(Part I is here; Part II, here.)

In this section of his testimony, Turley deals with the Ukraine phone call that is supposedly impeachable. Here is the key paragraph:

“Again, the issue is not whether these comments are correct, but whether they are corrupt. In my view, there is no case law that would support a claim of corrupt intent in such comments to support a bribery charge. There is no question that an investigation of the Bidens would help President Trump politically. However, if President Trump honestly believed that there was a corrupt arrangement with Hunter Biden that was not fully investigated by the Obama Administration, the request for an investigation is not corrupt, notwithstanding its inappropriateness. The Hunter Biden contract has been widely criticized as raw influence peddling. I have joined in that criticism. For many years, I have written about the common practice of companies and lobbyists attempting to curry favor with executive branch officials and members of Congress by giving windfall contracts or jobs to their children. This is a classic example of that corrupt practice.”

IV.   THE CURRENT THEORIES OF IMPEACHABLE CONDUCT AGAINST PRESIDENT DONALD J. TRUMP

 While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment. The reason is obvious. Criminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct. We have never had a presidential impeachment proceed solely or primarily on an abuse of power allegation, though such allegations have been raised in the context of violations of federal or criminal law. Perhaps for that reason, there has been a recent shift away from a pure abuse of power allegation toward direct allegations of criminal conduct. That shift, however, has taken the impeachment process far outside of the relevant definitions and case law on these crimes. It is to those allegations that I would now like to turn.

At the outset, however, two threshold issues are worth noting. First, this hearing is being held before any specific articles have been proposed. During the Clinton impeachment hearing, we were given a clear idea of the expected articles of impeachment and far greater time to prepare analysis of those allegations. The House leadership has repeatedly indicated that they are proceeding on the Ukrainian controversy and not the various alleged violations or crimes alleged during the Russian investigation. Recently, however, Chairman Schiff indicated that there might be additional allegations raised while continuing to reference the end of December as the working date for an impeachment vote. Thus, we are being asked to offer a sincere analysis on the grounds for impeachment while being left in the dark. My testimony is based on the public statements regarding the Ukrainian matter, which contain references to four alleged crimes and, most recently, a possible compromise proposal for censure.

Second, the crimes discussed below were recently raised as part of the House Intelligence Committee hearings as alternatives to the initial framework as an abuse of power. There may be a desire to refashion these facts into crimes with higher resonance with voters, such as bribery. In any case, Chairman Schiff and committee members began to specifically ask witnesses about elements that were pulled from criminal cases. When some of us noted that courts have rejected these broader interpretations or that there are missing elements for these crimes, advocates immediately shifted to a position that it really does not matter because “this is an impeachment.” This allows members to claim criminal acts while dismissing the need to actually support such allegations. If that were the case, members could simply claim any crime from treason to genocide. While impeachment does encompass non-crimes, including abuse of power, past impeachments have largely been structured around criminal definitions. The reason is simple and obvious. The impeachment standard was designed to be a high bar and felonies often were treated as inherently grave and serious. Legal definitions and case law also offer an objective and reliable point of reference for judging the conduct of judicial and executive officers. It is unfair to claim there is a clear case of a crime like bribery and simultaneously dismiss any need to substantiate such a claim under the controlling definitions and meaning of that crime. After all, the common mantra that “no one is above the law” is a reference to the law applied to all citizens, even presidents. If the House does not have the evidence to support a claim of a criminal act, it should either develop such evidence or abandon the claim. As noted below, abandoning such claims would still leave abuse of power as a viable ground for impeachment. It just must be proven.

A.  Bribery

 While the House Intelligence Committee hearings began with references to “abuse of power” in the imposition of a quid pro quo with Ukraine, it ended with repeated references to the elements of bribery. After hearing only two witnesses, House Speaker Nancy Pelosi declared witnesses offered “devastating” evidence that “corroborated” bribery. This view was developed further by House Intelligence Committee Chairman Adam Schiff who repeatedly returned to the definition of bribery while adding the caveat that, even if this did not meet the legal definition of bribery, it might meet a prior definition under an uncharacteristically originalist view: “As the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.”

