A Washington Post article this weekend reported a new strategy that Republican Senators are running up the flag pole as they prepare for President Trump's nearly certain impeachment trial. They might admit "Trump's quid pro quo on Ukraine," but argue that it "was not illegal" or worthy of impeachment.
This not only makes no sense legally, but highlights an increasingly urgent question that too few people are asking. Now that the snowballing evidence of quid pro quo has become so rock solid that even Trump's most die-hard stalwarts feel political pressure to concede it, a question begs to be answered: Why hasn't the Department of Justice opened a formal criminal inquiry into Trump's conduct?
"The facts as we now know them sketch out the possibility of a criminal violation of the anti-bribery statute," says Paul Rosenzweig, a former senior counsel in Independent Counsel Ken Starr's Whitewater investigation and now a senior fellow at the R Street Institute. "Were the President anyone other than the President, that would be sufficient predication to open an investigation."
Early on, of course, shortly after the President's July 25 call to Ukrainian President Volodymyr Zelensky, the DOJ did take a lightning-quick look at what was then known about the call. At that time, the department found "no campaign finance violation" under the Federal Election Campaign Act of 1971 (FECA), a spokesman explained two months later to the Post. That law forbids soliciting a "thing of value" from a foreign national in connection with a federal election. "Justice Department lawyers determined that help with a government investigation could not be quantified as 'a thing of value' under the law," the Post reported.
Also early on, Democrats in Congress—perhaps wearied by the 22-month Mueller investigation—decided that, rather than get bogged down again in the technicalities of whether Trump's conduct made out a criminal offense, they'd just focus on what they saw as an obviously impeachable abuse of power and breach of public trust.
But because of that early tactical decision, it's possible to become numb to the mounting evidence of criminality.
From the outset, of course, some people took issue with the DOJ's initial conclusion that no campaign finance violation occurred.
"This idea that you have to be able to quantify to the nickel the 'thing of value'—I think that's wrong," says Stuart Gerson, a former acting United States Attorney General, the former head of the Justice Department's Civil Division under President George H.W. Bush, and, today, a partner at Epstein Becker & Green. "It's certainly arguable that getting dirt on your opponents is something valuable to you and your campaign."
But the more pressing question today is whether Trump's conduct violates the federal bribery and gratuities law: 18 USC Section 201. That's a question that DOJ does not appear to have addressed in its initial quick-look inquiry, probably because, at that time, evidence of quid pro quo was still circumstantial and speculative.
That's no longer the case. Concrete testimony from acting US ambassador to the Ukraine William B. Taylor, Jr.; Lt. Col. Alexander S. Vindman; US ambassador to the European Union Gordon Sondland; and National Security Council aide Timothy Morrison, together with other corroborating evidence (e.g., the Sondland-Taylor texts) and even admissions all strongly point toward a quid pro quo.
Specifically, they suggest that Trump was conditioning the release of nearly $391 million in Congressionally approved military aid to Ukraine upon Ukraine's publicly announcing a criminal probe into, among other things, the Ukrainian energy company Burisma. That probe would necessarily cast a pall on a former director there, Hunter Biden, who is the son of Joe Biden, then the front-runner to become Trump's Democratic opponent in the next presidential election. (Joe Biden was also the Democratic candidate who was then performing best against Trump in head-to-head straw polls.)
The bribery law makes it a felony for any federal "public official" to "corruptly" demand or seek "anything of value ... in return for being influenced in the performance of any official act." (The maximum sentence is 15 years.)
Apparently some of Trump's defenders want to argue that, okay, it's true that there was a quid pro quo, but Trump still didn't act "corruptly."
Of course, defendants can always make such an argument to the jury—and usually do. But here there's ample evidence of personal gain; no objective evidence of legitimate public purpose; months of furtiveness; secrecy; and consciousness of guilt. Career envoys, ambassadors, and national security staff were all kept in the dark while only a handful of political appointees and the President's personal attorney were in on what was happening. Why was the memo of the Trump-Zelensky call placed in a hyper-secure "code-word" server? Why were Vindman's corrections of the memo never incorporated into it? Why was Vindman instructed not to discuss the call? Why does Trump keep falsely insisting that the call memo was "an exact word-for-word transcript ... taken by very talented stenographers"?
Perhaps there are innocent answers to these questions—but that's why a full criminal inquiry needs to occur. If the answers to these questions don't turn out to be innocent, they raise questions about whether still other federal criminal laws have been violated—notably obstruction of justice laws.
In any case, 18 USC Section 201 also creates an easier-to-prove misdemeanor (maximum sentence: two years) which doesn't even require proof of "corrupt" intent. That section, often referred to as the "gratuities" provision, sweeps up any official who demands or seeks "anything of value personally for or because of any official act performed or to be performed by such official or person." The Department of Justice ordinarily takes the position that a defendant need only act "knowingly and purposefully" to be guilty in a gratuities case.
