The House Judiciary Committee’s impeachment hearings on Wednesday featured testimony from four law professors on the constitutional standards for impeachment. The witness called by the Republicans, professor Jonathan Turley of George Washington University Law School (where I teach a course on white-collar crime), argued that the record concerning the Ukraine scandal does not establish impeachable conduct by President Trump. Among his claims was that Trump’s behavior toward Ukraine would not constitute bribery under federal law. He’s wrong.

One of Turley’s primary arguments is that Trump’s conduct would not amount to bribery under the Supreme Court’s 2016 unanimous decision in McDonnell v. United States. In McDonnell, the court held that actions taken by Virginia’s governor in exchange for secret gifts, including sending emails and arranging meetings, did not amount to “official acts” as defined in the federal bribery statute.

Bribery is a crime that pre-dates both the Constitution and any act of Congress. The essence of the crime is abuse of office: a public official corruptly seeking a personal benefit in return for an exercise of his or her official power. There are many different bribery statutes and many different definitions of the crime. In McDonnell, the court was interpreting one clause of a single statute, not pronouncing a universal definition of bribery for the ages, and certainly was not interpreting the impeachment clause of the Constitution. And given that all four experts, including Turley, agreed that a president may be impeached for conduct that is not a crime at all, it’s unclear why Turley insists that to be impeachable, bribery must meet the precise requirements of McDonnell.

But even if we grant that we should at least look to McDonnell for guidance, Turley’s arguments fail. When it comes to Trump withholding a White House meeting, Turley claims McDonnell held that meetings cannot be official acts. But this is too simplistic. Virginia Gov. Bob McDonnell was arranging meetings between his subordinates and a benefactor, on relatively minor issues, and taking no further action himself. An official White House meeting between the president and a visiting head of state is no ordinary “meeting" but a coveted and significant diplomatic event. Deciding whether to grant such a meeting likely would be an official act under McDonnell. As for the withholding or releasing of military aid, that is unquestionably a “decision or action” on a “question or matter” before the president — the very definition of an “official act.

Turley’s other arguments are equally unavailing. He argues a bribery case would fail for lack of a quid pro quo, claiming that “Trump does not state a quid pro quo in the call” with Ukrainian President Volodymyr Zelensky. But bribery defendants are not required to say, “Here, I have a quid pro quo for you,” to be found guilty. By saying he wanted Zelensky to do him “a favor” immediately after Zelensky mentioned military aid, Trump made his intent clear. And focusing solely on the call ignores other compelling evidence, including the express testimony from Ambassador to the European Union Gordon Sondland that there was indeed a quid pro quo.

Turley also suggests there is insufficient evidence of Trump’s corrupt intent. He argues that if Trump was honestly concerned about misconduct by Hunter Biden, then requesting the investigation may not have been corrupt. This boils down to claiming, “If the president did not have corrupt intent, then he did not have corrupt intent.” That’s true — and tautological. But the question is whether any objective observer believes this is remotely plausible. The evidence is overwhelming that Trump and his associates were demanding the investigations for Trump’s personal political benefit, not out of a sincere concern over Ukrainian corruption.

Particularly unsound is Turley’s suggestion that because there is a Justice Department investigation into possible involvement of Ukraine in the 2016 election, Trump’s demands that Ukraine cooperate in that investigation may not have been corrupt. This is classic bootstrapping: An administration can’t begin a dubious investigation into a debunked conspiracy theory to politically benefit the president and then claim that the existence of that investigation legitimizes otherwise corrupt demands.

The impeachment inquiry into President Trump has exposed troubling cracks in the political system. (The Washington Post)

Turley also claims bribery is not established because the requested investigations might not have been personally valuable to the president. He notes the investigations might not have been completed before the election, or might have ended up exonerating Biden. But this ignores Sondland’s testimony that it was the public announcement of the investigations that was the key. There was no demand they actually be completed. This is further evidence of corrupt intent, undermining the claim that Trump’s true concern was with rooting out corruption. Trump just wanted a sound bite, with the president of Ukraine announcing he was investigating Trump’s political rival. That was a thing of value.

Turley concluded his written testimony concerning bribery by saying, “As a criminal defense attorney, I would view such an allegation [of bribery] from a prosecutor to be dubious to the point of being meritless.” Funny, as a former federal prosecutor, that’s exactly how I feel about Turley’s bribery defense. This is a case I’d be very comfortable taking to a jury.

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