It was right around the time that I was writing my last post (“The Trump Impeachment: What Is The Crime?”) that House Democrats started using the word “bribery” to describe what they are looking into. OK, that’s a start. Shall we consider it further?

Bribery is a real crime, and it’s even mentioned in the Constitution as a basis for impeachment. But there are two major problems with trying to fit the square peg of the Trump/Ukraine fact pattern into the round hole of the impeachable crime of “bribery.” The first is that if providing to a politician some intangible political advantage can be characterized as a “bribe,” then most of what politicians do all day would become “bribery.” The second is that calling President Trump’s conduct as to Ukraine “bribery” invites comparison with the conduct of Joe and Hunter Biden in the same country, and calls for testing the conduct of each against the words of the applicable statute to see which is the better fit.

As discussed in the previous post, it’s only a “crime” if you can fit within the exact words of some criminal statute passed by Congress. In the case of the crime of bribery of a federal official, the main statute is 18 U.S.C. Section 201(b). Here are the words of the relevant portion:

(b) Whoever . . . (2) 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 . . . shall be fined under this title . . . or imprisoned for not more than fifteen years, or both.

If you have read that, perhaps your reaction was, “then why isn’t every politician already in jail?” The problem is that politics is inherently corrupt. Even if a politician is not “on the take” for personal money, it goes without saying that every incumbent politician regularly uses the powers of his office to obtain intangible political benefits to himself from third parties, for use against rivals. Every such action will also be justified as in some way benefiting the public. But is obtaining something of political advantage against rivals enough to make the exercising of government authority a crime, even where nothing tangible goes to the politician directly?

Take some examples. The teachers union contributes millions to campaigns of New York politicians, and delivers votes by the hundreds of thousands, and in return charter schools are restricted and teacher pensions are increased (official acts), all in the name of “helping our public schools.” Bribery? Politician gives foreign aid to Africa (official act) and in return African country agrees to buy tractors from Caterpillar; politician then uses the African purchase by going to Caterpillar factory and proclaiming great success “bringing manufacturing jobs home,” resulting in thousands of additional votes. Bribery?

Here’s one closer to the Trump/Ukraine fact pattern: Barack Obama Justice Department obtains assistance from “cooperating witnesses” to secure convictions of prominent Republican politicians like Bob McDonnell (Governor of Virginia) or Dean Skelos (Majority Leader of New York State Senate); Obama’s people reward the “cooperators” with pleas to reduced charges and lighter to non-existent sentences (official acts); and Obama and Democrats benefit politically by having prominent Republicans removed from competitive offices. Bribery? Or: Obama’s CIA or FBI pay a Stefan Halper or a Joseph Mifsud as a source (official acts) and in return those individuals provide the information to get the “Russian collusion” narrative going and help the Democrats attempt to remove Trump. Bribery?

These kinds of things cannot be effectively prosecuted as bribery, and in practice are not so prosecuted. (The last example may be a crime under other statutes.). Of course every official act that a politician takes will be arranged to benefit himself in some way politically, even as such acts inevitably also have some public benefit that can be asserted.

With that background, let’s try applying the words of the bribery statute to the conduct of President Trump and of Joe and Hunter Biden relating to Ukraine. First, I’ll break down the main elements of the crime of bribery, as taken from the statute:

“demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally” “in return for . . . being influenced” “in the performance of any official act “

First element — the “thing of value”

The Bidens received a monetary “thing of value,” consisting of several million dollars, from Burisma. This element is definitively established as to them.

For Trump, the alleged “thing of value personally” is the intangible political benefit of potentially getting some useful dirt on his rival Joe Biden. How different is this from the teachers union working the phone banks on election day, or the Africans buying tractors in Iowa with U.S. aid dollars? And if you can distinguish those, how do you distinguish Obama’s people getting useful dirt from various sources in prosecuting McDonnell and Skelos and plenty of others who were politically beneficial to take down? Needless to say, nobody is prosecuting Obama or the people from Justice who prosecuted McDonnell or Skelos. Moreover, Skelos was convicted and is in jail. (McDonnell’s conviction was reversed by the Supreme Court.) Should it count as to this element that the information sought against a political rival actually led to a conviction, thus establishing at least by that measure that prosecution of the political rival was justified? Or to put it another way, if there is probable cause to believe that Biden is corrupt, shouldn’t the government be able to pursue an investigation against him by all normal means, irrespective of whether he is a political rival of the sitting President?

Second element — “in return for being influenced”

As to the Bidens, you are undoubtedly familiar with the video of Joe Biden bragging about how he used the threat of withholding U.S. aid to Ukraine to get Ukrainian prosecutor Viktor Shokin fired:

I said, I’m telling you, you’re not getting the billion dollars. I said, you’re not getting the billion. I’m going to be leaving here in, I think it was about six hours. I looked at them and said: I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money. Well, son of a b-tch. (Laughter.) He got fired.

