Trump’s Impeachable Conduct Strikes at the Heart of the Rule of Law: Part 2

U.S. President Donald Trump speaks to the press as he departs the White House in Washington, D.C., on October 4, 2019.

Find more about Trump’s Constitutional Crisis as it develops here.

This is part two in a series documenting the ways in which President Trump’s actions related to Ukraine violate basic tenets of American law. Read the first installment, which focuses on bribery and extortion, here.

There is substantial evidence to show that President Donald Trump committed impeachable offenses. Pressuring a foreign government to interfere in U.S. elections by, among other things, withholding military aid undermines America’s democracy and national security. In fact, concern over foreign interference is one of the reasons the founders provided for the constitutional power of impeachment in the first place.

President Trump continues to claim that his actions in the Ukraine-related scandal have been “perfect.” This couldn’t be further from the truth. While a president need not break any specific laws in order to be impeached and removed from office, the type of behavior exhibited by President Trump is prohibited by a range of federal laws.

Trump’s impeachable conduct

Here are some of the major events that have occurred so far in the Ukraine-related scandal:

The rough transcript that the White House released in September regarding President Trump’s phone call with Ukrainian President Volodymyr Zelensky demonstrated how Trump was willing to use the power of his public office to pressure Zelensky into investigating conspiracy theories that could benefit Trump politically during his 2020 reelection campaign and hurt one of his chief political rivals. An initial whistleblower, whose identity is protected by law, filed a complaint containing serious and credible allegations that Trump acted with the presidential campaign in mind when dealing with the Ukrainian president.

In the weeks after these initial bombshells, in addition to Trump soliciting China to help with his reelection bid and to hurt a political rival, text messages from high-ranking Trump officials have emerged exposing the coordinated efforts among a variety of administration officials and affiliated individuals to push Ukraine into opening the investigation of a political opponent. Witness testimony from the impeachment inquiry has further revealed that Mick Mulvaney, the president’s acting chief of staff, actively helped to facilitate meetings between Ambassador Gordon Sondland, now-resigned special envoy to Ukraine Kurt Volker, Trump’s attorney Rudy Giuliani, and Secretary of Energy Rick Perry to further the president’s desires. And perhaps most significantly, Mulvaney placed nearly $400 million in military aid to Ukraine on hold at Trump’s direction weeks before the phone call with Zelensky. Mulvaney later admitted publicly that this was done as part of a “quid pro quo” to pressure Ukraine into engaging in Trump’s desired investigations.

Not everyone involved appeared to be a willing participant. One U.S. career diplomat, William “Bill” Taylor, voiced his strong discomfort in participating in these efforts, saying: “I think it’s crazy to withhold security assistance for help with a political campaign.” In response to such concerns, Trump’s allies attempted to either take the text conversations offline or downplay the president’s intentions.

Dangerously, as public attention to the first whistleblower complaint grew, President Trump demanded to know the identity of the government employee who had come forward to report wrongdoing, going so far as to suggest that the whistleblower and anyone who spoke to them should be considered to have committed treason and be executed. As this unfolded, attorneys for the original whistleblower confirmed that they were representing another whistleblower who had come forward.

Throughout these events, the White House has stonewalled almost all of Congress’ attempts to obtain information, including by blocking key witnesses from complying with congressional subpoenas to testify in the investigation. Moreover, via a letter from the president’s counsel, the White House has refused to cooperate with the U.S. House of Representatives’ ongoing impeachment inquiry.

Trump’s behavior implicates a number of federal laws

The type of behavior exhibited by President Trump appears to be prohibited by federal law in a number of ways—in addition to bribery and extortion, as discussed in a previous column in this series. These laws are discussed below, in the general order of the above summary.

Campaign finance violation

Trump pressured a foreign country to interfere in the 2020 election to benefit him politically.

  • Federal law and regulation, under 52 U.S.C. § 30121 and 11 C.F.R. § 110.20(g), prohibit soliciting campaign assistance from a foreign national. Solicitation includes not only a “contribution or donation of money” but also any “other thing of value,” including opposition research.
  • The Federal Election Commission has recognized the broad scope of the prohibition and found that even where the value of a good or service may be“nominal or difficult to ascertain,” this sort of contribution is illegal.