Nobody is questioning that presidents are covered by 18 USC Section 201.
The Supreme Court has interpreted quid pro quo in a common-sense manner. "The official and the payor need not state the quid pro quo in express terms," Justice Anthony Kennedy wrote in a 1992 concurrence that has become a widely accepted statement of the law, "for otherwise the law's effect could be frustrated by knowing winks and nods."
Would the facts of this case run afoul of the same problem that DOJ found with the campaign finance law—that the "anything of value" being extracted in this instance can't be quantified?
No, according to a small mountain of case law. Courts have had plenty of occasion to address this question in cases involving 18 USC Section 201 and similarly worded federal and state bribery laws. In those contexts, courts have repeatedly found that "intangible" benefits can count as "anything of value."
" 'Thing of value' for the bribery statute is construed very broadly and can include anything of subjective value to the public official," says Randall Eliason, a former assistant U.S. attorney in Washington, DC, who teaches white collar crime at George Washington University law school. "It can include intangibles such as offers of employment, promises of future contracts, sexual favors, personal services, etc. . . . I believe a promise to investigate a political opponent would qualify."
"The term 'anything of value' ... is broad in scope and contains no language restricting its application to transactions involving money, goods, and services," the federal court of appeals in New Orleans wrote in a bribery case in 1996. "The plain meaning of the statute compels our conclusion that 'anything of value' ... includes transactions involving intangible items"—in that instance, conjugal visits at a prison.
Other hard-to-quantify services and benefits have formed the basis of successful bribery prosecutions. These have included the granting of lenient conditions of pretrial release, the giving of commercially worthless stock that might later gain value, and—perhaps most relevant here—an agreement not to run in a primary election. My quick review of the case law suggests that at least five federal circuit courts of appeals have found the phrase "anything of value" to include intangible or hard-to-quantify benefits in bribery cases, while none has ruled otherwise.
"I think there is a solid basis for DOJ to investigate these actions as potential bribery violations," says Eliason, of George Washington University, in an email. "That would probably require the appointment of a new special counsel—and you can assess for yourself how likely that is with [Bill] Barr as Attorney General."
Gerson, on the other hand, disfavors the involvement of a special prosecutor. He is more trusting of both Barr and his department—even though he disagrees with the department's interpretation of the campaign-finance law in this case and, prior to that, took issue with Barr's characterization of the Mueller report. "I believe in the institution and the quality of the career people who are in it," he says. (As an assistant US attorney in the early 1970s, Gerson led a landmark prosecution of a sitting US senator under 18 USC Section 201.)
Gerson even wonders whether Trump's conduct might eventually come under scrutiny in an inquiry that is already underway. The Southern District of New York's current reported probe into Rudolph Giuliani for his Ukraine-related work, which has already led to the indictment of four people, might eventually require an examination of Trump's acts. "This all ties back to the Ukraine," Gerson says. "It all ties back to the same situation."
If Gerson is wrong, though, the department's inaction to date could only mean one of two other things. Perhaps the department has decided that the pending impeachment inquiry is sufficient to flesh out the facts and mete out a punishment. Certainly an impeachment inquiry is appropriate. Bribery is an explicit constitutional grounds for impeachment ("treason, bribery, or other high crimes or misdemeanors"), as Eliason points out. And since the "thing of value" involved here was coming from the Ukraine, Gerson notes, it could be a foreign emolument, too—yet another basis for impeachment.
But the absence of a parallel criminal inquiry tends to demean the seriousness of the allegations in the eyes of both the public and the impeachment jurors—the Senators. And if the President is ultimately acquitted of impeachment articles by political allies fearful of facing primary opponents, nothing will protect the public from criminally corrupt executive acts for the remainder of this presidential term and, perhaps, the next.
The last possibility is more concerning still. Maybe the Justice Department has quietly decided that a sitting President is, as his personal lawyers recently argued in state court in Manhattan, not merely immune from prosecution during his term—which many legal scholars have long assumed—but immune even from all criminal investigation. That audacious contention has been widely criticized as radically at odds with the nation's history and constitutional consensus.
Still, the department's silence in the face of mounting evidence of Presidential criminality does raise that distinct possibility.
Roger Parloff is a regular contributor to Newsweek and Yahoo Finance. He is an attorney who no longer practices, and who has been writing about legal matters for more than 30 years.
Correction (11/4 4:05p.m.): An earlier version of this story misspelled a name: it is Paul Rosenzweig as Paul Rozensweig. Newsweek regrets the error.
