The Thing About a Really Stupid Argument

fish

Some Republicans are trying to argue that Trump only had a generic interest in Ukrainian corruption, not the Bidens or the mythical Hidden Democratic Server.

Some Republicans are trying to argue that the Three Amigos somehow made a huge mistake about what The Donald wanted them to do.

Some Republicans are arguing that bribery means offering an official act in exchange for a personal payoff, but bribery is OK if the bribe is never paid because you get caught.

The Thing About a Really Stupid Argument

The thing about a really stupid argument it that it’s like yesterday’s fish. It may not be too bad on the second day, but the more it’s exposed to air and sunshine, the worse it’s going to smell.

A Perfect Phone Call All Right—Perfect Evidence of Bribery

Trump’s July 25 call was indeed perfect: a perfect example of the crime of bribery.

Republicans are transitioning to the No-Harm-No-Foul defense. That defense does not cut the mustard. That dog won’t hunt. That cock won’t fight.

Relying on help from a more learned friend, I explained the point in a previous post. Now, Randall D. Eliason, Professorial Lecturer in Law at the George Washington University*  lays it all out in Trump and Ukraine: Call it Bribery, Not Extortion.  I won’t relay all the technical legal analysis, but here is the key passage:

The federal bribery statute, 18 U.S.C. 201, makes it a crime for a public official to corruptly demand, seek, receive, accept, or agree to receive or accept anything of value in exchange for being influenced in the performance of an official act. In this case, the public official is president Trump. The thing of value he demanded was public investigations of his political rival Joe Biden and of a debunked conspiracy theory involving interference in the 2016 election and a computer server supposedly located in Ukraine.  And the official act Trump would perform in return would be releasing the approved military aid to Ukraine. Trump’s behavior toward Ukraine readily meets the elements of the bribery statute.

A key factor in this charge is the breadth of the term “thing of value.” It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

*”Randall D. Eliason spent 12 years as an assistant United States attorney for the District of Columbia, working in various areas including misdemeanors, grand jury, narcotics, general felonies, and the Violent Crime Unit. For more than eight years, Mr. Eliason specialized in white collar crime as a member of the Public Corruption/Government Fraud section. From 1999 to 2001, he served as chief of that section, supervising a staff of eleven AUSA’s prosecuting white collar cases in federal court.

“Mr. Eliason is the recipient of numerous awards and commendations from the U.S. Department of Justice, Federal Bureau of Investigation, Washington D.C. Metropolitan Police Department, and other law enforcement agencies. While at the U.S. Attorney’s office, he lectured at the Department of Justice National Advocacy Center in South Carolina and at the Attorney General’s Advocacy Institute in Washington, D.C. He also served as the Professional Responsibility Officer (ethics advisor) for the Criminal Division.”

Of Gaslighting, the Mueller Report, and the Ukraine “Transcript”

Gaslighting

“Transcript” of the July 25 Ukraine call, as declassified and released by Trump, but with my highlight of words of solicitation and agreement

Gaslighting was, of course, the first instinct of Trump and his spokesbots. It worked pretty well on the Mueller Report, and for all I know it may work again. But several points are worth considering.

Trump is Bound Hand and Foot to the “Transcript”

Trump claims that the Mueller Report was written by his political enemies—“17 angry Democrats.” The “transcript” was prepared by people working directly for Trump.

Trump claims that the Mueller Report is full of lies. By contrast, he has endorsed, authenticated, and given his seal of approval to the “Transcript” as an accurate account of the words he used in speaking with the president of Ukraine and the words the Ukrainian president used in speaking to him.

Reading and Understanding the “Transcript” is Easy

The Mueller Report is 448 pages long. The “transcript” of the July 25 call is less than five pages long.

The Mueller Report is dense and requires close reading. The “transcript is easy to read. Perusing it only takes a few minutes, and understanding it is easy for anyone with a basic understanding of the English language.

The Context in Which the Conversation Occurred: Unexplained Holdup of Military Assistance

Trump cannot deny—and does not, to my knowledge, deny—that when the conversation occurred he was holding up several hundred million dollars in U.S. military assistance, recently mandated by Congress.

Trump cannot deny—and does not, to my knowledge, deny—that he has never offered any explanation for the holdup of the military aid, let alone a coherent or plausible explanation.

Trump cannot deny—and does not, to my knowledge, deny—that he only lifted his hold on military aid after the public learned of the whistleblower complaint.

Not only is there no explanation as to why the aid was held up in the first place, there is also no explanation as to why the ban was lifted, or as to why it was lifted when it was lifted, and not at some other time.

What the “Transcript” Says About Solicitation and Agreement

News accounts and talking heads speak of Trump asking for Ukrainian help in digging up dirt on (1) spurious reports of some kind of Ukraine-Democratic conspiracy in 2016 and (2) Joe Biden and his son. That is so, but the “transcript” actually discloses an agreement between the two presidents that Ukraine would provide these boons to Trump, or would at least try to do so. Look at the language I have highlighted, by clicking on the link at the top of this post.

The Legal, Moral, and Political Significance of Solicitation and Agreement

This solicitation and agreement may violate the campaign finance law, the anti-bribery law, and/or the federal anti-extortion law, though in each case there are potential legal technicalities.

It follows that an unqualified assertion that Trump violated one or more of these statutes invites a response based on legal pettifogging and obfuscation.

But an assertion that Trump grossly abused his power invites and demands a substantive debate about whether Trump’s behavior was “OK” or “not OK.”

First Aggravating Factor: An Agreement Coerced by Withholding Military Assistance to a Nation Under Attack

The solicitation and agreement, without more, probably violate three federal criminal statutes and are, in any event, a gross abuse of office.

It’s even worse if the agreement was coerced by Trump’s withholding of military aid and threating to keep on withholding aid unless the Ukrainians actually dish up the requested dirt.

The existence of such a coercive linkage is strongly suggested by

  • the language at the bottom of page 2 of the “transcript” and the top of page 3, and
  • the otherwise unexplained denial of needed military aid.

That said, I am unhappy with some of the rhetoric surrounding this matter, as my previous post indicates.

Second Aggravating Factor: Did Trump Knowingly Seek False Information on 2016 or on the Bidens?

It’s clear that sometimes Trump lies through his teeth and knows it; sometimes proclaims his delusions as fact; and sometimes throws claims around in the same way that Harry Potter used his wand—magically to change reality to his liking. It’s also clear that it’s often hard to tell which if these is going on.

And that, I believe, is the case here. Democrats should not make the validity of their arguments for impeachment turn in any on proof about Trump’s state of mind.