Trump, Corruption and Impeachment

With an impeachment process against US President Donald Trump underway, Dan Hough, Professor of Politics at the University of Sussex, examines whether the actions of President Trump fall under standard definitions of corruption. He concludes that if you are interested in the facts and not partisanship, whichever way you choose to examine them, this is a President who has acted corruptly.

On 18 December 2019 Donald Trump became the third American President to be impeached by the House of Representatives. The House voted 230-197 in favour of the proposition that Trump had abused his office and 229-198 in favour of the notion that he had obstructed attempts by Congress to get to the bottom of what was going on when he infamously spoke to Ukrainian President, Volodymyr Zelenskiy, on 25 July 2019. In effect, the House found Trump guilty of corruption.

In due course, the Senate, the upper chamber of Congress, will likely have its say on the matter. The outcome there is likely to be very different. It will be a major surprise if any of the Republican lawmakers vote against Trump and the staunchness of his support there will ensure that he survives in office. Indeed, the experiences of both Andrew Johnson and Bill Clinton, the two previously impeached American presidents, would indicate that the president has a fair chance of moving on and winning re-election in 2020.

Partisanship on Steroids
Why and how are the two chambers likely to come to such different judgements? It is certainly clear that American politics is suffering from partisanship on steroids. The debates in the House on Wednesday gave the impression that Democrats and Republicans were living in completely different worlds. “Our founders’ vision of a republic” claimed House Speaker (and Democrat) Nancy Pelosi “is under threat from actions from the White House”. She then added that if she had not acted to facilitate impeachment that would be nothing short of a “dereliction of duty”.

Other Democrats queued up to agree with her. Jerrold Naylor, a Democrat from New York, argued that Trump’s actions were an affront to American values and that he “abused the powers of his office” when pressuring Ukraine to help his re-election campaign. Others on the Democratic side of the aisle made much the same case.

Republican Congressmen, meanwhile, saw things totally differently. For many this was nothing short of an attempt to overturn the 2016 presidential election result. Kevin McCarthy spoke for many when he claimed that the ‘Democrats have wanted to impeach President Trump since the day he was elected” before adding that “nothing was going to get in their way, certainly not the truth”.

Clay Higgins didn’t shy away from using particularly colourful language, claiming that “he’d descended into the belly of the beast” and that he was witnessing “the terror within”, inferring that insidious forces were trying to take over America. Barry Loudermilk nonetheless topped off the defence of the president by claiming that even Pontius Pilate “was afforded more rights than the Democrats have afforded this president in this process”. Quite the claim.

Process versus states of affairs
So what of the evidence? Did President Trump behave in a way that could be understood as worthy of impeachment? The literature on corruption offers us plenty of insight. It is nonetheless worth noting that much of the analysis of corruption has traditionally got stuck in a definitional quagmire. This is world that has often been full of shades of grey.

Be that as it may, two distinct approaches exist to making sense of what corruption is. On the one hand corruption is seen as a process. On the other hand some observers tend to look at it more as a state of affairs. Both of these approaches have merit but they also lead analysts to instinctively look for different things.

Process-led definitions of corruption generally centre around four key traits. All of them need to be present for an act to be understood as corrupt. The act in question has to be performed deliberately. Corruption is neither accidental nor a result of incompetence. Actors have to wilfully seek a particular outcome (regardless of whether that outcome actually comes to pass).

Secondly, there has to be a form of abuse involved. Public servants have job specs. There are rules and regulations that stipulate what is and what is not appropriate behaviour. If they go beyond these guidelines then abuse can be said to have occurred.

Thirdly, at least one of the actors involved in corrupt transactions has to enjoy entrusted power. This is nothing more than a statement of the obvious. If none of the actors involved have any power to wield, then they won’t be in a position to engage in a corrupt transaction.

Finally, there has to be some sort of private gain involved. That gain may often be financial, but it could nonetheless come in a range of other forms; bolstering a reputation, saving face, gaining access to other non-financial services. The scope of potential private gains is consequently quite large.

States of Affairs
This transactional definition has come to dominate much of the real-world thinking on corruption. There is, however, a small but powerful literature that looks at what is often known as institutional corruption. This approach to understanding corruption harks back to the thinking of some of the great philosophers. They put morals and ethics at the core of their understanding of corrupt activity.

In this reading corruption happens when those involved move away from a virtuous state of affairs. Corruption is what becomes the norm when leaders are attracted by the twin vices of greed and avarice. It is not about particular sets of actions or indeed one particular person (although given individuals can play prominent roles), it is much more about a move from selfless leadership to immoral behaviour. One powerful analysis within this tradition is Ramsey MacMullen’s 1990 story of how corruption ultimately led to the fall of the Rome. It is well worth a read.

