The Fallacy of Quid Pro Quo

Much of the talk surrounding the current impeachment discussion is focused on whether President Trump’s discussions with Ukrainian officials included a quid pro quo.  We are told by those leading the charge that impeachment should turn on whether the demand for a corruption investigation before releasing hundreds of millions of American dollars in foreign aid to the Ukraine constituted an impermissible quid pro quo.  With all due respect to those holding such a position, it is misguided.  Consider the following unassailable principles:

First, all American foreign aid is, always has been, and many would argue, always should be based on a quid pro quo.  America primarily provides foreign aid in order to have influence with the recipients and to advance American interests.  This was a central premise of the much celebrated Marshall Plan.  Indeed, experts from both ends of the spectrum and in between regularly bemoan the failure of our government officials to condition foreign aid on support by foreign aid recipients for our view of Democracy, for our position on pressing issues at the UN, on election reform, and on a commitment to fight corruption.

Secondly, under Article 2 of our Constitution, the President exclusively has the power to decide important matters of foreign policy, including, but not limited to, which countries we will have a relationship with and the nature and extent of that relationship.  In fact, President Obama felt so strongly about reserving the robust and exclusive nature of that power for the President that he ordered his Solicitor General to litigate the issue all the way up to the Supreme Court and got the highest court’s approval for his view that on matters of our relationship with foreign countries, the President’s power includes even ordering the State Department to violate with impunity laws passed by Congress in the area.

Third, at least since 1960, with the creation of the International Development Association, study after study on the advisability and impact of American foreign aid has cited corruption within the recipient country as perhaps the greatest determinative factor in whether aid should be given and, if so, what steps should be taken to address concerns about corruption.  Commentators who study such things regularly document the corrosive effect of corruption on several  levels.  Political, judicial, financial, and other varieties of corruption directly affect whether the intended ultimate beneficiaries of our foreign aid dollars actually receive the money.  

One recent U.N. Study concluded that roughly 30 percent of foreign aid money never reaches its intended final destination because of corruption.  Such corruption, often with the collusion of recipient government officials, includes the creation of phony agencies, straw men, and other creative measures designed to divert at least a portion of the foreign aid to enrich the families and friends of recipient country’s leaders.  And sometimes, the corruption includes creating no show jobs, assigning lucrative contracts, and placing people on the board of businesses or agencies receiving aid recipient government contracts in order to curry favor with corrupt or unethical donor country officials.  Corruption in recipient countries is a destructive force that often promotes more corruption, in effect institutionalizing it for generations.  There is little or no interest in policing it, of course, because the corrupt officials often control the effectiveness or existence of any policing mechanism and self-interest drives their agenda.  

Conversely, of course, foreign aid with strings, and specifically with demands for corruption reform can lead to improvements for the recipient country in both the short and long term and enhances the donor nation’s reputation.  If aid is firmly conditioned on specific corruption fighting steps, our dollars are much more likely to reach the intended beneficiaries and theoretically, at least, the quid pro quo – fight corruption or get no aid – filters through politically, to drive from office those who perceive their self-interest as best served through corruption.  That is, the recipient population who depend on the aid and understand that the quid pro quo will lead to reform if the quid pro quo message from the donor country that addressing corruption is an absolute pre-condition for aid is forceful, clear, and consistent.

To that end, especially since the 1990s, international lending agencies have led the way and our own lawmakers have inserted conditions in laws regulating our relations with foreign governments and businesses, that include anti-bribery, anti-kickback, anti-terrorism, and anti-corruption provisions which require reporting and monitoring.  The World Bank, for example, has created a formal assessment process regarding efforts to fight corruption within aid recipient countries and our own American Millennium Challenge Corporation has made anti-corruption efforts in recipient countries a primary determining factor in whether aid will be given and, if so, at what level.

That brings us to President Trump and the current impeachment “investigation.”  Under the worst case formulation of the President’s phone call with the Ukrainian leader, he said that the hundreds of millions of American taxpayer dollars authorized for the Ukraine would only be released if the Ukraine would commit to conducting a full, comprehensive corruption investigation, with such investigation including a focus on all relevant circumstances surrounding the appointment of Hunter Biden to a position on the board of a major Ukrainian company, for which he appeared not to be qualified, at a significant salary, and at a time when when Hunter’s father, Vice-President Joe Biden, was the Obama administration’s point man on the Ukraine, in a position to directly influence American policy vis a vis the Ukraine.  

The concern that there might have been something fishy about Hunter Biden’s appointment and the connection to his father’s position was not something initiated by President Trump in 2019.  For example, on May 13, 2014, the Wall Street Journal wrote a scathing piece bringing the appointment of Hunter Biden and Devon Archer, a close John Kerry family friend, to the Ukrainian company’s board, suggesting that the matter raised a number of major red flags for a variety of reasons.  Many other mainstream media outlets since have written similar pieces, strongly arguing that the situation was very troubling and demanded further scrutiny and answers.  Just two months ago, the Washington Post reported that John Kerry’s step-son, Chris Heinz, who founded an investment company with Mr. Archer considered the decision to join the Burisma board to reflect such poor judgment and the appearance of impropriety so clear that he publicly disassociated himself from Mr. Archer and his Burisma connection.

