President Trump and his defenders in the ongoing impeachment inquiry are pretending that the law is more complicated than it is.
“Quid pro quo” is Latin for “one thing for another.” Trump has argued that he did nothing wrong during his phone call with the president of Ukraine last summer because there was no quid pro quo, no explicit request of continued aid for Ukraine for an investigation of Joe Biden, his leading opponent in the next election. A quid pro quo is not essential to a crime or abuse of power, but the president is wrong in any event. No “magic words” are required for a quid pro quo to take place.
If I withhold something your country needs to survive (like money to buy missiles to defend against Russian attacks), and I ask you for a “favor,” that is a quid pro quo. Neither the law nor common sense require me to say “or else.” If it did, corruption and extortion would be almost impossible to prove because mobsters and crooked politicians would simply avoid making explicit threats.
Imagine that people are being laid off at your workplace. Your boss calls and refers to the fact that you have not been let go. You say that you really appreciate still having a job. He then says “I need a favor though” (which are the exact words that the president used). You are listening very carefully to your boss’s every word because your economic survival depends on keeping him happy. When you hear the words “I need a favor though” you will believe that the favor is a condition for not being laid off because “though” can only refer to what you just said about still having a job.
Now imagine that the favor your boss asks is something wrongful. He asks you to go on a date with him even though you are married or for you to spread rumors that you know are false about one of your co-workers to get them fired. He refers to this favor over and over again and says it is “very important.” You would assume that you need to go on the date or spread those rumors if you want to keep your job because unless threatened you would not do something so wrong. That is a quid pro quo. It is illegal and an abuse of his power. The phone transcript shows the president did the same thing.
The president should not be held to a lower standard than your boss at work. He cannot escape responsibility because he did not use “magic words.” The more power one has, the less explicit one needs to be, and the president is the leader of the most powerful country on earth. Conditioning hundreds of millions of taxpayer dollars in military aid that serves our national security on an investigation of your political opponent is not just “inappropriate” or “concerning.” It is a grave abuse of presidential power and probably a crime.
This is an “Emperor has no clothes moment.” The President’s naked abuse of his enormous power is plain for all to read in the phone transcript. Political leaders who pretend not to see it by twisting legal concepts are either lying to themselves or lying to us.
Joseph Kennedy is the Martha Brandis Professor of Law at UNC School of Law where he teaches criminal law and criminal procedure.