Although the phone call could be a campaign finance crime, once again, the statute most directly relevant to the president’s conduct is the federal bribery statute. Under 18 U.S.C. 201, it is a crime for a public official to (directly or indirectly) corruptly demand, seek, receive, or accept, or agree to receive or accept “anything of value” in return for being influenced in the performance of an official act. Trump is a public official under this statute. The official act would be his release of the military assistance to Ukraine. And the thing of value promised in return would be Ukraine agreeing to look for dirt on one of the president’s top political rivals. (In bribery law, “anything of value” includes intangibles with subjective value to the official; creating damaging information on a key opponent would qualify.)
The key issue would be proof of a quid pro quo. The official must agree to be influenced in exchange for the benefit and must have corrupt intent — the wrongful purpose to act out of self-interest rather than in the public interest. The whistleblower report allegedly was prompted by a “promise” made by the president to the Ukrainian leader. If such a promise related to releasing the U.S. aid in return for the Biden investigation, that could be crucial evidence of a quid pro quo. Such agreements need not be stated in express terms; corrupt actors are seldom so clumsy, and the law may not be evaded through winks and nods. Prosecutors often prove tacit agreements through circumstantial evidence including the timing of events and actions of the parties — and the timing here certainly looks suspicious. It also wouldn’t matter if the administration ultimately relented in the face of congressional scrutiny and released the funds without a deal. In a bribery case, the crime is the demand for a quid pro quo, whether or not it succeeds.
Some of the president’s supporters suggest it would not be unusual for a president to request action by a foreign leader in connection with U.S. assistance. During a recent television interview, Giuliani said, "The president of the United States has every right to say to another leader of a foreign country, ‘you got to straighten up before we give you a lot of money.’ ” Suppose, for example, Trump told the president of Mexico that more U.S. aid might be forthcoming if Mexico were to crack down on internal corruption. One might call that a quid pro quo. Such analogies may have superficial appeal, but for criminal law purposes there are crucial differences. First, an internal policy change by Mexico likely would not constitute a thing of value to the president personally. But the more important distinction is the lack of corrupt intent. In the Mexico hypothetical, the president is acting to further U.S. national interests. By contrast, the allegation concerning Ukraine is that the president was leveraging his official power for his personal political benefit. If proven, it would supply the element of corrupt intent that could transform a legitimate foreign policy negotiation into a potential federal crime.
Giuliani is also potentially implicated. Although he is not a public official, anyone who helped the president broker a corrupt deal could be liable for a bribery conspiracy or for aiding and abetting. (Giuliani has denied mentioning any connection to U.S. aid during his discussions with the Ukrainians.) The Justice Department policy against indicting a sitting president would not protect Giuliani — although Attorney General William P. Barr might shield him anyway. But if the president leaves office in 2020, the statute of limitations for bribery will not yet have expired.
Pressuring a foreign country to investigate a political opponent would be a tremendous abuse of power; some might even call it collusion. If it was linked to federal assistance, it could also be bribery. And bribery is not only a crime; the Constitution singles it out specifically as grounds for impeachment. Congress needs to break through the administration’s stonewalling and find out what happened.