That’s a clear admission as to the “in return for” piece, that the firing of Shokin was in return for release of U.S. aid. Biden’s defense is that despite his son’s position, his motives were pure. He was just trying to reduce corruption in Ukraine, and was not influenced in any way by the fact his son sat on the board (making $1 million per year) of a company in Shokin’s crosshairs. As pointed out in my post of October 6 (“The Bidens: ‘Stone Cold Crooked’ (2)”) this defense immediately falls apart, because Joe had a sure way to establish the purity of his motives, which was to tell his son to get the hell off the Burisma board before Joe demanded the firing of the prosecutor. That Joe did not do this proves that he acted with corrupt motive.

As if that were not enough, the timeline of events also undermines Biden’s contention that his motives were pure. Here is a list of Biden’s trips to Ukraine as Vice President. The last one before Shokin was fired was December 8-9, 2015. So that must be the trip where the demand to fire the prosecutor was made. Despite the impression you may have gotten from Biden’s bragging, Shokin was not immediately fired when Biden left on December 9, 2015. Rather, another event came first. That was on February 4, 2016, when a court, acting at the request of Shokin’s office, seized the homes and personal property in Ukraine of Burisma owner and president Mykola Zlochevsky. In other words, Shokin’s Burisma/Zlochevsky investigation was definitely active as of February 4. Then that changed suddenly. It was on February 16 that then-Ukrainian President Poroshenko publicly called for Shokin’s resignation; and February 19 when Shokin actually submitted a resignation letter. Thereafter, the investigations into Burisma and Zlochevsky somehow miraculously got suspended. If Biden was acting with pure heart just to get Shokin fired ASAP, why was Shokin not fired in December or January?

Contrast those damning facts to the facts relating to this element as to Trump. Two transcripts of telephone calls between Trump and Ukraine President Zelensky (here and here) do not contain any language conditioning release of aid on investigating Biden. (Trump’s words as to the Bidens in the July transcript are : “There's a 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. Biden went around bragging that he stopped the prosecution so if you can look into it... It sounds horrible to me.”) Zelensky has said that he did not feel under pressure to investigate the Bidens. No investigation was begun, and meanwhile the aid in question was released.

In addition, Trump has multiple good reasons not relating to political advantage for himself why the aid to Ukraine was briefly held up. Here is a discussion by Byron York at the Washington Examiner. The reasons include Trump’s general dislike of foreign aid; his efforts to leverage the Europeans into contributing more; the general concern about corruption in Ukraine; the completely legitimate desire to get Ukraine to assist in the Barr/Durham investigation of the origins of the Russia collusion hoax; and finally, the legitimate desire to investigate whether Joe and Hunter Biden had engaged in corrupt conduct. Yes, the investigation of Biden, had it occurred, might have benefited Trump politically. Then again, it might not. Also, Trump had no available method to avoid such potential benefit to himself while pursuing the legitimate goal of investigating corruption (unlike the way the Bidens could have avoided the charge of corruption by having Hunter leave the Burisma board).

Third element — the “official act”

Biden, by his own admission, threatened to hold up the aid (the official act) sufficiently to get the desired result, namely that the prosecutor was fired.

Trump has not been quoted as threatening to hold up aid until an investigation of Biden was started, and in fact released the aid without the investigation being started.

Conclusion

In short, the Bidens’ conduct neatly meets each of the elements of the bribery statute. Trump’s conduct does not fit at all. There should be no way to consider the question of impeaching Trump over this claimed “bribery” without the stark contrast coming clearly into focus.

I’ll close with an excerpt from a speech that Joe Biden gave to the Ukrainian Rada (parliament) on December 9, 2015, during that same trip where he demanded the firing of Shokin. The text is at this link. Excerpt:

It’s not enough to set up a new anti-corruption bureau and establish a special prosecutor fighting corruption. The Office of the General Prosecutor desperately needs reform. The judiciary should be overhauled. The energy sector needs to be competitive, ruled by market principles — not sweetheart deals. It’s not enough to push through laws to increase transparency with regard to official sources of income. Senior elected officials have to remove all conflicts between their business interest and their government responsibilities. Every other democracy in the world — that system pertains.

You really have to wonder how the members of the Rada were reacting to this as they were hearing it. Here was Joe Biden, the person in charge of U.S. diplomatic efforts in Ukraine, standing in front of them playing holier-than-thou, and claiming some moral high ground to lecture them on ethics and corruption, and telling them that they must “remove all conflicts between their business interest and their government responsibilities.” And yet every one of the listeners knew full well that at that same time Joe Biden had his son Hunter holding (since May 2014) a $1 million-per-year, 2 day-per-year job as board member of a principal suspect of Ukrainian corruption, the gas company Burisma. Were the members of the Rada struggling to suppress laughter? Definitely. But in addition, it could only have looked to them like what they had seen so many times before in their home country, namely that the very same high official demanding that they end corruption as to themselves was in fact the most corrupt of all; and thus, as a result of Hunter’s position, the speech could only have conveyed the message of an implicit blessing to continue business as usual.