The premise of the bribery allegations is that President Trump was soliciting a bribe from Ukraine when he withheld either a visit at the White House or military aid in order to secure investigations into the 2016 election meddling and the Hunter Biden contract by Ukraine. On its face, the bribery theory is undermined by the fact that Trump released the aid without the alleged pre-conditions. However, the legal flaws in this theory are more significant than such factual conflicts. As I have previously written,³⁶ this record does not support a bribery charge in either century. Before we address this bribery theory, it is important to note that any criminal allegation in an impeachment must be sufficiently clear and recognized to serve two purposes. First, it must put presidents on notice of where a line exists in the range of permissible comments or conduct in office. Second, it must be sufficiently clear to assure the public that an impeachment is not simply an exercise of partisan creativity in rationalizing a removal of a president. Neither of these purposes was satisfied in the Johnson impeachment where the crime was manufactured by Congress. This is why past impeachments focused on establishing criminal acts with reference to the criminal code and controlling case law.

Moreover, when alleging bribery, it is the modern definition that is the most critical since presidents (and voters) expect clarity in the standards applied to presidential conduct.

Rather than founding these allegations on clear and recognized definitions, the House has advanced a capacious and novel view of bribery to fit the limited facts. If impeachment is reduced to a test of creative redefinitions of crimes, no president will be confident in their ability to operate without the threat of removal. Finally, as noted earlier, dismissing the need to establish criminal conduct by arguing an act is “close enough for impeachment,” is a transparent and opportunistic spin. This is not improvisational jazz. “Close enough” is not nearly enough for a credible case of impeachment.

1.  The Eighteenth-Century Case For Bribery

The position of Chairman Schiff is that the House can rely on a broader originalist understanding of bribery that “connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.” The statement reflects a misunderstanding of early sources. Indeed, this interpretation reverses the import of early references to “violations of public trust.” Bribery was cited as an example of a violation of public trust. It was not defined as any violation of public trust. It is akin to defining murder as any violence offense because it is listed among violent offenses. Colonial laws often drew from English sources which barred the “taking of Bribes, Gifts, or any unlawful Fee or Reward, by Judges, Justices of the Peace, or any other Officers either magisterial or ministerial.”³⁷ Not surprisingly, these early laws categorized bribery as one of the crimes that constituted a violation of public trust. The categorization was important because such crimes could bar an official from holding public office. Thus, South Carolina’s colonial law listed bribery as examples of acts barring service “[f]or the avoiding of corruption which may hereafter happen to be in the officers and ministers of those courts, places, or rooms wherein there is requisite to be had the true administration of justice or services of trust    ”³⁸

The expansion of bribery in earlier American law did not stem from the changing of the definition as much as it did the scope of the crime. Bribery laws were originally directed at judicial, not executive officers, and the receiving as opposed to the giving of bribes. These common law definitions barred judges from receiving “any undue reward to influence his behavior in office.”³⁹ The scope of such early laws was not broad but quite narrow.⁴⁰ Indeed, the narrow definition of bribery was cited as a reason for the English adoption of “high crimes and misdemeanors” which would allow for a broad base for impeachments. Story noted:

“In examining the parliamentary history of impeachments, it will be found, that many offences, not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanours worthy of this extraordinary remedy. Thus, lord chancellors, and judges, and other magistrates, have not only been impeached for bribery, and acting grossly contrary to the duties of their office; but for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power.”

Thus, faced with the narrow meaning of bribery, the English augmented the impeachment standard with a separate broader offense. Indeed, Chairman Schiff may be confusing the broader treatment given extortion in early laws, not bribery. See generally James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. R_EV. 815, 875 (1988) (“Since bribery law remained undeveloped for so long, another crime was needed to fill the gap-especially against corruption by nonjudicial officers.”).

This view of bribery was also born out in the Constitutional Convention. As noted earlier, the Framers were familiar with the impeachment of Warren Hastings which was pending trial at the time of the drafting of the Constitution. The Hastings case reflected the broad impeachment standard and fluid interpretations applied in English cases.

