President Donald Trump’s alleged conduct toward Ukraine can be characterized as bribery, extortion and abuse of power. But, if true, it also constitutes another wrong — honest services fraud.
While all of the facts are not known, reports indicate that during a July 25 telephone call with Ukrainian President Volodymyr Zelensky, Trump asked him to investigate Joe Biden, a candidate to unseat Trump in the 2020 election, and at some point threatened, directly or indirectly, to withhold almost $400 million in military aid that had been appropriated by Congress. The matter is the subject of a whistleblower complaint that to date, has been withheld from Congress by the Director of National Intelligence based on the Justice Department’s interpretation of the law. Depending on the facts, Trump’s conduct may constitute bribery or extortion as well as honest services fraud.
Because the Department of Justice takes the position that a sitting president cannot be indicted, and that impeachment is the only remedy for presidential misconduct, it is somewhat distracting to view the President’s misconduct through the lens of criminal statutes. But as Congress considers whether the President’s conduct amounts to an impeachable high crime or misdemeanor, it is important to consider not just whether the President’s conduct justifies removal, but also the full harm to the public. The fraudulent denial of honest services is a federal crime that captures the egregious nature of certain forms of public corruption and is an offense for which officials, no matter their rank, would be removed from office expeditiously.
Honest services fraud is a crime with parallels to bribery and extortion that focuses on harm to the public. Most federal fraud schemes involve use of the mails, wires or banks to obtain money wrongfully by deceiving others. But fraud schemes are defined to also include “the intangible right of honest services.” 18 U.S.C. § 1346. The theory is that by performing an official act in exchange for personal gain, a public official defrauds his constituents of his honest services to make decisions and take actions that are in the best interests of the public. By making honest services fraud a crime, Congress has recognized that this conduct causes significant social harm requiring serious punishment. A person who commits honest service fraud by mail or wire faces a maximum term of imprisonment of 20 years. 18 U.S.C. § 1343.
In public corruption cases, it is rare that the parties speak openly about the illegal transaction. More often, they speak in vague terms, communicating veiled threats.
The Supreme Court narrowed the scope of what qualifies as an “official act” in 2016. In McDonnell v. United States, the Court defined an official act to involve a “question, matter, cause, suit, proceeding or controversy” requiring “a formal exercise of governmental power,” “that is pending or may by law be brought before a public official,” who, in turn, “must make a decision or take an action.” In the context of impeachment, this legal limitation would not restrict Congress, but even if it did, it provides a sufficiently wide berth to cover presidential action to withhold the release of military aid.
Honest services fraud is often used to charge public officials with crimes for accepting bribes in exchange for performing acts in office. For example, Sheldon Silver, the former Speaker of the New York State Assembly, was convicted in 2015 of honest services fraud, among other things, for accepting referral fees from a doctor and real estate developers in exchange for favorable votes and other favors. (The conviction was reversed on appeal due to a jury instruction later held to violate the McDonnell standard, but, with a corrected jury instruction, Silver was convicted upon retrial in 2018.) By convicting him, the jury found that Silver had deprived his constituents of his honest services to cast his votes in the best interests of the public, and not in favor of someone who had helped him generate referral fees.
Similarly, Trump’s alleged solicitation of a personal benefit — dirt on Biden — in exchange for performing an official act — the release of military aid — deprives the public of his honest services as president. Viewing Trump’s alleged conduct as honest services fraud casts it in the light of the harm it causes to the public. Congress could have spent $400 million of taxpayers’ money on many important things for the American people. Lawmakers appropriated $400 in military aid to Ukraine because that was determined to be in the best interest of the United States as a matter of national defense and foreign policy. Conversely, withholding the money from Ukraine after it has been appropriated harms our national security. By holding the money hostage in exchange for personal gain, Trump betrayed the people of the United States to whom he has a duty of honest services.
If this were a traditional crime, the phone call, on its own or as part of the scheme, would satisfy the wire transmission requirement, but of course, in the impeachment context, such technical requirements are irrelevant. What is relevant is that not only did Trump request a personal benefit in the form of opposition research on a political opponent, he also suggested that he would perform an official act of releasing the aid money in exchange. In fact, the money was held up for months, and was only recently released, after the existence of the whistleblower’s complaint was notified to Congress and three House committees launched an investigation.
Trump’s lawyer, Rudolph Giuliani, has defended Trump’s phone conversation with Zelensky by stating that they did not discuss any “quid pro quo,” that is, an offer to trade one thing for another. Even if Giuliani’s statement is true, it is not dispositive of the matter. The report indicates that the subject of the whistleblower’s complaint is a series of events, not just one phone call in isolation. In addition, in public corruption cases, it is rare that the parties speak openly about the illegal transaction. More often, they speak in vague terms, communicating veiled threats.
The parallels between Trump’s conduct and honest services fraud should not be seen as a need to charge Trump under a criminal statute, but to emphasize the point that there is a serious cost to the country when Trump behaves like a ruthless business owner instead of a president. There’s no excuse for the federal government’s chief executive to violate the public trust in this manner. That’s the reason federal and state officials do hard time for such conduct, and at a bare minimum are removed from office.