Was it a bribe? Democrats trade 'quid pro quo' for 'bribery' in Trump impeachment messaging

John Fritze | USA TODAY

Show Caption Hide Caption Devin Nunes attempts to get Lt. Col. Vindman to out the whistleblower Ranking member Rep. Devin Nunes attempts to get Lt. Col. Vindman to discuss who in the intelligence community he talked to about Trump's phone call.

WASHINGTON – Minutes after Rep. Adam Schiff gaveled in Tuesday's impeachment inquiry hearing, the Californian began hammering away at an emerging Democratic theme: that President Donald Trump's actions may have amounted to bribery.

"If the president abused his power and invited foreign interference in our elections, if he sought to condition, coerce, extort, or bribe an ally ... it will be up to us to decide whether those acts are compatible with the office of the presidency," Schiff, the Democratic chairman of the House Intelligence Committee, said in his opening remarks.

Democrats have been repeating the word "bribery" in recent days as a way to describe Trump’s interactions with Ukraine President Volodymyr Zelensky. In doing so, they're zeroing in on a word in the Constitution's impeachment clause and deemphasizing the wonkier Latin phrase "quid pro quo," meaning "something for something."

Republicans are pushing back on the new line of rhetorical attack.

Trump's Ukraine phone call: U.S. and Ukraine relationship, explained U.S. and Ukraine relations go further back than the now infamous phone call between Trump and Zelensky. We explain their relationship.

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Whether a bribery charge against the president would stand up in court based on the evidence made public so far is debatable, legal experts told USA TODAY. But those experts said an impeachment doesn't need to meet the same legal threshold as a criminal prosecution. And, they pointed out, bribery is an easier concept for the public to grasp.

In other words, experts said, it's as much about messaging as it is about the law.

"Most people have a fundamental, passing awareness of what bribery is," said Michael Gerhardt, a University of North Carolina law professor who published a book last year on impeachment. "Democrats can plug into that."

Federal law defines bribery

One of the definitions of bribery in federal law is when 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 being influenced in the performance of any official act."

Democrats say Trump, in asking Zelensky to open an investigation into former Vice President Joe Biden's son, was demanding something of value in return for an official act, namely $400 million in military aid to Ukraine.

Lt. Col. Alexander Vindman, a Ukraine expert on the National Security Council who sounded alarms about Trump's July 25 call with Zelensky, told lawmakers Tuesday he considered the president's request for investigations to be a "demand" that was "improper."

Vindman described how the "power disparity" between the U.S. and Ukraine made Trump's request for a "favor" more like a demand.

House Speaker Nancy Pelosi took that characterization a step further last week, describing Trump’s dealings with Ukraine as "bribery."

When asked specifically what the bribe was, Pelosi said it was “to grant or withhold military assistance in return for a public statement of a fake investigation into elections."

"That's bribery," Pelosi said.

Republicans have scoffed at her definition.

"Who did the president 'Bribe' and what did he get for it? Be specific," Sen. Lindsey Graham, a South Carolina Republican and staunch ally of the president, tweeted Tuesday. "The truth is that 'Bribery' is a made-up, poll tested charge without any factual basis in this case."

So now it’s “Bribery.”



Who did the president “Bribe” and what did he get for it? Be specific.



The truth is that “Bribery” is a made-up, poll tested charge without any factual basis in this case. — Lindsey Graham (@LindseyGrahamSC) November 19, 2019

Republicans say what Trump wanted from Ukraine was intangible and uncertain – far removed from an envelope full of cash that many Americans picture when they think of bribery.

What if, former federal prosecutor Renato Mariotti asked, the Ukrainians agreed to investigate the Biden family or election interference in 2016 and found nothing wrong? Would that still represent a benefit to Trump?

"It seems to me that at a trial there would be a lot of questions about whether that was something of value as contemplated by" the law, Mariotti said.

Mariotti said he believes Trump has "no defense" regarding the accusations that have come up in the impeachment inquiry: that he pressured Ukraine in order to hurt a political rival.

Bringing bribery into the mix, he said, could give Trump a "technical legal defense."

But it's not fully clear what constitutes something of value when it comes to bribery laws, other experts said.

Carissa Byrne Hessick, a law professor at the University of North Carolina, said the investigations Trump solicited could be seen as something of value.

"I don’t think we have a definitive answer on that, as a matter of law," Hessick said. "There are a number of court decisions out there that interpret the phrase 'thing of value' to include intangible things that aren't money or property.

"The fact that you couldn’t necessarily put a price tag on it," she said, "doesn’t mean it's not a thing of value."

Impeachment is different than a criminal prosecution

An impeachment, however, isn't bound by the same legal standards as a criminal case, and lawmakers don't have to rely on federal statute to define the term bribery. Or "extortion," another term Democrats have been using lately.

One case shows the difference between a legal proceeding and an impeachment, experts said. In 1983, a jury acquitted Rep. Alcee Hastings, D-Fla., of bribery when he was a federal judge. Nevertheless, the Democratic-controlled House impeached him five years later on bribery and other charges. He was ultimately removed from office.

"What really matters," Mariotti said, "is, politically, what Congress believes bribery is."

For weeks, Republicans said the July phone call between Trump and Zelensky did not represent a quid pro quo because the U.S. president did not directly tie military aid to Ukraine's willingness to help with the investigations. But a bevy of witnesses have since testified that senior aides made it clear that the investigations were a priority for Trump.

House Democrats have been testing language in focus groups in key battleground districts. They found the words "bribery" and "extortion" resonated more with Americans than "quid pro quo," according to a Democratic aide speaking on the condition of anonymity to discuss internal strategy.

Whether that strategy works will be a political judgment, not a legal one.

"You use language to build credibility," said Frank Luntz, a longtime Republican consultant who is known for helping the GOP refine messaging. "The problem with 'bribery' is that while it's a powerful word, it's not credible."

Republicans seized on the term during Tuesday's hearing.

“No witness has used the word bribery to describe President Trump's conduct," said Rep. John Ratcliffe, R-Texas, as he put his hand on a stack of deposition transcripts. "None of them.”

Schiff responded that witnesses haven't been asked about bribery because their role is to testify about facts.

“It will be our job to decide whether the impeachable act of bribery has occurred," he said.

Contributing: Christal Hayes, Ledyard King, Kevin McCoy, Nicholas Wu