Federal Criminal Offenses and the Impeachment of Donald J. Trump

Table of Contents

  1. Introduction: The Problem of Missing Witnesses and Documents for the Conviction of Donald J. Trump
    Andrew Weissmann
  2. Campaign Finance Law
    Paul Ryan
  3. Bribery
    Randall Eliason
  4. Honest Services Fraud
    Barbara McQuade
  5. Foreign Corrupt Practices Act
    Susan Simpson
  6. Hatch Act
    Gary Stein
  7. Contempt of Congress
    Michael Stern
  8. Impoundment Act (non-criminal law)
    Sam Berger

 

Editor’s note from co-editor-in-chief Ryan Goodman: This collection of leading legal experts discusses a range of federal crimes that apply to the conduct of President Donald Trump, based on the evidence produced by the House of Representatives’ impeachment inquiry. These crimes include all of the federal offences listed in the Chapter headings, except for Foreign Corrupt Practices Act. In that Chapter, the author concludes that the impeachment inquiry did not examine the relevant evidence for one of the elements of the crime, although a lot of that evidence has arisen in investigative reports by journalists. The final Chapter includes an important federal law that does not trigger criminal liability, but does implicate the President’s constitutional obligation to ensure the laws are faithfully executed. Close readers will also notice some nuances in the authors’ analyses. Compare for example Barbara McQuade’s and Randall Eliason’s discussion of whether a White House visit for a head of state counts as an “official act” for the purposes of bribery and honest services fraud. Finally, a point worth underscoring: as Andrew Weissmann explains in the Introduction, impeachable offenses need not be criminal in nature, and not all crimes are impeachable offences. Members of Congress certainly do not need to conclude that the President committed a crime for impeachment, conviction, and removal. Nevertheless, the fact that these leading experts reach the conclusion that several federal crimes apply to President Trump’s conduct involving Ukraine is an important consideration for the annals of history and for the historic decision Congress now faces.

 

Introduction
The Problem of Missing Witnesses and Documents for the Conviction of Donald J. Trump
by Andrew Weissmann

The short pieces that follow this introduction outline various ways in which the evidence compiled by the House Intelligence Committee supports the allegations of serious criminal liability by the President and otherwise supports allegations of impeachable offenses — from abuse of power, to violations of the bribery and the Federal Election Campaign Act statutes. It is by now a commonplace understanding that the President need not have committed a criminal act to have committed and be convicted of an impeachable offense, and nor is it sufficient that he committed a criminal act for him to be impeached and convicted for a “high crime and misdemeanor.” But those legal propositions are really beside the point here: the alleged offenses discussed below are far from trivial. The President’s alleged criminal acts were undertaken in a context that makes them particularly subject to impeachment. The President’s alleged crimes involve his using — and abusing — his Presidential powers, in contrast to, say, the offenses for which President Bill Clinton was impeached. And the alleged offenses were committed by the President at a time that he was acutely aware of the illegality of seeking foreign assistance in an election.

But the serious misconduct alleged by the House nevertheless raises a legal issue worth pondering. What is the standard of proof to be applied to conviction for an impeachable offense? In a criminal trial that would be easy: has the government proved its case beyond a reasonable doubt? Of course, that standard — the highest we have in the law — is applicable because the consequences of conviction can be the loss of life or liberty or both. Impeachment has no similar consequences for the affected individual, of course. And, perhaps in recognition of this distinction, the Constitution does not require a unanimous verdict of guilt, as is required by the Supreme Court for a federal criminal conviction. Instead, a two-thirds majority of Senate “jurors” suffices for conviction. But that does not end the analysis, because the consequences to the nation are enormous, since upon conviction a duly elected President would be removed from office. Indeed, the absence of a unanimity requirement for conviction would counsel in favor of a high burden of proof in order for the Senate to convict. The electorate can rightly expect that its determination will be abided by absent a sufficiently clear showing of wrongdoing in the House and Senate.

Assuming for conviction purposes in the Senate that the standard to be applied would be “beyond a reasonable doubt”—or “something a little less than the ‘beyond reasonable doubt’ standard” as Charles Black put it—the question arises whether the current proof adduced in the House meets that high threshold. The proof to date makes plain in our gut what happened, and if we were in a civil case where a mere preponderance of the evidence is needed, the issue would be beyond cavil. But does the current proof rise to the “beyond a reasonable doubt” standard? (Although that standard should not technically apply to the issue before the House — whether to bring impeachment charges — that decision should be informed by the standard that would apply in the Senate, much in the same way that prosecutors need establish charges to a grand jury by probable cause, but they would only bring charges if they thought they could be proved at trial beyond a reasonable doubt.)

There are several arguments against that proposition and in favor of the President. The House had limited witnesses with first-hand information about the President’s intent. Ambassador Gordon Sondland gave testimony that a White House meeting was held back until the President of Ukraine announced an investigation into Burisma — what the cool and laser-sharp Fiona Hill termed a “personal political errand” for President Trump. And Sondland said he inferred eventually that the congressional aid to Ukraine was similarly conditioned on that announcement. But Sondland — whose veracity can be seriously questioned — also recounted the President’s denial of imposing any quid pro quo on Ukraine (something that at least as to the White House meeting, Sondland’s own testimony established was plainly false).

At a criminal trial, the Sondland testimony would be seriously attacked. Indeed, the Senate has to acknowledge that, in all likelihood, Sondland lied in his deposition, lied again in his supplemental declaration, and lied a third time in his public congressional testimony. Even now he clings to the idea that he did not understand that an investigation into Burisma meant the Bidens — as if he had no interest in a region he oversaw closely, had no access to myriad press articles on this issue including Giuliani’s touting his efforts in Ukraine to have them investigate Biden, and had no access even to the Google search function to look up Burisma. A prosecutor would seek to shore up the Ambassador’s credibility by noting that Sondland’s denials were self-protective —presented to avoid his own criminal liability for the same crimes committed by the President. But reliance on Sondland alone would be clearly insufficient to meet the prosecution’s heavy burden of proof in a criminal case. Indeed, although the government routinely puts witnesses on the stand who are conspirators with the accused and committed multiple other crimes, it is a rarity to knowingly put a witness on the stand who the government must acknowledge is likely still lying. The prosecutors would thus be in the unenviable position of picking and choosing from Sondland’s testimony. The President must pick and choose as well — clinging to Sondland’s veracity in reporting the President’s belated denial of a quid pro quo, while also rejecting Sondland’s testimony that there was a quid pro quo as to the White House meeting. But as the defendant this is far more acceptable, as he has no burden of proof.

In addition to attacking Sondland’s credibility, a second line of defense is the dearth of other witnesses with direct evidence as to why the White House meeting and Congressional aid were put off and why the aid was subsequently released. Mulvaney gave contradictory answers in a botched press conference and subsequent retraction, and neither he nor any of the other key players showed up to give testimony under oath: not Pompeo, Giuliani, Bolton, Kupperman, Pence, or even the President. So while the record has damning circumstantial evidence, it is missing testimony from key participants. And the House did not press for such testimony. Neither did it press for myriad documents that must exist. Sondland all but cried out to the House to obtain such documents. To thwart his being thrown under the bus by his colleagues, Sondland wrapped himself around them and, in addition to the few email messages he provided, made it clear that he had access to and had reviewed pertinent government documents that he quoted and claimed showed that many others were “in the loop.”

The absence of witnesses and documents ordinarily is held against the prosecution, not the defense, as it is the prosecutors’ burden to meet the standard of proof. In a criminal case a “missing witness” charge could be given when the government has failed to produce a witness with relevant evidence and that charge permits a jury to use the absence against the government. Where the House has merely sought voluntary testimony or production of documents, the failure of those individuals to provide such evidence would not defeat the court giving a missing witness charge. As every junior prosecutor is taught, if you want a witness to testify, she must be under subpoena, so that if she does not show up the court can order her appearance. A mere request to appear or to produce documents is a legal nullity — even if it may feel wrong or unpatriotic for the person to decline to produce such evidence, particularly if the person is a government official with reporting obligations to Congress.

However, a failure to call witnesses or produce documents is complicated by the unusual circumstances here. The President has asserted claims of privilege and immunity, which the House has decided not to litigate due to the significant delay that would likely entail. Without second-guessing the wisdom of that decision, the anticipated litigation delay alone would not to my mind be sufficient to allow the House to avoid a missing witness charge. Imagine a President who invoked a legitimate claim of privilege or immunity — would we tolerate an argument that the President was obstructing justice or refusing to provide first-hand evidence merely by his asserting that legal claim in the courts? Surely not. The claim of privilege or immunity would have to be frivolous or rise to the level of bad faith to justify the House’s decision not to delay the proceedings further by seeking to enforce compliance with a subpoena.

And here is where the President is his own worst enemy. He has sought to proceed with a sledge-hammer, not a scalpel. He has stated publicly and repeatedly that he is not cooperating with a duly approved impeachment proceeding. That some subset of his legal claims may have merit or meet the lower “good faith” standard, is thus complicated by the fact that the President has determined to flout all legal process no matter what. The President’s parallel position in connection with the Manhattan D.A.’s grand jury subpoena — where he has claimed immunity for himself, his family, and his companies from being criminally investigated while he is in office, even for conduct pre-dating his presidency — can be relied on to assess his intent and goals. And that State of New York subpoena was not even directed at the President, his family, or his companies. Not even a toady like Attorney General William Barr could stomach fully supporting the President’s position. Trump’s modus operandi supports the inference that unless and until he is ordered to do so, the President is not complying with any Congressional subpoena at all. That situation does make the assertion of privilege one that is so frivolous that it must excuse Congress from being drawn into the rabbit hole of litigating, for months, the enforcement of its subpoenas. And if this were a criminal case, a missing witness charge would not be warranted against the government, for deciding not to delay seeking justice in a matter of pressing concern, namely avoiding further secret tampering with the 2020 election by the President. Indeed, the opposite inference seems more appropriate.  The witnesses and documents are uniquely within the control of the President and he has simply and broadly refused to recognize that the House is conducting a legally valid impeachment inquiry (despite at least one federal court finding the House most certainly had done so even prior to the full House vote affirming the inquiry).

That is not to say that the House’s decision to forego additional witnesses and documents won’t lead to a perverse result. It is exceedingly likely that the President’s allies in the Senate will hang their hats, at least in significant part, on the dearth of direct, compelling evidence to warrant the serious remedy of the conviction and removal from office of a duly elected President. Reliance on such a strategy avoids a Senator having to condone what President Trump did — a path few Members of Congress have gone down for good reason. But eventually the documents — if not also the witnesses — that the House had foresworn will come out. This is Washington, after all, where even highly classified matters have eventually seen the light of day. And we need not rely on leaks for such belated revelations. The documents from the State Department, the OMB, Giuliani’s phone, and the like could be the subject of criminal federal grand jury subpoenas — to be issued or in fact already issued. There is nothing that would prevent the SDNY, for instance, from legally seeking such documents. The crimes they would be investigating include those noted below, and the subjects and targets of such an investigation include people who are liable to prosecution now; unlike the President, they are not even arguably temporarily immune from prosecution. And, as to the President, even the Office of Legal Counsel has specifically concluded that the President can be investigated while in office for federal crimes, even if he cannot be indicted until he leaves (per Department policy announced in slim opinions issued by the Office of Legal Counsel under Presidents Nixon and Clinton, unsurprisingly). And the same is true for testimonial evidence: a federal grand jury could seek the testimony of those who have testified already, as well as those who have resisted House testimony.

