Proving that there was a quid pro quo on the table between President Donald Trump and Ukraine over the controversial investigations he wanted opened strengthens the case for his impeachment, but is not fundamental to it, legal experts suggest.
Trump is accused of seeking a foreign government’s interference in the 2020 election to his own benefit and is facing impeachment by the House.
He wanted Ukraine’s President Volodymyr Zelenskiy to open two dubious corruption investigations that would potentially have damaged Vice President Joe Biden, a leading 2020 candidate, and the Democratic Party, who are his political rivals.
The president allegedly pressured Ukraine by withholding nearly $400 million in military aid and dangling the offer of a White House visit for Zelenskiy to secure a public announcement that the investigations were open in what is being referred to as a quid pro quo.
Yet, Trump denies any quid pro quo and says he wanted nothing from Ukraine. Instead, he claims to have been legitimately pursuing concerns about corruption. But witness testimony to the impeachment inquiry from those inside the administration has hacked away at his defense.
There is considerable focus on the quid pro quo element of the impeachment case, which some label bribery, extortion, or both. While this is an important piece in the impeachment puzzle, the foundational question is over Trump’s intentions in requesting the investigations.
“Quid pro quo is a distraction insofar as using this Latin phrase suggests that it somehow describes a freestanding offense or ground for impeachment. It doesn’t,” Frank Bowman, a Georgetown law professor, former federal prosecutor, and author of the book High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump, told Newsweek.
“That said, the fact that Trump demanded an exchange of this for that is at the heart of the strongest case for impeachment.
“I say the strongest case because even asking a foreign country to do investigations of a political rival without offering anything in exchange is arguably impeachable. American presidents should not invite foreign governments to involve themselves in American elections.”
Bowman continued: “They should particularly not ask for criminal investigations of an American citizen by a foreign justice system not subject to American rules of due process and transparency. The opportunities for abuse are too great.”
Martin Redish, a professor of law and public policy at Northwestern, told Newsweek that the definition of an impeachable offense is a political rather than legal question, and therefore a crime does not necessarily have to be committed for an individual to be impeached.
Redish said he believes that “asking for foreign interference in our presidential elections—even without extortion, bribery or quid pro quo—constitutes an impeachable offense.”
The legal scholar said that Trump’s alleged Ukraine conduct appears to be the “solicitation of a thing of value from a foreign entity or individual,” which, given the context that it is to aid him in his 2020 campaign, is a potential breach of election law.
“Equally important is that such a request, even if not deemed a criminal violation of law, amounts to a request for potentially dangerous foreign influence on out electoral process,” Redish said.
“A reckless, personally motivated act that violates the president’s obligation to be motivated by the national interest, rather than personal gain. It seems clear that the framers were concerned with just this danger when they included the impeachment provision in the constitution.”
Corey Brettschneider, professor of political science and public policy at Brown, echoed the point about a potential breach of election law and said a quid pro quo would be relevant to an impeachable offense that is also a crime.
But Brettschneider also stressed that impeachment does not need a crime: “So even if it wasn’t a quid pro quo there could be an abuse of power. And that’s what this is really about…It could be relevant that a crime is committed but it’s certainly not required.”
“There’s a strategic danger in emphasizing it too much in that it starts to make it sound like the opposite is true; that there is a need to show criminal offense,” Brettschneider, who wrote the book The Oath and the Office: A Guide To the Constitution For Future Presidents, told Newsweek.
Brettschneider said the framers of the U.S. Constitution when drafting the provisions for impeachment feared that someone would enter the White House “who was going to put American security and the common good of the American polity behind personal avarice and personal interest.”
“For example, the emoluments clauses that ban profiting from domestic government or foreign government are meant exactly to protect against this sort of seeking to profit from a foreign power,” Brettschneider told Newsweek.
“Now, here we’re not talking about financial profit, we’re talking about a different form of value, which is political information.
“I think this is a kind of paradigm that they were worried about; foreign interference in an election with the aid of a president who is complicit in that foriegn power’s efforts to take over our domestic institutions.
“This is soliciting it. He’s not passive. What we’ve seen in the testimony over the past few days is he was ordering it and actively pursuing it, not that he was negligent in allowing it to happen, which itself could be a high crime.”
Brettschneider continued: “It’s not just impeachable, it’s the paradigm of impeachment, and I think a failure to impeach would be a failure of Congress to do what’s required of them by the constitution.”
The Brown academic said Trump’s “only plausible defense” against the charge that he was motivated by personal rather than national interests when seeking the investigations would be that he requested of Ukraine a “generalized statement” about fighting corruption.
“But the president was clearly not seeking that. In fact, he was seeking something that made it clear that that would not satisfy him,” Brettschneider told Newsweek.
“He was seeking prosecution of a political opponent and that’s the opposite of seeking an inquiry about corruption generally. It’s corrupt motive and trying to use the government to put an opponent in jail.
“Everything that’s based in fact points to a clear conclusion that this president abused power and is guilty of high crimes and misdemeanors.”