Self-dealing: The core of the impeachment inquiry
Remember federal bribery laws when considering impeachment, writes Philip Zelikow in Lawfare
As the Ukraine story develops, the public focus has remained largely on wrongdoing by the president outside the realm of criminal law, focusing instead on President Trump’s apparent use of his office for personal gain. On one level, this makes sense: Impeachment is only about removal of the president from office, not about criminal prosecution and imprisonment. So the standards and processes for impeachment are different.
‘Bribery’ is one of the grounds for impeachment specifically enumerated in the Constitution.
But it would be a mistake to ignore the criminal law entirely. Evidence of criminal misconduct, specifically, the federal bribery statute, should influence political judgments about impeachment. After all, “Bribery” is one of the grounds for impeachment specifically enumerated in the Constitution.
Before getting involved in foreign policy work, most of my professional work was in criminal justice. The emerging case should be understood from both of these perspectives. Here, I offer a view of how a public corruption prosecutor might regard the way the case is taking shape. In addition to the role that possible criminal wrongdoing by the president could play in the ongoing impeachment inquiry, evidence about criminal misconduct might also apply, more directly, to the possible investigations of others beyond the president—including Trump’s personal lawyer Rudy Giuliani and Acting Chief of Staff Mick Mulvaney.
The core of the impeachment inquiry is about whether Trump engaged in self-dealing, where he used his power in a publicly held enterprise (that is, the government of the United States) for personal gain. Most executives in the private sector know what self-dealing is, and recent headlines about Renault-Nissan or WeWork have reminded them. They also know how most corporate boards would handle a case of self-dealing that involved important programs and sums of money, and in which the CEO had fired executives who interfered with the self-dealing.
When Mulvaney was asked about a quid pro quo, he said, on Oct. 17, “We do that all the time with foreign policy.” That is correct. But there is a profound difference between using governmental power in a quid pro quo as part of a public (or fiduciary) duty to advance the public interests of the United States versus using governmental power as a quid pro quo to advance the private interests of Donald Trump or Rudy Giuliani. Giuliani, a private citizen, said in May that he was working to advance the interests of “my client.” There are many jail inmates and former executives who could not distinguish between public (or fiduciary) interests and their private interests.
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 …
- 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).
I’ll briefly review the basic outline of the scheme and then turn to the issues of “anything of value,” “corruptly” and some of the possible criminal exposure.
According to news reports, for years Giuliani and others, including Giuliani’s Ukrainian-American associates, Lev Parnas and Igor Fruman, working with certain Ukrainians, have been attempting to influence the behavior of the Ukrainian and U.S. governments. Trump has reportedly also been intrigued by various conspiracy theories they have peddled about Ukrainian collusion, including with Democratic political operatives, to influence the 2016 election. In these theories, the Ukrainians and Americans wished to harm Trump and to frame innocent Russia for the cyberattacks on the Clinton campaign and the Democratic National Committee. A number of people, in and out of the U.S. government, have examined and discredited these theories, but Trump and Giuliani kept pursuing them.
The effort to find “evidence” for these theories overlaps with various other private interests. U.S. officials have information about some of these interests, which overlap with other federal criminal investigations. 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).
Trump then joined forces with Giuliani and his associates to at last use his full power to gain the things he valued.
A decisive stage in the current self-dealing plan came in April 2019, following the election of a new Ukrainian president, Volodymyr Zelensky. Trump then joined forces with Giuliani and his associates to at last use his full power to gain the things he valued. In late April, encouraged by Giuliani, Trump reportedly overrode State Department resistance and ordered the dismissal of Ambassador Yovanovitch.
Things of Value
With Yovanovitch dismissed and Zelensky prepared to take office, Trump appears to have begun pressuring Ukraine. He kept Vice President Mike Pence from going to the new Ukrainian president’s inauguration, the Washington Post reports. Amid calls for him to arrange some sort of call or meeting with the new Ukrainian leader, Trump appears to have taken Ukraine policy away from the normal government. He turned it over instead to the “three amigos,” Perry, Sondland and Special Envoy to Ukraine Kurt Volker.
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.
Federal bribery law does not require that the value be in money.
There is no doubt that these demands were things of great value to Trump. 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.”