WASHINGTON — President Trump’s Department of Justice breezily dismissed the notion that Trump might have committed a crime by pressing the President of Ukraine to investigate his 2020 rival Joe Biden.
But plenty of legal experts say the evidence against Trump and his team is far worse than the DOJ’s rose-colored view, especially when it comes to campaign finance law.
Impeaching a president doesn’t require an outright crime. But showing criminal behavior took place would strengthen the hand of those seeking to boot Trump from office in the wake of House Speaker Nancy Pelosi’s announcement of an official impeachment inquiry against Trump.
“This is beyond probable cause, in my view,” said Mimi Rocah, a former federal prosecutor for the Southern District of New York. “Based on what we know so far, would you dive into an investigation? Hell yeah. We’ve done investigations on a lot less than this.”
Trump has described his call with Ukraine’s president as “innocent” and “perfect,” and legal experts warned that none of these cases should be considered slam dunks. Still, from campaign finance to fraud and bribery, here’s how Trump might have run afoul of the law.
1. CAMPAIGN FINANCE VIOLATION
It’s a crime for an American to ask a foreigner for help winning a U.S. election.
The whistleblower warned Trump appeared to be doing exactly that, in what legal experts said looks like the strongest case that Trump may have broken the law in the Ukraine saga.
“There’s a strong argument that the president’s conduct violates federal campaign finance law, although I wouldn’t say it’s a slam-dunk case,” said Richard Hasen, a specialist on election law at the University of California Irvine.
A theoretical future prosecutor would need to demonstrate that Trump sought something of value for his reelection from Ukraine’s president, and that he knew the law says he shouldn’t.
In case you forgot: Trump’s inner circle, including his son Don Jr. and the top brass of his campaign, narrowly skated past this one during the Russian investigation, after Special Counsel Robert Mueller concluded that neither of those clauses could be fulfilled.
Proving the monetary value of a Biden investigation would be tricky, but expert analysis could be used to show the value exceeds the $25,000 required for a felony, said Hasen, since overall spending in the 2020 election is expected to be in the billions.
And the fact that Trump’s inner circle was investigated by Mueller for this potential crime could be used as evidence that he should have known the rules.
Even Fox News legal analyst Judge Andrew Napolitano thinks the evidence looks strong against Trump on this one.
“Trump apparently personally and directly committed the crime for which he claimed Mueller exonerated him,” Napolitano concluded.
The Department of Justice, however, said that after reviewing the record of Trump’s Ukraine phone call, it found “there was no campaign finance violation and that no further action was warranted.”
That decision has been criticized by legal experts.
“It doesn’t sound like they interviewed the whistleblower or anybody involved,” said Nick Akerman, a former member of the Nixon-era Whitewater prosecution team. “They didn’t really do a criminal investigation. The whole thing was just put under the rug.”
Trump’s interaction with the Ukrainian president could potentially count as soliciting a bribe, former prosecutors said.
“The same law that makes it a crime to offer a bribe also makes it a crime to ask for one,” said Patrick Cotter, a former New York prosecutor who helped bring down the mobster John Gotti.
Bribery as defined by 18 USC 201 includes a public official seeking “anything of value” for influencing a public act.
“Trump has exposure for soliciting a bribe under Section 201,” wrote Harry Sandick, a former New York prosecutor, adding that bribery may be “the strongest of any of the proposed lines of charging.”
3. HONEST SERVICES FRAUD
Trump’s behavior toward Ukraine could count as honest services fraud, according to Barbara McQuade, Detroit’s former top federal prosecutor.
“The theory is that by performing an official act in exchange for personal gain, a public official defrauds his constituents of his honest services to make decisions and take actions that are in the best interests of the public,” McQuade wrote Wednesday on the Just Security blog.
Other legal experts agreed.
“I find McQuade’s argument convincing,” wrote Jens David Ohlin, vice dean of Cornell Law School, in response to an email from VICE News. “Though, as she notes, the Supreme Court has severely limited the doctrine. It would have been much easier to describe this as honest services fraud ten years ago before these Supreme Court rulings.”