The upshot is that this is likely not to be the last we have heard about the President’s conduct, no matter what the result in the Senate trial. We are surely to learn more about the criminality underlying the impeachment inquiry. And whether or not you believe the current evidence meets the beyond a reasonable doubt standard, because it is clear what the President was up to, that new evidence is sure to be damning. Why else would the President be stonewalling its release? When that new evidence comes to light, Senators who have resisted impeachment now on the ground of lack of evidence may seek to cling to that legal argument, but will look darn foolish in the annals of history, when the documents prove up what we all already know to be true. The President sought to cheat on the 2020 election by means of having a foreign country announce an investigation of a leading political rival, which he coerced secretly by withholding hundreds of millions of dollars of congressionally appropriated vital military assistance. Condoning such conduct at this historic moment serves to transmogrify the United States into something closer to Ukraine — a country where the rule of law has had no purchase.

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2. Campaign Finance Law
by Paul Ryan

News that President Donald Trump had asked Ukraine to investigate former Vice President Joe Biden, one of his top political opponents in the 2020 election, first broke on Sept. 20 when the Wall Street Journal reported that:

“President Trump in a July [25] phone call repeatedly pressured the president of Ukraine to investigate Joe Biden’s son … urging Volodymyr Zelenskyy about eight times to work with Giuliani on a probe that could hamper Mr. Trump’s potential 2020 opponent.”

Two days later, Trump acknowledged that he had discussed Biden with the Ukrainian president. Earlier reporting from the New York Times and BuzzFeed News made clear that Trump’s July 25 phone call with President Zelenskyy was only the tip of the proverbial iceberg of a months-long, back-channel campaign to pressure Ukraine’s government to investigate Biden. The effort was orchestrated by Trump and executed by his personal lawyer Rudy Giuliani and others.

Federal campaign finance law prohibits a foreign national from directly or indirectly making a “contribution or donation of money or other thing of value” in connection with a U.S. election, and prohibits a person from soliciting, accepting or receiving such a contribution or donation from a foreign national. Federal law defines “contribution” to include “any gift … of money or anything of value made by any person for the purpose of influencing any election for Federal office.” And the Federal Election Commission (FEC) by regulation defines “solicit” to mean “to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”

And that’s all the law requires. Whether or not Ukraine came through, whether or not the communications involved a quid pro quo, Trump’s solicitation of a thing of value from the Ukrainian president in connection with a U.S. election could be a federal crime.

So, on Sept. 23, Common Cause, a watchdog organization where I work, filed complaints with the Department of Justice (DOJ) and the FEC alleging that Trump, Giuliani and their associates had violated the federal law prohibition on soliciting a political contribution from a foreign national through a months-long campaign to pressure Ukraine’s government to investigate 2020 presidential candidate Joe Biden and his son—withholding a nearly $400 million military aid package as leverage.

After we filed our complaints, the White House released a rough transcript of the July 25 phone conversation between Trump and Zelenskyy. Meanwhile, the whistleblower complaint regarding the July 25 call was declassified and made public, and the House of Representatives conducted an investigation of the matter as a formal impeachment inquiry. The whistleblower complaint prompted criminal referrals to the DOJ by the Central Intelligence Agency general counsel, the acting Director of National Intelligence and the inspector general of the U.S. Intelligence Community. The evidence that has come to light since then has only worked to substantiate and strengthen the allegations in Common Cause’s complaints: Trump violated the federal campaign finance law prohibition on soliciting a political contribution from a foreign national.

July 25 Phone Conversation

According to the official record of the July 25 phone call, early in the conversation, Zelenskyy thanked Trump and the United States for its “great support in the area of defense” and continued:

“We are ready to continue to cooperate for the next steps specifically we are almost ready to buy more Javelins from the United States for defense purposes.”

President Trump immediately responded:

I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it … Whatever you can do, it’s very important that you do it if that’s possible.

In this crucial exchange, Zelenskyy mentioned an upcoming request for additional military aid—i.e., the purchase of Javelin missiles from the U.S.— to which Trump responded by asking for a “favor”: an investigation by Ukraine’s government into who hacked the Democratic National Committee’s (DNC) computer server during the 2016 U.S. presidential election. Trump was referring to “a long-discredited conspiracy theory that tries to cast doubt on Russia’s role” in the DNC hack. As Ryan Goodman and Alex Potcovaru have explained for Just Security, this requested investigation of the 2016 election was part of Trump’s scheme to get dirt on Biden.

But Trump did not stop there. He continued,

“The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.”

In this exchange, Trump urged Zelenskyy to explicitly investigate Biden, implying that Biden, while serving as vice president, played an improper role in the termination of an investigation into Burisma Group, a Ukrainian energy company where Biden’s son had once served on the board of directors. Burisma had been investigated for suspected financial improprieties years before Biden’s son joined its board of directors. No evidence of wrongdoing by Biden or his son surfaced during that investigation or in the years since the probe was closed.

At least two more times during the July 25 conversation, Trump mentioned his intention to have Giuliani and Attorney General Bill Barr call Zelenskyy. In response, Zelenskyy assured Trump that he would pursue the investigations that Trump had requested.

Impeachment Inquiry Witness Testimony and Other Evidence

As part of its formal impeachment inquiry, committees of the House of Representatives obtained witness testimony and documentary evidence from 17 witnesses—making crystal clear that Trump violated the campaign finance law prohibition on soliciting a contribution from a foreign national.

For example, Ambassador to the European Union Gordon Sondland testified before the House Intelligence Committee that

“Mr. Giuliani demanded that Ukraine make a public statement announcing investigations of the 2016 election/DNC server and Burisma. Mr. Giuliani was expressing the desires of the President of the United States, and we knew that these investigations were important to the President.”

Sondland also said the he:

“came to believe that the resumption of security aid would not occur until there was a public statement from Ukraine committing to the investigations of the 2016 election and Burisma, as Mr. Giuliani had demanded.”

Ambassador William Taylor testified that, in a July 10 meeting with Ukrainian officials at the White House, Sondland connected investigations into Biden and the 2016 elections with an Oval Office meeting for Zelenskyy and that then-National Security Adviser John Bolton abruptly ended the meeting, advising his staff in attendance that “they should have nothing to do with domestic politics.” Taylor testified that it had become “clear to the Ukrainians that, in order to get this meeting [at the White House] that they wanted, they would have to commit to pursuing” investigations into Biden and the 2016 elections and that doing so “would have involved Ukraine in the 2020 election campaign,” and Ukrainian officials “did not want to do that.”

State Department official David Holmes testified that during a July 26 lunch with Sondland in Ukraine, Sondland called Trump to update him on his activities. Holmes heard Sondland tell Trump “that President Zelenskyy ‘loves your ass,’” and Holmes then heard Trump ask, “So, he’s gonna do the investigation?” Sondland replied that “he’s gonna do it” and that President Zelenskyy will do “anything you ask him to.” After the call, Holmes asked Sondland “for his candid impression” of Trump’s views on Ukraine and, in particular, “if it was true that the President did not ‘give a s—t about Ukraine.” Holmes testified that Sondland agreed that President Trump did not “give a s—t about Ukraine” and that Trump only cares about “‘big stuff’ that benefits the President, like the ‘Biden investigation’ that Mr. Giuliani was pushing.” Sondland testified that he had no reason to doubt Holmes’ recollections about these conversations.

Former Ambassador to Ukraine Marie Yovanovitch, who was recalled from her post without cause by Trump in May, described Giuliani’s efforts in Ukraine as dating back to November or December 2018. Yovanovitch testified that Ukrainian Minister of the Interior Arsen Avakov expressed concerns that it was “very dangerous” for Ukraine to be dragged into U.S. partisan politics.

A mid-November CNN report indicated that Trump’s involvement in this scheme to solicit a political contribution from Ukraine’s government dates back at least to December 2018, when Trump “slipped out of a large reception room … to have a private meeting” with Giuliani and his two, now-indicted, associates, Lev Parnas and Igor Fruman, at the White House Hanukkah party. Following the party, Parnas told “confidants” that Trump tasked Parnas and Fruman “with what Parnas described as ‘a secret mission’ to pressure the Ukrainian government to investigate Joe Biden and his son Hunter.” Attendance by Parnas and Fruman at the party was memorialized by a photo of the two alongside Trump, Vice President Mike Pence and Giuliani.

Trump and Giuliani No Strangers to Campaign Finance Laws

Trump and Giuliani are no strangers to these campaign finance laws. Special Counsel Robert Mueller investigated the Trump Campaign for possible illegal solicitation of contributions from Russian intelligence assets during the 2016 election. As I explained in a summary of a section of the Mueller Report that I wrote for Just Security, Mueller weighed charging Trump Campaign officials with crimes in connection with a June 2016 Trump Tower meeting, in which Donald Trump Jr., Paul Manafort and Jared Kushner met with several Russian nationals to follow up on an “offer” from Russia’s “Crown prosecutor” to “the Trump campaign” of “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.’s] father” as “part of Russia and its government’s support to Mr. Trump.”

Mueller concluded there were reasonable arguments that the offered opposition research would constitute a “thing of value”—i.e., a “contribution” under the law. However, Mueller determined that the government would not be likely to obtain a conviction for two reasons.

First, to establish a criminal campaign-finance violation, the government must prove beyond a reasonable doubt that the defendant acted “knowingly and willfully”—i.e., that the defendant knew generally that his conduct was unlawful. Yes, this peculiar area of election law allows defendants to escape liability for ignorance of the law. And Mueller concluded he lacked evidence likely to prove beyond a reasonable doubt that Trump Campaign officials acted with knowledge that their conduct was illegal.

Second, Mueller concluded the government would have difficulty proving that the value of the promised information exceeded the $2,000 threshold for a criminal violation and/or the $25,000 threshold for felony punishment. Evidence of the value of the offered information would likely be unavailable, especially given that the offered information apparently was not produced.

Given the need, in a criminal prosecution, to establish that Trump Campaign officials knew their activities were illegal, combined with the presumed difficulty of establishing the monetary value of information that was offered, but never produced, Mueller decided not to pursue criminal campaign-finance charges for Trump Campaign officials relating to the June 2016 Trump Tower meeting.

Although team Trump’s presumed ignorance of campaign finance laws worked in its favor in the context of the Mueller investigation, Trump and Giuliani can’t claim ignorance now. Both have been on notice, at the very least since the conclusion of the Mueller investigation, that it’s illegal for any person to solicit anything of value from a foreign national to influence a U.S. election.

And there can be no serious doubt that the value of any investigation by Ukraine’s government — as well as the mere announcement of such an investigation — into Biden would exceed the $2,000 threshold for a criminal violation and/or the $25,000 threshold for felony punishment. Remarkably, the DOJ announced in late September that it had explored whether the July 25 call warranted opening an investigation into potential campaign finance crimes, but concluded it did not because the information discussed on the call did not amount to a “thing of value” that could be quantified. This determination flies in the face of Special Counsel Robert Mueller’s interpretation of the same provision of law — i.e., that opposition research could constitute a “thing of value” under campaign finance law. Opposition research is a commodity regularly bought and sold in the political marketplace. And the value of the investigation Trump solicited could be quantified by the estimated compensation that would be paid to Ukraine government employees conducting such an investigation. The DOJ knows as well as anyone the cost of employing investigators.

