Neal Katyal: Trump's Bribery Is Blatant—and Blatantly Impeachable | Opinion

The following is a lightly edited exclusive excerpt from Impeach: The Case Against Donald Trump by Neal Katyal with Sam Koppelman.

The Convention that would ultimately draft our Constitution took place during a hot Philadelphia summer in 1787—and for months, our founders couldn't decide how to define an impeachable offense or whether impeachment even belonged in our Constitution. Gouverneur Morris led the opposition to impeachment, arguing that Congress should not have the power to remove a president from office. His case was simple: If a president were so bad, wouldn't he simply lose his next election?

Morris's point was met with an immediate rejoinder by George Mason: "Shall any man be above Justice?" Mason asked. "Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?" Without the protection of impeachment, he argued, there would be no way to stop a president from committing crimes to win office.

By the end of the day, Morris was convinced. In particular, he realized America needed a mechanism to hold a president accountable for engaging in bribery. After all, if bribery weren't an impeachable offense, he worried, a president "may be bribed by a greater interest to betray his trust."

Moreover, he argued, in terms that are striking today, "no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay." No one, in other words, would want the commander-in-chief of the United States to owe a debt to a foreign power. That is why our founders included impeachment in the Constitution—and it's why bribery is one of the two high crimes explicitly delineated in Article II, Section 4.

Of course, the Constitution doesn't provide a definition of bribery, nor, as law professor Laurence Tribe, writing with Joshua Matz, notes in To End a Presidency, "did federal law do so until 1853." So how did our founders expect Congress to define it?

Well, our founders were common-law lawyers, focused not on legal technicalities but on the commonsense definition of bribery used by courts day in and day out. And that definition was pretty simple. As far as the founders were concerned, bribery occurred when a public official used his public powers for a personal benefit. In 1716, William Hawkins defined bribery as "receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice."

Notably, federal criminal law has moved in that direction, too. Section 201(b)(2) of the criminal code says it is a crime if a public official "directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return official act." That fits President Donald Trump's conduct with Ukraine to a T, which is why Speaker Nancy Pelosi referenced bribery specifically. It is also a textbook definition of quid pro quo.

This is why quid pro quos are a big deal: because they are a form of bribery, which is an impeachable offense under the Constitution. And despite the protestations of Trump and his allies, the call between him and President Volodymyr Zelensky featured not only one but two explicit demands of this kind.

The first came when Zelensky mentioned wanting to purchase Javelins from the United States, prompting Trump to say, "I would like you to do us a favor, though."

This is about as blatant a quid pro quo offer as you will find. That's why House Minority Leader Kevin McCarthy, one of Trump's staunchest defenders, denied that Trump had ever said this during an interview with 60 Minutes. "You just added another word," McCarthy said, upon hearing the quote from CBS's Scott Pelley. "No, it's in the transcript," Pelley responded.

"He said—'I'd like you to do a favor though?" McCarthy asked, incredulous. "Yes," Pelley responded once more, "it's in the White House transcript."

Representative Ross Spano, another Trump ally, made a similarly dubious argument in a speech on the floor of the House. "There is no quid pro quo," he said. "No this for that."

Nobody literally says "this for that," but "I would like you to do us a favor, though," is about as close as it gets.

The second quid pro quo between Trump and Zelensky was the exchange of an investigation into Vice President Joe Biden for a visit to the White House. According to Ambassador William Taylor, Trump made clear before the call that he wouldn't agree to a meeting with Zelensky until the Ukrainian said he would help with these investigations. And in a text exchange with a Ukranian aide, former U.S. envoy to Ukraine Kurt Volker made these terms explicit. "Heard from the White House," he wrote. "Assuming President Z convinces Trump he will investigate...we will nail down date for visit to Washington." Quid, meet quo.

On the call itself, in direct response to Zelensky's pledging to "work on the investigation," Trump said, "whenever you would like to come to the White House, feel free to call." That is, once again, about as cut-and-dried a quid pro quo as you will find. So, over the course of a 30-minute phone call, Trump partook in two explicit quid pro quo exchanges, as defined by bribery law.

Trump administration officials, including Taylor, have testified that the president also held back $391 million in security assistance from Ukraine, which Congress had already appropriated, as part of his effort to pressure Zelensky into announcing an investigation of Biden. Even Ambassador Gordon Sondland—a donor whom Trump called "a great American"—told Congress he understood that the aid would be released only if Ukraine agreed to open the investigation into Biden.

Of course, even if the aid hadn't been on the line, Trump would be guilty of bribery, since even subtle offers of quid pro quo from a president are grounds for impeachment. Why? Because whenever the president asks for a favor from a foreign country—with the power of the U.S. Treasury and the U.S. military at his disposal—a quid pro quo is always implicit. After all, other countries know that a failure to do what the president of the United States asks could result in any number of negative repercussions, while a willingness to accede to his demands could result in any number of benefits. Even if it's not explicitly stated, that's all of the quid a foreign country needs to justify giving up a quo.

Now, it's worth noting that this kind of implicit quid pro quo request is 100 percent acceptable when the president is asking for a favor on behalf of the people. If, for instance, Trump asked Britain to share intelligence on a terrorist organization with the CIA in exchange for the U.S. sharing intelligence about future threats to Britain, that would of course be aboveboard, as he would be eliciting intelligence to protect the American people.

The problem arises when the president asks a foreign power for a personal favor—one that doesn't align with the interests of those he represents. When a president abdicates his duty in front of another country, he leaves himself, and our nation, vulnerable to blackmail.

Trump-Zelensky call transcript
A transcript of the phone call between U.S. President Donald Trump and Ukrainian President Volodymyr Zelensky is displayed as witnesses testify before the House Intelligence Committee on November 19 in Washington, D.C. Drew Angerer/Getty

Think about the leverage Trump gave Ukraine. "If you don't double our aid, or triple it, or quadruple it," Zelensky could have said, "then I'll tell the American people you sought to obtain foreign assistance in your election. And I'll look good, because I declined to give it to you."

Indeed, if the whistleblower had not revealed Trump's scheme, Zelensky could have asked him for any favor under the sun and expected him to deliver on it, even if Trump needed to undermine the interests of the United States to do it. That's why, regardless of whether Ukraine accepted Trump's request, his actions would still have warranted impeachment—because he would have jeopardized our national security either way.

That's the abuse of trust. It's why our founders believed we needed to remove any president from office who would, in James Madison's words, "betray his trust to foreign powers." And it's why they would be especially concerned by a president who has solicited bribes asking foreign officials to interfere in our elections over and over again—and shows no signs of stopping anytime soon.

Former Acting Solicitor General of the United States Neal Katyal currently runs one of the largest Supreme Court practices in the world at an international law firm, where he occupies the role formerly held by now Chief Justice John Roberts. At the age of 49, he has already argued more Supreme Court cases in U.S. history than any other minority attorney, breaking the record of Thurgood Marshall.

Sam Koppelman is a senior speechwriter for Fenway Strategies, whose writing has appeared in Time magazine, The Washington Post and The Boston Globe.

Excerpted from Impeach: The Case Against Donald Trump by Neal Katyal with Sam Koppelman published by Houghton Mifflin Harcourt on November 26, 2019. Copyright © 2019 by Morgan Legal Consulting. Used with permission.

The views expressed in this article are the writers' own.