Saving the Quid Pro Quos from Bribery and Extortion

You just can't say that Latin isn't relevant anymore.

On "This Week" with George Stephanopolous, Rep. Sean Patrick Maloney tried to defend the Democrats rhetorical strategy last week of shifting their terminology. After focus groups showed that the Latin expression "quid pro quo" didn't elicit the negative feelings that terms such as "extortion" and "bribery" did, these latter two terms went to head to head in the finals and bribery won.

That's why you don't hear Democrats using the Latin expression anymore.

Of course, there are some non-Latin speaking Americans who wish the whole impeachment debate was being conducted in Latin so that they could think of something more important (and less political).

Maloney said this: "Quid pro quo is Latin for bribery." Now the fact that Maloney said this is interesting, but not only because it's completely inaccurate. I've discussed this expression elsewhere, but I'll underscore again that quid pro quo means "something for something." It refers to any action in which something is exchanged for something else of similar value. That would include virtually any economic exchange involving money or barter.

The Latin word for bribery is conruptela, a completely different Latin word. Bribery is one very specific kind of quid pro quo or economic exchange―namely one in which subornation is involved. Subornation happens when someone convinces someone else to do something unethical or illegal.

Bribery = quid pro quo + subornation

What would it mean to say that President Trump's quid pro quo with Zalensky (if there really was one, which wouldn't surprise me) constituted bribery? The literal application of saying that the President's action was bribery is saying that the President was offering something to Ukraine President Zelensky in order to get Zelensky to do something illegal or unethical. It is that President Trump was offering something in order to get that person to do something illegal―to suborn an illegal action. But what Trump was trying to get Zalensky to do was not illegal at all: He was trying to get him in investigate whether someone committed a corrupt act. 

Since when is that illegal?

It actually would have been more accurate to have settled on the term "extortion," since that involves trying to get something from someone by force or threats. But it just didn't appeal to the Democrats' focus groups―you know the ones I'm talking about: the ones who are now guiding the impeachment process.

But, of course, the extortion argument has its problems too. As I said last week, if withholding aid from a country in order to get them to do what you want them to do (and cutting it when they don't) was a crime, then it is one that administrations commit on a routine basis, and the question then becomes, if you think Trump's so called "extortion" was illegal, where have you been all these years?

The Democrats are shifting their terminology in order to gain a more pronounced political effect while claiming that they're not actually saying anything different. That's why they are saying that quid pro quo means the same thing as bribery when, in fact, it doesn't. 

But it has another benefit. Surely they figured out, after a little thinking about this, that staking their case on the mere charge that there was a quid pro quo in a foreign aid context was not going to do. In addition to bribery sounding more sinister than a quid pro quo, there is no law that prohibits quid pro quos, while there are laws that prohibit bribery and extortion.

The bad thing about it for the Democrats is that it raises the bar in terms of what they have to prove. Now, if they find that there was a quid pro quo, the question is whether it involves bribery, which only a very limited, specific kind of quid pro quo.

And by the way, does it bother anyone that the Democrats are using focus groups to determine what crime they are charging the President with?

Almost literally, this is what happened here: Instead of consulting the law or the Constitution, or some official enactment of our Glorious Republic in order to determine what crime the President may have committed, the Democrats hired consultants, gathered together some accountants, a banker or two, some construction workers and a grocery store clerk and asked them which words they thought sounded the most scary.

It's so ... Hamiltonian (referring to the musical not the actual person).

Meanwhile President Trump―more a danger to himself than to others―squandered some of his good will this week (whatever is left out there) tweeting against the former Ukraine secretary whom the Democrats had brought before the committee for the very purpose of trying to show how mean Trump had been to her. 

Of course, this had nothing to do with whether Trump committed any crime, much less any impeachable one. But still, the Democrats whole partisan point was to embarrass him as much as possible. It's a measure of Trump's carelessness that he facilitated the accomplishment of this goal in the very act of trying to prevent them from doing it.

And imagine being a Republican on the committee trying to defend the President and having to sit there while the President undermines you in the very act of defending him.

If you think it's hard being Trump's enemy, you should try being his friend some time. 

But all of this is consistent with what I have been saying all along: that the Democrats Impeachment strategy is a campaign strategy and not a legal or Constitutional strategy. These impeachment hearings are not designed to turn Trump out of office. That's not going to happen and the Democrats know it. The Democratic House can vote articles of impeachment to their heart's content, but the Republican Senate is not going to convict him.

The Democrats use of the impeachment process is not a serious constitutional endeavor; it is a campaign tactic for 2020, and there are a lot of Americans who realize this.

The Democrats are using a function of government for partisan gain. And isn't that what they are claiming the President was doing?

The Questionable Major Premise in the Case Against Trump

Whether you think that Trump acted unethically, or criminally, or impeachably (is that a word?), what exactly is the argument? I have often said that, when you are trying to analyze an argument in real life, the first thing to do is to figure out the major premise of your opponent's argument.