George Mason wanted to see this broader approach taken in the United States. Mason specifically objected to the use solely of “treason” and “bribery” because those terms were too narrow—the very opposite of the premise of Chairman Schiff’s remarks. Mason ultimately failed in his effort to adopt a tertiary standard with broader meaning to encompass acts deemed as “subvert[ing] the Constitution.” However, both Mason and Madison were in agreement on the implied meaning of bribery as a narrow, not broad crime. Likewise, Gouverneur Morris agreed, raising bribery as a central threat that might be deterred through the threat of impeachment:

“Our Executive was not like a Magistrate having a life interest, much less like one having a hereditary interest in his office. He may be bribed by      a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst it by displacing him. One would think the King of England well secured against bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.”

Bribery, as used here, did not indicate some broad definition of, but a classic payment of money. Louis XIV bribed Charles II to sign the secret Treaty of Dover of 1670 with the payment of a massive pension and other benefits kept secret from the English people. In return, Charles II not only agreed to convert to Catholicism, but to join France in a wartime alliance against the Dutch.

Under the common law definition, bribery remains relatively narrow and consistently defined among the states. “The core of the concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.”⁴⁵ The definition does not lend itself to the current controversy. President Trump can argue military and other aid is often used to influence other countries in taking domestic or international actions. It might be a vote in the United Nations or an anti-corruption investigation within a nation. Aid is not assumed to be “gratuitously exercised” but rather it is used as part of foreign policy discussions and international relations. Moreover, discussing visits to the White House is hardly the stuff of bribery under any of these common law sources. Ambassador Sondland testified that the President expressly denied there was a quid pro quo and that he was never told of such preconditions. However, he also testified that he came to believe there was a quid pro quo, not for military aid, but rather for the visit to the White House: “Was there a ‘quid pro quo? With regard to the requested White House call and White House meeting, the answer is yes.” Such visits are routinely used as bargaining chips and not “gratuitously exercised.” As for the military aid, the withholding of the aid is difficult to fit into any common law definition of a bribe, particularly when it was ultimately provided without the satisfaction of the alleged pre-conditions. Early bribery laws did not even apply to executive officials and actual gifts were regularly given. Indeed, the Framers moved to stop such gifts separately through provisions like the Emoluments Clause. They also applied bribery to executive officials. Once again Morris’ example is illustrative. The payment was a direct payment to Charles II of personal wealth and even a young French mistress.

The narrow discussion of bribery by the Framers stands in stark contrast to an allegedly originalist interpretation that would change the meaning of bribery to include broader notions of acts against the public trust. This is why bribery allegations in past impeachments, particularly judicial impeachments, focused on contemporary understandings of that crime. To that question, I would like to now turn.

2.  The Twenty-First Century Case For Bribery

 Early American bribery followed elements of the British and common law approach to bribery. In 1789, Congress passed the first federal criminal statute prohibiting bribing a customs official and one year later Congress passed “An Act for the Punishment of Certain Crimes against the United States” prohibiting the bribery of a federal judge. Various public corruption and bribery provisions are currently on the books, but the standard provision is found in 18 U.S.C. § 201 which allows for prosecution when “[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 … being influenced in the performance of any official act.” While seemingly sweeping in its scope, the definition contains narrowing elements on the definition of what constitutes “a thing of value,” an “official act,” and “corrupt intent.”

The Supreme Court has repeatedly narrowed the scope of the statutory definition of bribery, including distinctions with direct relevance to the current controversy. In McDonnell v. United States, the Court overturned the conviction of former Virginia governor Robert McDonnell. McDonnell and his wife were prosecuted for bribery under the Hobbs Act, applying the same elements as found in Section 201(a)(3). They were accused of accepting an array of loans, gifts, and other benefits from a businessman in return for McDonnell facilitating key meetings, hosting events, and contacting government officials on behalf of the businessman who ran a company called Star Scientific. The benefits exceeded $175,000 and the alleged official acts were completed. Nevertheless, the Supreme Court unanimously overturned the conviction. As explained by Chief Justice Roberts:

“[O]ur concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless intrepretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”

The opinion is rife with references that have a direct bearing on the current controversy. This includes the dismissal of meetings as insufficient acts. It also included the allegations that “recommending that senior government officials in the [Governor’s Office] meet with Star Scientific executives to discuss ways that the company’s products could lower healthcare costs.” While the meeting and contacts discussed by Ambassador Sondland as a quid pro quo are not entirely the same, the Court refused to recognize that “nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo.” The Court also explained why such “boundless interpretations” are inimical to constitutional rights because they deny citizens the notice of what acts are presumptively criminal: “[U]nder the Government’s interpretation, the term ‘official act’ is not defined ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited,’ or ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” That is precisely the danger raised earlier in using novel or creative interpretations of crimes like bribery to impeach a president. Such improvisational impeachment grounds deny presidents notice and deny the system predictability in the relations between the branches.

The limited statements from the House on the bribery theory for impeachment track an honest services fraud narrative. These have tended to be some of the most controversial fraud and bribery cases when brought against public officials. These cases are especially difficult when the alleged act was never taken by the public official.

McDonnell resulted in the reversal of a number of convictions or dismissal of criminal counts against former public officials. One such case was United States v. Silver involving the prosecution of the former Speaker of the New York Assembly. Silver was accused of an array of bribes and kickbacks in the form of referral fees from law firms. He was convicted on all seven counts and sentenced to twelve years of imprisonment. It was overturned because of the same vagueness that undermined the conviction in McDonnell. The Second Circuit ruled the “overbroad” theory of prosecution “encompassed any action taken or to be taken under color of official authority.” Likewise, the Third Circuit reversed conviction on a variety of corruption counts in Fattah v. United States.⁵³ Former Rep. Chaka Fattah (D-Penn.) was convicted on all twenty-two counts of corruption based on an honest services prosecution. The case also involved a variety of alleged “official acts” including the arranging of meetings with the U.S. Trade Representative. The Third Circuit ruled out the use of acts as an “official act.” As for the remanded remainder, the court noted it might be possible to use other acts, such as lobbying for an appointment of an ambassador, to make out the charge but stated that “[d]etermining, for example, just how forceful a strongly worded letter of recommendation must be before it becomes impermissible ‘pressure or advice’ is a fact- intensive inquiry that falls within the domain of a properly instructed jury.” Faced with the post-McDonnell reversal and restrictive remand instructions, the Justice Department elected not to retry Fattah. Such a fact-intensive inquiry would be far more problematic in the context of a conversation between two heads of state where policy and political issues are often intermixed.

The same result occurred in the post-McDonnell appeal by former Rep. William Jefferson. Jefferson was convicted of soliciting and receiving payments from various sources in return for his assistance. This included shares in a telecommunications company and the case became a classic corruption scandal when $90,000 in cash was found in Jefferson’s freezer. The money was allegedly meant as a bribe for the Nigerian Vice President to secure assistance in his business endeavors. Jefferson was convicted on eleven counts and the conviction was upheld on ten of eleven of those counts. McDonnell was then handed down. The federal court agreed that the case imposed more limited definitions and instructions for bribery. The instruction defining the element of “official acts” is notable given recent statements in the House hearings: “An act may be official even if it was not taken pursuant to responsibilities explicitly assigned by law. Rather, official acts include those activities that have been clearly established by settled practice as part [of] a public official’s position.” The court agreed that such definitions are, as noted in McDonnell, unbounded. The court added:

“the jury instructions in Jefferson’s case did not explain that to qualify as an official act ‘the public official must make a decision or take an action on that question, matter, cause, suit, proceeding or controversy, or agree to do so.’ The jury charge in Jefferson’s case did not require the jury to consider whether Jefferson could actually make a decision on a pending matter, nor did the instructions clarify that Jefferson’s actions could include “using [an] official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.” Without these instructions, the jury could have believed that any action Jefferson took to assist iGate or other businesses was an official act, even if those acts included the innocent conduct of attending a meeting, calling an official, or expressing support for a project.”

