Newsweek - USA (2019-11-29)

28 NEWSWEEK.COM

memo of the Trump=elensky call placed

in a hypersecure “codeword” server?

Why were 9 indman’s corrections of the

memo never incorporated into it? Why

was 9 indman instructed not to discuss

the call? Why does Trump keep falsely

insisting that the call memo was “an

e[act wordforword transcriptŪtaken

by very talented stenographers”?

Perhaps there are innocent answers

to these questionsŜbut that’s why a full

criminal inquiry needs to occur. If the

answers to these questions don’t turn

out to be innocent, they raise questions

about whether still other federal crim

inal laws have been violatedŜnotably

e[tortion and obstruction of justice laws.

In any case, 18 8 SC Section 1 also

creates an easiertoprove misdemeanor

ma[imum sentence: two years , which

doesn’t even require proof of “corrupt”

intent. That section, often referred to as

the “gratuities” provision, sweeps up any

ofɿcial who demands or seeks “anything

of value personally for or because of

any ofɿcial act performed or to be

performed by such ofɿcial or person.”

The Department of -ustice ordinarily

takes the position that a defendant

need only act “knowingly and purpose

fully” to be guilty in a gratuities case.

Nobody is questioning that presidents

are covered by 18 8 SC Section 1.

The Supreme Court has interpret

ed quid pro quo in a commonsense

manner. “The ofɿcial and the payor need

not state the quid pro quo in e[press

terms,” -ustice Anthony Kennedy wrote

in a 1 concurrence that has become

a widely accepted statement of the law,

“for otherwise the law’s effect could be

frustrated by knowing winks and nods.”

Would the facts of this case run afoul

of the same problem that DO- found

with the campaign ɿnance lawŜthat

the “anything of value” being e[tracted

in this instance can’t be quantiɿed?

No, according to a small mountain

of case law. Courts have had plenty of

occasion to address this question in

cases involving 18 8 SC Section  1

and similarly worded federal and state

bribery laws. In those conte[ts, courts

have repeatedly found that “intangible”

beneɿts can count as “anything of value.”

“‘Thing of value’ for the bribery statute

is construed very broadly and can include

anything of subjective value to the public

ofɿcial,” says Randall Eliason, a former

assistant 8 .S. attorney in Washington,

D.C., who teaches white collar crime at

*eorge Washington 8 niversity law school.

“It can include intangibles such as offers

of employment, promises of future con

tracts, se[ual favors, personal services,

etc....I believe a promise to investigate

a political opponent would qualify.”

“It’s certainly arguable that getting

dirt on your opponents is something

valuable to you and your campaign.”

But the more pressing question today

is whether Trump’s conduct violates

the federal bribery and gratuities

law: 18 8 SC Section 1. That’s a

question that DO- does not appear

to have addressed in its initial quick

look inquiry, probably because, at that

time, evidence of quid pro quo was

still circumstantial and speculative.

That’s no longer the case. Concrete

testimony from acting 8 .S. ambassador

to the 8 kraine William B. Taylor, -r. ;

Lt. Col. Ale[ander S. 9 indman; 8 .S.

ambassador to the European 8 nion

*ordon Sondland; and National Security

Council aide Timothy Morrison, together

with other corroborating evidence

for e[ample, the SondlandTaylor

te[ts and even admissions all strong

ly point toward a quid pro quo.

Speciɿcally, they suggest that Trump

was conditioning the release of nearly

1 million in Congressionally approved

military aid to 8 kraine upon that country

publicly announcing a criminal probe into,

among other things, the 8 krainian energy

company Burisma. That probe would nec

essarily cast a pall on a former director

there, Hunter Biden, who is the son of -oe

Biden, then the frontrunner to be Trump’s

Democratic opponent in the  elec

tion. -oe Biden was also the Democratic

candidate then performing best against

Trump in headtohead straw polls.

The bribery law makes it a felony for

any federal “public ofɿcial” to “cor

ruptly” demand or seek “anything of

valueŪin return for being inʀuenced

in the performance of any ofɿcial act.”

The ma[imum sentence is 1 years.

Apparently some of Trump’s de

fenders want to argue that, okay, it’s

true that there was a quid pro quo,

but Trump still didn’t act “corruptly.”

Of course, defendants can always

make such an argument to the juryŜ

and usually do. But here there’s ample

evidence of personal gain; no objective

evidence of legitimate public purpose;

months of furtiveness; secrecy; and

consciousness of guilt. Career envoys,

ambassadors, and national security staff

were all kept in the dark while only a

handful of political appointees and the

President’s personal attorney were in

on what was happening. Why was the

WITNESSES

Above: The Justice Department building

in Washington, DC. Top, clockwise from

left: ambassador to the EU Sondland;

White House Russia expert Morrison; NSC

director for European affairs Vindman;

acting ambassador to Ukraine Taylor

7+()$&76$6:(12:.12:7+(0

6.(7&+2877+(3266,%,/,7<2)

$&5,0,1$/9,2/$7,212)7+(

Anti-Bribery

Statute.

IMPEACHMENT

NOVEMBER 29, 2019

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