In the context of impeachment, the criminal prosecution requirements of proving beyond a reasonable doubt knowledge of the law and monetary value would not apply. By requesting a Ukraine government investigation of his 2020 electoral opponent, Trump solicited a political contribution in violation of federal campaign finance law—certainly an impeachable offense.

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3. Bribery
by Randall Eliason

Of the various criminal laws potentially implicated by President Donald Trump’s conduct toward Ukraine, bribery has special significance. Article II, Section 4 of the Constitution singles out bribery as grounds for impeachment: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” If the president committed bribery, there is no room for debate, no need to argue about the proper definition of “high crimes and misdemeanors.” It’s an impeachable offense, period. And bribery – as commonly understood and as a matter of federal criminal law — is exactly what happened here.

Bribery involves an abuse of office: a public official soliciting or receiving an undue personal benefit in exchange for the exercise of official power. It’s an ancient crime that has been around as long as there have been politicians. No court has ever interpreted the term “bribery” in the Constitution’s impeachment clause. But there’s no reason to think it would hinge on the wording of a statute passed by Congress nearly 200 years later, as opposed to a more general, common law definition. And because there is a general consensus that impeachable conduct does not have to be criminal at all, it makes little sense to insist that impeachable offenses track the precise elements of any particular criminal statute.

But with that being said, we can at least look to current federal criminal law for guidance. The primary federal bribery statute is Title 18, United States Code, Section 201. To prove bribery under the most relevant portion of this statute, a prosecutor must establish the following:

1. A federal public official;
2. directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept;
3. anything of value
4. in return for being influenced in the performance of any official act.

Let’s consider how a federal prosecutor would meet these elements when it comes to President Trump and Ukraine.

Public Official: The public official in this scenario is, of course, President Trump himself. The statute applies to all federal officers and employees and those acting on behalf of any office or branch of the federal government.

Thing of Value: The thing of value in this case is Ukraine’s announcement of investigations into Burisma and the Bidens and into the debunked conspiracy theory involving supposed Ukrainian interference in the 2016 presidential election. Thing of value in bribery law is construed very broadly. It focuses on subjective value to the official, not on any actual commercial value. The key is the proffered gift’s potential to influence the official’s behavior. It can include intangibles such as job offers, promises of future contracts, and personal companionship. During the Abscam investigation, shares of stock in a phony company given to U.S. Senator Harrison Williams as part of an undercover operation were found to be a thing of value because the Senator believed they had value, even though the stock in fact was worthless.

There’s no doubt that Ukraine’s announcement of the desired investigations would have been personally valuable to President Trump. The investigation into the Bidens would place under a cloud one of Trump’s leading political rivals. And the investigation into supposed Ukrainian interference in the 2016 election would undermine and deflect attention from the unanimous conclusion of U.S. intelligence services that Russia interfered in the 2016 election to the benefit the president, which cast doubt on the legitimacy of Trump’s election. For proof of the value of the investigations, we need look no further than the extensive efforts by Rudy Giuliani and his team, who worked for months on the president’s behalf to try to make them happen.

During the House Intelligence Committee hearings, EU Ambassador Gordon Sondland testified that it was the mere announcement of the investigations that was critical; he never heard any demand that the investigations actually be conducted. What Trump wanted was the video of president Zelenskyy announcing the investigations. The actual outcomes were unimportant. This defeats any claim that the investigations might not be a thing of value because they might have exonerated the Bidens, or might not have been completed before the election. All that mattered was the announcements, which could then be used in the president’s political messaging. That was the thing of value.

Official Act: What qualifies as an “official act” is one of the more contentious areas in federal bribery law. “Official act” is defined in the statute as a “decision or action on any question, matter, cause, suit, proceeding or controversy” that is pending before or may be brought before the public official. There are two potential official acts by President Trump in this case: deciding whether to grant a White House meeting to Ukrainian president Zelenskyy and deciding whether to release the approved military aid to Ukraine.

In the 2016 case of McDonnell v. United States the Supreme Court adopted a very narrow reading of “official act.” In exchange for about $170,000 in secret gifts, Virginia Governor Bob McDonnell sent some emails, arranged some meetings with subordinates, and held a reception at the governor’s mansion for his benefactor. After McDonnell was convicted of bribery, the Supreme Court unanimously held that these were not “official acts” and could not support a conviction. The Court held that an official act must involve a more definitive exercise of government power. McDonnell’s actions such as arranging meetings, the Court said, were routine political courtesies that did not resolve anything and thus were not “official acts” as defined in the statute.

Some have suggested that, after McDonnell, meetings cannot be official acts and so withholding the White House meeting could not support a bribery charge. But the question is more complicated than that. Governor McDonnell was arranging preliminary meetings between his benefactor and his subordinates on relatively insignificant issues unrelated to his core duties, and took no further action to resolve those issues. But a White House meeting with a visiting head of state is not just another meeting. Far from it. Such a meeting is a significant diplomatic event and a direct exercise of the president’s powers under Article II. Given its enormous importance, whether the president could be convinced to provide the meeting was a central question in Ukraine policy. And as David Holmes testified, “a White House visit was critical to President Zelenskyy. President Zelenskyy needed to show U.S. support at the highest levels in order to demonstrate to Russian President Putin that he had U.S. backing ….” In McDonnell’s terms, the “question or matter” pending before the White House was: “Should we extend official U.S. recognition and support to the new government of Ukraine by granting president Zelenskyy a White House meeting?” The president’s “decision or action” to resolve that question would qualify as an official act under the statute.

As for the other presidential action at issue – withholding of aid to Ukraine – there is no question that deciding to release or withhold that aid would be an “official act” under any reading of McDonnell. It is a clear exercise of government power to resolve a pending question or controversy.

Quid Pro Quo: The heart of any bribery case is the link between the official act and the thing of value, often referred to as the quid pro quo (this for that). Bribery requires that the official agreed to be influenced in the performance of the official act – to have his or her behavior corrupted – in exchange for the thing of value.

The demand for a quid pro quo from President Trump can be found in the memorandum of his July 25 call with President Zelenskyy. Immediately after Zelenskyy mentions military aid, Trump says, “I would like you to do us a favor, though.” Trump then goes on to ask Zelenskyy to conduct the two investigations and to cooperate with Rudy Giuliani and Attorney General William Barr. But evidence of the quid pro quo goes far beyond just the phone call, and involves a course of conduct over several months. Ambassador Sondland testified there was clearly a quid pro quo when it came to the White House meeting, and that he ultimately came to realize release of the military aid was also linked to Ukraine’s announcement of the investigations. Sondland’s testimony was corroborated by Tim Morrison and Ambassador Taylor, the two officials Sondland contemporaneously informed about his calls with President Trump. At his now-infamous press conference, White House Chief of Staff Mick Mulvaney also admitted that withholding the aid was linked to the request for investigations.

Note that the statute says the demand for a quid pro quo may be made directly or indirectly: it does not need to come only from the president himself but could be conveyed indirectly by others, such as Ambassador Sondland or Giuliani. It’s certainly not the case, as some have seemed to imply, that the president needed to say the words “quid pro quo” during the call to prove it was bribery. In a criminal trial, a jury would be allowed to infer the existence of a quid pro quo from the president’s actions and all of the other surrounding circumstances and testimony. The evidence is overwhelming, and largely uncontested, that both official acts were linked to the demand that Ukraine announce the investigations.

Corrupt Intent:  Some have argued it is common for the United States to condition foreign aid on another government’s agreement to take certain steps. But this is where the element of corrupt intent comes into play. A president might tell Mexico, for example, that the U.S. would provide more foreign aid if Mexico would devote more resources to fighting internal corruption. One could call such an offer a quid pro quo. But in that case, the president is asking for actions that further U.S. national policy, not his private interests. Demanding investigations for the president’s own political benefit  – and doing so in a way that actually harms U.S. national security by withholding important aid from an ally – provides the element of corrupt intent that transforms this from routine foreign policy into a potential crime.

Ambassador Sondland’s testimony that it was the mere announcement of the investigations that was the key is further evidence of corrupt intent. It negates any claim that President Trump was sincerely interested in the investigation of Ukrainian corruption, or that this was simply a legitimate exchange of one public act for another. Trump didn’t care about the outcome of any investigation or rooting out Ukrainian corruption. He merely wanted to be able to trumpet the fact that investigations were taking place, for his own political benefit.

Other Issues: Many of the president’s supporters have argued there could be no offense because the aid ultimately was released and Ukraine never began the investigations. But bribery never requires that the quid pro quo be successfully completed. The crime is in the corrupt deal: the offer to buy or sell the power of the public office. The language of the statute makes this clear: it requires only that the public official “agrees to receive or accept” the thing of value in exchange for being influenced. There is no requirement that the thing of value actually be delivered or that the official act actually be performed. In this case, it appears the aid was released and president Zelenskyy dropped his plans to announce the investigations on CNN once it became apparent there was a whistleblower report and Members of Congress had started to ask questions. The fact that the bribery plot was foiled is no defense. This was not merely an “attempted bribery,” as some have argued – the offense was completed.

Finally, some have argued the president’s conduct is better described as extortion, rather than bribery. Extortion is defined as forcing another person to surrender their property under some kind of duress. When it comes to extortion by public officials, the Supreme Court has held that the crime is basically equivalent to taking a bribe. But if we are looking to federal statutes as a guide, an extortion charge runs into obstacles. Although bribery requires only the broadly-defined “thing of value” discussed above, extortion under the Hobbs Act, Title 18 United States Code, Section 1951, requires that the official be seeking to obtain “property” from the victim. Although announcing a politically-beneficial investigation could readily be a thing of value for purposes of a bribery charge, it’s much harder to argue that such an announcement is “property” that could be “obtained” by the president. Trump’s conduct feels like extortion as commonly understood, but strictly in terms of the requirements of the U.S. criminal code, bribery would be the better charge.

In its first Article of Impeachment, the House of Representatives chose to characterize the president’s conduct as a more general “abuse of power” rather than as bribery. That makes perfect sense. Bribery is, at its core, an abuse of power. But if this were a federal criminal prosecution, bribery likely would be a key charge.

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4. Honest Services Fraud
by Barbara McQuade

As Congress considers the actions of President Donald Trump for purposes of impeachment, it is valuable to understand how well the crime of honest services fraud fits the conduct.

Honest services fraud occurs when a public official breaches his duty to act in the best interests of his constituents by performing an official act in exchange for personal gain. The theory of the fraud is that members of the public have been defrauded or deprived of the honest services that they deserve from a government official.

In the criminal arena, federal statutes make it a crime to use the mail or wires, such as the telephone, for the purpose of depriving another of the intangible right of honest services (18 U.S.C. § 1346). Congress has deemed honest services fraud to be serious enough to be punishable by up to 20 years in prison, a $250,000 fine, or both. Prosecutors frequently charge honest services fraud against corrupt public officeholders.

Of course, when it comes to the acts of a president, conduct need not violate any criminal statute to be impeachable, though some overlap is possible. Framers of the Constitution considered corruption to be an appropriate basis for the impeachment of a president. In Federalist Paper No. 65, Alexander Hamilton wrote that impeachment is intended to address “the abuse or violation of some public trust.” Honest services fraud, regardless of the technical elements of the statute, is the type of misconduct for which impeachment was intended.

