Trump is ‘too dumb or incompetent to commit crimes’ is not a legal defense

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Rupert Murdoch’s Wall Street Journal in an op-ed last month made the argument that Donald Trump is too inept to have committed extortion and bribery:

[Ambassador] Taylor says in his statement that many people in the Administration opposed the Giuliani effort, including some in senior positions at the White House. This matters because it may turn out that while Mr. Trump wanted a quid-pro-quo policy ultimatum toward Ukraine, he was too inept to execute it. Impeachment for incompetence would disqualify most of the government, and most Presidents at some point or another in office.

The Daily Beast reported that Trump was offended by the op-ed. Everyone should just stop saying he’s too dumb or incompetent to commit crimes—he could totally pull them off if he wanted to, Trump has been complaining privately. Trump Wants You to Know He’s Smart and Capable Enough to ‘Do Quid Pro Quo’:

As Donald Trump gets dragged deeper, and deeper, and deeper into his Ukraine scandal and the impeachment inquiry accelerates toward a likely House vote before the year’s end, the president is increasingly insistent that, if he wanted to commit a crime, he wouldn’t be stupid enough to get caught.

At other times, Trump has privately avowed that if he wanted to commit the crimes or outrageous actions he’s accused of, he’d be smart enough to do it—and that people should stop saying he’s too dumb or incompetent to do crimes.

The newspaper’s esteemed board argued that any talk of impeaching Trump is silly, in large part, because this president is likely too bumbling to execute that kind of scandalous quid pro quo.

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Trump, a routine morning reader and skimmer of several newspapers’ print editions, saw this editorial—which was obviously meant to defend him—last week. And the president promptly began complaining about it to some of those close to him.

“[The president] mentioned he had seen it and then he started saying things like, ‘What are they talking about, if I wanted to do quid pro quo, I would’ve done the damn quid pro quo,’ and… then defended his intelligence and then talked about how ‘perfect’ the call [with Ukrainian President Volodymyr Zelensky] was,” said a source familiar with Trump’s reaction to the Journaleditorial. Another person familiar with the president’s comments on the matter corroborated the account.

“He was clearly unhappy. He did not like the word ‘inept,’” the first source added.

On Wednesday, Trump’s puppet boy Senator Lindsey “Stonewall” Graham revived this Trump is too dumb or inept to commit crimes defense. Lindsey Graham’s latest defense of Trump is that his policy is too ‘incoherent’ to do a quid pro quo with Ukraine:

Graham’s latest defense of Trump is that his policy toward Ukraine is so “incoherent” that he’s “incapable” of orchestrating a quid pro quo in his relations with the country.

“What I can tell you about the Trump policy toward Ukraine: It was incoherent. It depends on who you talk to; they seem to be incapable of forming a quid pro quo,” Graham told reporters on Wednesday.

This no doubt has Trump fuming, saying things like, ‘What are they talking about, if I wanted to do quid pro quo, I would’ve done the damn quid pro quo. I’m a genius!

What Lindsey Graham is trying to argue as a defense counsel is that Trump lacked “corrupt intent,” an element of the criminal offense of bribery. The Crucial “Corrupt Intent” Element in Federal Bribery Laws (California Western Law Review, 10-1-2014).

Bribing a public official requires proof of five essential elements: (1) a public official; (2) the defendant’s corrupt intent; (3) a benefit-“anything of value”-given, offered, or promised to the public official; (4) a relationship between the thing of value and some official act (or fraud or omission of duty); and (5) the relationship must involve an intent to influence the official in carrying out the official act (or to induce the fraud or omission).

Senator Graham is clearly wrong in his assessment based upon the witness testimony before Congress, and Trump’s entire life history as a grifter, con man, tax cheat, etc. Crime is what he does, there is always corrupt intent.

Lawyer Jeffrey Toobin explains the related criminal offense of extortion by a public official. In His Dealings with Ukraine, Did Donald Trump Commit a Crime?

It’s long been clear that Presidents can be impeached for “high crimes and misdemeanors” that are not actual violations of federal criminal law. In an oft-cited passage from Federalist No. 65, Alexander Hamilton wrote that impeachable offenses “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” They involve “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” This, at the moment, is the core of the case against Donald Trump for his interactions with the President of Ukraine—that he abused his power by using taxpayer dollars as a tool to extract information potentially damaging to a political rival.

But, if Trump’s behavior was an abuse of power, was it also a crime? The leading candidate for a relevant criminal statute is a familiar one in the federal courts, called the Hobbs Act. The law, named for the Alabama congressman who sponsored it, was enacted in 1946. It prohibits what’s known as “extortion under color of official right.” But what does that mean in plain English?

Samuel W. Buell, a professor at Duke Law School who is a former federal prosecutor and the author of “Capital Offenses: Business Crime and Punishment in America’s Corporate Age,” said, “The traditional way the Hobbs Act is used is when public officials solicit bribes. The idea is that there is an inherent power relationship between a public official and people who need things from that official. If the public official demands money, that’s seen as extortion, and thus a violation of the Hobbs Act.”

So what does that have to do with Trump and Ukraine? “The idea behind the case would be Trump conditioned the release of military aid to Ukraine on the President of Ukraine coming across with the dirt on the Biden family,” Buell said, adding, “He’s misusing official power to obtain things of value to him. That’s the heart of what the Hobbs Act is supposed to prohibit.” Buell draws an analogy to the Hobbs Act prosecution of Rod Blagojevich, the former governor of Illinois. “Lobbyists for a children’s hospital wanted Blagojevich to increase Medicaid reimbursement rates, which meant eight million dollars in revenue to the hospital,” Buell said. “But he put out the word through intermediaries that he would only do it if he got fifty thousand dollars in campaign contributions. That quid quo pro was a violation of the Hobbs Act. With Trump, the quid pro quo is taxpayer money in return for political dirt, but the idea is the same.”

There are problems with this theory, starting with the President’s constitutional prerogatives to conduct foreign policy under Article II. Trump, or his lawyers, could argue that such a case would criminalize the give-and-take of negotiation with foreign governments. International negotiations, by their very nature, involve exchanges of things of value. Quid pro quos are not only legal; they are the goal of most such interactions. The response to this argument would be that the terms of these sorts of negotiations must involve the national interest, not the political (or financial) fortunes of the President. Another problem relates to the question of mixed motives. If Trump also wanted to withhold aid to Ukraine because he thought that other countries were not kicking in a fair share of support—which was, clearly, a legal motive on his part—would that negate his improper motive on the Biden dirt? The proof issues for prosecutors would be daunting.

“With Trump, his intervention in Ukraine appears to have been an abuse of his powers, but, conceivably, not a crime.”

There is a clear corrupt abuse of power, which is ongoing, that supports impeachment under Alexander Hamilton’s formulation.




1 COMMENT

  1. As a follow up to Graham’s describing Trump as essentially incompetent some reporter should have asked Graham if that meant he would not support a Trump Republican nomination for the Presidency.

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