Editor’s Note: Richard Ben-Veniste was a member of the 9/11 Commission and a former federal prosecutor and assistant Watergate prosecutor; Kelly B. Kramer is a defense attorney who has represented members of Congress, ranking executive branch officials, and lobbyists in significant public corruption scandals over the past 20 years. They practice law in Washington. The opinions expressed in this commentary are their own. View more opinion articles on CNN.
For weeks, Americans have debated whether President Donald Trump’s request that President Volodymyr Zelensky publicly announce the launch of investigations into former Vice President Joe Biden and his son, Hunter Biden, involved a quid pro quo. Recently, however, Speaker Nancy Pelosi dropped the Latin.
Asserting the President had engaged in “bribery,” the speaker moved the impeachment inquiry to the heart of the Constitution, which provides for impeachment in cases involving “treason, bribery, or other high crimes or misdemeanors.”
The nation faces an important question: Does the evidence already in the public record support a claim of bribery against the President?
“Bribery” is not defined in the Constitution, but it has long been defined in federal criminal law. Under long-standing precedent, a public official commits bribery when he or she: (1) seeks or demands; (2) something of value personally; (3) in return for being influenced in an official action; with (4) corrupt intent. Here, the public record contains evidence that seems sufficient to satisfy each of these elements.
First, President Trump sought or demanded, among other things, that President Zelensky launch investigations into the Bidens and the energy company, Burisma Holdings, on whose board of directors Hunter Biden served.
The request is clear on the face of the White House’s July 25 call summary, which shows that President Trump responded to President Zelensky’s expressed interest in purchasing Javelin anti-tank missiles by saying:
“I would like you to do us a favor, though,” he said, and “find out” about an unsubstantiated conspiracy theory that Ukrainian officials interfered in the 2016 presidential campaign.
And then: “There’s a whole lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that, so whatever you can do with the attorney general would be great. … If you can speak to (Rudy Giuliani), that would be great. … Biden went around bragging that he stopped the prosecution, so if you can look into that. … It sounds horrible to me.”
The public record suggests President Trump’s associates, including Giuliani and Ambassador Gordon Sondland, later refined that demand, asking President Zelensky to announce the investigations in a public forum.
As revealed in Ambassador Sondland’s amended testimony, he told one of President Zelensky’s top advisers that military aid likely would not resume “until Ukraine provided the public anti-corruption statement that (the parties) had been discussing for many weeks.”
Second, the thing that President Trump reportedly sought – public investigations of his chief political rival (though Trump denies this was his intent) – would have had value to him. Bribery is not limited to money or property; it includes intangible things, even things that have only subjective value to the person seeking them. Information obtained for political advantage falls within the statute’s reach.
Under this well-established standard, the public announcement of investigations into the Bidens by President Zelensky could qualify as a thing of value. Indeed, if President Trump’s objective was to smear the then-leading Democratic candidate to oppose President Trump in the 2020 election, the damage would be done no matter the result of any investigation.
As Ambassador Bill Taylor testified, he understood that President Trump wanted the investigations to be announced publicly so as to put President Zelensky “in a public box.” Similarly, Ambassador Sondland reportedly explained to US Embassy official David Holmes that the President did not care about Ukraine, but that he did care about the “big stuff,” such as the investigation into the Bidens. If this public reporting is true, President Trump undoubtedly placed great value on the announcement of these investigations.
Third, as reported, there was a linkage between what President Trump sought from Ukraine and the performance of his official duties. Specifically, President Trump reportedly was willing to release the military aid to Ukraine that he had ordered to be put on hold, but only in return for a public announcement that Ukraine would investigate the Bidens.
The fact that the military aid was eventually unfrozen is irrelevant to whether bribery was committed: A public official violates the bribery statute by merely seeking or demanding a bribe, regardless of whether the transaction is completed.
Several public officials have testified to the linkage between the release of military aid and the public announcement of investigations. For example, Ambassador Sondland’s amended testimony states the “resumption of US aid would likely not occur until Ukraine provided the public anti-corruption statement that (the parties) had been discussing for many weeks.” Similarly, Ambassador Taylor testified that Ambassador Sondland told him that “(e)verything was dependent on such an announcement,” including, as Ambassador Taylor understood it, both a White House visit and security assistance.
A president’s decision to release or to withhold hundreds of millions of dollars of military aid constitutes official action.
Fourth, the question arises whether there is evidence sufficient to prove that President Trump acted “corruptly.” In federal law, the term “corruptly” has been read to include an element of wrongfulness, such as when a public official acted primarily for his own interest, as opposed to the public interest. Here, even if the President lawfully could have withheld the congressionally-authorized military aid to Ukraine, conditioning the release of that aid on the public announcements of politically-beneficial investigations would be unlawful.
Yet testimony suggests this is exactly what President Trump did. Multiple public officials have testified the President did not have an interest in rooting out corruption in Ukraine – a policy that Ambassador Marie Yovanovitch had been pursuing vigorously until Trump had her removed – but rather sought illegitimately to procure investigations into a specific political opponent.
• Holmes reportedly testified that the President told Ambassador Sondland he did not care about Ukraine, but he did care about the “big stuff,” like investigations into the Bidens.
• George Kent testified that the President and Giuliani were not soliciting an “anti-corruption statement,” but rather were seeking a statement that called for an investigation into Burisma, in particular.
• Ambassador Kurt Volker similarly testified that Giuliani rejected a draft Ukrainian statement that would have called for corruption investigations, insisting instead that the statement specifically reference Burisma.
Public reporting from earlier this year further suggests the investigations into the Bidens may have been intended primarily to benefit the President, not the country. Giuliani publicly acknowledged his effort to push the Ukrainian government to investigate the Bidens.
He explained that such an investigation would be “very, very helpful to my client (the President), and may turn out to be helpful to my government.” If the President shared this view, as the public reporting suggests, it would support the conclusion that he acted with corrupt intent.
The facts are still emerging, and there is much that we as Americans do not know about how and why President Trump acted as he did. Of course, neither the President, nor the top aides who have followed his instruction not to cooperate with the Congressional inquiry – including Chief of Staff Mick Mulvaney, national security adviser John Bolton, and others – have been willing to provide sworn testimony.
Nonetheless, the public record already provides a strong prima facie basis for concluding that the President solicited a bribe.