Accordingly, the court dismissed seven of ten of the counts, and Jefferson was released from prison.

McDonnell also shaped the corruption case against Sen. Robert Menendez (D- N.J.) who was charged with receiving a variety of gifts and benefits in exchange for his intervention on behalf of a wealthy businessman donor. Both Sen. Menendez and Dr.Salomon Melgen were charged in an eighteen-count indictment for bribery and honest services fraud in 2015. The jury was given the more restrictive post-McDonnell definition and proceeded to deadlock on the charges, leading to a mistrial. As in the other cases, the Justice Department opted to dismiss the case—a decision attributed by experts to the view that McDonnell “significantly raised the bar for prosecutors who try to pursue corruption cases against elected officials.”

Applying McDonnell and other cases to the current controversy undermines the bribery claims being raised. The Court noted that an “official act” “is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’ The ‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”

The discussion of a visit to the White House is facially inadequate for this task, as it is not a formal exercise of governmental power. However, withholding of military aid certainly does smack of a “determination before an agency.” Yet, that “quo” breaks down on closer scrutiny, even before getting to the question of a “corrupt intent.” Consider the specific act in this case. As the Ukrainians knew, Congress appropriated the $391 million in military aid for Ukraine and the money was in the process of being apportioned.

Witnesses before the House Intelligence Committee stated that it was not uncommon to have delays in such apportionment or for an Administration to hold back money for a period longer than the 55 days involved in these circumstances. Acting Chief of Staff Mike Mulvaney stated that the White House understood it was required to release the money by a date certain absent a lawful reason barring apportionment. That day was the end of September for the White House. Under the 1974 Impoundment Control Act (ICA), reserving the funds requires notice to Congress. This process has always been marked by administrative and diplomatic delays. As the witnesses indicated, it is not always clear why aid is delayed. Arguably, by the middle of October, the apportionment of the aid was effectively guaranteed. It is not contested that the Administration could delay the apportionment to resolve concerns over how the funds would be effectively used or apportioned. The White House had until the end of the fiscal year on September 30 to obligate the funds. On September 11, the funds were released. By September 30, all but

$35 million in the funds were obligated. However, on September 27, President Trump signed a spending bill that averted a government shutdown and extended current funding, specifically providing another year to send funds to Ukraine.

It is certainly fair to question the non-budgetary reasons for the delay in the release of the funds. Yet, the White House was largely locked into the statutory and regulatory process for obligating the funds by the end of September. Even if the President sought to mislead the Ukrainians on his ability to deny the funding, there is no evidence of such a direct statement in the record. Indeed, Ambassador Taylor testified that he believed the Ukrainians first raised their concerns over a pre-condition on August 31 with the publication of the Politico article on the withholding of the funds. The aid was released roughly ten days later, and no conditions were actually met. The question remains what the “official act” was for this theory given the deadline for aid release.

Indeed, had a challenge been filed over the delay before the end of September, it would have most certainly been dismissed by a federal court as premature, if not frivolous.

Even if the “official act” were clear, any bribery case would collapse on the current lack of evidence of a corrupt intent. In the transcript of the call, President Trump pushes President Zelensky for two investigations. First, he raises his ongoing concerns over Ukrainian involvement in the 2016 election:

 

“I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I guess you have one of your wealthy people … The server, they say Ukraine has it. There are a lot of things that went on, the whole situation … I think you’re surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense. It ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.”

Many have legitimately criticized the President for his fixation on Crowdstrike and his flawed understanding of that company’s role and Ukrainian ties. However, asking for an investigation into election interference in 2016 does not show a corrupt intent. U.S. Attorney John Durham is reportedly looking into the origins of the FBI investigation under the Obama Administration. That investigation necessarily includes the use of information from Ukrainian figures in the Steele dossier. Witnesses like Nellie Ohr referenced Ukrainian sources in the investigation paid for by the Democratic National Committee and the campaign of Hillary Clinton. While one can reasonably question the significance of such involvement (and it is certainly not on the scale of the Russian intervention into the election), it is part of an official investigation by the Justice Department. Trump may indeed be wildly off base in his concerns about Ukrainian efforts to influence the election. However, even if these views are clueless, they are not corrupt. The request does not ask for a particular finding but cooperation with the Justice Department and an investigation into Ukrainian conduct. Even if the findings were to support Trump’s view (and there is no guarantee that would be case), there is no reason to expect such findings within the remaining time before the election. Likewise, the release of unspecified findings from an official investigation at some unspecified date are not a “thing of value” under any reasonable definition of the statute.