All arguments have one big, universal premise. In the argument, 

All men are mortal

Socrates is a man

Therefore, Socrates is a mortal

The big, universal premise is the first one, "All men are mortal." It is called the "Major Premise." In formal logic, it is always stated first. But when we argue in real life, we generally omit it altogether--usually because everyone is assuming it. Usually it involves the common believe of those on both sides of the argument. But  many times, it goes unstated because the person making the argument knows it is questionable and he doesn't really want to draw attention to it. 

Let's take the major premise at the stasis of the current argument over impeachment: that there was a "quid pro quo" in aid to Ukraine. Here is the argument as it is commonly stated, missing the major premise:

The Trump administration's aid to Ukraine involved a quid pro quo

Therefore, the Trump Administration's aid to Ukraine was an impeachable crime.

What is the missing, major premise? "Any action involving a quid pro quo is an impeachable crime." Here's the complete argument, with the major premise highlighted:

Any action involving a quid pro quo is an impeachable crime

The Trump administration's aid to Ukraine involved a quid pro quo

Therefore, the Trump Administration's aid to Ukraine was an impeachable crime.

And here is where the defense of the President (a defense originating with him) has gone down precisely the wrong path. The administration and his defenders in Congress have implicitly accepted this major premise, when what they should have done is question it from the beginning.

This is where Trump's defense is terribly, horribly mistaken and it will cripple his defense until the process plays itself out. This was part of the point in a recent article in Human Events: 

The response they should have given to the charge that there was a quid pro quo is "So what." There are a lot of governmental actions that involve a quid pro quo, and none more obviously than foreign aid. Foreign aid not only can, but always involves an implicit or explicit quid pro quo. With the possible exception of humanitarian aid, we don't give taxpayer money away to foreign countries unless we expect something back. And there is the implicit understanding that if a country is receiving foreign aid, then it can be taken away the moment it displeases us.

And not only do we implicitly consent to the quid pro quo behind all foreign aid, we expect it. Foreign aid has never been purely charitable, and has always been a tool of foreign policy. Of course this what precisely Mick Mulvaney's point in his controversial remarks at a White House press conference. The problem with Mulvaney's remarks was not that they were incorrect, but that they went against the official narrative.

Now let me anticipate an objection here. An anti-Trumper could say, "But it is not just the fact that it is a quid pro quo; it's that the quid pro quo is one that helps him personally and politically. Once again, let's look at the major premise. The argument is stated publicly without it:

The President's Ukraine action is one that helps him politically

Therefore the President's action is an impeachable crime

Missing premise?

Any action that helps a president politically is an impeachable crime

The Trump administration's aid to Ukraine involved a quid pro quo

Therefore, the Trump Administration's aid to Ukraine was an impeachable crime.

Again, almost every act a president engages in while in office is designed to help him politically. Every policy decision, every public declaration, every presidential domestic trip helps him politically. There have even been objections to taxpayer-funded presidential junkets in the days leading up to elections in which the president is running that they are really campaign trips and shouldn't be paid for by taxpayers. But despite this, it happens all the time, and even those who protest never say that such trips are impeachable offenses.

Once again, no one can plausibly argue that acts by presidents that politically benefit them are either impeachable, or criminal, or even unethical. The major premise is just wrong.

Let's just take the most famous case of foreign aid, which is our longstanding foreign aid to Israel. Not only is there a quid pro quo (the expectation that we will receive something back from it)--that we will enjoy cooperation and support from Israel in our Mideast foreign policy, but there is a very obvious political benefit to any administration that continues our foreign aid to Israel. Every President, whatever else he may expect from aid to Israel, understands that it helps them greatly with Jewish voters. 

So neither a quid pro quo in foreign aid, nor the fact that political advantage is gained from it are either unethical, criminal, or impeachable--nor would they be so if they both involved a quid pro quo and resulted in political advantage, since two bad arguments don't make a good one.

But here is the problem: The Trump administration has mistakenly chosen what ground it will fight on, and, unfortunately for him, it is not the high ground. And to shift his position now will look like pure opportunism. He will have to admit that there was a quid pro quo, which undoubtedly there was in some form, despite the fact that he has been denying it all along. I will look like a rhetorical retreat.

And yet, I don't see another alternative. 

In either case, the President is not going to get convicted, as I have said before. But if you're going to get impeached, you might as well get it right, win or lose.

Three Questions about Impeachment

There are three questions to ask about impeachment: 1) Did the President commit a crime? 2) If the President committed a crime, is it an impeachable crime? 3) Are the Democrats running the impeachment process qualified―ethically or politically―to judge him.

Did the President commit a crime? I'm not sure we know this. I think a lot of people think he acted unethically, but not all unethical behavior is criminal. By saying someone committed a crime, we mean one of two things: either he violated statutory law, or he engaged in behavior that legal case law has adjudged to be criminal.

The President's opponents accuse him of 1) asking a foreign government for a partisan favor, and 2) the request was contingent on the foreign government receiving aid from the United States.

