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OPINION

They’re impeachable acts, not a ‘carousel’

By RANDALL D. ELIASON | Special to The Washington Post | Published: November 22, 2019

A common Republican criticism in the ongoing impeachment proceedings is that Democrats have repeatedly changed their position concerning what offense President Donald Trump may have committed in his dealings with Ukraine. In his opening statement on Thursday, Rep. Devin Nunes, of California, the House Intelligence Committee’s ranking Republican, said: “The offense itself changes depending on the day, ranging from quid pro quo, to extortion, to bribery, to obstruction of justice, then back to quid pro quo.” He accused Democrats of riding on a “carousel of allegations.”

But there is no carousel. As a legal description of the president’s conduct, all of these charges are accurate, and all at the same time.

In federal law, the crimes of bribery and extortion by a public official are very closely related. A public official commits bribery when he seeks or demands anything of value in exchange for being influenced in the performance of some official act. In this case, the bribery charge would be that Trump, a public official, demanded a thing of value from Ukraine in the form of a public announcement of investigations that would benefit him politically. In exchange, the president would agree to be influenced in the official acts of releasing aid to Ukraine and holding a White House meeting with Ukrainian President Volodymyr Zelenskiy.

Extortion is generally defined as forcing another person to surrender property under some kind of threat or duress. Extortion by a public official is most often charged under a statute called the Hobbs Act, which prohibits extortion by force, violence, fear or “under color of official right.” This could apply to Trump’s conduct in two ways. One would be the charge that Trump pressured Ukrainian officials to announce the investigations by putting them in fear of what would happen to their country if they did not receive the hundreds of millions of dollars in congressionally approved aid.

An alternative theory would be that Trump’s conduct constituted extortion “under color of official right.” The Supreme Court has held that this is basically equivalent to taking a bribe. As a result, often conduct that looks a lot like traditional bribery is prosecuted as extortion under color of official right, and that theory could apply here as well.

Quid pro quo, another item in Nunes’ litany, is not a separate crime. Allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe. The term, usually translated as “this for that,” refers to the exchange that is at the heart of a bribery offense. Of course, quid pro quos in and of themselves are not illegal; bargaining takes place in diplomacy and elsewhere, and the United States is free to attach conditions to its foreign aid. But it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.

As for obstruction of justice, that’s in a separate category. The White House has been refusing to honor congressional subpoenas and ordering key witnesses not to testify. It’s been ironic to watch Republicans complain about supposed hearsay and witnesses who do not have direct knowledge of key events when it is the administration itself that is withholding much of that key information. Democrats will have to consider whether this stonewalling of their investigation justifies a separate article of impeachment for obstruction, as it did for President Richard Nixon.

If this were a criminal case, there would be grounds for prosecutors to favor charging bribery over extortion. There’s a legal issue over whether announcing an investigation would qualify as “property” under the Hobbs Act (“thing of value” in bribery law is interpreted much more expansively). That’s less important for impeachment purposes, because impeachable offenses are not governed by the strict terms of the U.S. criminal code. It could be relevant, however, if any of those working with the president were to end up facing criminal charges of conspiracy or aiding and abetting. In any such cases, bribery would be the better charge.

In any event, there is no “carousel of allegations.” Bribery, extortion and quid pro quo are simply different ways to say the same thing: that the president abused the power of his office to pressure Ukraine to take actions that would personally benefit him. It’s not at all uncommon for the same conduct to violate more than one statute. A crime by any other name still smells as corrupt. But the Constitution specifically names bribery as a basis for impeachment. That’s reason enough alone to choose that term to describe the president’s conduct.

Randall D. Eliason teaches white-collar criminal law at George Washington University Law School.

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