Mr. Trump’s alleged misconduct came in the midst of an ongoing conflict between Russia and Ukraine. Russia invaded Ukraine’s Crimean Peninsula in 2014, and the resulting war has already claimed 13,000 lives. To help repel Russian aggression, Congress, with bipartisan support, appropriated funds, among other things, to finance Ukraine’s acquisition of military equipment such as communications systems, medical equipment, rocket-propelled grenade launchers, sniper rifles, and “Javelins,” or anti-tank missiles used to attack Russian armored vehicles. Since 2014, the United States has provided Ukraine with $1.5 billion in military aid and $320 million in other assistance.

For fiscal year 2019, Congress appropriated $250 million in military aid and another $141 in non-military aid for Ukraine. As of the now-famous July 25 phone call between Trump and Ukrainian President Volodymr Zelenskyy, the funds had not been released to Ukraine.

The gist of the president’s conduct has become apparent from the summary of the July 25 call, the deposition and public hearings testimony of former and current government officials, and text and email messages. During the call, Zelenskyy expressed the desire for more Javelins. In response, Trump said, “I would like you to do us a favor, though.” Trump then went on to ask Zelenskyy to work with his personal attorney, Rudolph Giuliani, and U.S. Attorney General William Barr to investigate two matters: interference in the 2016 U.S. presidential election and former Vice President Joe Biden’s alleged efforts to stop an investigation into his son. Biden’s son Hunter Biden served as a member of the board of directors of Burisma, an energy company in Ukraine. At the time of the call, Biden was Trump’s leading rival in the 2020 presidential campaign.

But the call itself is only part of the evidence. Trump’s constant refrain to “read the transcript” appears to be a tactic to distract attention from the even more damaging testimony that has been provided by State Department, Defense Department, OMB, and National Security Council officials. Trump’s ambassador to Ukraine Bill Taylor testified that in early September, he learned from a National Security Council official that “the security assistance money would not come until President Zelenskyy committed to pursue the Burisma investigation.” Taylor further testified that U.S. Ambassador to the European Union Gordon Sondland told him that “President Trump had told him that he wants President Zelenskyy to state publicly that Ukraine will investigate Burisma and alleged Ukrainian interference in the 2016 U.S. election.”

According to Taylor, Sondland said that “‘everything’ was dependent on such an announcement, including security assistance. (Sondland) said that President Trump wanted President Zelenskyy ‘in a public box’ by making a public statement about ordering such an investigation.”

Another witness, Lt. Col. Alexander Vindman, a former member of Trump’s National Security Council who listened in on the July 25 call, provided similar testimony. Vindman said that “there was no doubt” that Trump demanded the investigations in exchange for the military aid as well as a meeting between Trump and Zelenskyy at the White House.

From this evidence, a conclusion can be drawn that Trump withheld military aid that had been approved by Congress to induce an ally to announce an investigation into his political rivals. Only upon obtaining a personal benefit – a public announcement by Ukraine about the investigations into his political rivals – would Trump agree to release the aid. Funds were finally released on September 11, only after a whistleblower reported concerns about Trump’s call to Congress on September 9. This is the stuff of honest services fraud.

Trump’s supporters have argued that attaching conditions to aid happens all the time, and that even Biden demanded that Ukraine fire its public prosecutor because of his inaction in combating corruption. But there is a difference between imposing conditions that are in the best interests of the country and imposing conditions that are in the president’s personal political interests.

A president who was fulfilling his duty to provide honest services to the American public would have released the aid, pursuant to the wishes of Congress, contingent only on any conditions that were in the best interest of the United States. By delaying the aid to leverage an announcement about investigations, Trump acted contrary to the best interests of our country in a number of ways. Congress had determined that containing Russian aggression was in the national security interests of the United States. By withholding the aid, Trump was contravening this purpose. Withholding aid also undercut our foreign policy by damaging our relationship with Ukraine, a key ally in the region. In addition, attaching corrupt conditions on the release of military aid also undermined the credibility of the United States as an honest broker among our allies. And the President compromised the credibility of the United States to demand that other nations eliminate corruption when he acts corruptly himself.

An exchange with the Deputy Assistant Secretary of State George Kent during his public testimony is instructive:

COMMITTEE COUNSEL: Mr. Kent, is pressuring Ukraine to conduct what I believe you’ve called political investigations a part of U.S. foreign policy to promote the rule of law in Ukraine and around the world?

KENT: It is not.

COMMITTEE COUNSEL: Is it in the national interest of the United States?

KENT: In my opinion, it is not.

COMMITTEE COUNSEL: So in other words, it is a purpose of our foreign policy to encourage foreign nations to refrain from conducting political investigations, is that right?

KENT: Correct. And, in fact, as a matter of policy, not of programming, we often times raise our concerns, usually in private, with countries that we feel are engaged in selective political prosecution and persecution of their opponents.

In the criminal arena, honest services fraud has been narrowed in recent years by a series of court cases. In 2010, in United States v. Skilling, the Supreme Court held that honest services fraud is limited to situations in which the public official seeks a bribe or kickback. In 2016, in United States v. McDonnell, the Court held that honest services fraud applies only where the public official performs an “official act” in exchange for the bribe or kickback. The Court defined “official act” to mean “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, these legal limitations would not apply as they do in a criminal case, but even if they did, they would not prevent the application of honest services fraud here. By demanding a public announcement that Ukraine was investigating the 2016 election interference and the Bidens, Trump was seeking a bribe or kickback, satisfying the standard set forth in Skilling. And although a White House meeting may not qualify as an official act under McDonnell, withholding military aid would certainly qualify.

When considering articles of impeachment and underlying crimes, honest services fraud may be the legal theory that best fits this conduct.

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5. Foreign Corrupt Practices Act
by Susan Simpson

Under U.S. law, bribery of a foreign official is prohibited by the Foreign Corrupt Practices Act (FCPA), which prohibits U.S.-connected persons from engaging in certain corrupt acts with foreign government officials. It carries both civil and criminal penalties.

As described in testimony before the House’s impeachment inquiry, President Trump’s quid pro quo arrangement with Ukraine has many of the hallmarks of a classic FCPA case – with the notable exception of the fact this quid pro quo offer was extended not by officials of a U.S. corporation, but by officials of the U.S. government. However, although most FCPA enforcement actions today involve corporations making illicit payments in order to secure the award of foreign government contracts, the Ukraine-Trump affair bares a certain resemblance to the events that led to the creation of the FCPA: a U.S. President’s use of undisclosed contributions from multinational corporations and foreign states to pay for legal expenses in connection with the President’s abuses of power and a resulting impeachment inquiry.

In the aftermath of Watergate, and President Richard Nixon’s use of his re-election committee to fund expenses related to the Watergate burglars, investigations by Congress and federal agencies uncovered a widespread problem of foreign corporate payments that were kept secret through the use of falsified corporate accounting records.  As Senator Frank Church noted in his opening at the first hearing on the matter before the Subcommittee on Multinational Corporations (Church Committee), Congress’ motivating concern was the negative foreign policy consequences these payments caused:

In the course of the Watergate Committee hearings and the investigation by the Special Prosecutor, it became apparent that major American corporations had made illegal political contributions in the United States. More recently, the [SEC] has revealed that several multinational corporations had failed to report to their shareholders millions of dollars of offshore payments in violation of the Securities laws of the United States. . . .

The [SEC] is understandably concerned that the disclosure requirements of U.S. laws are complied with. This subcommittee is concerned with the foreign policy consequences of these payments by U.S.-based multinational corporations. (Multinational Corporations and United States Foreign Policy: Hearings Before the Subcomm. on Multinational Corps. of the S. Comm. on Foreign Relations, 94th Cong. 1 (1975))

The investigations by the Office of the Watergate Special Prosecutor, the Church Committee, and the Securities Exchange Commission ultimately led to the enactment of the Foreign Corrupt Practices Act in 1977.[1]

Under the FCPA, unlawful bribery of a foreign official occurs when a U.S.-connected person:

1. “make[s] use of the mails or any means or instrumentality of interstate commerce”
2. “corruptly”
3. to “offer, gift, promise to give, or authorization of the giving”
4. “anything of value”
5. to an official of a foreign government
6. for the purpose of influencing that foreign official to act in an improper way
7. in order to assist a “domestic concern” in “obtaining or retaining business for or with, or directing business to, any person.”

As the following discussion explains, testimony presented in the course of the impeachment inquiry has established the first six elements of a bribery offense. However, it is likely that additional evidence would need to be presented before the seventh and final element would be met.

With regards to the first, third, fourth, and fifth elements, the sufficiency of the evidence is plain:

• The telephone call between President Donald Trump and President Volodymyr Zelenskyy was a use of an instrumentality of interstate commerce as part of the broader course of conduct.
• Testimony before the House Intelligence Committee established that President Trump authorized his personal attorney Rudy Giuliani and Ambassador Gordon Sondland to offer President Zelenskyy a White House meeting and the release of the security assistance[2]
• The term “anything of value” is broadly defined, and the White House visit and the security assistance had clear value to President Zelenskyy.
• These offers were conveyed to Ukrainian government officials who qualify as “foreign officials” under the FCPA.

The second element of a bribery offense under the FCPA – the requirement that the act be done “corruptly” – has also likely been met by President Trump’s conduct, but it requires some more analysis.

The FCPA’s provisions broadly prohibit the offering of “anything of value” to a foreign official in order to “secur[e] any improper advantage,” and theoretically could reach a broad range of permissible transactions; in many cases, it is the “corruptly” element of the offense that distinguishes unlawful bribes from otherwise lawful conduct. The term “corruptly,” for purposes of FCPA liability, “signifies, in addition to the element of ‘general intent’ present in most criminal statutes, a bad or wrongful purpose and an intent to influence a foreign official to misuse his official position.” Stichting Ter Behartiging v. Schreiber, 327 F. 3d 173 (2d Cir. 2003). “When the FCPA is read as a whole, its core of criminality is seen to be bribery of a foreign official to induce him to perform an official duty in a corrupt manner.” United States v. Kay, 359 F.3d 738 (5th Cir. 2004). Inducing a foreign official to wrongfully pursue a criminal investigation into the inducer’s rival, for the inducer’s personal benefit, would be an inducement of a foreign official to misuse the powers of his office.[3]

Though the majority of enforcement activity to date under the FCPA has involved some variation on the classic example of a corporation influencing a foreign official’s decision-making in the government contracting process by making a monetary payment to the official’s personal accounts, the FCPA’s reach is not limited to this fact pattern. The focus of the FCPA is prohibiting the inducement of a foreign official to misuse his office, rather than on the particular form of the inducement that is used.[4] This is shown not just from the statute’s history, but also its text, as the FCPA has explicit prohibitions on corrupt offers not only to foreign officials, but also to “any foreign political party” for the purpose of “inducing such party .. to use its … influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.” An inducement to a political party plainly contemplates an inducement through an offer of a political benefit, and FCPA liability will not depend upon whether there also happens to be an individual candidate or party official who received a personal financial benefit as a part of the deal.[5]

In terms of President Trump’s own mindset in making the offer to Ukrainian officials, the FCPA does impose a higher requisite criminal intent than many criminal laws, but that criminal intent has also been met under the evidence presented before the House Committees. “[A]n admission that an act was done ‘corruptly’ in this context is not equivalent to an admission that the person committing it knew that it violated the particular law at the time the act was performed.” Schreiber at 181. To be guilty of bribing a foreign official, President Trump did not need to know his actions were in violation of any particular provision of the FCPA; rather, he is required to have known only that he acted with a “bad purpose.”

