Did Donald Trump commit a crime when he urged Ukrainian President Volodymyr Zelenskiy to investigate former Vice President Joe Biden? Many of the president's critics say yes, and they have floated several legal theories, ranging from frivolous to debatable.
This week, former Massachusetts governor William Weld, who is notionally challenging Trump for the Republican Party's 2020 presidential nomination, claimed Trump is guilty of "treason, pure and simple." He added that "the penalty for treason under the U.S. Code is death."
The legal definition of treason requires waging war against the United States or "adher[ing]" to its enemies (defined as nations or organizations that are at war with it) by giving them "aid and comfort." Ukraine is a U.S. ally, not an enemy. It is not at war with the United States. (Neither is Russia, which may be the country Weld had in mind.) In any event, Trump's alleged aim was not to help Ukraine (or Russia) but to help himself by getting its government to dig up dirt on a man who wants to take his job away. Weld, who as a former U.S. attorney certainly should know better, also erroneously claimed death is "the only penalty" for treason. The possible penalties include prison and fines as well as execution.
Fox News legal analyst Andrew Napolitano argues that Trump's July 25 telephone conversation with Zelenskiy could be construed as bribery: "When the president asks a foreign government—the head of a foreign government—to do something to help his campaign, when the president adds a condition to the receipt of foreign funds that Congress didn't add, and when that condition benefits the president's campaign and not American foreign policy, the president has arguably walked into the area of bribery."
The federal bribery statute applies to U.S. officials, not foreign officials, so the relevant question is not whether Trump tried to bribe Zelenskiy with military aid but whether he solicited a bribe from Zelenskiy. Under 18 USC 201, a federal official (such as Trump) commits a felony when "he 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…an official act."
In this case, the "official act" presumably would be delivering the military aid that Trump had blocked before his conversation with Zelenskiy (although Zelenskiy did not know about that decision at the time). The "thing of value" allegedly solicited by Trump would be compromising information about Biden, a leading contender to oppose him as the Democratic nominee in next year's election.
As a Columbia Law School guide to federal statutes used in corruption cases notes, "federal courts have held that the term 'anything of value' in the federal bribery statute applies broadly to intangible as well as tangible payments." Would dirt on Biden dug up by the Ukrainian government count as "anything of value"? Advocates of that interpretation, such as University of California, Irvine, law professor Rick Hasen, note that political campaigns routinely pay for opposition research, which is essentially what Trump is accused of seeking.
Illegal Campaign Contribution
Another way of looking at Trump's interaction with Zelenskiy is that Trump was soliciting an illegal campaign contribution. "The best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo," Hasen writes.
Under 52 USC 30121, it is illegal for a foreign national to make "a contribution or donation of money or other thing of value…in connection with a Federal, State, or local election." The same statute makes it a crime to solicit such a contribution.
Like the bribery statute, the campaign finance law would apply to an arrangement between Trump and Zelenskiy only if the information discovered by a Ukrainian investigation of Biden and his son, Hunter, would qualify as a "thing of value." And as Special Counsel Robert Mueller noted in his March report on Russian efforts to influence the 2016 presidential election, "No judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law."
If there was a quid pro quo (military aid in exchange for an investigation of Biden), one could argue that the "opposition research" in this case was not "uncompensated." But given the uncertainty, it would be hard to make the case that Trump knowingly violated the law, which is required for a criminal conviction.
Furthermore, if the law were understood to cover the sharing of information, it would effectively criminalize constitutionally protected speech. Mueller noted that "such an interpretation could have implications beyond the foreign-source ban," such as limits on campaign contributions by Americans, and "raise First Amendment questions."
Hasen is unimpressed by the First Amendment argument. "Thanks to Mueller," he writes, "Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit—even potentially extort—valuable information against political opponents. If the First Amendment protected this conduct from Trump, why even hold elections?"
But if information counted as a campaign contribution, any American who shared a potentially damaging tip about a political candidate with that candidate's opponent would be subject to the limits imposed by the Federal Election Campaign Act. That understanding of the law would create formidable enforcement challenges. How much would, say, rumors of domestic abuse or a list of old, offensive tweets be worth? How could the Federal Election Commission assign a dollar value to such information, which would be necessary to decide when someone had exceeded the limit on individual campaign contributions? It does not seem like a stretch to suggest that such uncertainties would have a chilling effect on speech protected by the First Amendment.
Does Any of This Matter?
Probably not. The Justice Department has taken the position that it cannot prosecute a sitting president, and impeachment does not require provable statutory violations. "High crimes and misdemeanors" include violations of the public trust that do not necessarily involve breaking the law. In this case, if the allegations against Trump are true, he has abused his power for personal gain and violated the separation of powers by impeding the distribution of congressionally approved military aid. Members of Congress might reasonably conclude that's enough to justify impeachment, whether or not Trump committed a prosecutable crime.