High Crimes

Andrew Johnson's Senate trial, 13 March 1868, Library of Congress/Getty Images, via Vox.

Next time somebody tells you that the Articles of Impeachment fail to accuse our president of any crimes, refer them to the newly issued Report of the House Committee on the Judiciary (there's a notice in Politico), which argues on Article I that he's guilty of Criminal Bribery, 18 U.S.C. § 201 and Honest Services Fraud, 18 U.S.C § 1346.

The first count is laid out in terms of the federal anti-bribery statute, according to which

criminal bribery occurs when a public official (1) “demands [or] seeks” (2) “anything of value personally,” (3) “in return for being influenced in the performance of any official act.”684 Additionally, the public official must carry out these actions (4) “corruptly.”685 We address the four statutory elements in turn.

First, the solicitation, which may be indirect,

for example, where a public official with authority to award construction contracts requested that a contractor “take a look at the roof” of the official’s home.

was directly made in Trump's 25 July call to President Zelenskyy, when he asked for the "favor" of a couple of investigations, one of the theory that Ukrainians were somehow involved in the theft and publication of emails stolen from the Democratic National Committee, one of the theory that Vice President Biden saved his son Hunter from Ukrainian criminal prosecution for some unnamed offense by forcing the firing of the prosecutor, both pretty clearly untrue and indeed nonsensical; and also made on several occasions by Trump's "irregulars", Volker and Sondland, under the guidance of Giuliani.

The "thing of value" was the desired announcement of investigations, which was clearly valuable at least in Trump's mind:

President Trump indisputably placed a subjective personal value on the announcement of investigations that he solicited from President Zelensky. The announcement of an investigation into President Trump’s political rival would redound to President Trump’s personal benefit; and the announcement of an investigation into purported Ukrainian interference in the 2016 election would vindicate the President’s frequent denials that he benefitted from Russia’s assistance. Mr. Giuliani recognized as much many times as he pursued his client’s own interests in Ukraine.709 Furthermore, Ambassador Sondland and others testified that President Trump’s true priority was the public announcement of these investigations more than the investigations themselves.710 This fact makes clear that “the goal was not the investigations, but the political benefit [President] Trump would derive from their announcement and the cloud they might put over a political opponent.”711

(I'm really irritated that Robert Mueller didn't seem to be aware of this when he let himself get so puzzled over whether the "dirt" promised to Donald Junior was a "thing of value" or not—it clearly was as far as Junior and his dad were concerned, and that's all a prosecutor needs to know.)

"Any official act" would self-evidently include the release of military aid funds to Ukraine and the offer of a White House meeting to President Zelenskyy, and the "corruptness" lies in the fact that "he offered to perform official acts 'in exchange for a private benefit', rather than for any public policy purpose", as evidenced by the absence of any evidence that a public policy purpose existed:

• President Trump’s request for investigations on the July 25 call was not part of any official briefing materials or talking points he received in preparation for the call; nor were the investigations part of any U.S. official policy objective. 
• President Trump’s primary focus relating to Ukraine during the relevant period was the announcement of these two investigations that were not part of official U.S. policy objectives.
• There is no evidence that the President’s request for the investigations was part of a change in official U.S. policy; that fact further supports the alternative and only plausible explanation that President Trump pressed the public announcements because there were of great personal, political value to him.
• President Trump’s requests departed from established channels, including because he used his personal attorney, Mr. Giuliani, to press the investigations and never contacted the Department of Justice or made a formal request.
• President Trump’s request was viewed by key United States and Ukrainian officials as improper, unusual, problematic, and, most importantly, purely political. 

So pretty much Q.E.D., Trump is guilty of bribery under federal law.

As for the "honest services fraud", that's really just about the fact that they committed the bribery using the phone, across state and/or national boundaries, but the charge is real enough:

The underlying wire fraud statute, upon which the “honest services” crime is based, requires a transmission by “wire, radio, or television communication in interstate or foreign commerce any writings . . . for the purpose of executing [a] . . . scheme or artifice.”737 President Trump’s July 25 call to President Zelensky, as well as his July 26 call to Ambassador Gordon Sondland both were foreign wire communications made in furtherance of an ongoing bribery scheme. Thus, the President’s telephone calls on July 25th and July 26th lay bare the final element to find him criminally liable for his failure to provide “honest services” to the American people. 

(Article II, obstruction of Congress, is argued in a different way, as only a very high crime and misdemeanor against the Constitution, not particular statutes, I guess since the particular statutes on obstruction of justice don't have any direct application to Congress but to the other two branches. But it seems unarguably like a crime to me—there's a longstanding, if ignoble tradition of negotiating between the White House and Capitol Hill over how much information the president has to give up and in what form, but the Trump administration's blanket refusal to give them anything at all is completely unprecedented, and in complete disregard of Congress's obligation—don't say "right"—to oversee the executive.)

Another nice thing in the new document is the way it fills out the case for arguing that Trump needs to be removed with the claim that he will otherwise continue his crimes, first in the obvious way

President Trump has made it clear that he believes he is free to use his Presidential powers the same way, to the same ends, whenever and wherever he pleases. Any doubt on that score is resolved by his conduct since the scheme came to light. He has made repeated false statements. He has stonewalled Congressional investigators and ordered others to do the same. He has argued that it is illegitimate for the House to investigate him. He has stayed in contact with Mr. Giuliani, his private lawyer, who remains hard at work advancing his client’s personal interests in Ukraine. He has attacked Members of the House, as well as witnesses in House proceedings, who questioned his conduct. He has asserted and exercised the prerogative to urge foreign nations to investigate citizens who dare to challenge him politically.741

But then going on to remind us of the "consistency with previous conduct", the extent to which he'd done it before, as evidenced in the Mueller Report;

In the fall of 2016, as Election Day approached, WikiLeaks began publishing stolen emails that were damaging to the Clinton Campaign. WikiLeaks received these e-mails from the GRU, a Russian military group. Rather than condemn this interference in our elections, then-candidate Trump repeatedly praised and encouraged Wikileaks. For instance, he said on October 10, 2016: “This just came out. WikiLeaks! I love WikiLeaks!”762 Two days later, he said: “This WikiLeaks stuff is unbelievable. It tells you the inner heart, you gotta read it.”763 Similar statements from then-Candidate Trump continued over the following weeks. As the Special Counsel testified before House Committees, to call these statements “problematic” would be an “understatement” because they gave “hope or some boost to what is and should be illegal activity.”764 

During this period, senior members of the Trump Campaign were maintaining significant contacts with Russian nationals and seeking damaging information on candidate Hillary Clinton.765 Among other evidence of such contacts, the Special Counsel’s Report notes that President Trump somehow knew in advance about upcoming releases of stolen emails;766 that the Trump Campaign’s foreign policy adviser met repeatedly with Russian officials who claimed to have “dirt” on Clinton “in the form of thousands of emails”;767 and that Trump Campaign Chairman Paul Manafort caused internal campaign polling data to be shared with a Russian national.768 There is no indication that anyone from the Trump Campaign, including the candidate, reported any of these contacts or offers of foreign assistance to U.S. law enforcement.769 

And so on. It's really heartening that this material hasn't been forgotten and continues to be seen as evidence, at least of Trump's willingness to be a criminal if not of crimes in an of themselves.