Although President Trump would undoubtedly argue, if charged with an FCPA offense, that he lacked the required knowledge of wrongfulness to commit an FCPA violation, that argument would almost certainly fail based on his phone calls with Senator Ron Johnson and Ambassador Sondland. “I would never do that,” he told Senator Johnson, when asked about whether there was a quid pro quo. And, “no quid pro quo,” he told Ambassador Sondland, when asked what he wanted from Ukraine – before immediately describing a quid pro quo. Both these conversations demonstrate that President Trump knew it would be wrong to ask for a quid pro quo, and thus was careful to deny that is, in fact, what he was doing.

The sixth element of an FCPA violation requires that there be a quo by a foreign official to go along with the quid that the defendant has offered. The core of FCPA liability is this quid pro quo arrangement: the defendant must have wanted the foreign official to do some official act, in exchange for the bribe being offered. For purposes of this exchange, what qualifies as an official act is broadly defined, and includes:

(i) influencing any act or decision of such foreign official [ ] in his [ ] official capacity, (ii) inducing such foreign official [ ] to do or omit to do any act in violation of the lawful duty of such foreign official [ ], or (iii) securing any improper advantage.

In the record before the impeachment inquiry, there is some suggestion that President Trump and other officials may have been attempting to evade FCPA liability, through the careful tailoring of their request to President Zelenskyy in the hopes that it would fall outside of the scope of conduct reached by the FCPA. Recall, for instance, that in his (heavily lawyered) testimony, Ambassador Sondland was always careful to specify that the quid pro quo arrangement with Ukraine was not a request for Ukraine to actually conduct the desired investigations, but rather a request for Zelenskyy to publicly announce the investigations:

SCHIFF: But he had — he had to get those two investigations, if that official act was going to take place, correct?

SONDLAND: He had to announce the investigations. He didn’t actually have to do them, as I understood it.

One interpretation of Sondland’s testimony has been that President Trump was concerned only with the political value of the investigations, and indifferent to actual investigations being conducted. But there’s another interpretation of this carefully worded testimony: that either President Trump or Ambassador Sondland may have believed that a request for President Zelenskyy to merely announce investigations was not a request for an “official act” that falls afoul of the FCPA, pursuant to the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). In McDonnell, the Supreme Court concluded that, on its own, “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)” are not official acts taken under color of official authority, and so U.S. bribery law does not apply to them.

This fine line could, perhaps, explain why President Trump was insistent that, when it came to the announcement of the investigations, “President Zelenskyy himself” had to do it, and that he had to “do it in public.” (Taylor at 39). For the Prosecutor General to make the announcements would be closer to an “official act” under the McDonnell framework, as under Ukrainian law it is the Prosecutor General who has the official capacity to open such investigations. In contrast, statements made by the Ukrainian president during a public interview with CNN might not be included in McDonnell’s reach, since the decision of whether to open an investigation is technically not his to make.  It’s possible that Trump’s request for Zelenskyy to make an announcement was a deliberate effort to avoid triggering FCPA liability, by requesting something that did not qualify as an improper act by a foreign official.

If this was the intent of President Trump and Ambassador Sondland, then the caselaw caught up with them while their scheme was still in progress. McDonnell was not an FCPA case – it was decided in the context of honest services fraud, see 18 U.S.C. §§ 1343, 1349, and Hobbs Act extortion, see id. § 1951(a), both of which outlaw the payment of bribes to U.S. government officials. The FCPA, which regulates the payment of bribes to foreign government officials, has a different statutory framework, and uses different language.

So then, does McDonnell’s limitation on “official acts” by U.S. officials also apply in the context of what constitutes bribery of a foreign official?

Until recently, the answer was unclear, as no appellate court had ruled on the question. Then, on August 9th – right in the middle of text messages between Giuliani, Volker, Sondland, and Yermak laying out the proposed content of Zelenskyy’s public announcement – the Second Circuit handed down its decision in United States v. Ng Lap Seng, in which a defendant sought to overturn his conviction for bribing a foreign official by arguing that McDonnell’s “official acts” standard likewise should’ve applied to the FCPA.

The Second Circuit rejected his theory, finding that the FCPA’s prohibitions were broader than the prohibitions under the domestic anti-bribery laws:

From these textual differences among various bribery statutes, we conclude that the McDonnell “official act” standard, derived from the quo component of bribery as defined by § 201(a)(3), does not necessarily delimit the quo components of other bribery statutes, such as … the FCPA.  United States v. Ng Lap Seng, No. 18-1725-cr, at *39 (2d Cir. 2019).

The result is that although a bribe might be lawful if paid to a U.S. government official, that same bribe can nevertheless be a violation of the FCPA if offered instead to a foreign official. And in the case of the Ukraine-Trump matter, with the request for President Zelenskyy to publicly announce investigations that would assist Trump, this element would likely be met.

That brings us to the seventh and final element of the offense: that the above acts be done in order to assist “in obtaining or retaining business” or “directing business to any person.” This is known as the business nexus requirement, and it is here that the evidence presented against President Trump falls short of establishing an FCPA violation. Although courts have found that the business nexus under the FCPA should be interpreted broadly, in all cases there must necessarily have been some element of “business” present. Under the facts of a particular case, the benefit sought might not necessarily be a direct monetary advantage, but it still must be an advantage that furthers a business or commercial motive.

As presented in testimony before the House Committees, the quid pro quo that President Trump sought was not for a commercial or business benefit, but for his personal political benefit. He sought an improper campaign advantage, not an improper business advantage. Although there are unanswered questions about the potential scope of FCPA liability outside of the purely commercial realm – such as in the case of a nonprofit operation that seeks favors from foreign officials in the furtherance of the entity’s non-commercial goals – there is no existing case law that lends support to the idea that courts would be willing to extend FCPA liability to the case of a political candidate seeking a purely political favor.

Which means that, in terms of the evidence presented in testimony before the House Committees, it has not been established that President Trump’s actions were in violation of the FCPA. But it’s also worth noting: there is a lot of evidence that was not before the impeachment inquiry. And a major part of the Ukraine-Trump matter that was largely overlooked by the House’s proceedings was the business nexus of the scheme.

Though not explored in depth, the business nexus of the Trump administration’s negotiations with Ukraine was nevertheless referenced throughout the proceedings. Dr. Hill, for instance, referenced her knowledge of an underlying business arrangement that goes beyond anything she was asked directly about in her testimony:

QUESTION: So did you come to understand that Mr. Giuliani perhaps, at a minimum, was advocating for an investigation into Burisma?

HILL: It was part of what seemed to be a package of issues that he was pushing for, including what seemed to be the business interests of his own associates. (Hill at 57)

Giuliani’s associates are, of course, the now-indicted Lev Parnas and Igor Fruman, and the business interest that Giuliani was pushing for on their behalf included that of their LNG company, Global Energy Producers, which was seeking certain contracts in Ukraine. As has been widely reported, Global Energy Producers was involved in an effort to have the head of Ukraine’s state-owned gas company, Naftogaz, replaced with a hand-picked successor:

Then, in March, [Naftogaz CEO Andriy] Kobolyev came under attack by two associates of Rudolph Giuliani, President Trump’s personal attorney. They wanted to install a new Naftogaz chief and secure a gas-supply deal.

Efforts to install new leadership at Naftogaz were also part of Secretary Perry’s work in Ukraine, though the record before the House as to what exactly Perry was doing in Ukraine is sparse. So too is the record of what Giuliani’s role was in the LNG negotiations. Still, it was clear that Giuliani and Ambassador Sondland were jointly involved in Naftogaz matters of some nature:

CHAIRMAN: You just thought that Mr. Giuliani or the President were interested in Burisma because they were interested in a particular energy company having nothing to do with the Bidens?

SONDLAND: Well, Naftogaz was also mentioned, and that was another company that was mentioned. (Sondland at 70-71)

From Sondland’s testimony, it seems as if Naftogaz may have been just as important as the Burisma issue, and Sondland noted at one point that “Naftogaz comes up at every conversation.” (Sondland at 99). Frustratingly, however, this Naftogaz matter was never expanded upon before the House Committees. And the one time Sondland was asked directly about the subject, he avoided giving any answers:

GOLDMAN: But you never heard Rudy Giuliani express any concerns about Naftogaz, did You?

LUSKIN [SONDLAND’s attorney]: Are you talking about in the period of June?

GOLDMAN: I’m talking about at all.

SONDLAND: I don’t recall. (Sondland at 158)[6]

From Sondland, the true meaning of “I don’t recall” often proved to be “I recall, but don’t want to answer.” If Sondland recalled Naftogaz coming up in nearly every conversation, he should have been able to recall something of the context.

And in fact Sondland does recall something about it, because he mentioned it in his public testimony. When Sondland was asked how the decision was made to include “Burisma” in the announcement being negotiated with Ukrainian officials, he also referenced a specific “issue” that they were “working on” involving Naftogaz:

CASTOR: But other companies came up didn’t they?

SONDLAND: I don’t know if they were mentioned specifically. It might have been Naftogaz because we were working on another issue with Naftogaz so that might have been one of them.

What’s more, NBC News reported that Sondland backed the “effort to change the leadership at Ukraine’s main energy company, despite objections from career diplomats who saw the move as undermining anti-corruption efforts.” The day after the phone call between the two heads of state, Sondland gave a televised interview in which he said the topics he was working on with Zelenskyy included “energy security, war, the team that President Zelenskyy is putting together around him, the rule of law, Naftogaz, all kinds of things,” and later in the interview said the United States would “continue to support and will even increase our support as Ukraine begins to undertake the reforms that they’ve promised to undertake.”

President Trump’s involvement in any Naftogaz issues is unclear at this point, but at a minimum he was aware of the fact that the negotiations with Ukraine involved some LNG component, per reporting from Axios on October 5th:

“Not a lot of people know this but, I didn’t even want to make the call. The only reason I made the call was because Rick asked me to. Something about an LNG [liquefied natural gas] plant,” one source said, recalling the president’s comments. 2 other sources confirmed the first source’s recollection.

In fact, in the summary of the July 25th call, President Zelenskyy makes what may be an oblique reference to unspecified energy contracts, and seems to link to these energy contracts with the prospect of a future meeting with President Trump:

As to the economy, there is much potential for our two countries and one of the issues that is very important for Ukraine is energy independence. I believe we can be very successful and cooperating on energy independence with United States. We are already working on cooperation. We are buying American oil but I am very hopeful for a future meeting. We will have more time and more opportunities to discuss these opportunities and get to know each other better.

The Associated Press reported that, in March of 2019, Fruman, Parnas, and a third individual, Harry Sargeant III, had approached a senior executive of Naftogaz, Andrew Favorov, with a plan that would have him replace Andriy Kobolyev as Naftogaz’s new CEO. “Sargeant told Favorov that he regularly meets with Trump at Mar-a-Lago and that the gas-sales plan had the president’s full support,” the AP reported.

