Trump Impeachment Inquiry delves into idea of Quid Pro Quo.


At the heart of the House im­peach­ment in­quiry into Pres­i­dent Trump's Ukraine deal­ings is a Latin term that is easy to trans­late but legally dif­fi­cult to de­fine and prove.

De­moc­rats [VOA commentary - The House] be­gin­ning pub­lic hear­ings next week with three key wit­nesses are fo­cused on whether Mr. Trump en­gaged in an in­ap­pro­pri­ate quid pro quo. Specif­i­cally, they are prob­ing the pres­i­dent's tem­po­rary with­hold-ing of hun­dreds of mil­lions of dol­lars in for­eign aid to Ukraine, al­legedly to pres­sure the coun­try into open­ing in­ves­ti­ga­tions re­lated to De­mo­c­ra­tic pres­i­dential can­di­date Joe Biden and the 2016 elec­tion.

A quid pro quo—lit­er­ally "some­thing for some­thing" or "one thing for an­other"—is of­ten as­so­ci­ated with po­lit­i­cal cor­rup­tion, but it isn't syn­onymous. And de­ter­min­ing when a quid pro quo is un­law­ful or just hard­ball pol­i­tics has been one of the most con­tentious ar­eas of crim­i­nal law.

To suc­cess­fully im­peach the pres­i­dent, De­moc­rats don't nec­es­sar­ily have to con­nect the Ukraine con­tro­versy to a spe­cific crime. Charg­ing the pres­i­dent with a more gen­eral abuse of power likely suf­fices un­der the con­sti­tu­tion's de­f­i­n­i­tion of im­peach­ment, le­gal schol­ars said.

But how fed­eral courts have han­dled quid pro quos in the past of­fers a win­dow into how the im­peach­ment in­quiry could un­fold for Mr. Trump and what ar­gu­ments his sup­port­ers and crit­ics will de­ploy.

The key bribery of­fenses in the fed­eral crim­i­nal code gen­er­ally re­quire ev­i­dence of an un­law­ful quid pro quo. That has been de­fined by the courts as an "of­fi­cial act" or "for­mal ex­er­cise of gov­ern­men­tal power" traded for money or any­thing of value.

Some le­gal schol­ars point to Sec­tion 201(b)(2) of the fed­eral crim­i­nal code as the most rel­e­vant of­fense. Some le­gal com­men­ta­tors have sug­gested the pres­i­dent may have run afoul of cam­paign-fi­nance laws, but the quid-pro-quo al­le­ga-tions rep­re­sent more se­ri­ous claims of mis­con­duct.

The bribery statute makes it a crime for a pub­lic of­fi­cial to cor­ruptly de­mand or seek "any­thing of value per­son­ally" in re­turn for "be­ing in­flu­enced in the per­for-mance of any of­fi­cial act."

Ap­ply­ing that statute, the al­le­ga­tion would be that the pres­i­dent (the pub­lic of­fi­cial) sought dirt on a po­lit­i­cal ri­val (the thing of value) in ex­change for re­leas­ing aid (the of­fi­cial act).

Mr. Trump has de­nied any quid pro quo and called the im­peach­ment in­quiry a hoax. Sev­eral wit­nesses, in­clud­ing the U.S. am­bas­sador to the Eu­ropean Union, have laid out ev­i­dence that se­cu­rity aid to Ukraine was linked to in­ves­ti­ga­tions sought by Mr. Trump.

The fact that Ukrain­ian Pres­ident Volodymyr Ze­len­sky de­nied feel­ing pres­sure from Mr. Trump dur­ing their July phone call isn't ex­on­er­at­ing, and nor is the fact that the aid was sus­pended only tem­porarily and re­leased with­out any probes into the Bidens and Burisma Group, a Ukrain­ian gas com­pany where Mr. Biden's son, Hunter, had sat on the board.

