• Sarah Chayes

QUID PRO…What?

Three Latin words define bribery under U.S. law: quid pro quo. And they lie at the heart of the impeachment proceedings that, as of this week, American citizens can watch unfold before them. The Constitution may empanel the House and Senate as grand and trial juries in such rare and momentous cases, but we the people are also called to pass judgement. So we had better understand what those three words mean.

For me, this drama is laced with irony. Taking center stage is the matter of conditioning U.S. assistance to a foreign country on efforts by its government to curb corruption.


I advocated for leveraging U.S. support in just this way for the better part of a decade. Alarmed at how kleptocracy in Afghanistan or Nigeria was driving indignant victims into the arms of extremists, or how it was propelling Arabs across North Africa and the Middle East to rise up in protests that rocked half a dozen governments and spawned civil wars, I knew Americans would not be safe so long as Washington was seen to condone and even enable corruption overseas.


I recommended that high-level meetings be withheld from notoriously corrupt foreign officials, for example, so they could not use the photo ops to burnish their images. With an Army Judge Advocate General, I wrote up a draft memorandum of understanding with the Afghan National Army, that included withholding military assistance from units whose commanders had engaged in serious corrupt practices.


Republican officials have insisted that this is what President Trump was doing by conditioning a White House meeting and even military aid on a public announcement by the Ukrainian president that his government would launch specific anti-corruption probes.


In questioning Acting Ambassador to Ukraine William Taylor, House Intelligence Committee Counsel Steve Castor first established that Ukraine is a pervasively corrupt country. That’s not hard. Five years ago, protesters toppled a Kremlin-linked dictator largely because of his regime’s corruption. But that plague is never rooted out by lopping off a single head, and kleptocratic networks reconstituted after the dictator fled to Russia. Self-dealing government contracts continued to be signed. Corrupt officials and their private sector cronies went unprosecuted.


“So, is it fair to say,” Castor asked, during a closed House session on October 22, “that if some of these companies, some of these oligarchs, had been under investigation…the investigation may have been closed for improper purposes?”


Taylor allowed that “it could have been closed for payments, yes.”


In that case, Castor pursued, “if Zlochevsky or Burisma is under investigation for money laundering, tax evasion, and those cases are closed…because…the prosecutors were paid off, then certainly it’s okay to want those cases to be reopened?”


His implication was this: if Trump refused to invite the Ukrainian president to the White House or even release military assistance to his beleaguered nation until they were reopened, so what? As White House Chief of staff Mick Mulvaney put it on October 17, “We do that all the time.


If Mulvaney meant leveraging U.S. moral and material support in return for a desired policy outcome, he’s right. The U.S. government does that all the time. Perhaps most memorably, U.S. military assistance to Egypt has been conditioned on Cairo’s recognition of Israel and continued adherence to the Camp David Accords for forty years.


But during my time in government (through 2011), corruption was never seen as an important enough consideration to merit such treatment. My MOU was never presented to the Afghan government, and no U.S. aid was meaningfully conditioned on progress curbing corruption. (For a list of other measures I recommended, see the first public paper I wrote on all this, in 2014.)


Not for a few more years did corruption emerge as a foreign policy priority. In 2016, Obama secretary of State John Kerry and conservative U.K. Prime Minister David Cameron put it front and center. Cameron even convened an international summit on the topic. Kerry attended for the United States, and issued guidance to the State Department to work the issue.


Perhaps because corruption’s dangers were so vividly demonstrated by the 2014 Ukrainian anti-corruption revolution and the immediate Russian invasion of the Ukrainian province of Crimea, the only bureau that implemented this guidance with real seriousness was the Bureau of European and Eurasian Affairs. It was around then that I met George Kent, who was the State Department’s first senior anti-corruption coordinator. (Kent, was, with Taylor, the first witness to testify in open impeachment hearings on November 13.)


But there is ample evidence that Trump was not reinforcing this Obama-era priority -- that a comprehensive crackdown on corruption is not what he was after. He has only showed interest in a single corruption case: that of Burisma, the energy company on whose board former Vice President Joe Biden’s son sat. Trump has never demanded anti-corruption action from any country other than Ukraine -- not Indonesia, Panama, the Philippines, Turkey, nor any other notorious place where his family or his Trump Organization does business. Moreover, as the Washington Post has reported, Trump has sought deep cuts in funding dedicated to anti-corruption efforts in Ukraine itself.


Quid pro quo means, simply, “this for that” -- an exchange. We all trade thises for thats every day; there’s nothing inherently immoral about it. Whether such a transaction is illegal or unethical – or constitutes bribery -- depends on what is exchanged, under what circumstances.


In this case, the quo Trump was demanding in return for bestowing the prestige of the office of the president of the United States and taxpayer funded assistance on the Ukrainian government was not a crucial U.S. national security priority. What he wanted, as he stated on the now infamous July 25 phone call with the Ukrainian president, was a “favor.” A personal favor.


It is certainly not routine for U.S. assistance to a foreign country to be conditioned on that kind of quo: on the country in question doing personal favors for an American official. In fact, that is precisely the kind of behavior the Founders feared most and worked hard, when designing the Constitution, to prevent. A rare sweeping prohibition in Article I forbids federal officers from accepting any item of value whatsoever from a foreign government (without the express approval of Congress). More broadly, using official power for personal gain is the exact definition of corruption. Trump’s quid pro quo falls directly into the illegal and unethical category.


The term quid pro quo is fading from the conversation about his potential impeachment, to be replaced by the more common word “bribery.” In typical usage, “bribery” implies that the briber takes the initiative. He or she wants something from a public official, and offers money to get it done.


But I spent a decade watching Afghan government officials demand money from citizens just to do their jobs -- process paperwork or operate on patients in the hospital. Every day, I saw Kalashnikov-toting policemen stride into roadways to demand money from passing motorists. For lack of a better word, that money was called a bribe. But if the driver refused to pay, he’d be lucky to escape with a ticket. More often he’d have his face slapped or his windshield smashed.


Depending on the circumstances, in other words, bribery is not the best word for a quid pro quo exchange. If the person demanding the “bribe” is powerful enough, and the other party needy enough, what is taking place is extortion.

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© 2018 by Sarah Chayes