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(Deposit photos)
(Deposit photos)

Commentary: Go ahead, call it a quid pro quo

What did the president quid and when did he quo it? That’s the question being earnestly debated at the impeachment hearings centering on Donald Trump’s July 25 telephone call with Ukrainian President Volodymyr Zelenskiy. Congressional Democrats insist that Trump made military aid contingent on an investigation of a political rival. One news story after another has referred to the alleged arrangement as a quid pro quo.

But is quid pro quo the right term? Some experts think not. The other day, the New York Times published a letter from 33 writers asking journalists to stop using the phrase in accounts of the Ukraine controversy because “most people don’t understand what it means, and in any case it doesn’t refer only to a crime.” In referring to the question of whether Trump pressured Zelenskiy, they write, it’s more accurate to say “extortion” or “bribery” — because “words make a difference.” The letter concludes: “Please use precise and forceful language that reveals the struggle in which we now find ourselves. It’s a matter of survival.”

Although the card-carrying Grammar Curmudgeon in me suspects that the late William Safire would have a word or two to say about this use of the verb “reveal,” I agree on the importance of “precise and forceful language.” And in describing what Trump is alleged to have demanded from Zelenskiy, no form of words is more precise and forceful than “quid pro quo.”

The phrase has been adopted into English unchanged from its Latin roots. It means, literally, “something for something.” (Quo is simply the ablative singular form of quid.) According to the Oxford English Dictionary, when quid pro quo is used nowadays as a noun, its meaning is exactly what we tend to think: “The action or principle of giving one thing in return or exchange for another” especially “as part of a bargain.”

In 1871, a Chicago magazine published a nonsense verse, playing on the words: “If Quid is Quo And Quo is Quid,/ You nothing owe Old Quo, old Quid!” Except the verse isn’t really nonsense. In contract law, the phrase has long carried this meaning of mutual exchange, the giving of something in order to receive something. So studiously have judges tried to ensure that both parties benefit from a contract that a Kentucky court two centuries ago proclaimed that “The ‘quid pro quo’ is the delight of the law.”  Certainly the phrase constitutes a delight of the language, a simple yet mellifluous way to describe the exchange relationship, and equally suited to bargains formal or informal, fair of unfair, legal or illegal.

Most people instinctively understand quid pro quo in this sense, as a deal, an exchange of this for that. Just last month, ESPN described the implicit deal between the notoriously cheap Tampa Bay Rays baseball team and their players as “the quid pro quo of being a Ray: We’ll help you get better, we’ll support you for you, but trust us when we ask you to do something, because we’re good at this.” In the fall of 2018, Sen. Susan Collins of Maine used the term “classic quid pro quo” to refer to threats by activists to give money to her opponent unless she voted against the confirmation of Brett Kavanaugh to the Supreme Court.

The phrase is commonly used by journalists even when questions of criminal behavior arise. The FBI, reported the Wall Street Journal earlier this year, “is investigating how Puerto Rico awarded some public contracts and whether various companies engaged in quid pro quo arrangements to win government business.” I don’t imagine that readers mistook this language to refer to legitimate deals.

Perhaps the best-known example from popular culture occurs in the 1991 film “The Silence of the Lambs,” when the imprisoned Hannibal Lecter promises to help FBI trainee Clarice Starling catch the serial killer known as Buffalo Bill. In return for his help, however, she must answer Lecter’s questions about her own life. “Quid pro quo,” he explains. “I tell you things, you tell me things.” A moment later, when it is Lecter’s turn to provide information, Clarice says “Quid pro quo, doctor.” No one misses the point:  She is reminding him of — what else? — their bargain.

Contrary to the implication in the letter to the Times, few people are confused by the phrase. The meaning of the July 25 conversation between Trump and Zelenskiy may be contested, but the charge is essentially that Trump was proposing an exchange. It’s hard to imagine anything quid-pro-quoier.

That’s why, as Steven Pinker nicely puts it, “The lack of a quo for the quid has become a talking point among his defenders.” Pinker is skeptical that this claim passes the giggle test — but it’s important to note what the claim is. A quid pro quo, Trump’s defenders say, requires an explicit offer of a deal. They deny that any deal was on the table. Those who are calling for impeachment are with Pinker.

Whichever side you find yourself on, this is the right debate to have.  To dispense with “quid pro quo” and substitute “bribery” or “extortion” would only sow confusion. Bribery and extortion are crimes, but they have precise and subtle definitions that may not be well understood by non-lawyers. So let’s keep things simple. Let’s first determine whether the president really proposed a bargain. Only if the answer is yes do we have to decide whether the quid he demanded for his quo broke the law.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.

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