There’s a fine line between bribery and extortion, from the law’s point of view.
The difference generally hinges on whether the person being asked for a payout is more like an accomplice, or more like a victim, Cotter said. If the person is being threatened, then it may be extortion, he said.
The whistleblower said Trump personally issued instructions to suspend almost $400 million worth of security aid to Ukraine, shortly before pressing Zelensky to “look into” Biden.
But the episode represents a close call, said Sandick, and the nitty-gritty details are crucial.
“It depends on whether Trump is seeking tangible, transferable property, like actual evidence of Biden’s crimes, or whether he is seeking something intangible (an ‘investigation’),” Sandick wrote. “Extortion has been interpreted narrowly to preclude a prosecution when the property sought is purely intangible and non-transferable.”
Extortion seems unlikely to apply to this case, given the language of the relevant federal statute, said Robert Eatinger, former acting general counsel for the CIA.
5. WITNESS INTIMIDATION
After the whistleblower’s complaint emerged, Trump called the source “almost a spy,” before apparently making a dark allusion to capital punishment for treason.
“You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now,” Trump said.
Afterwards, top House Democrats accused Trump of witness intimidation and of obstructing their impeachment inquiry.
“The President’s comments today constitute reprehensible witness intimidation and an attempt to obstruct Congress’ impeachment inquiry,” they wrote in a joint letter on Thursday.
But Trump has argued in the past that some of his most incendiary public comments were really just jokes, and he could do so here as well, said Sandick.
“I think that Trump would argue that he was being colorful and not actually threatening to kill the whistleblower,” Sandick said. “I wouldn’t charge it based on what we know now.”
6. OBSTRUCTION OF JUSTICE
The whistleblower wrote that after Trump’s infamous July 25 phone call with Ukraine’s president, the White House went into “lock down.”
At the advice of White House lawyers, officials took the unorthodox step of moving records of the call into a separate system for protecting highly classified documents.
“That was very unusual,” said Larry Pfeiffer, whose career in intelligence included serving as White House Situation Room director in the Obama administration.
“The White House staff is walking on perilous ground here,” said Duncan Levin, a former New York prosecutor. “That could be a violation of obstruction of justice.”
It remains unclear who made the decision. And any theoretical obstruction charge would depend on important details, including the corrupt intent to obstruct and the existence of a pending investigation or legal proceeding.
“Obstruction is one of the harder cases to bring,” said Rocah. “You’d have to show they were covering it up not just because it looks bad, but because Congress or the DOJ was going to be looking into it.”
Yet this would hardly be the first time Trump's been accused of obstructing justice. Mueller's report outlined multiple instances of obstructive behavior, in evidence so damning that over 1,000 former prosecutors signed a joint letter stating that anyone else would have been charged.
The president can’t be indicted while in office, according to DOJ policy, and Mueller said that meant he couldn’t reach a final decision on whether Trump committed obstruction.
Reaching an agreement with others to commit any of these other crimes would set up the possibility of a conspiracy charge.
“A conspiracy is just folks getting together to commit a crime,” said Cotter. “You could potentially have conspiracy to commit honest services fraud, conspiracy to obstruct justice or conspiracy to solicit a bribe.”
A conspiracy charge requires not just an agreement, however, but also at least one overt act.
That’s not easy to prove. Mueller, for example, evaluated whether to bring conspiracy charges against members of the Trump campaign for participating in Russia’s election interference activities, but ultimately decided the evidence was insufficient to prove the case beyond a reasonable doubt.
Cover: In this Sept. 9, 2019 file photo, President Donald Trump, left, shakes hands with Attorney General William Barr, right, as he takes the podium to present the Medal of Valor to six police officers for stopping a mass shooter in Dayton, Ohio, and Heroic Commendations to five civilians for their heroism during the mass shooting in El Paso, Texas, in the East Room of the White House in Washington. (AP Photo/Andrew Harnik)