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.
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BUT… WHAT ABOUT THE JAVELINS?

Over the course of the public impeachment hearings held on Capitol Hill these last two weeks, much ado has been made by Republican representatives on the Intelligence Committee about the fact that the aid provided to Ukraine by the Obama administration did not include “lethal aid” – specifically, Javelin anti-tank missiles. Although not at all relevant to the question of whether or not Donald Trump abused the public trust and violated his oath of office as well as several criminal statutes, each witness was forced to concede that it was only through Donald Trump’s benevolence that Ukraine was given lethal force options as part of the United States’ aid package.

This was obviously a talking point that had been decided upon in some dark corner of the West Wing – “but, how can Donald Trump be accused of betraying Ukraine when Obama only gave them blankets?”

The blankets versus anti-tank narrative was repeated over and over during the past two weeks in an attempt to prove what? I don’t know… Trump has been better to Ukraine than Obama so he should be able to get away with bribery and extortion?

Once again, the facts do not line up with the whack-a-doodle, post-truth drivel being spoon-fed to the American public through the Trump mouthpieces such as Devin Nunes and Jim Jordan as well as the fair and balanced reporting of Sean Hannity and Tucker Carlson.

The fact is, those Javelin anti-tank systems are being stored in secure locations away from the front lines of Ukraine’s active war against Russian incursion. The Javelin missiles came to Ukraine with a caveat – they can only be used in the event of a large-scale Russian offensive.

Another fact: The Obama administration provided much more than just blankets. This was yet another fabrication coming from a desperate Republican offensive on truth and reality. Under the Obama administration, Ukraine’s rag-tag civilian army was trained to be a formidable fighting force and was supplied with bullet-proof vests, armored Humvees, night vision goggles, ambulances, medical supplies and, yes, probably some blankets too.

There has been considerable whining from Republicans on Capitol Hill that there has been no organized or intelligent defense to the impeachment proceedings from leadership. The effect has been a “throw everything against the wall and hope something sticks” defense which has been continuously in flux as witness after witness has come forward debunking the president’s claim of a “perfect call” and “no quid pro quo.”

There will likely be no retraction from Fox News or House Republicans on this issue. To date, I have seen no coverage from mainstream media outlets debunking this silly “Obama only gave them blankets” defense.

To the elected officials who turn a blind eye to the corruption and dishonesty of the Trump Party, can you not take a moment of introspection and ask yourself how you would react to the facts laid out before you and ask yourself how you would react if the same facts were to be applied to President Obama? Can you not put our great nation above your petty politics and fear of a negative tweet?

To those who truly seek to make America great again, was the United States of America not greater as a nation, as a people, when honesty and truth were demanded of our elected officials?
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WILL THERE BE A DOUBLE STANDARD IN COMPETING INVESTIGATIONS?

Sen. Lindsay Graham this week announced a new senate investigation into Ukraine and Burisma apparently to dig up dirt on Democratic front runner Joe Biden. As part of the investigation, it was reported that Sen. Graham will be requesting pertinent documents from the State Department.

In impeachment hearings over the past two weeks, witnesses were forced to testify without the aid of documents, including personal notes, because the State Department had refused to comply with congressional subpoenas. Ambassador Gordon Sonland, similar to other witnesses, repeated several times during his testimony that he had been unable to refresh his recollection of certain events relevant to the inquiry because the State Department had refused to turn over any documents.

The failure of the current administration of the executive branch to comply with congressional subpoenas may lead to additional articles of impeachment for obstruction of justice. Sonland’s testimony implicates high level administration officials, including current Secretary of State Mike Pompeo, as being complicit in the attempt to extort Ukraine’s newly elected president into publicly announcing criminal investigations into Joe and Hunter Biden’s dealings in the country related to the gas company Burisma. Should the administration comply with Sen. Graham’s request for documents without hesitation or the issuance of subpoenas, the argument for obstruction charges within the articles of impeachment would be bolstered significantly.

Senate Democrats sent a letter to Secretary of State Pompeo Friday calling on Pompeo to recuse himself from matters involving Ukraine following testimony this week implicating Pompeo’s knowledge of and involvement in the scandal which prompted the House’s impeachment inquiry. To date, Pompeo has refused to turn over any documents to the House relating to the scandal, effectively thumbing his nose at the inquiry, the Constitution and the Rule of Law. As of now, there has been no response to the recusal request and no indication from the administration that it will reverse its position on complying with congressional subpoenas for documents or witnesses.

In the days to come, Sen. Graham’s blatantly political investigation into Burisma and the Bidens will begin gathering evidence and will also undoubtedly lead to questions of fundamental fairness and obstruction of justice. Sunlight is said to be the best of disinfectants. It appears Trump and Pompeo would prefer to keep the American people in the dark.
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Taxing the Poor

When I worked the arraignment calendar as a public defender, I had countless clients who were in custody for minor misdemeanors. Most would agree to a plea including heavy fines and cumbersome probation conditions just so they could get out of jail and return to their families and jobs. Even those with strong defenses were forced to enter pleas because they couldn’t afford bail and their constitutional right to a speedy trial wouldn’t kick in for 30 days.