If he violated a statutory law, which one did he violate? Federal laws have numbers. "Pub. L. No. 108-45" is the 45th law passed by the 108th Congress. What is the number for the statute Trump violated?

If he violated the findings of some judicial ruling, then what ruling was it?

I'm not saying there are no good answers to these questions. I'm just saying that, as someone who has paid pretty close attention the debate, I have not heard a single person address these questions. It is supposed to violate campaign finance law. Which one? What does it say? Some people say it could violate several laws. Which ones?

For all the certainty about the fact that Trump violated laws, it is curious there has been so little discussion about the laws themselves.

This is important, since laws are stated in ways that often invite interpretation. But when you have no particular law you can refer to, it's kind of hard to figure out whether the activity you are pointing to violates it or not.

If the President did commit a crime, was it an impeachable crime? This is even more murky, since the Constitution says that a president may be impeached for "high crimes and misdemeanors" What makes a crime or misdemeanor "high"? The Constitution gives no guidance on this, nor, apparently, does case law. Given that fact, the determination is a political judgment.

We as a people have to decide, through our representative government, whether it qualifies or not. If we decide it does, then it does. If we decide it doesn't, it doesn't. Period.

The outcome of that process is yet to come.

Are the Democrats running the impeachment process qualified to judge him? This, in the end, is the most important question. The one that will really tell.

For Americans to see Trump's actions for what they are, they are going to have to have confidence that the people doing the judging themselves be above politics and partisanship. They are going to have to know that the process is fair.

On this ground alone, impeachment hangs. Even if the other two questions are answered in the affirmative, the answer to this one is determinative. And to mark it worse, it is the one of which Trump's enemies seem clueless. 

The Democrats will kill their own impeachment agenda. No one except the most blind Democratic partisan believes that the partisan Democratic politicians who are now engaged in the impeachment inquiry are even remotely fair and nonpartisan. 

First, House Intelligence Committee Chariman Adam Schiff has already stepped in it twice--once by rewriting the President's comments in the transcript of the call to the Ukrainian president, and then again when he lied about when he knew about the whistleblower complaint. 

Schiff cannot play both sides of the track here. He cannot act as a partisan one moment, and in another pretend to be scrupulously judicial. It hasn't worked so far, and will continue to plague the investigation.

Second, the Democrats would impeach Trump of anything if they could, legal or illegal, ethical or non-ethical, and the voters know this. They were talking impeachment before he even took office. Americans have seen a parade of charges, one after another, each eliciting a cheer from Democrats as the think that will take down Trump, and each fading into obscurity. The Ukraine call is only most recent of these charges.

At some point (and I think we have reached it), voters just say, well, Democrats just don't like Trump and they will stop at nothing to bring him down. This is just another attempt, and it will fail like all the rest.

Can we talk about something else now?

Third, House Speaker Nancy Pelosi's failure to call a vote on articles of impeachment makes the Democrats look even worse in this regard. Trump's defenders know this, and are honing in on this weakness. The administration is now refusing to turn over documents until this is done, which is the smartest thing they could do, since it puts Pelosi in a dilemma: either she calls an impeachment vote, which she knows, at this point, her party really doesn't want, or she doesn't call it, in which case she denies the administration legal protections that the formal impeachment process provides. 

Pelosi won't call a vote on impeachment, but not because she doesn't have the votes. She may have the votes, but that doesn't mean members want a public vote. In these kinds of cases, there are people who will vote yes when it comes to it, but they don't want to pay the costs of such a vote. They are the ones that, right now, are approaching Pelosi and discouraging her from calling a vote. 

Democrats have managed till now to convince the public that they are now operation according to some "formal process" of impeachment, when, in fact, they are not. The only "formal process" when it comes to impeachment is impeachment. And the only thing that qualifies as impeachment is a vote for articles of impeachment.

The only claim the so-called "impeachment inquiry" has to formality is their own rhetoric. This is what the Trump administration is betting on: that they can make this clear by refusing to provide documents.

And let's be plain about this: Pelosi doesn't have the votes for articles of impeachment. The only support she now enjoys is support for an "impeachment inquiry." And those aren't impeachment votes. This is why the Democrats will continue to punt on actual impeachment and continue equivocate about an  "impeachment inquiry" constituting a "formal" impeachment process.

All of this goes, again, to the issue of fairness. The Democrats are accusing Trump of using his office for partisan gain. But if the public becomes convinced, as I think many already are, that the Democrats are only using the impeachment process for partisan gain, then how, they will ask, are they any better than the man they are trying? People will not accept the legitimacy of a process in which the judge is guilty of the same crime as the person being tried. They just won't.

So far, the Democrats are playing right in to Trump's strategy here. Some people think his tweets hurt him. They don't. They further anger his Democratic opponents, and they overreact, looking partisan themselves, and play right in to his strategy.

They will continue to do this. This is why Pelosi won't win her vote, and why, even if she does, the Senate will acquit. And will help Trump in the 2020 election.