Republicans are Acting Like Solicitation and Attempt aren’t Crimes. They Are.

Listening to the testimony of David Holmes, Fiona Hill, Alexander Vindman, Gordon Sundland, and other members of our diplomatic corps, it has become abundantly clear that Donald Trump attempted to solicit a personal, political favor from Ukrainian President Volodymyr Zelensky — an investigation into his potential political opponent Joe Biden and Biden’s son — in exchange for the performance of an official function, in this case a meeting in the Oval Office between the two leaders and the lifting of a freeze on much needed military assistance. Listening to the Republicans and their counsel question these witnesses, their strategy for neutralizing these otherwise damning facts is also coming into focus. The idea is that Donald Trump really didn’t do anything wrong because the aid was eventually delivered, and the leaders did eventually meet (albeit at the U.N. and not in the White House), even though Ukraine never performed the requested investigation. The gist of the GOP’s argument is basically “no harm, no foul,” and since there was no harm, Trump’s conduct, while not the ideal way to carry on foreign policy, doesn’t rise to the level of an impeachable offence.

This argument fundamentally misunderstands the nature of “harm” in a criminal context. The criminal law of the United States is a descendant of English common law, and that tradition has long recognized, and still recognizes, a class crimes called “inchoate offenses,” which Black’s Law Dictionary defines as “a step towards the commission of another crime, the step in itself being serious enough to merit punishment. The three inchoate offenses are attempt, conspiracy, and solicitation.”

If Smith offers Jones $10,000 to kill his wife, but Jones refuses, Smith is still guilty of solicitation. If Jones agrees, then both men are guilty of conspiracy, even if Jones never kills her. If Jones tries to kill her but fails, then on top of the conspiracy count he’s also guilty of attempted murder. You get the idea.

It is a mistake to think that these crimes do not entail a harm. Indeed, according to the Model Penal Code, Section 5.05, “except as otherwise provided in this Section, attempt, solicitation, and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy.” The commentary to this section states that “the theory of this grading system may be stated simply. To the extent that sentencing depends upon the antisocial disposition of the actor and the demonstrated need for a corrective sanction, there is likely to be little difference in the gravity of the required measures depending on the consummation or the failure of the plan.”

With respect specifically to the crime of solicitation, the commentaries in the Model Penal Code state that “there should be no doubt on this issue. Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability. Moreover, the fortuity that the person solicited does not agree to to commit or attempt to commit the incited crime plainly should not relieve the solicitor of liability, when otherwise he would be a conspirator or an accomplice.”

It should be obvious why a President soliciting a bribe from a foreign leader is dangerous — and merits punishment — in and of itself. Regardless of whether the foreign leader complies, the President has sent the message that American support is contingent on private, rather than national, interests. If knowledge of the solicitation becomes public, as it has in this case, it both undermines our allies’ faith in our commitment to common security goals, and emboldens our adversaries. This is not an academic discussion. Already the war in Ukraine has claimed 14,000 lives. According to David Holmes’ testimony on Thursday, two more Ukrainian soldiers were killed, and nine wounded, in the last week, despite a stated cease-fire. President Zelensky is seeking a summit with Vladimir Putin to try to work out a peace agreement, but Russia has every reason to drag its feet, with the inevitable loss of life that will entail, so long as Ukraine goes into any such negotiation without the full and unambiguous support of the United States.

Given that most members of Congress are lawyers, it is highly unlikely that the Republicans pushing this narrative are ignorant of the concept of inchoate offenses, or of the fact that people are routinely tried and convicted of soliciting all kids of criminal behavior, including bribery. They know better, but they’re counting on the possibility that their base won’t.

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