Mimi Rocah, Jennifer Rodgers and Berit Berger

Opinion contributors

Despite compelling evidence implicating President Donald Trump and others in potential crimes, the Department of Justice declined to open a criminal investigation into them for their role in the Ukraine situation. This raises serious questions about the motivations and independence of decision-makers at DOJ and whether this decision was made in good faith.

We now know, because of a whistleblower's complaint, that Trump asked Ukranian President Volodymyr Zelensky in July to renew a dormant Ukrainian investigation of former Vice President Joe Biden and his son Hunter Biden as “a favor.” That “favor” was understood to be a condition for the release of congressionally approved military aid to Ukraine and other things Zelensky wanted.

After the call, members of the administration scrambled to conceal this blatant abuse of presidential power. Late in August and early September, Acting Director of National Intelligence Joseph Maguire and the Inspector General of the Intelligence Community made criminal referrals to DOJ and the FBI about whether the call might constitute a violation of campaign finance law.

Quick decision raises red flags

Here is where things get strange. DOJ made a strikingly quick decision not to open an investigation, stating that the head of the criminal division determined that “there was no campaign finance violation and no further action was warranted.”

This rapid conclusion raises red flags for two major reasons.

First, the standards for opening an investigation are quite low. The Attorney General Guidelines make clear that to open a preliminary investigation, FBI agents need only have “information or an allegation” that a federal crime might have been committed. Given these standards, it is incomprehensible that anyone would determine that no investigation was warranted here.

Under federal law, it is unlawful to “solicit, accept, or receive a contribution or donation” from a foreign national. The statute defines a “contribution” as “any gift … of money or anything of value, made by any person for the purpose of influencing any election for federal office.”

To charge a person with such an offense, prosecutors would want significant proof of the criminal conduct. But to open an investigation, investigators only need a reason to believe a violation might have occurred. Indeed, that is exactly what an investigation is for: to determine whether enough evidence of a violation exists to warrant charging anyone.

Several possible crimes to investigate

The DOJ’s basis for rejecting any investigation in this case was that nothing of “value” was being solicited from the Ukrainian government. But Ellen Weintraub, the chair of the Federal Election Commission, disagrees. According to her, “the Commission has recognized the ‘broad scope’ of the foreign national contribution prohibition and found that even where the value of a good or service ‘may be nominal or difficult to ascertain,’ such contributions are nevertheless banned.”

On the facts we already know, it seems at least probable, if not (yet) definitively provable, that one or more of the things Trump was peddling — almost $400 million in military aid, a White House visit and the ability to purchase anti-tank aircraft — could be used to determine valuation for Ukraine’s investigation into Biden. The idea that further investigation wouldn’t be conducted into how valuable the investigation was to Trump is astonishing.

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Second, a campaign finance violation isn’t the only (or the most serious) federal crime suggested by these facts. In opening investigations, investigators are not limited to a particular crime mentioned in a referral. Here, DOJ should have considered federal bribery, extortion under color of official right, and theft of honest services.

These statutes make it a crime to solicit or accept something of value in exchange for an official act. Soliciting an investigation of your political rival in the lead-up to an election while putting a hold on nearly $400 million in congressionally appropriated aid would seem to fall squarely within one or more of these statutes.

This looks like part of a cover-up

Some have argued that there’s nothing to see here because there was no quid pro quo. Nonsense. A quid pro quo does not require an explicit statement of “give me X or I won’t give you Y.” Criminals are rarely so brazen. A quid pro quo for purposes of any of these federal statutes can be implicit and need not be provable from one piece of evidence. Rather, investigators look at all of the interactions between the parties, as well as other relevant facts, to determine whether an exchange was solicited, offered or accepted.

All of this underscores the necessity of an investigation. Instead, DOJ seems to have relied solely on the White House’s summary of the July 25 telephone call in making its determination. While the call is undoubtedly damning evidence, it’s unclear whether it is a complete summary or only the tip of the iceberg. Why would DOJ walk away from an investigation with so much left on the table?

Locking down the evidence:If Ukraine phone call 'was perfect,' as President Trump claimed, why try to bury it?

Finally, Trump repeatedly told Zelensky that Attorney General William Barr could help him look into the Bidens. If Barr really wasn’t involved, as he says, he should have consulted DOJ ethics officials about formal recusal, which would have given the public more confidence in this decision.

We recognize that decisions about criminal matters are often close calls, and that criticizing the decisions of other prosecutors without having access to all of their evidence is a dangerous endeavor. But the decision here of whether to open a criminal investigation, based on what is now known, was simply not a close call.

Barr must explain that decision, because right now DOJ’s decision not to investigate looks an awful lot like part of the cover-up.

Mimi Rocah is Pace University law school's Distinguished Fellow in Criminal Justice and an MSNBC/NBC News legal analyst. Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School from 2013 to 2018, is a lecturer at Columbia Law School and a CNN legal analyst. Berit Berger is executive director of the CAPI at Columbia Law School and an MSNBC analyst. All three are former federal prosecutors. Follow them on Twitter: @Mimirocah1 @JenGRodgers @ColumbiaCAPI