Honest services fraud

Trump used the power of the presidency to aid in his reelection efforts, including by dangling a potential meeting with Zelensky and withholding vital military aid to Ukraine.

  • Federal law, under 18 U.S.C. § 1343 and 18 U.S.C. § 1346, prohibits fraud offenses that include a “scheme or artifice to deprive another of the intangible right of honest services.” This crime has parallels to bribery and extortion.
  • The fraudulent denial of honest services occurs when a public official performs an “official act” in exchange for personal gain and, in the process, defrauds their constituents of honest services to make decisions and take actions that are in the public’s best interests.
  • In public corruption cases—including honest services fraud—it is rare that the parties speak openly about the illegal transaction; it is much more common for them to speak in vague terms and communicate veiled threats.
  • Behavior of the sort exhibited by Trump would appear to violate the honest services fraud statute, even in light of the U.S. Supreme Court’s 2015 decision in McDonnell v. United States and related subsequent decisions by other courts.

Misappropriation of funds

The nearly $400 million of foreign assistance funding withheld by President Trump and his aides consisted of taxpayer funds appropriated by Congress. The funds included: “$250 million from the Defense Department’s Ukraine Security Assistance Initiative and $141 million from the State Department’s foreign military financing program … [which] were intended to help train and equip Ukrainian forces in their fight to stave off Russian incursion.” In addition, Trump used extensive government resources to advance his scheme, including staff time, which was not the intended manner of use for these taxpayer resources.

Witness tampering 

Trump openly issued what appeared to be a threat against the government officials who spoke to the whistleblower, and he sought to discover the whistleblower’s identity. This is part of an ongoing pattern of behavior by Trump of attacking people who wish to provide Congress or law enforcement authorities with information about Trump-related misconduct.

  • Federal law, under 18 U.S.C. § 1512, prohibits any individual from knowingly using intimidation, threats, or corrupt means to induce another person to withhold or destroy information or evade a legal process.
  • Federal law provides protections for whistleblowers reporting instances of wrongdoing within the U.S. government. The Whistleblower Protection Act of 1989 provides general protections for federal employees and contractors, and the Intelligence Community Whistleblower Protection Act of 1988 outlines a special process for those in the intelligence community to provide information to Congress and be protected from retaliation or threats of reprisals.

Coercion of political activity

Trump used government agencies and employees as part of his campaign to pressure Ukraine to interfere in the 2020 election.

  • Federal law, under 18 U.S. Code § 610, prohibits any individual from forcing an employee of the federal government to engage in political activity, including by “working or refusing to work on behalf of any candidate.”
  • Current officeholders, such as the president of the United States, are also considered candidates when acting to advance their reelection.

Obstruction of justice

Trump and his administration have gone to extreme lengths to stymie the House’s ongoing impeachment investigation, including by refusing to comply with lawful subpoenas or participate in the investigation in any way. In addition, Trump has been condemned for past efforts that many view as witness intimidation.

  • Obstruction of justice is a serious crime defined in federal statutes in various ways, including as the corrupt interference with “the due and proper administration of the law” or the “due administration of justice.” The statutes governing federal obstruction of justice, 18 U.S.C. §§ 1501­–1521, identify more than 20 types of obstruction crimes, including obstruction of oversight investigations before any committee of Congress.
  • Obstruction of justice formed the basis of the first article of impeachment during Watergate.

Criminal conspiracy 

Trump’s pressure campaign involved a wide range of top government officials who aided him in his efforts.

  • When two or more people act together to commit any offense against the United States, federal law, under 18 U.S.C. § 371, defines that action as conspiracy.

Conclusion

While, as noted above, a president does not need to be found guilty of any specific crime to be impeached and convicted, the sheer weight of legally offensive actions that have already come to light is staggering. Trump’s behavior—as shown through both direct evidence and serious allegations—is in direct tension with legal prohibitions across the U.S. federal code. Both the House and the Senate must recognize Trump’s actions for what they are and protect the security of America’s democracy and the sanctity of the rule of law by removing him from office.

Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress. William Roberts is the managing director for Democracy and Government Reform at the Center. Michael Sozan is a senior fellow at the Center.

Find more about Trump’s Constitutional Crisis as it develops here.