Impeachment – No “Quid Pro Quo,” So!; An Impartial Analysis of a Very Confusing Issue
WASHINGTON, D.C. (September 26, 2019) – There seems to be a great deal of confusion about whether President Donald Trump‘s request for “a favor” from Ukrainian President Volodymyr Zelenskiy, after talking about the cutoff of federal aid to his country, was a coded offer or even a threat – a proposed quid pro quo – to restore the aid but only if the foreign president would agree to produce adverse information about Joe Biden and his son.
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But from a criminal law point of view it may make no difference, says public interest law John Banzhaf, whose legal analysis of various legal issues raised by Trump's actions have proven remarkably accurate.
The relevant criminal statute - 52 U.S. Code Sec. 30121. Contributions and donations by foreign nationals - provides that "it shall be unlawful for . . . a person to SOLICIT, accept, or receive a contribution or donation" of "a contribution or donation of money or other thing of value." [emphasis added]
Solicit, according to regulations, means "to ask, request, or recommend, explicitly or IMPLIEDLY, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value." [emphasis added]
So simply asking for a thing of value such as opposition research information can constitute a violation of the statute, whether or not a quid pro quo is involved, and whether or not the thing of value is in fact ever received, provided that the defendant acted "knowingly and willfully"; that is, that the defendant knew generally that his conduct was unlawful.
So if foreign aid had never been cut off and Trump had never even mentioned the topic, but nevertheless had asked as a favor that Zelenskiy provide information which would be helpful in his campaign, it could nevertheless constitute a crime.
Quid pro quo and bribery
But if the conversation did imply a proposed quid pro quo - that Trump would restore millions in foreign aid but only if Zelenskiy provided Trump with the information he requested - it would then appear to also constitute the crime of bribery; bribing the president of a foreign country with taxpayer dollars.
This could be very important because, under the Constitution, a president can be impeached for "treason, bribery, or other high crimes and misdemeanors." While there is uncertainty as to what today would constitute a high crime or misdemeanor, bribery is a very clearly defined and well understood crime.
Moreover, bribery can be implied even if it is not expressly stated. Banzhaf offers the following simple example.
If his Dean withheld a large requested travel grant, but then telephoned Banzhaf to remind him about the many travel grants which the Dean had been approved in the past and, immediately thereafter, to request a favor from the professor, many would conclude that the conversation constituted an attempt to bribe Banzhaf to do a favor in return for a restoration of his travel money.
Whether or not they would reach that conclusion based upon the low civil standard of proof (mere "preponderance of the evidence"), or under the much higher criminal standard of proof ("beyond a reasonable doubt"), is unclear, but equally unclear is what standard of proof individual senators would use in judging Trump if they attempted to act impartially, says Banzhaf.
Quid pro quo with Zelenskiy?
So in deciding whether or not Trump attempted to bribe Zelenskiy, lawmakers might not be satisfied with the current document which says on page one that it "records the notes and recollections of Situation Room Duty officers and NSC policy staff" and "is not a verbatim transcript of a discussion. Rather, they might want to hear the testimony of those individuals, examine their notes, and seek to ascertain whether a true or at least better transcript might be available.
Also, since in the telephone conversation there is virtually no explanation by Trump about the alleged wrongful conduct of Biden, some have suggested that this indicates that there may have been other communications, probably at a lower level, before the two presidents spoke by telephone. If so, documents and testimony related to any pre-call and/or post-call communications might help to put things in context.
Finally, of course, since the document at several points suggests that Attorney General Barr and attorney Rudy Giuliani will be calling to follow up on the telephone conversation, it could be very important to see if either of these two individual did in fact follow up in any way, and if so how. If they claim that, despite the many references in the conversation, there was in fact no further communication, it would seem appropriate to insist that the denials be made under oath and subject to the laws of perjury, rather than simply being made in press releases.