Gen­er­ally, a quid pro quo doesn't need to be suc­cess­ful or ex­plic­itly spelled out to be un­law­ful. And there is no re­quire­ment that both the giver and re­cip­i­ent of a bribe have a cor­rupt in­tent.

But other fac­tors cast doubt on the crim­i­nal­ity of Mr. Trump's deal­ings with Ukraine. For one, it isn't clear that an in­ves­ti­ga­tion into Burisma Group would con­sti­tute "any­thing of value" un­der the law.

A thing of value ex­changed for an of­fi­cial ac­tion doesn't have to be a good or ser­vice with a clear price tag. Judges have broad­ened the scope to in­clude more in­tan­gi­ble items, such as con­ju­gal vis­its for a fed­eral pris­oner.

But le­gal ex­perts can't point to any case law where a gov­ern-ment in­ves­ti­ga­tion was deemed a thing of value in a cor­rup­tion pros­e­cu­tion.

At the same time, courts in re­cent years have drawn sharper lines be­tween or­di­nary po­lit­i­cal horse-trad­ing and cor­rupt schemes. A se­ries of Supreme Court rul­ings—such as the 2016 over­turned con­vic­tion of for­mer Vir­ginia Gov. Bob Mc­Don­nell—have nar­rowed the scope of bribery statutes and made it harder for pros­e­cu­tors to prove a politi­cian broke the law.

"Ex­ist­ing cor­rup­tion statutes are ill-equipped to ad­dress the type of con­duct the pres­i­dent was al­leged to have com­mit­ted," said Luke Cass, a white-col­lar de­fense at­tor­ney in Wash­ing­ton, D.C., and a for­mer fed­eral pros­e­cu­tor.

Skep­tics of the House im-peach­ment in­quiry into Mr. Trump have also ques­tioned whether the pres­i­dent had a cor­rupt in­tent—a re­quired ele­ment of a quid-pro-quo crime—in his in­ter­ac­tions with Mr. Ze­len­sky. Ken­neth Starr, who led in­ves­ti­ga­tions of for­mer Pres­i-dent Bill Clin­ton, said in a pod­cast last month that the num­ber of peo­ple lis­ten­ing in on the July 25 call sug­gests Mr. Trump wasn't try­ing to hide his ac­tions. "That goes to his in­tent. There is no cor­rupt bar­gain," Mr. Starr said. [VOA commentary: In a highly unusual move, the call transcript of Trump's July 25 call with the Ukrainian President was immediately moved to a highly classified "code word" server.]

Other de­fend­ers say even if a quid pro quo hap­pened, such pres­i­den­tial po­lit­i­cal skul­dug­gery isn't with­out prece­dent in re­cent times [VOA commentary: sample?]

Sen. Lind­sey Gra­ham (R., S.C.), chair of the Sen­ate Ju­di-ciary Com­mit­tee, has also ar­gued that the Trump ad­min­is-tra­tion's Ukraine pol­icy was too in­co­her­ent to be crim­i­nal. Other de­fend­ers say the pres­i­dent's sweep­ing ex­ec­u­tive au­thor­ity over for­eign af­fairs makes it more dif­fi­cult to al­lege a crim­i­nal quid pro quo.

A quid pro quo could be un­de­fined in the crim­i­nal code but at the same time be a trou­bling abuse of power, said Stan­ford crim­i­nal law pro­fes­sor David Alan Sklan­sky. Then the ques­tion would be whether Mr. Trump's for­eign pol­icy put his pri­vate in­ter­ests above the na­tion's.

"Just be­cause some­thing isn't a crime doesn't mean it's not an im­peach­able of­fense," said Mr. Sklan­sky.

Wall Street Journal, November 10, 2019

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November 10,2019

Voices4America Post Script. This is the Wall Street Journal overview of what constitutes a “quid pro quo." Some of us prefer plain ole “Bribery and Extortion." #TrumpBribed #TrumpExtorted #ImpeachRemove

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