If it’s true (and we may soon find out) that Donald Trump froze U.S. government aid to Ukraine and made it clear to the Ukrainian president that he would unfreeze it if Ukraine were to investigate Joe Biden, that is certainly an outrage. Depending on how you define the term, it may also be a “high crime” deserving of impeachment under the Constitution. But is it a crime under existing federal law? The answer turns out to be tricky. And if history is a guide, the question will be hotly debated in any process of impeachment.
It is not uncommon for the U.S. government, including the president, to make aid to foreign governments conditional on certain conduct. Indeed, during the Barack Obama administration, U.S. aid to Ukraine was delayed while the U.S. pushed Ukraine to remove its top prosecutor, who had turned a blind eye to numerous corruption investigations. Biden’s role in that pressure is one of the things Trump says he wanted Ukraine to investigate.
What makes Trump’s alleged conduct so terrible is not that he froze aid to Ukraine for a policy purpose. What makes Trump’s alleged conduct outrageous is the appearance that he was doing it for his own personal benefit. Joe Biden is at present the leading Democratic contender to face Trump in 2020. So an investigation of Biden would not serve the national interest, but Trump’s personal interest.
And herein lies a crime — at least, possibly. It is illegal for a government official to solicit a bribe. That includes situations in which a public official extracts a bribe from somebody in exchange for taking an official act that falls within his governmental authority. (There are other bribery and extortion-related statutes, but this one is most relevant.)
It could be argued that Donald Trump wanted to extract a payoff from the president of Ukraine — namely, an investigation that would cast a negative light on Biden, a prospective political opponent. If Trump communicated that he would unfreeze aid to Ukraine in exchange for that payoff, he was offering to perform an official governmental act in exchange for the payoff. Put another way, Trump extorted the president of Ukraine by demanding a bribe in the form of action against Biden. True, political advantage is not the same thing as an envelope of cash or a gold watch. But to a president seeking re-election, dirt on the leading rival could be even more valuable.
The first key element here is that an investigation of Biden wasn’t in the U.S. national interest but only in Trump’s personal interest. If the president extracts a commitment from a foreign government that is in the national interest, that doesn’t constitute extortion under the law. That’s just foreign policy. So, we can expect Trump’s defenders to say that Trump wasn’t seeking personal gain. That may be what Trump had in mind when he told reporters at the United Nations that even if he had asked Ukraine to investigate Biden, there wouldn’t have been anything wrong with it. But would a rational person really believe it was purely a coincidence that Trump was seeking dirt on his strongest presidential rival?
A second key element is that Trump was proposing a quid pro quo: In exchange for the Biden probe, he would unfreeze aid to Ukraine. The crime of extortion requires a proposed exchange. In his defense, Trump can be expected to maintain, as he has already said, that he did not himself link the Biden investigation to the Ukraine aid. But even without a smoking-gun connection, and even when a corrupt deal is struck implicitly, the government can still prosecute extortion or bribery on a quid pro quo basis. Circumstantial evidence can be enough to prove a criminal exchange. Under conditions where both presidents knew that the question of aid was on the table, it would be reasonable to infer that when Trump brought up the Biden investigation he was suggesting a deal.
Of course, many students of the Constitution believe that an impeachable offense need not also be a statutory crime. I’m one of them. But the impeachment efforts against Richard Nixon and Bill Clinton showed that once the impeachment ball gets rolling, there’s a strong tendency for the public and the House of Representatives to start talking about presidential conduct in terms of whether a statute has been violated. And, of course, the same was true of Robert Mueller’s report, which discussed Trump’s conduct in relation to criminal statutes even though Mueller balked at drawing the conclusion that seemed obviously to follow from his analysis.
It’s possible that creative lawyers can come up with other statutes that Trump might have violated, but the extortion statutes seem to come close to capturing the essence of what Trump is alleged to have done. Expect to hear a lot more about this in the days and weeks to come.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.