There is no reasonable argument to be made that the President should be prohibited from demanding an investigation into corruption as a precondition to American aid.  Conditioning aid on a real commitment to fight corruption unquestionably is in America’s national security interests and all other relevant interests.  Ironically, in a widely publicized speech, as the Obama administration’s point person on the Ukraine, Vice-President Biden boasted of telling Ukrainian leaders that the U.S. was withholding $1 billion in loan guarantees earmarked for the Ukraine purportedly because it did not appear the Ukraine was serious about fighting corruption.  

That quid pro quo by Mr. Biden is part of the current discussion because one of Mr. Biden’s demands was that the anti-corruption prosecutor then operating in the Ukraine be fired.  Many have raised concerns about that quid pro quo because Burisma, the company whose board Hunter Biden and the Kerry family friend had joined had been the subject of a corruption investigation.  Some have argued that the call by Biden for the prosecutor’s firing was not directly connected to his son’s appointment because the main corruption investigation into Burisma had been settled before Hunter joined the board.  But the timing of the relevant events, the propriety of the appointment, and the appropriateness of having the Vice-President remain the point man for the Ukraine after his son was appointed to a position for which he had no qualifications, in what appears to have been an unabashed push for influence with the Obama administration, are exactly the kinds of things for which an investigation is required.  Even Biden supporters have acknowledged the appearance of impropriety here, with some suggesting that the raw attempt at currying favor and influence-peddling it appears to reflect, badly harm our foreign policy reputation.  

Those in Congress arguing for the President’s impeachment for demanding a full and comprehensive investigation in the Ukraine and for conditioning U.S. taxpayer dollars on a commitment to do so must explain why investigating these troubling facts would ever be against America’s interests, let alone why this constitutes an impeachable offense.  On the face of it, one might think turning a blind eye to it would be more troubling to Congressional leaders than demanding an investigation. 

The complaint at the heart of the current impeachment proceedings, ranging from claims of abuse of power, placing personal interests over national security interests, seeking help from a foreign nation in a domestic election, and even bribery, is based exclusively on the fact that the President specifically demanded that the Bidens’ conduct be investigated as part of the anti-corruption demand he made and Joe Biden is a potential candidate for President against Mr. Trump.  But in our country, one does not escape scrutiny from ethical or criminal investigations by announcing his or her candidacy for elective office.  Indeed, just the opposite is and should be true.  

In fact, before announcing his candidacy, Joe Biden and his supporters should have demanded a full investigation of these allegations of corruption which have been lingering for years and which he steadfastly claims have no merit.  They should have applauded the President’s demand for a full investigation as the best possible way to lift this cloud that has been around for so long.  Joe Biden holds himself out as an anti-corruption crusader and has taken great pride in claiming to have withheld at least a billion dollars in U.S. aid for the Ukraine because of concerns of corruption.  President Trump followed suit here and cited the best known example of a claim of corruption in the Ukraine that has been the subject of media stories for years in demanding the investigation now before the aid would be released.  

Significantly, President Trump unequivocally demanded a full and fair investigation.  Nothing more and nothing less.  He did not seek any pre-judgment, any assurance that an allegation would be brought against Mr. Biden, nor even that the investigative body be a Mueller-like partisan group with an agenda.  It is a tough sell to characterize what President Trump demanded as against American interests.  And if it were a quid pro quo, that is exactly what a commitment to fight corruption as a condition to foreign aid should look like if one is serious about that commitment.

If Hunter Biden and his father did nothing wrong, the best possible way to put the claims to the contrary to rest once and for all would be to demand a full investigation, that would finally clear their good names.  Similarly, every American voter considering supporting Mr. Biden in his bid for the presidency should welcome a full investigation so that either Mr. Biden’s name is cleared or so that the voter at least has all of the facts before the election rather than after.

Notwithstanding all of this, the Democratic leaders in Congress have committed to pursuing the President’s impeachment over his phone call.  With partisan politics as they are, unless some last minute realism takes hold, a vote to impeach will succeed, leading to a full impeachment trial in the Senate.  In this case, “be careful what you wish for” might well have real significance.  

The allegations will require that the witnesses at the Senate trial include Joe and Hunter Biden, John Kerry, his step-son, and his business partner and many others who might well regret having gone down this path.  

The claim that a demand for an investigation is contrary to our national interests and an inquiry into the basis for the President’s belief that there was conduct here that at least deserved investigating before turning over hundreds of millions of American dollars, consistent with the “drain the swamp” counted on by the voters who elected him, will require a full examination of these witnesses and many more under oath in full public view at a full trial in the Senate.  

It is unfortunate that the Democratic leadership succumbed to the demands of the Hate Squad and others to find an excuse to pursue impeachment proceedings as an alternative to the ballot box and perhaps to compensate for the apparent lack of electable Democratic  alternatives to President Trump. They have sacrificed the important legislative role for which they were elected and Congressional law-making has been paralyzed.  They have also badly hurt the one most viable candidate they had in Joe Biden; but perhaps that was part of the agenda all along for some pushing for impeachment while endorsing Mr. Biden’s primary opponents.   

About the Author
David Schoen is a civil rights and criminal defense attorney practicing in Montgomery, Alabama. He represents American victims of terrorism and is actively involved in efforts to fight BDS and other anti-Semitism. He also has represented the Democratic Party as trial counsel.
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