The rare clients that bravely decided on a not guilty plea would hear from the judge that they would stay in jail until the trial date only to receive credit for time served before they could present any evidence to a jury. The poor, mentally ill and people of color are overwhelmingly being victimized by the court system and, though there are a few positive changes on the horizon, we need to do better.

As Mahatma Ghandi said, “A nation’s greatness is measured by how it treats its weakest members.” Those who claim a desire to make America great should take those words to heart.

https://apple.news/ArSfFH_klQiqNbCsRsmYWHw

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Show Me the Money

I'm going to get up on my soap box for a minute and touch on what I wrote about in my last post...

It looks like health care reform is going to lose the public option and will probably end up being no reform at all. Why? Because the folks with the money have once again purchased public opinion. Yes... public opinion is and always will be "for sale" as long as the masses choose to let corporate media do all of the thinking for them.

So, how did legitimate health care reform lose out? The masses were led to believe that any form of tax increase would be intolerable in these troubled economic times. Instead they would rather pay artificially inflated insurance premiums to boost corporate bottom lines.

I actually saw a so-called "average american" in Wisconsin on C-SPAN last night who was practically in tears thinking about what might happen to those poor little companies like Blue Cross and Kaiser if we had a public plan. Oh my! The poor dears! What would we do without corporate insurance companies charging us exorbitant monthly rates for what we think of as "health insurance." These health insurance plans only make sense if you stay healthy. God forbid you actually get sick or injured... but wait... wasn't this what we were trying to avoid with a public plan. No.

The distinction lies in the difference between who might have the authority to deny care. Apparently Americans would rather have a corporate bean-counter deny them coverage than a public servant. But ask yourself... who would be more motivated to save on cost and deny you coverage? Is it the public servant who makes his salary regardless or the bean-counter who probably has a bonus riding on how much he can save the company?

One thing that I really cannot make any sense out of... these folks that have bought the corporate pitch... they claim to love America. These are the folks that fly the flag, have magnetic yellow ribbons plastered across their bumpers, and oppose taxes every chance they get. I get it. Believe it or not, I love America too. This is a great country with limitless potential and a diversity not found any other place else on earth. Why would anyone think it should be free to live in such a wonderful place? Apparently the tax dollars that get funneled into the pockets of defense contractors are patriotic dollars but any dollars that might go to boosting our collective well-being are wasted.

I hope someday Americans as a whole will realize that we are all in this together.
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Health Care Reform

Just a quick thought... Over the weekend I noticed a wide array of television commercials, aimed at different demographics, whose purpose seemed to be to scare the hell out of anyone who thought reforming our dysfunctional health care system was a good idea.

Television commercials cost way more than your average concerned citizen, struggling to pay the mortgage, and dealing with ever-increasing monthly insurance premiums could ever afford.

Will the American people be fooled once again by a big-business propaganda media blitz? I hope not.
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Sovereign Immunity

So... the Eleventh Amendment (sovereign immunity) was ratified specifically to overrule the Supreme court's holding in Chisholm v. Georgia (1793) 2 U.S. 419. More precisely it was ratified to prevent citizens and foreign governments from collecting on Revolutionary War debts. Alexander Chisholm sued the state of Georgia as the executor of the estate of one Robert Farquhar, a South Carolinian who had supplied materials to Georgia during the war. Although the Georgia legislature appropriated funds for this debt, the commissaries refused to pay. Farquhar died and Chisholm sued Georgia to recover the money owed. The Court ruled 4-1 in favor of Chisholm citing the unmistakable language of Article III which authorized suits against a state by citizens of another state. Georgia immediately adopted a statute declaring anyone attempting to enforce the Court's decision would be guilty of a felony punishable by death. A mere 3 weeks after the Court's decision in Chisholm both houses of Congress had approved the Eleventh Amendment.

The point of this story... Don't mess with a Farquhar? If you're going to mess with a Farquhar you'd best be packing a Constitutional Amendment?

-Zefferia T. Farquahar III
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Back Burner Blog

The problem with being in the pits of law school, as well as being a busy law clerk and single parent... there really isn't time for writing well thought out and properly researched articles. I have an outline for a post I would like to write entitled, "Originalism and the Age of Reason" but for now it is only an outline.

I also have a few thoughts on the Supreme Court's decision on DNA testing not being a constitutional right (DISTRICT ATTORNEY'S OFFICE FOR THE THIRD JUDICIAL DISTRICT et al. v. OSBORNE). This will also remain on the back burner until things calm down a little.

On a lighter note, grades and class rankings at the Santa Barbara College of Law were posted over the last weeks. I did better than I had expected. There is still quite a bit of speculation among the students as to who failed out and who is at the top of the class. There is also some misinformation and gossip floating around... No, there were no first year students that managed all A's.
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