Giuliani’s activities in Ukraine raise a host of concerns, with potential violations of a broad range of federal statutes, but his LNG work in Ukraine may currently be subject to an investigation by the Southern District of New York for FCPA violations. Yes, the same federal circuit in which Ng Lap Seng was recently decided. As the Wall Street Journal reported last month:

Federal prosecutors in New York are investigating whether Rudy Giuliani stood to profit personally from a Ukrainian natural-gas business pushed by two associates who also aided his efforts there to launch investigations that could benefit President Trump[.] …

Mr. Giuliani’s associates, Lev Parnas and Igor Fruman, pitched their new company, and plans for a Poland-to-Ukraine pipeline carrying U.S. natural gas,[7] in meetings with Ukrainian officials and energy executives this year, saying the project had the support of the Trump administration, according to people briefed on the meetings. In many of the same meetings, the two men also pushed for assistance on investigations into Democratic presidential candidate Joe Biden and alleged interference by Ukraine in the 2016 U.S. election, some of the people said.

In conversations that continued into this summer, Messrs. Parnas and Fruman told Ukrainian officials and others that Mr. Giuliani was a partner in the pipeline venture, which was a project of their company, Global Energy Producers[.]

In a potential FCPA case, the business nexus requirement would be satisfied by Giuliani’s efforts to promote LNG-related business interests. And, though many of the facts surrounding Giuliani’s work with Global Energy Producers have yet to be developed in the factual record before the House, there has been substantial public reporting to date that points to a clear overlap between Giuliani’s work on behalf of President Trump and his work to advance an LNG business in Ukraine.

If President Trump, acting through agents such as Secretary Perry or Ambassador Sondland or his personal attorney Giuliani, extended offers to Ukrainian officials that included a request for the performance of acts that would benefit Giuliani or his clients in their pursuit of LNG contracts in Ukraine, then all of the elements of an FCPA violation would likely be met. As noted in Ng Lap Seng, that President Trump himself received no direct financial benefit from this arrangement is irrelevant, because “the FCPA prohibits commercial bribery without regard to whether the briber himself profits directly from the business obtained.”

Questions of FCPA liability under the circumstances presented here should be approached cautiously, as the FCPA’s reach almost certainly does not extend to any efforts by the U.S. President to use his office to corruptly induce foreign states to provide purely political, non-commercial benefits. But there is nothing in the FCPA’s text – and certainly not in its history, with its origins in the investigations into corporations who used donations to President Nixon’s reelection fund to secure the federal government’s assistance in their foreign business enterprises – that would provide a blanket immunity to a U.S. President using the powers of his office to induce a foreign official to corruptly benefit a business interest that the U.S. President favors.

– – – – – – – – – – – – –

[1] For a detailed history of how Watergate led to the creation of the FCPA, see Koehler, Mike, The Story of the Foreign Corrupt Practices Act, Ohio State Law Journal, Vol. 73, No. 5, 2012.

[2] Whether the U.S. officials ever actually made good on these offers is irrelevant, as under the FCPA the promise to make a prohibited payment is just as unlawful as the actual payment would be.

[3] See also United States v. Zacher, 586 F.2d 912, 916 (2d Cir. 1978) (A bribe becomes a bribe when it “entail[s] either a breach of trust or duty or the corrupt selling of what our society deems not to be legitimately for sale — the Senator’s vote, the citizen’s ballot, the labor leader’s negotiating position or the employee’s actions taken on behalf of an employer. It is this element of corruption that distinguishes a bribe from a legitimate payment for services.”).

[4] See, for instance, SEC v. Schering-Plough Corporation, in which the SEC successfully brought an enforcement action based on a company’s donations to a legitimate charitable organization that was associated with a foreign government official.

[5] As discussed infra, in the case of the Ukraine-Trump matter, it is the conflation of commercial and governmental interests that creates the potential for liability under the FCPA. If the Trump administration’s offers to Ukrainian officials had been corrupt, but made solely for the purpose of a governmental benefit, then FCPA liability would almost certainly not attach. Moreover, such a result would be undesirable from a policy standpoint, as it would introduce too much uncertainty into the normal U.S. foreign policy process.

[6] It seems that Sondland’s attorney, Luskin, may have been aware of Giuliani expressing “concerns” about Naftogaz at some point in time, given his interjection seeking to clarify which time period in particular was being referred to. If Luskin was unaware of such conversations ever occurring or had confidence that no such conversations occurred, his question would be unnecessary.

[7] It is unclear exactly what pipeline proposal Parnas and Fruman were involved in, but based on public reporting it seems this may be  the same pipeline that was the subject of the trilateral agreement between Ukraine, the U.S., and Poland, which was signed in Warsaw on September 1, 2019. Because President Trump cancelled his trip to Warsaw, citing the hurricane, Secretary Perry attended the signing instead.

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6. The Hatch Act
by Gary Stein

On Nov. 4, House Intelligence Committee Chairman Adam Schiff, speaking to reporters, put his finger on a central, if overlooked, constitutional and legal value threatened by the President’s conduct towards Ukraine. Summarizing the deposition testimony of former State Department official Michael McKinley, Schiff noted McKinley’s “alarm” at learning that the President of the United States had used “the apparatus of the State Department” to “seek political information for a political purpose.”

That very danger—an incumbent administration deploying the personnel and enormous powers of the federal government to perpetuate itself in office—greatly concerned the founders of our Republic. After becoming President, Thomas Jefferson issued a circular reciting that he had seen, “with dissatisfaction, officers of the General Government taking, on various occasions, active parts in elections of the public functionaries, whether of the General or of the State Governments.” The use of public office for electoral activities, Jefferson declared, was “improper” and a threat to freedom of elections, and so he instructed that federal officers “will not attempt to influence the votes of others, nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution, and his duties to it.”

Various of Jefferson’s successors, including Presidents Harrison, Arthur, Cleveland and Theodore Roosevelt issued their own executive orders barring interference in elections by federal employees. In 1939, Congress enshrined that principle into law by enacting the Hatch Act. The Hatch Act declares it unlawful for federal employees to “use [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” 5 U.S.C. § 7323(a)(1).

In 1993, Congress amended the Hatch Act to add a new criminal statute, codified at 18 U.S.C. § 610, protecting against political manipulation of the federal workforce. Under Section 610:

It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government as defined in section 7322(1) of title 5, United States Code, to engage in, or not to engage in, any political activity, including, but not limited to, voting or refusing to vote for any candidate or measure in any election, making or refusing to make any political contribution, or working or refusing to work on behalf of any candidate.

Thus, to make out a violation of Section 610, there must be proof that (1) a person (2) “intimidate[d], threaten[ed], command[ed], or coerce[d]” (or attempted to do so) (3) a covered employee of the federal government (4) to engage in, or not engage in, “political activity.” Below I assess President Trump’s conduct, as described in the Trump-Ukraine Impeachment Inquiry Report issued by the House Intelligence Committee, in light of these elements.

(1) “Any person.” It is common for criminal statutes to apply to “any person,” but that fact is notable in this particular context. The President, as well as the Vice President, are exempt from the Hatch Act’s well-known civil restrictions on engaging in political activity. But the President is not exempt from the criminal prohibitions in Section 610.

(2) “Intimidate, threaten, command or coerce.” There was ample evidence at the Intelligence Committee hearings that President Trump “commanded” federal employees to press Ukraine to announce investigations damaging to his political rivals.

At the May 23 meeting in the Oval Office, Trump put EU Ambassador Gordon Sondland, Special Envoy Kurt Volker and Secretary of Energy Rick Perry in charge of Ukraine policy. According to Sondland, Trump “express[ly] direct[ed]” them to coordinate with Rudy Giuliani, in effect lending their official authority in support of Giuliani’s campaign to induce Ukraine to open investigations into Joe and Hunter Biden’s connection to Burisma and supposed Ukrainian interference with the 2016 election. In doing so, Sondland testified, he and Volker and Perry were “follow[ing] the President’s orders.”

According to Sondland, President Trump told him, both directly and through Giuliani, that he wanted a public statement from President Zelenskyy committing to the Burisma and 2016 election investigations as a prerequisite to a White House meeting. The evidence also shows that Acting White House Chief of Staff Mick Mulvaney placed a hold on security assistance to Ukraine “at the direction of the President.” In a call with Sondland on September 7, the President “insist[ed]” and “was adamant” that Zelenskyy “must” announce the investigations publicly, and Sondland relayed that message to Zelenskyy, who then agreed to announce the investigations on CNN.

The President’s statements fit comfortably within the ordinary meaning of the word “command”: “To direct with authority; give orders to” (American Heritage Dictionary). “‘Command’ means to order,” one court instructed a jury in explaining the federal criminal aiding and abetting statute (which provides that whoever “aids, abets, counsels, commands, induces or procures” an offense against the United States is punishable as a principal). See United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999). President Trump’s position as the head of the Executive Branch strengthens the conclusion that he was issuing “commands” that invoked the authority of his office, and not mere requests which his subordinates were free to disregard.

Further proof of that fact comes from evidence that Sondland and Volker disagreed with the plan, but carried it out anyway. For instance, Sondland testified that he, Volker and Perry felt they had to “do as President Trump directed” and coordinate with Giuliani if they wanted to accomplish what they believed was the crucial policy goal of a White House meeting for Zelenskyy. When, on July 20, Ambassador William Taylor texted Sondland that Ukraine should not be used “as an instrument in Washington domestic, reelection politics,” Sondland’s reply indicated that he agreed – “Absolutely” – but that it was more important “to get the conversation started and the relationship built, irrespective of the pretext.”

For his part, Volker repeatedly advised Giuliani that he believed the allegations made by former Ukrainian Prosecutor General Yuriy Lutsenko about Joe Biden and Ukrainian interference in the 2016 election were “not credible.” Yet at Giuliani’s insistence, Volker nonetheless pressed Ukrainian officials in August to add into their draft anti-corruption statement specific references to investigations of both Burisma and the 2016 U.S. elections.

Similarly, on August 7, various Office of Management and Budget (OMB) components prepared a memorandum recommending that the hold on security assistance be lifted, reflecting the unanimous view of other concerned agencies such as the State Department and Defense Department. Michael Duffey, OMB’s Associate Director for National Security Programs, agreed with that recommendation. Yet Duffey approved six more extensions of the hold after that date, which remained in force until September 11.

This and other evidence suggests that President Trump did not just “command,” but may have “intimidated” and “coerced” federal employees into engaging in political activity. Just before he began employing federal officials to assist in pressing Ukraine to conduct the investigations, the President dismissed Ambassador Marie Yovanovitch after she fell out of favor with Giuliani.  The message to Sondland and Volker, at the time the President put them in charge of Ukraine policy, would have been clear:  Carry out Giuliani’s directives, or risk losing their own jobs.

(3) Covered Federal Employee. The definition of an “employee” under 5 U.S.C. § 7322(1) includes “any individual, other than the President and the Vice President, employed or holding office in . . . an Executive agency other than the General Accountability Office.”  The fact that Section 610 simultaneously uses the Hatch Act’s narrower definition of “employee” (which excludes the President) in describing the objects of impermissible command and coercion, while employing the expansive term “any person” in describing the subjects of its criminal sanctions, leaves no doubt that the statute prohibits the President from commanding, intimidating or coercing his subordinates in the Executive Branch to engage in political activity.

While Section 610 can be violated if the President commands even a single Executive Branch employee to engage in political activity, the evidence in the Intelligence Committee’s report suggests there were multiple employees so commanded by President Trump, including Sondland, Volker, Perry, Mulvaney, and Duffey.

(4) “Political Activity.” Section 610 does not define the term “political activity.” The legislative history of the 1993 Hatch Act Amendments, of which Section 610 was a part, notes that the bill “does not attempt to define the term ‘political activity,’” and leaves it to the Office of Special Counsel, which enforces the civil provisions of the Hatch Act, to define, “by regulation,” “what is and what is not political activity.” H.R. Rep. 103-16, at 18-19 (Feb. 22, 1993).

