Before I joined the Senate, I spent decades in law enforcement deciding when bad conduct rises to the level of illegality. Any good lawyer starts with the legal text, and when the Constitution was drafted, bribery was defined broadly as any “undue reward” for a public action. As illustrated during the House impeachment inquiry, which moves to the House Judiciary Committee on Wednesday, a political investigation ginned up to reward Trump for providing needed military aid would certainly fit the bill.
But even under the narrower definition of bribery currently in the criminal code, Trump’s actions clearly qualify. Federal law defines bribery as the solicitation of “anything of value personally” by a public official “in return for” an official act. It also specifies that a bribe can be a reward for an act the public official would have done anyway. In short, merely soliciting a bribe is bribery.
So, we face two questions. First, did Trump seek something of personal value from Ukrainian President Volodymyr Zelensky?
He most certainly did. Everything from information about the whereabouts of a witness to the promise of future campaign contributions has been identified as a “thing of value” in bribery law.
Trump clearly valued Ukrainian investigations into his political enemies. By all accounts, he was obsessed with them. According to multiple reports, Trump cared more about the investigations than he did about defending Ukraine from Russia.
More important, Trump’s interest in the investigations was political, not public-spirited. U.S. Ambassador to the European Union Gordon Sondland — one of the “three amigos” conducting Ukraine policy directly for the president — has testified that Trump wanted the investigations announced but did not care whether they were conducted. As long as Ukraine cast a pall of baseless suspicion over Trump’s political enemies, he did not need anybody to actually unearth new facts. Trump’s lawyer Rudolph W. Giuliani basically admitted as much when he told the media the investigations would “be very, very helpful for my client,” even if they had no value for the United States.
Next question: Did Trump demand Ukraine provide him with his thing of value “in return” or out of gratitude for an official act? Yes.
Trump has publicly admitted that he personally withheld military aid to Ukraine. Sondland, National Security Council staffer Lt. Col. Alexander Vindman and acting U.S. ambassador to Ukraine William B. Taylor Jr. have all testified that the aid was withheld to induce Ukraine to initiate the investigations. Even if Trump would have released Ukraine’s aid regardless of whether Ukraine announced investigations — and the evidence suggests otherwise — Trump would still be guilty of soliciting an illegal gratuity, one form of bribery. The July 25 rough transcript makes clear that he bragged about America’s largesse just before asking for a personal favor. That alone constitutes bribery.
The president’s supporters have two responses.
First, they argue that Trump can’t be guilty of bribery because Ukraine never conducted the investigations he demanded and because the country still received military aid. Of course, the money was released only after a government whistleblower exposed the president’s plans. As a law enforcement official, I prosecuted criminals whose illegal schemes failed because they were caught red-handed. None had the gall to say they were innocent because their crimes did not achieve their goals. Ineffective criminals are still criminals.
The bribery statute makes clear: Soliciting a bribe is illegal even if the bribe is never paid.
Second, Trump’s defenders argue that no one has testified they directly heard Trump order anybody to demand a bribe. Apparently, they want us to believe that Giuliani — a private citizen — ran a shadow foreign policy to secure political benefits for Trump without Trump’s knowledge or support. The fact that Trump specifically told foreign leaders to contact Giuliani is simply an unfortunate coincidence.
That no witness heard Trump utter the words “please solicit a bribe from Ukraine” should not be shocking. Anybody who has watched a mob movie knows criminals don’t spell out their illegal plans to every subordinate. More importantly, individuals who might have heard Trump say those words may have unlawfully refused to testify, at Trump’s request. When a defendant improperly withholds evidence, courts instruct juries to assume that the evidence would not help the defendant. Americans should make the same assumption here.
Trump’s actions threaten our democracy. But the greater threat would be if America became a place where such misdeeds went unpunished. Fortunately, our Constitution tells us in no uncertain terms that the president’s actions deserve the strongest penalty Congress can provide — removal from office. If the rule of law means anything, we must follow its command.