Ukraine as Extortion

6 mins read
President Donald J. Trump participates in a bilateral meeting with Ukraine President Volodymyr Zalensky Wednesday, Sept. 25, 2019, at the InterContinental New York Barclay in New York City. (Official White House Photo by Shealah Craighead) [Public Domain]

There’s a debate about whether Trump’s misconduct towards Ukraine is best described as bribery or extortion. It can be characterized as both. I suggest, however, that we describe it first and foremost as extortion.

First, here’s how I’d describe the conduct at issue: Trump threatened to cancel 400 million in military aid unless Ukraine investigated Biden. And here’s a general definition of bribery offered by law professor James Lindgren. Bribery is a “corrupt benefit given or received to influence official behavior so as to afford the giver better than fair treatment.” 

Characterizing Trump’s misconduct as bribery according to that definition isn’t the greatest fit for several reasons. First, a person “bribes” an official to get something he doesn’t deserve; i.e., better than fair treatment. An example of bribery: A businessperson offers money to a public official in exchange for receiving a government contract he otherwise wouldn’t have received. The businessperson is given special treatment because of the bribe.

If we consider Ukraine as an actor participating in a bribe, that would imply that in receiving the 400 million, Ukraine was being given special treatment or was getting money it didn’t deserve. That, however, was not the case, as I will explain below. 

A second reason that bribery isn’t a completely accurate description of Trump’s shakedown of Ukraine is that in a bribe, typically both parties are guilty of bribery, both parties are corrupt and culpable. That makes sense if the person providing the bribe is seeking special treatment or an illicit benefit from the public official receiving the bribe. But, it’s inaccurate to suggest that Ukraine was a corrupt actor willingly going along with Trump’s bribery scheme. Ukraine wasn’t seeking something that it didn’t deserve. Ukraine wasn’t being corrupt. Instead, Ukraine was an unwilling *victim* of Trump’s extortion scheme. Ukraine’s victimization, however, can get lost when we use bribery to frame Trump’s misconduct.

I suggest that the concept of extortion better captures Trump’s abusive exploitation of Ukraine and their vulnerable political situation. A general definition of coercive extortion provided by Professor Lindgren is “the seeking or receiving of a corrupt benefit paid under an implicit or explicit threat to give the payor worse than fair treatment or to make the payor worse off than he is now.” That describes Trump’s conditioning of military aid on Ukraine investigating Biden. Trump sought a corrupt benefit (phony investigation of Biden) by threatening to make Ukraine worse off (denying them military aid that they should have already received).

This is a crucial point. Ukraine *deserved* the military aid. They should’ve already received it by the time they learned in August that the aid had been frozen. The money had been appropriated by Congress, and the aid was ready to be sent to Ukraine until Trump arbitrarily put a hold on it. Trump had no legal authority or legitimate justification for withholding military aid. He initially provided no substantive rationale, then he later stated that he held it up because he wanted Europe to contribute and he wanted to ensure that there was no “corruption” on Ukraine’s part. Those rationales were pretext for the real reason for the hold: Trump wanted to use it to extort Ukraine into investigating Biden.

Thus, in seeking the release of the money, Ukraine was seeking fair treatment, not special treatment. Withholding aid illegally put Ukraine in a worse off position, which then made Ukraine vulnerable to Trump’s extortionate demands. Trump illegally withheld it and then threatened to take away what Ukraine deserved unless they “paid up.” The “transaction” involved a threat, coercion, manipulation, and exploitation on Trump’s part. Those are the elements at the heart of coercive extortion.

Admittedly, you can also describe the transaction as bribery, if you frame it as Trump soliciting a bribe from Ukraine in exchange for military aid. There’s overlap between bribery and extortion, and in many corruption cases, people are charged with both crimes. But, it’s best to lead off with extortion instead of bribery, because bribery tends to erase or downplay the victimization of Ukraine and the unequal power relations between Trump and Ukraine. Trump had greater bargaining power over Ukraine, and he used his leverage to make a power play. That power play was extortion.

Note: In suggesting that we describe Trump’s shakedown of Ukraine as extortion, I am not claiming that Trump necessarily violated a specific federal or state criminal statute. I’m talking about using the general understanding of extortion as a frame to discuss the issue in public discourse. 

It’s vital that, as the inquiry moves towards articles of impeachment and then trial, that any framing of Trump’s misconduct accurately convey the magnitude of its corrupt nature. I contend that framing the misconduct as extortion does exactly that. 

Footnote: The definitions of bribery and extortion are from James Lindren, The Theory, History and Practice of The Bribery-Extortion Distinction, 141 U. Pa. L. Rev 1695, 1699 (1993).

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Reginald Oh is Associate Director of The Loyal Opposition. His primary focus is on issues relating to constitutional law, the protection of vulnerable communities, and the reduction of political polarization in America. A law professor at the Cleveland Marshall College of Law who teaches constitutional law and legal ethics, Reggie’s scholarship is focused on the meaning of equality under the Fourteenth Amendment Equal Protection Clause. His current research focuses on the central role that dehumanization plays in fostering inequality and discrimination, and the possibility for law to counter it.
Reginald is on the Board of Directors for DemCast.

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