The references to investigating possible 2016 election interference cannot be the basis for a credible claim of bribery or other crimes, at least on the current record. That, however, was not the only request. After President Zelensky raised the fact that his aides had spoken with Trump’s counsel, Rudy Giuliani, and stated his hope to speak with him directly, President Trump responded:

“Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor of New York City, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The other thing, 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.”

This is clearly the most serious problem with the call. In my view, the references to Biden and his son were highly inappropriate and should not have been part of the call. That does not, however, make this a plausible case for bribery. Trump does not state a quid pro quo in the call. He is using his influence to prompt the Ukrainians to investigate both of these matters and to cooperate with the Justice Department. After President Zelensky voiced a criticism of the prior U.S. ambassador, President Trump responded:

“Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it. I’m sure you will figure it out. I heard the prosecutor was treated very badly and he was a very fair prosecutor so good luck with everything. Your economy is going to get better and better I predict. You have a lot of assets. It’s a great country. I have many Ukrainian friends, they’re incredible people.”

Again, the issue is not whether these comments are correct, but whether they are corrupt. In my view, there is no case law that would support a claim of corrupt intent in such comments to support a bribery charge. There is no question that an investigation of the Bidens would help President Trump politically. However, if President Trump honestly believed that there was a corrupt arrangement with Hunter Biden that was not fully investigated by the Obama Administration, the request for an investigation is not corrupt, notwithstanding its inappropriateness. The Hunter Biden contract has been widely criticized as raw influence peddling. I have joined in that criticism. For many years, I have written about the common practice of companies and lobbyists attempting to curry favor with executive branch officials and members of Congress by giving windfall contracts or jobs to their children. This is a classic example of that corrupt practice.

Indeed, the glaring appearance of a conflict was reportedly raised by George Kent, the Deputy Assistant Secretary of State for European and Eurasian Affairs during the Obama Administration.

The reference to the Bidens also lacks the same element of a promised act on the part of President Trump. There is no satisfaction of a decision or action on the part of President Trump or an agreement to make such a decision or action. There is a presumption by critics that this exists, but the presumption is no substitute for proof. The current lack of proof is another reason why the abbreviated investigation into this matter is so damaging to the case for impeachment. In the prior bribery charges in McDonnell and later cases, benefits were actually exchanged but the courts still rejected the premise that the meetings and assistance were official acts committed with a corrupt intent.

Finally, the “boundless interpretations of the bribery statutes” rejected in McDonnell pale in comparison to the effort to twist these facts into the elements of that crime. I am not privy to conversations between heads of state, but I expect many prove to be fairly freewheeling and informal at points. I am confident that such leaders often discuss politics and the timing of actions in their respective countries. If this conversation is a case of bribery, we could have marched every living president off to the penitentiary.

Presidents often use aid as leverage and seek to advance their administrations in the timing or content of actions. The media often discusses how foreign visits are used for political purposes, particularly as elections approach. The common reference to an “October surprise” reflects this suspicion that presidents often use their offices, and foreign policy, to improve their image. If these conversations are now going to be reviewed under sweeping definitions of bribery, the chilling effect on future presidents would be perfectly glacial.

The reference to the Hunter Biden deal with Burisma should never have occurred and is worthy of the criticism of President Trump that it has unleashed. However, it is not a case of bribery, whether you are adopting the view of an eighteenth century, or of a twenty-first century prosecutor. As a criminal defense attorney, I would view such an allegation from a prosecutor to be dubious to the point of being meritless.