President Donald Trump’s impeachment defense team is set to argue that his impeachment does not involve any criminal conduct. Nothing could be further from the truth: Trump repeatedly broke the law in his efforts to pressure Ukraine to open investigations into his political rivals.
What he did was illegal, and if any other person had done the same, they would have been indicted and likely sent to prison. As the House Judiciary Committee noted in its impeachment report, “Although President Trump’s actions need not rise to the level of a criminal violation to justify impeachment, his conduct here was criminal.”
The record is clear. Trump committed bribery. He committed honest services fraud. He likely engaged in a broader criminal conspiracy. He broke the law in withholding the military assistance to Ukraine. And then Trump obstructed Congress to cover up his crimes.
Trump committed the crime of bribery
- The House Judiciary Committee report makes clear that Trump “committ[ed] the crime of bribery.”
- The report notes that “criminal bribery occurs when a public official (1) ‘demands [or] seeks’ (2) ‘anything of value personally,’ (3) ‘in return for being influenced in the performance of any official act.’ Additionally, the public official must carry out these actions (4) ‘corruptly.’”
- Trump solicited a bribe from Ukraine. He sought something of personal value (the announcement of investigations into his political opponents) in exchange for an official act (a White House meeting and the provision of military assistance), and he did so corruptly.
- The federal anti-bribery statute imposes up to 15 years’ imprisonment for public officials who solicit or obtain bribes.
Trump committed the crime of honest services fraud
- The House Judiciary Committee report makes clear that Trump “knowingly and willfully orchestrated a scheme to defraud the American people of his honest services as President of the United States.”
- The report notes “[t]hat offense is codified in the federal criminal code … for public officials who (by mail or wire fraud) breach the public trust by participating in a bribery scheme.”
- The report goes on to state that “[t]he underlying wire fraud statute, upon which the ‘honest services’ crime is based, requires a transmission by ‘wire, radio, or television communication in interstate or foreign commerce any writings . . . for the purpose of executing [a] . . . scheme or artifice.’”
- Trump participated in a bribery scheme and utilized foreign wire communications to do so, such as by pressuring Ukrainian President Volodymyr Zelensky on their July 25 phone call.
- The federal criminal code imposes up to 20 years’ imprisonment for honest services fraud.
Trump likely was engaged in a criminal conspiracy
- Because of the significant evidence that Trump involved others in his efforts to commit bribery and wire fraud, he also likely was engaged in a criminal conspiracy.
- As Randall Eliason, a professor of criminal law at George Washington University, has said, “A criminal conspiracy is two or more people agreeing to commit the crime, along with at least one of them taking at least one act in furtherance of the conspiracy.”
- A former member of Trump’s legal team, Lev Parnas, alleges that after Rudy Giuliani and Trump discussed the effort to pressure Ukraine to open investigations, he was directed by Giuliani to threaten the Ukrainian government with the suspension of all U.S. aid unless they agreed to open investigations into Trump’s rivals. (Giuliani has denied Parnas’ allegations.)
- Legal experts have noted that his allegations would amount to a criminal conspiracy.
- Former U.S. Attorney Glenn Kirschner said, “Parnas puts Giuliani in a firsthand way in a criminal conspiracy to bribe and extort Ukraine.”
- Randall Eliason told The Washington Post, “If it’s true that Trump instructed Giuliani to tell Parnas to convey the message that aid would be withheld unless Ukraine announced the investigations, that potentially implicates all three of them in a conspiracy to solicit a bribe … Giuliani conveying the message [to Parnas constitutes] an overt act in furtherance of a conspiracy.”
Trump broke the law by withholding military assistance from Ukraine
- The Government Accountability Office (GAO), a nonpartisan federal agency charged with overseeing the use of federal funds, found that “[the Office of Management and Budget (OMB)] withheld funds [from Ukraine] for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.”
- The GAO found that the White House violated the law in even accepting at face value their purported justification of holding the funding to ensure it was spent consistent with Trump’s policy views.
- OMB officials have been clear that Trump directed them to hold the aid. In an email, a Trump official at OMB said, “Clear direction from POTUS to continue to hold.”
- Witness testimony and documentary evidence show that the Trump White House knew the hold was illegal but continued it anyway.
- Violating the ICA does not result in any criminal penalties. But knowingly violating the law in this case makes clear that the funding hold was never about fighting corruption but rather part of Trump’s broader bribery scheme.
Conclusion
Desperate to hide his actions from the American public, Trump has engaged in an unprecedented effort to obstruct the impeachment investigation. He ordered the entirety of the federal government to ignore congressional requests and subpoenas for documents and witnesses.
As the House Intelligence Committee report notes:
[N]ot a single document has been produced by the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense, or the Department of Energy in response to 71 specific, individualized requests or demands for records in their possession, custody, or control.
Moreover, according to the same report, “[a]t President Trump’s direction, twelve current or former Administration officials refused to testify as part of the House’s impeachment inquiry, ten of whom did so in defiance of duly authorized subpoenas.”
At this point, it is up to a majority of senators to demand a fair trial that includes both witnesses and evidence. Otherwise, they will be little more than accomplices in Trump’s efforts to cover up his crimes.
Max Bergmann is a senior fellow at the Center for American Progress and served in the State Department from 2011 to 2017. Sam Berger is vice president for Democracy and Government Reform at the Center and served in the Obama administration from 2010 to 2017.