Despite its extraordinary nature, try to imagine the ordinary course of a Donald Trump impeachment inquiry. It would center on three questions:
1. Does quid pro quo corruption fall within the scope of the impeachment clause?
2. If so, does conditioning the receipt of foreign aid on a personal political favor, here investigating a political opponent and his son, constitute quid pro quo corruption?
3. If so, did Donald Trump engage in #2?
The answers to the first two questions are obviously yes. And the overwhelming weight of evidence suggests the same for question 3. But this is Donald Trump.
Whatever happens, when historians look back on this administration, Donald Trump’s reputation as a routine font of misinformation—what we called “lies” in simpler times—will play an outsized role. One of the principal obstacles to defining Trump’s now famous call to Ukraine President Volodymyr Zelinsky as quid pro quo corruption is that Trump so routinely gives misinformation to the American public and engages in reprehensible conduct for nefarious self-interested reasons, that the substance beneath this specific investigation seems relatively minor in comparison with other activities for which Trump’s political supporters have, until now, given him a free pass.
To understand why this conduct is unlike the others, we must consider the framers' specific decision to include bribery, along with treason, as the only specified crimes in the impeachment clause. The framers were specifically concerned about quid pro quo corruption, meaning payments, in cash or in kind, directly motivating official conduct or for activities affecting official conduct. As applied here, the sequencing could have gone in either direction: Zelensky might have approached Trump saying that the Ukraine needs specific foreign aid, and to ensure it is forthcoming, he will also instruct his intelligence personnel to investigate Joe Biden and his son, Hunter Biden. Or Trump could, as per the actual phone call, ask Zelensky the “favor” of investigating Joe Biden and his son as a precondition to the grant of aid. The conversational sequence is beside the point; the substance is not.
Why did the framers specify bribery? Bribery can subsume the related offense of blackmail, and the relationship is important here. Blackmail has long presented an academic puzzle. In the typical blackmail case, the underlying conduct for which the threat of disclosure is conditioned on paying the bribe did in fact take place. The conventional exchange goes something like this: I know you did something embarrassing that would harm you if disclosed; I will decline to disclose it only if you pay the bribe. The disclosure would be truthful, and so the puzzle is explaining why the bribe, rather than covering up of what lies beneath, is subject to criminal sanction.
Economists justify this as preventing what is called rent dissipation. Let’s say you are the victim, and you pay the bribe. Nothing prevents the party demanding payment of the bribe from nonetheless, some time in the future, coming back to the well, asking for more. And later, doing it again. And again. The dissipation involves a genuine loss of resources, repeatedly seeking to avoid the disclosure, explaining why such celebrities as Jeff Bezos and David Letterman simply went public rather than play, or pay, along. Certainly, the criminal justice system has a benign role to play in preventing such extortionate schemes.
In the context of politics, and in the mind of the framers, the fear of bribery takes on another, more problematic, form. However flawed it might be, our constitutional republic is premised on political accountability. We might agree or disagree with our leaders’ specific substantive policies, but both sides of the aisle should agree on this: we expect our leaders to base their policy decision on their merits as this ensures that voters can ascertain the actual bases for such decisions when heading to the polls.
The problem with quid pro quo corruption, including political bribery, is in disallowing any assurance that the bases for a leader’s political decisions have anything to do with the merits. One can always devise rationalizations for political decisions based on entirely separate considerations, such as covering up something embarrassing or seeking dirt on a political opponent. Condoning such quid pro quo corruption risks obfuscating, if not eliminating entirely, any credible notion of political accountability. To the framers, this concern was front and center.
Think back to when Donald Trump was confronted on Air Force One about payments to Stormy Daniels. The $130,000 payment was clearly a bribe, or instance of reverse blackmail, wrapped in the neat form of a non-disclosure agreement, all designed to avoid the release of information as to his philandering with a porn star. After claiming no knowledge of the payment, which was later undeniably refuted, Trump’s lawyer, Rudy Giuliani, justified the payment as protecting Trump’s marriage and his wife, Melania from the embarrassment of disclosing the extra marital affair. I had no doubt that was a lie, yet a lie providing valuable insight.
The obvious explanation was that the payment was intended to keep out of the public eye confirmation of the rumored affair during the 2016 election, which, at the time, was though to risk undermining support among the religious right. This was when the religious right claimed to care about the moral standing of political leaders. Giuliani’s implicit claim that bribery respecting a personal family matter remained private carried with it what an earlier generation of less gender-woke lawyers called a “negative pregnant.” Giuliani’s lie carried along with it a critical, and obvious, truth; bribery does matter when the private disclosure risks having public, including political, consequences. That explains why Trump's White House allies sought to cover up the Zelinsky call. And but for the whistleblower complaint, they very well might have succeeded.
To be sure, Trump’s outright lies about limiting immigration based on terror, not religion; not separating separated families; restricting asylum on false claims respecting gang associations and patterns of criminal activity; misrepresenting the egregious confinement conditions of asylum seekers; and the list goes on, are arguably far worse than failing to disclose a single conversation with a foreign leader conditioning the grant of aid on an investigation of a political opponent that might not take place, might not yield helpful evidence if it did take place, and might not matter even if helpful depending on how the unpredictable Democratic primary unfolds. Trump’s dishonesty might seem his greatest shield against corruption.
But quid pro quo corruption matters even for Donald Trump. And now, even Trump's diehard supporters must recognize that the issue isn’t the scope of the particular covered information; it is condoning the cover up in a context in which, based on all available evidence, there seems little question that a foreign policy decision was rendered conditional for reasons disconnected from the merits, and rather, for the President’s personal political gain. And if that doesn’t fall within the scope of the impeachment clause—demanding a full-on inquiry—then nothing does.
I welcome your comments.