Using the office of the president for personal political benefit comports with both the standard understandings of bribery and the broader category of high crimes and misdemeanors.
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Here we go again. President Donald Trump once again stands accused of using a foreign government to influence American elections. Whereas last time he invited the Russian government, on public television, to try and find Democratic presidential candidate Hillary Clinton’s “missing” emails, among other things, this time he has reportedly sought to have the Ukrainian government announce a criminal investigation into Democratic presidential candidate Joe Biden’s son, perhaps by using U.S. financial and military support as leverage.
But not everyone is singing the same tune this go round. Last time, Republicans largely defended the president even as special counsel Robert Mueller was named to investigate whether Trump or his campaign had colluded with Russia. And after Mueller avoided making an explicit statement of guilt, Democrats were hesitant to launch a full-fledged impeachment inquiry.
This time, Trump’s actions on Ukraine have already drawn some criticism from Republicans (like Sen. Mitt Romney of Utah), and they have also increased calls for impeachment from Democrats (such as from Rep. Adam Schiff of California, chair of the House intelligence committee), leading to House Speaker Nancy Pelosi's announcement Tuesday of the opening of an official impeachment inquiry. . And rightfully so. So what’s changed?
There are potentially significant legal differences and practical distinctions between the two situations. And these differences indicate that the allegations regarding Ukraine fit more clearly into the Constitution’s preconditions for impeachment — and that Congress will not only have an easier time making a case against the president, but also a greater legal imperative to do so.
The Constitution provides for impeachment in cases of “treason, bribery or other high crimes and misdemeanors.” Trump’s alleged attempt to strong-arm Ukraine into smearing a political opponent fits well within this framework. Using the office of the president for personal political benefit comports with both the standard understandings of bribery and the broader category of high crimes and misdemeanors.
Bribery is a deeply pernicious form of public corruption, and legal standards spelling out the offense often define it as a quid pro quo — that is, both sides exchange something of value. When Trump “jokingly” asked Russia to find Hillary’s emails, it was not clear (exactly) what he was promising Russia in return (or threatening them with if they did not comply). Trump obviously wanted something (be it the emails, or the media’s coverage of the emails) from Russia. But did Russia get anything in return from releasing them?
Perhaps. Consider the approach that Trump has adopted toward Russia since assuming office — he has shared classified intelligence with them, jeopardizing intelligence gathering methods; he has undermined relationships with the United States’ traditional NATO allies, a long-term Russian objective; he has sought to limit sanctions against Russia; he has challenged the U.S. intelligence community at times when they’ve disagreed with Russia; and so on. But it was harder to make a connection between Russia providing the emails and whatever it is Russia got in return, in part because Trump didn’t have much, if anything, to hold over the Russian government if it did not comply with his request to get Hillary’s emails.
Not so with the Ukraine. During phone calls with the Ukrainian president, Trump may have threatened Ukraine’s foreign aid and military assistance in order to gain the country’s cooperation. In that circumstance, the quid pro quo would be much clearer: Trump wanted something (an investigation into Biden’s son, who until recently worked for a Ukrainian gas company) and he promised something in return (extra money, or withholding money if there was no investigation). Bolstering this allegation is the fact that over the weekend, Treasury Secretary Steve Mnuchinwas unable to offer any explanation for why Ukraine recently received an extra $140 million in aid that they did not expect.
Even if Trump did not explicitly dangle a quid pro quo over Ukraine to get the country to launch an investigation into Biden’s son, the fact that Trump as president has control over foreign aid and military assistance to Ukraine distinguishes this scenario from his request to Russia. Candidate Trump didn’t hold the keys to Russia’s security in his hands; President Trump does with respect to Ukraine. And his request that a foreign government investigate a political opponent under those circumstances is troubling. (Ukraine reportedly stopped cooperating with the Mueller investigation because it was concerned about losing U.S. military support.)
Or consider another issue that Mueller previously investigated concerning the Trump campaign’s cooperation with Russia. During the summer before the election, Donald Trump Jr. met with a number of Russiansconnected to the Russian government after an intermediary told Trump’s son that a government official in Russia had offered to provide the Trump campaign with incriminating information on Hillary Clinton.
Mueller investigated Trump Jr. for violating federal election laws. He ultimately concluded that Trump Jr. had not violated federal election laws because, among other things, there was not enough evidence of coordination between Trump Jr. and Russia.
That’s not the case when it comes to Ukraine. The evidence of coordination is in phone calls between Trump and the Ukrainian president, as well as ameeting between his lawyer Rudy Giuliani and Ukrainian aided — and there are likely recordings, transcripts or contemporaneous summaries of some of the events (from the whistleblower who initially brought the phone calls to the attention of other intelligence officials, if not others). And Giuliani has confirmed the most important parts of the story on national television — namely, that he asked Ukraine to investigate Biden’s son Hunter.
Beyond the crime of bribery, the Constitution also allows for impeachment for other egregious offenses. Renowned constitutional scholar Charles Black Jr. interpreted “high crimes and misdemeanors” to mean serious offenses that corrupt or subvert governmental process. That, too, fairly describes Trump’s attempt to use his position in office for personal and political benefit via Ukraine.
To be sure, the allegations and findings in the Mueller report comply with this category as well, including the president’s possible attempts to obstruct justice by using his office to impede the investigation into Russian interference in the election.
But the Ukrainian affair is still new terrain because it goes well beyond that: Trump sought to use the extensive powers of his office to get a foreign government to open an investigation that would be damaging to a political rival. He also enlisted the assistance of his personal lawyer to help him in that endeavor. If that does not amount to a “high crime or misdemeanor,” it is a fair question whether anything will.
- Leah Litman is an assistant professor of law at the University of Michigan Law School.
This piece was first published by NBC Think.
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