Published by The Lawfare Institute
in Cooperation With
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.
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).
Anyone joining knowingly in the commission of the above could be liable as well, probably under the conspiracy statute (18 U.S.C. § 371). That might include Giuliani, who is not a public official.
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).
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.
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.”
Links of the Demands to the Performance of Official Acts
The first quid pro quo: According to Perry, Sondland and Volker, in May 2019, Trump and Giuliani explicitly stated to each of the three men that Ukrainian cooperation on this “anti-corruption” work was a prerequisite to good relations between the Trump administration and the new Ukrainian president, specifically offering to grant or withhold official acts, such as a meeting or phone call with Zelensky.
The second quid pro quo: Judging that their demands had not been met, in early to mid-July 2019, Trump and Giuliani dramatically increased the pressure on the Zelensky government. They not only reiterated the first quid pro quo but also moved to block distribution of all U.S. assistance to Ukraine until their demands had been met. Their efforts to block such appropriated aid, organized by Mulvaney on Trump’s behalf, was itself possibly unlawful but certainly involved official acts contingent on whether Ukraine provided the things of value that Trump and Giuliani sought.
With the Ukrainians not yet fully realizing the scale of the second quid pro quo, Trump then himself reiterated his requested “favor” in his well-known July 25 call with Zelensky. He himself mentioned three of the four demands listed above, according to the memo released by the White House documenting the call.
Obviously, the small number of officials who learned about some of this behavior were seriously alarmed by it. They reacted in various ways, as the public is now learning. According to the whistleblower complaint, White House lawyers, who may have realized the legal jeopardy, frantically took steps to limit access to any record of what Trump said to Zelensky.
As the “three amigos” sought Ukrainian assent to Trump and Giuliani’s demands, documents produced to the House Intelligence Committee show that the U.S. chargé d’affaires in Ukraine, William Taylor, questioned the “crazy” quid pro quo. Sondland later testified to Congress that he reported this to Trump. Angrily, Trump told Sondland to tell Taylor that there was “no quid pro quo.” The president’s reaction is not surprising. Trump’s lawyers might have told him that, if he had admitted to Taylor’s statement, he could have been confessing directly to a federal crime.
However, any 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.
I expect that, in coming weeks, a main issue for prosecutors and citizens will not be the quid pro quo but, rather, whether Trump and his co-conspirators acted “corruptly.” This is an element of the offense usually defined as a bad or evil purpose. In other words, was this self-dealing? Was Trump acting for his own personal benefit, or were these demands part of his public duty to serve the interests of the United States?
Mulvaney’s aggressive admissions on Oct. 17 previewed this line of defense—the anti-corruption cover story. If true, this line protects Mulvaney from possible criminal liability. 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.”
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. The normal government officials to handle the policy work were cut out, as much as possible. Giuliani’s agents were also government officials, but Trump directly told Perry that they would take their guidance from Giuliani, Perry has said.
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 common to the International Monetary Fund, the European Union and the U.S. government. It revolves around protecting an independent Ukrainian national anti-corruption investigation bureau (called NABU), protecting an independent anti-corruption prosecutor office (called SAPO), and trying to build up an honest and independent judiciary or independent anti-corruption court.
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, unless Burisma could be sure that Shokin’s successor was similarly pliable.
Another demand by Trump and Giuliani, to find “evidence” about the “black ledger” that provided evidence that incriminated Manafort, would directly target NABU and its allies. Again, contrary to the thrust of Trump’s allegations, NABU released all the information it had obtained about the Viktor Yanukovych regime’s payoffs, not just information about Manafort. The U.S. criminal proceedings against Manafort validated that information.
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 a letter to Congress from Undersecretary of Defense John Rood. 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 or reveal to the other relevant officials within the administration how they were supposedly redefining anti-corruption progress.
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.
Comparative Criminal Exposure
Under current Department of Justice guidelines, the issue of criminal exposure for Trump himself, under federal law, does not arise unless or until he leaves office. His associates do not have the same protection.
The House impeachment inquiry can make referrals to the Justice Department for further criminal investigation. As Michael Cohen knows, the president’s private attorney has no immunity, even if he was acting at the direction of his client.
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.
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. This story, if it holds up, might protect the EU ambassador.
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. So his main line of defense, as indicated above, has to be to claim that all this pressure was put on Ukraine in the public interest, not to help Trump personally.
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 Trump and Giuliani had other concerns.