if Trump acted “corruptly,” most courts interpret this to mean just a specific intent to influence an official act.

So, prove Trump knew about a quid pro quo, and you’ve proven corrupt intent. (Indeed, there was no official bribery statute at the time of the founding, and the Founders' understanding of bribery, based on English common law, was actually broader than this statute, encompassing any abuse of public office for private gain.)

But even without the quid pro quo, there might be guilt for soliciting “an illegal gratuity.”  Under the separate receipt of illegal gratuity provision, the “thing of value” the official seeks to receive needn’t be “in return for” the official act (quid pro quo), but rather just  “for or because of” the performance of an official act. For an illegal gratuity, the payment can be given after the official act as a “tip” or beforehand just to generally curry favor.

Further, there’s no special requirement of “corrupt” intent: Acting knowingly suffices. Thus, proof that Trump was sending the message that Ukraine should announce investigations to get on his good side, even if there wasn’t an explicit quid pro quo promise, could be enough under this statute.

While there are open legal questions, a few things are clear. It’s no defense that the investigations never happened, or that the aid was ultimately released. Merely asking for a thing of value is enough, especially if it’s being asked for in connection with an official act. These are not “thought crimes,” but in the nature of attempt-like crimes where an intent and an act towards completion have occurred. But the legal jeopardy depends on finding that the investigations could be a “thing of value” under the law.  

And none of this controls impeachment jeopardy (let alone political jeopardy in 2020), which is even more open to debate. 

Steven Mulroy is the Bredesen Professor of Law at the University of Memphis, where he teaches constitutional law and criminal law and procedure, and a former federal prosecutor.