Those regulations, issued the following year, define “political activity” as follows: “Political activity means an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 5 CFR § 734.101. Thus, “political activity” encompasses activities directed toward the success of President Trump’s re-election, or toward the failure of Joe Biden’s candidacy for President or the electoral prospects of the Democratic Party in general.

The regulations reaffirm the core ban on an Executive Branch employee “us[ing] his or her official authority or influence for the purpose of interfering with or affecting the result of an election,” 5 CFR § 734.302(a), and elaborate that “[a]ctivities prohibited by” that ban include, but are not limited to, (1) “[u]sing his or her official title while participating in political activity” and (2) “[u]sing his or her authority to coerce any person to participate in political activity,” 5 CFR § 734.302(b). Importantly, the regulations define “person” to include “a State, local, or foreign government.” 5 CFR § 734.101 (emphasis added). Therefore, coercing a foreign government, such as Ukraine, to participate in political activity is forbidden.

At the same time, the phrase “directed toward” in the definition of political activity must be viewed as a critically important limitation, ensuring that the Hatch Act does not broadly condemn official actions that are indirectly connected to a political campaign. In a democracy, political leaders are expected to pursue policies with popular appeal, and to do so, at least in part, because those policies will boost their, or their political party’s, prospects on Election Day. It would be intolerable if Executive Branch support for (say) a tax cut or a spending program favoring a particular group of voters could be challenged as an unlawful effort to “affect the result of an election.”

The use of official authority to pressure Ukraine to conduct the investigations demanded by the President is different in kind. The evidence strongly suggests that the sole, or at least the predominant, reason for pushing the investigations was to undermine Joe Biden’s campaign and thereby support the President’s re-election campaign.  Biden, of course, is at the heart of the President’s push for an investigation of the Burisma matter (indeed, in the July 25 call, Trump expressly asked Zelenskyy to investigate Joe Biden’s role). But Biden also figures in the conspiracy theory related to 2016 election interference; as Ryan Goodman and Alex Potcovaru have pointed out, Giuliani has repeatedly contended that Biden sought to obstruct investigations in Ukraine regarding purported collusion between Democrats and Ukraine concerning the 2016 election.

According to the Intelligence Committee report, there is no credible basis to believe that Biden violated Ukrainian or U.S. law in pushing for the removal of former Ukrainian General Prosecutor Viktor Shokin. Tellingly, the focus of the President’s and Giuliani’s efforts was on securing a public announcement of the investigations by President Zelensky—with the attendant damage such an announcement would, in and of itself, inflict on Biden’s campaign—rather than on the substance of the investigation.  That career State Department officials were supplanted and political appointees tasked with responsibility for carrying out the plan, and directed to follow the lead of the President’s personal lawyer, further suggests a purely political motivation directed at influencing the 2020 election.

While Giuliani has claimed that this was not the case and that he was only looking for evidence to defend his client, that claim, for a variety of reasons, is hard to credit. Biden, who publicly announced his candidacy in April, was perceived as the President’s strongest potential rival in 2020. The President had been publicly attacking Biden as a possible opponent since January 2019, after reports that Biden was seriously mulling jumping into the race. Pro-Trump PACs began running anti-Biden advertisements as early as April and June of this year. And the Trump campaign itself in late September launched an ad campaign claiming that Biden sought the removal of Ukrainian prosecutor Shokin to protect Hunter Biden.

Multiple officials who came to learn the facts perceived the Ukraine effort as campaign-directed. Ambassador Taylor texted Sondland that he thought it was “crazy to withhold security assistance for help with a political campaign.” The State Department’s George Kent warned Volker that asking Ukraine to conduct an investigation “for political reasons” undermined U.S. advocacy of the rule of law. Fiona Hill discussed with an NSC colleague her concern that “Ukraine was going to be played by Giuliani in some way as part of the campaign.” Listening to the July 25 call, Lieutenant Colonel Alexander Vindman regarded President Trump’s demand for “an investigation into a political opponent” as “improper” and a “partisan play,” and Jennifer Williams, an advisor to Vice President Pence, likewise called it “unusual and inappropriate” and “political in nature.”

* * *

Based on the analysis above, a prima facie case can be said to exist that President Trump directed employees of the federal government to engage in political activity in violation of Section 610, or at the very least in violation of those officials’ own duties under the Hatch Act and its regulations. That is not to say that a criminal charge would be warranted; prosecutions under 18 U.S.C. § 610 are rare at best—there are no reported decisions under the statute—and any responsible prosecutor would want to know more than what is currently on the public record (including any evidence offered on the President’s behalf, particularly as it relates to his state of mind). Nor is it to say that the President should be impeached, which is a political judgment that does not turn on whether this or any other criminal statute was violated. But it is to say that the President’s conduct, as reported, is inconsistent both with basic democratic values and with the law—the same laws he is charged under the Constitution with faithfully executing.

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7. Contempt of Congress
by Michael Stern

At first blush, the question whether President Trump has committed the crime of contempt of Congress seems to be an easy one. The crime is statutorily defined as follows:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. 2 U.S.C. §192.

President Trump has not appeared or been summoned to appear before Congress or any congressional committee. Although his administration has been subpoenaed to produce documents on many occasions, as far as I know none of those subpoenas have been directed to the president personally. For example, when various House committees wished to obtain White House documents related to the Ukraine investigation, they issued a subpoena duces tecum to the White House acting chief of staff. Thus, it would seem that the president could not have committed a violation of section 192.

Furthermore, both congressional practice and judicial precedent indicate that a prosecution for contempt of Congress requires, as a condition precedent, the completion of certain formal procedures. See 2 U.S.C. §194 (setting forth procedures). In the case of a contempt before a House committee, these would include a vote by the committee to refer the contempt to the full House, a vote by the House itself to approve the contempt report (or, if the House is not in session, a discretionary decision by the Speaker to the same effect), and a formal certification by the Speaker to the appropriate U.S. attorney for presentation of the matter to a grand jury. Two members of the Trump administration, Attorney General Barr (on two occasions) and Commerce Secretary Ross, have been cited for contempt under these procedures, but no such process has been initiated, much less completed, with respect to the president himself.

In the context of impeachment, however, it may strike some as hypertechnical to say that the president has not committed contempt of Congress. While President Trump may not personally have violated the strictures of section 192, he has directed members of his administration (and others) to do so on countless occasions. In some cases, there has been an instruction to particular individual(s) based on a claimed executive immunity or privilege (for example, the instruction to acting White House chief of staff Mick Mulvaney not to appear in response to a House subpoena). In other instances, there has been a more general direction or encouragement to administration officials and allies not to cooperate with congressional inquiries deemed to be legally deficient or politically illegitimate, the most notorious example of which was the October 8, 2019 letter from White House counsel Pat Cipollone informing the House in connection with the Ukraine inquiry that “President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.” If the president was directing his subordinates to commit criminal acts, it is hard to see how such behavior would not constitute a high crime or misdemeanor.

The absence of the procedures required for a contempt of Congress prosecution, moreover, should be immaterial for purposes of impeachment. In the first place, these procedures are unnecessary because no criminal prosecution occurs. In the second, the action by the House in adopting articles of impeachment ensures that the full legislative body has engaged in what the D.C. Circuit has termed “appropriate legislative surveillance on the merits of contempt citations,” and therefore it serves the same function as a vote of the House to approve a contempt report.

The logic of this position is reflected in the third article of impeachment adopted by the House Judiciary committee with respect to President Nixon. That article charged Nixon “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued [by the committee] and willfully disobeyed such subpoenas.” Although the article does not expressly reference the statutory provision or use the term “contempt of Congress,” the offense charged — the willful failure to comply with congressional subpoenas to produce papers and things — is substantively indistinguishable from the criminal offense.

Why, then, has President Trump not been charged with contempt of Congress in the articles of impeachment? I suppose one answer might be that in substance he has been. The second proposed article charges that as part of the impeachment inquiries, House committees “served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials . . . [and] [i]n response, without lawful cause or excuse, President Trump directed [these agencies, offices and officials] not to comply with those subpoenas.” Although this proposed article is labeled “obstruction of Congress,” it is in substance little different than the third Nixon article.

Another answer might be that the term “obstruction” rather than “contempt” refers to the fact that Trump is accused of having interfered with subpoenas directed to others, rather than merely failing to comply with subpoenas himself. To some extent the distinction seems purely semantic. For example, it seems doubtful that the fact that a congressional subpoena for White House documents is directed to a subordinate official such as the chief of staff, rather than to the president himself, should change the nature of the offense committed by noncompliance. On the other hand, the House’s choice of language may be designed to underscore the fact that Trump’s defiance of congressional inquiry is considerably broader than Nixon’s. Thus, the proposed second article against Trump states that “[i]n the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors.’”

There are other reasons that the House may be shying away from using the term “contempt of Congress.” In the decades since Watergate, administrations of both parties have developed an array of theories to justify noncompliance, partial compliance, and delayed compliance with congressional subpoenas and demands for information. A number of senior executive officials in prior administrations have been held in contempt by congressional committees and, in some cases, by the full House as well. If obstruction is established by the mere fact that an executive official, acting upon the president’s instructions, commits a facial violation of 2 U.S.C. §192, most modern presidents would be guilty.

A related point is that members of Congress have generally refused to hold presidents of their own party accountable for defying congressional subpoenas and other demands for information. As a result, it is difficult for members to argue that the mere refusal to comply with a congressional subpoena, particularly when some sort of executive privilege has been asserted, is a serious moral wrong. One might say that contempt of Congress is now viewed, even by members themselves, as malum prohibitum (a wrong by virtue of the technical letter of the law) rather than malum in se (a wrong in itself). And Congress therefore has increasingly turned to the courts to determine whether a particular refusal to comply with a subpoena is in fact prohibited.

Law professor Jonathan Turley’s impeachment testimony reflected this ethos. Turley argued that when the legislative and executive branches disagree over what information needs to be produced, the proper course is to seek a determination from the courts. Only when a president chooses to ignore a final judicial order on complying with congressional demands would he be impeachable, according to Turley.

Turley overlooks several important points. First, although he accuses the House of threatening to “impeach any president who dares to go to the courts,” Trump has not gone to the courts to seek resolution of any of the claims of executive privilege or immunity he has made. To the contrary, the administration argues (as did its predecessors) that the courts lack jurisdiction to resolve these types of interbranch disputes. Turley doesn’t explain why it is unfair to resolve the administration’s privilege claims outside of court when that is where the administration says they belong.

Second, although Turley contends that the courts can decide privilege claims quickly, this has not been the general experience, as he himself acknowledges in noting the Obama administration’s successful effort to “run out the clock” in the Fast and Furious investigation with “extreme and absurd” privilege claims. If Congress must litigate all the way to the Supreme Court to overcome every privilege claim, no matter how baseless, its powers of investigation and impeachment would be greatly diminished if not nullified entirely.

Finally, Turley ignores the fact that most of the information withheld from the House in the Ukraine matter has not been accompanied by any claim of privilege. Instead, there has been a blanket refusal to comply with any congressional subpoenas or requests for information. For example, the second proposed article of impeachment states in the Ukraine inquiry “the Department of State, Office of Management and Budget, Department of Energy, and Department of Defense refused to produce a single document or record.” Such a pattern of conduct is indefensible as an effort to protect the office of the presidency or to maintain traditional executive branch privileges.

