DONALD TRUMP IS GUILTY OF BRIBERY

Article Two, Section Four of the United States Constitution provides that “the President… shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

“High crimes and misdemeanors” is a relatively vague phrase that could be open to political interpretation. The Articles of Impeachment for which Bill Clinton faced a trial in the Senate included two counts of perjury, one count of obstruction of justice and a final count of abuse of power.

Donald Trump may face similar charges of obstruction and abuse, however, after two weeks of public testimony there is abundant evidence to convict the president of bribery under United States law and the Constitution.

18 U.S. Code section 201(b)(2) reads as follows:

Whoever – being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act;

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

Additionally, subsection (c)(1)(B) which proscribes gratuities reads:

(c) Whoever –

(1) otherwise than as provided by law for the proper discharge of official duty–

(B) being a public official… Directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person.

Under this code section, “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

In short, the Constitution prescribes the president’s removal upon a conviction for bribery and the law clearly defines what bribery is. So, let’s break it down.

In the now infamous phone conversation between Trump and newly elected President of Ukraine, Volodymr Zelensky, on July 25, 2019, Zelensky tells trump, “We are ready to continue to cooperate for the next steps specifically we are almost ready to buy more Javelins from the United States for defense purposes.”

Trump replies, “I would like you to do us a favor though…” And then launches into a semi-coherent rant about Crowdstrike, the DNC server and the “incompetent performance” of Robert Mueller.

Zelensky responds with some over-the-top flattery and mentions conversations with Trump’s personal lawyer Rudy Giuliani and his willingness to meet with Giuliani when he comes to Ukraine. Zelensky also replies, “I also plan to surround myself with great people and in addition to that investigation, I guarantee as the President of Ukraine that all the investigations will be done openly and candidly… That I can assure you.”

As anyone who has not been in a coma for the last month is aware, Trump then launched into another semi-coherent tirade smearing U.S. Ambassador to Ukraine, Marie Yovanovitch, and then claiming that Joe Biden, Trump’s potential political rival in 2020, bragged about stopping the prosecution of his son Hunter. Trump did not, at that time, mention that Hunter Biden had served on the board of Burisma, a Ukrainian energy company.

Zelensky responded that he would be appointing a new prosecutor who would start in September. He then says, “He or she will look into the situation, specifically to the company that you mentioned in this issue.” This is important because Trump had not mentioned a company, only the Bidens.

Far from being a “perfect” call as Trump has declared, the notes of the call show that Trump wanted an investigation of the DNC server and of his political rival but, more importantly, there had obviously been prior contacts with Zelensky regarding Trump’s requests.

If the “rough transcript” of the call was the only piece of evidence, it likely would be a close call, by itself, whether Trump had bribed, or attempted to bribe, the Ukranian president. However, the call is not the only evidence.

THE QUID

Over the past two weeks of public impeachment hearings, the evidence has become insurmountable as career public servants and political appointees have filled in the gaps in Trump’s bribery conspiracy – implicating top administration officials, Rudy Giuliani and Trump himself.

First and foremost, President Zelensky wanted the U.S. Aid package of close to $400 million to buy more Javelin missiles (from American defense firms Raytheon and Lockheed Martin) and also expressed his desire for a White House meeting with Trump. Both of these were things of value to Zelensky and to Ukraine.

A White House visit from a foreign head of state is an official act that, by definition, is exclusively an official duty of the President of the United States. The aid package was duly authorized by Congress. As we have learned, the aid was placed on hold by the White House (it is another question as to whether that hold was lawful) and releasing the aid had become an official duty of the President.

THE QUO

In the call transcript, Trump brought up investigations that he wanted Zelensky to conduct. By itself, there is nothing inherently illegal or improper for one head of state to negotiate conditions on aid or meetings with another head of state. 

The question for the Senatorial jury to answer is whether the requested investigations were “provided for by law for the proper discharge of an official duty” of the President of the United States. It is this section that has congressional Trump sycophants tying themselves up in knots to try to justify and explain.

After the call became the subject of a whistleblower complaint, Trump told Ambassador Sonland, “No quid pro quo!” This became the focus of lawmakers and the media for weeks until the Democrats began using the terms “bribery” and “extortion” instead.

A quid pro quo is defined as “a specific intent to give or receive something of value in exchange for an official act.” United States v. Sun-Diamond Growers, 526 U.S. 398, 404–05 (1999) To simply say “I want no quid pro quo” is not enough to sanitize the underlying criminal conduct, especially after the government has already begun an investigation.

According to testimony by several of the witnesses, Trump and Giuliani directed Ambassador Sonland that there would be no White House meeting unless the Ukranians announced publicly that there would be investigations into the Bidens and the DNC server.

Trump claims he has an official duty to make sure American tax dollars do not go to a corrupt country and his only interest in Ukraine was rooting out corruption. The Democrats (and anyone with even a shred of common sense) must find this argument absurd.

There had never been any mention of corruption in either of the two reported phone calls between Trump and Zelensky with regard to Ukraine, which has a long history of corruption, other than these two items which, coincidentally, would help Trump with his 2020 reelection campaign.

The Supreme Court has held that when the thing of value is a campaign contribution in exchange for an official act, the government must prove that the payment was made “in return for an explicit promise or undertaking by the official to perform or not perform an official act.” McCormick v. United States, 500 U.S. 257, 273 (1991)

To be clear, according to the evidence presented to date, Trump did not care about the actual investigations. Trump and Giuliani were only demanding that Zelensky make a public statement (on CNN) announcing the investigations and specifically into the DNC server, Joe and Hunter Biden.

The president’s reelection campaign is not an official duty. If it were, and the power of the presidency could be used in this manner we would likely never see a single term president again.

CONCLUSION

As a criminal defense attorney, it is my job to analyze the evidence against my client and apply the facts to the elements of the statute charged. Then I advise my client as to what trial strategies may be successful and, if there are none, advise my client to allow me to negotiate a plea deal.

The evidence against Trump solely on the charge of bribery is overwhelming and obvious. Trump withheld an official White House meeting and congressionally authorized aid in exchange for a contribution to his reelection campaign in the form of a public announcement that would be detrimental to his political opponent. Quid. Pro. Quo.

Mr. President, it might be time to negotiate a plea.