To be sure, it may sometimes be difficult to draw the line between good faith disagreements about the respective prerogatives of the political branches and bad faith efforts to impede or obstruct legitimate congressional inquiry. Dealing with that problem, however, does not require judicial permission before the House can adopt articles of impeachment for the latter, whether designated as contempt or obstruction. The impeachment process itself, with the need to persuade a Senate supermajority that a high crime or misdemeanor has occurred, provides an adequate check.

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8. The Impoundment Act (non-criminal law)
by Sam Berger

President Donald Trump’s effort to extort Ukraine by withholding military funding is an impeachable offense. While not necessary to constitute a high crime and misdemeanor under the Constitution, the way Trump withheld the aid was also illegal, as it violated the Congressional Budget and Impoundment Control Act of 1974 (ICA).

While violations of the ICA do not implicate criminal law, they do implicate the President’s constitutional obligation to ensure the laws are faithfully executed. Moreover, the White House was alerted that the hold was illegal but continued it anyway.

The Requirements of the ICA

The ICA was passed in the wake of President Richard Nixon’s efforts to withhold money Congress had appropriated. Preventing the expenditure of money Congress has appropriated is known as an impoundment. Along with the Antideficiency Act (ADA), the ICA is one of the cornerstones of budgetary law. The ADA prevents agencies from spending money that Congress has not appropriated, while the ICA ensures that they spend the money that has been appropriated.

There are two types of impoundments that the ICA addresses: rescissions, which are permanent cancellations of budgetary authority, and deferrals, which are delays in the use of budgetary authority.

The ICA has a broad definition of deferral, as set forth in 2 U.S.C. 682(1):

“deferral of budget authority” includes—
(A) withholding or delaying the obligation or expenditure of budget authority (whether by establishing reserves or otherwise) provided for projects or activities; or
(B) any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority, including authority to obligate by contract in advance of appropriations as specifically authorized by law;

The ICA strictly limits the instances in which the executive branch can delay the obligation or expenditure of funding through a deferral. Pursuant to 2 U.S.C. 684(b):

Deferrals shall be permissible only—
(1) to provide for contingencies;
(2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or
(3) as specifically provided by law.
No officer or employee of the United States may defer any budget authority for any other purpose.

The ICA also provides a means for the president to propose rescissions, which Congress can enact through legislation via a fast-track process. While Congress is considering a proposed rescission, the president can delay spending the funding for a limited time.

In the case of deferrals, the executive branch cannot delay spending such that the funds expire before they can be spent. As the Government Accountability Office (GAO) has noted: “deferred funds must be released in sufficient time to allow them to be prudently obligated.” GAO has also said that “a deferral of budget authority that ‘could be expected with reasonable certainty to lapse before [it] could be obligated, or would have to be obligated imprudently to avoid that consequence’ constitutes a de facto rescission” and thus requires congressional approval.

When an administration seeks to defer funding, pursuant to 2 U.S.C. 684(a), it is required to transmit a special message to Congress that includes the amount of funding to be deferred, the length of the deferral, the reasons for the deferral, and the effects of such deferral, among other factors. Similarly, when a White House proposes that Congress rescind funding, pursuant to 2 U.S.C. 683(a), it must transmit a message that includes the amount to be rescinded, the reasons the funding should be rescinded, and the impact of the rescission, among other factors.

Trump’s Funding Hold was an Illegal Impoundment

In this case, Trump’s hold on hundreds of millions of dollars in military funding for Ukraine exceeded his authority and thus constituted an illegal impoundment.

In July, Trump ordered that $391 million in security assistance to Ukraine be withheld indefinitely, including $250 million in military assistance from the Department of Defense (DoD). This hold sparked concerns within DoD and other relevant agencies. These included policy concerns about the hold, but also immediate questions regarding its legality.

Those legal concerns continued to grow over the summer, because given the time necessary to obligate the funding, the hold would need to be released in late August to allow for the Pentagon to spend the money before it expired at the end of the fiscal year on September 30.

DoD informed the White House of these concerns, but they were ignored. Eventually, after the House of Representatives demanded to see the whistleblower complaint, Trump released the funding on Sept. 11. However, at that point, it was too late. DoD was unable to spend roughly $35 million before the end of the fiscal year. Defense Secretary Mark Esper inadvertently confirmed this when attempting to defend Trump’s actions, saying that “most of the aid got out on time” (emphasis added) conceding that some of the money was not spent on time.

DoD alerted Congress that it would be unable to spend the money by Sept. 30. In response, Congress appropriated for this fiscal year an amount equal to that which DoD was unable to spend in the last fiscal year, so that Ukraine would receive the full amount of funding Congress had intended for it to have. However, this subsequent action by Congress does not obviate the illegal impoundment. What matters for determining unlawful conduct is whether the funds were improperly impounded, not whether Congress subsequently made additional funds available to mitigate the impact of the impoundment.

And this impoundment was illegal, as there was no legally permissible reason for the deferral. The delay was not due to an effort to provide for contingencies or to achieve savings through greater efficiency, and no other provision of law allowed for the delay. As further evidence, the White House did not transmit to Congress the required message explaining why the funds were deferred. Nor could it constitute a proposed rescission, since the White House refused to provide the necessary congressional notification for that action either.

In a press briefing, Trump’s acting White House Chief of Staff, Mick Mulvaney, explained that the reason for the funding hold was to pressure Ukraine to investigate Trump’s political opponents:

QUESTION: So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MULVANEY:  The look back to what happened in 2016 —

QUESTION: The investigation into Democrats.

MULVANEY : — certainly was part of the thing that he was worried about in corruption with that nation.

Even if you ignore Mulvaney’s statements, and the voluminous testimony from other witnesses confirming that the aid was withheld to pressure Ukraine into announcing investigations into Biden and the 2016 election, Trump and his defenders have still not provided a legal basis for the funding hold. They have pointed to concerns about Ukrainian corruption and comparative spending from the European Union as reasons for the hold. But neither of these justifications provides authority for a deferral either. While these may be more politically palatable excuses for the funding delay, they are not legal ones.

Trump’s Office of Management and Budget has provided yet another defense, arguing in a Dec. 11, 2019 letter that the funding hold was a “programmatic delay” rather than a deferral. But GAO defines programmatic delays as when “operational factors unavoidably impede the obligation of budget authority, notwithstanding the agency’s reasonable and good faith efforts to implement the program.”

Here the cause was not unavoidable delays from operational factors, but a perfectly avoidable delay caused by Trump’s efforts to pressure Ukraine. Even Trump’s own claims, that the hold was because of concerns over corruption and comparative spending from the European Union, would not constitute programmatic delays, but rather illegal policy deferrals stemming from disagreements with Congress about the expenditure of funds.

The White House Was Told the Hold was Illegal

Not only was Trump’s funding hold illegal, but the White House was aware of this fact. DoD official Laura Cooper testified that when the hold was first announced at an interagency meeting, “immediately deputies began to raise concerns about how this could be done in a legal fashion.” At a July 31 meeting that included staff from the White House, Cooper advised the group that the only legal means for withholding the funding was through a rescission notice or reprogramming action, both of which would require congressional notification. The Trump White House never took either action.

Cooper later shared this same analysis directly with Mike Duffey, the political appointee at the Office of Management and Budget (OMB), implementing the hold. The hold was being accomplished through OMB’s apportionment authority. These written documents specified the length of the hold, the reason, and the individual responsible for exercising this authority on behalf of OMB. Under longstanding practice, apportionments are signed by career officials at OMB. But after concerns were raised by career staff about the legality of the hold, OMB took the unprecedented step of having a political appointee sign subsequent apportionments, raising questions about whether career staff were sidelined to avoid further questions.

Even after Cooper explained to Duffey in early August that there were legal concerns, he continued the hold. By late August, DoD did not believe it would be able to spend all the funding before it expired, making it an illegal impoundment, a fact that OMB effectively acknowledged.

The first apportionment signed by a career OMB official in July had noted: “Based on OMB’s communication with DOD on July 25, OMB understands from the Department that this brief pause in obligations will not preclude DOD’s timely execution of the final policy determination.” For budgetary purposes, that means the funding could still be expended in the fiscal year.

However, in a subsequent apportionment in late August, signed by Duffey, that sentence was removed. Cooper explained that:

Based on the information that I was receiving from the people [at DoD] implementing the program, by late August, we felt—they felt that they would not be able to obligate all of the funding. And this understanding was actually reflected in a change in the apportionment footnotes.

The Trump White House was warned multiple times that the hold was illegal. DoD provided legal options, both of which required congressional notifications. Rather than take those actions – which would have faced immediate bipartisan pushback from lawmakers and alerted them to this unusual action — the Trump White House chose to continue the secret hold and route its actions around career officials. It tacitly acknowledged the illegality of its actions, but still continued to hold the funding. Only after Congress began demanding the whistleblower complaint did Trump release the funding.

While the Trump administration has put forward a number of reasons for the hold, none of them pass legal muster. At bottom, the law is clear and the Trump administration clearly violated it.

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Photo credit:  President Donald Trump and First Lady Melania Trump walk to Marine One, departing from the White House on December 2, 2019 in Washington,DC en route to London. (Brendan Smialowski/AFP via Getty Images)

 

About the Author(s)

Andrew Weissmann

Andrew Weissmann served as a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office (2017-19), as Chief of the Fraud Section in the Department of Justice (2015-2019), and as General Counsel for the Federal Bureau of Investigation (2011-2013). He is a Distinguished Senior Fellow at the Reiss Center on Law and Security and the Center on the Administration of Criminal Law, and Adjunct Professor of Law at NYU School of Law. He is the author of the new book, Where Law Ends: Inside the Mueller Investigation. Follow him on Twitter @AWeissmann_.

Sam Berger

Senior Adviser at the Center for American Progress, Former Senior Policy Adviser at the White House Domestic Policy Council, Former Senior Counselor and Policy Adviser at the Office of Management and Budget. Follow him on Twitter (@SamBerger_DC)

Randall Eliason

Randall D. Eliason is a former Assistant United States Attorney for the District of Columbia and teaches White Collar Criminal Law at George Washington University Law School. He is a contributing columnist for the Washington Post and blogs at Sidebarsblog.com. Follow him on Twitter (@RDEliason).

Barbara McQuade

Professor from Practice at the University of Michigan Law School, Former United States Attorney for the Eastern District of Michigan (2010-2017), Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee in the Obama Administration, Member of the Editorial Board of Just Security. Follow her on Twitter (@BarbMcQuade).

Paul Seamus Ryan

Vice President of Policy & Litigation at Common Cause. Follow him on Twitter (@ThePaulSRyan).

Susan Simpson

Susan Simpson is a host of the Undisclosed and 45th podcasts, and of counsel to Clinton & Peed PLLC in Washington, DC. Follow her on Twitter (@TheViewFromLL2 ).

Gary Stein

Gary Stein is a lawyer in private practice in New York and a former federal prosecutor with the U.S. Attorney’s Office in the Southern District of New York.

Michael Stern

Michael Stern served as Senior Counsel to the U.S. House of Representatives (1996-2004). He later served as Deputy Staff Director for Investigations for the Senate Committee on Homeland Security and Governmental Affairs, and as former Special Counsel to the House Permanent Select Committee on Intelligence. Follow him on Twitter (@mls1776).