Trump, Ukraine, Congress and Corruption
Given these two distinct approaches to understanding corrupt activity, where does Trump and his phone calls and impeachment bombast fit in? First, the transactional approach;

1. Deliberateness. When Trump made his call to President Zelenskiy it appears abundantly clear that he knew what he was doing. Indeed, Gordon Sondland, Trump’s former ambassador to the European Union, testified on the record that Trump was striking a quid pro quo that involved releasing aid and investigating a potential rival for the presidency in 2020. Zelenskiy, the Ukrainian President may well deny this, but, as the saying goes, he would, wouldn’t he.

That having been said, we can’t get inside Trump’s head to know for sure what he was thinking during that conversation. Zelenskiy’s denial also complicates matters. But these caveats are still not enough to seriously give credence to the idea that this was all one big accident. If that were the case then – unless the person admitted to corruption in public – we’d never be able to illustrate corruption in any case ever.

2. Abuse. The president of the United States has a job spec. It is not a traditional contract of employment (the US Constitution says very little about presidential powers), but the nature of the presidential brief is outlined in a number of places. These ranging from the US constitution to the oath that he/she takes on Capitol Hill when formally taking office. A fundamental part of that job spec involves using his/her judgement to assess appropriate ways forward. The president makes calls, and he/she makes them in line with what he/she judges to be best for the American people in line with what the constitution permits.

Given this, Democrats – and indeed many of those who testified in the meetings that led up to the House’s impeachment hearing – argued that seeking to persuade a foreign country to investigate a political opponent whilst potentially withholding aid clearly overstepped the mark. Nowhere, so they argued, is the president allowed to take decisions solely on the basis of advancing of what appears to be his/her own personal agenda.

As of now, the president’s supporters (and indeed the president himself) have simply refused to engage with this. Trump called the conversation the “perfect phone call” and no one defending him has explained why exactly Trump took the approach that he did. In what way was Trump’s behaviour in the national (rather than the personal) interest? We don’t know. Indeed, Trump’s tubthumpers generally just reject claims of abuse of office out of hand.

It is that out and out rejection that makes those very claims of abuse more persuasive. Putting it another way, I can claim that Shrewsbury Town Football Club are the current Premier League champions. If a critic then points out, say, that Manchester City actually won that crown last season and indeed Shrewsbury Town aren’t even in the same division then a Trumpian response would simply be not to engage, to reject the criticisms out of hand and to double down on what is an outlandish claim. In the cold light of day, this does little to help refute the allegations made.

3. Entrusted Power. All American presidents are entrusted with significant powers. That there are checks on these powers and that other institutions have a say in significant areas of policy is also a given. The president is not (by any means) all powerful, but even if there is disagreement on where presidential powers begin and end it is beyond debate that the president has some power to wield.

Given that, and much as was discussed above, the issue is whether in this case Trump abused the authority that he possesses. The arguments there remain much the same; the president appears to have had discussions with the leader of a foreign state with a view to forwarding his own domestic agenda. Given that the interests of the US state and the domestic interests of Donald Trump are not synonymous, Trump looks like he is on stony ground.

4. Private Gain. Traditionally, private gain has centred around financial interests. Given that Trump is the epitome of a transactional president, money has often been at the centre of allegations of improper conduct that have been made against him. In this case, the claims are different. This is about power. It is about trying to ensure that he gains an advantage over a political rival.

Does Trump or indeed do any of his supporters actually say this? No. But then again they are never going to. To do such a thing would be an open admission of corrupt behaviour. But is there enough evidence to substantiate accusations that Trump is acting for private gain? Certainly.

Denial and dismissal doesn’t equal genuine acquittal
A transactional approach to understanding corrupt activity therefore leaves us with little option but to understand Trump’s behaviour as at best problematic and at worst corrupt. His supporters may well be right that the Democrats have been looking to remove him since day one. They may also be correct that the partisanship that is paralysing American politics is driving much of the behaviour within and around the House (and indeed the Senate).

That, however, cannot render the facts themselves meaningless. Even if one were to prefer to take a non-transactional approach and to invoke the ideas of older philosophical thinking, Trump’s case hardly looks stronger. In that reading, corruption occurs when those involved are governing in their private interest and no longer in the public interest. The particular sets of actions that render something corrupt need not be directly stated, it is much more about a move from selfless leadership to immoral self-serving behaviour. That is hard to illustrate empirically, but that there is a case to be made is certainly true.

Donald Trump and his supporters have summarily failed to engage with the details of the cases to hand. Their approach has been one of outright rejection. That may ultimately prove to be a politically astute way of dealing with the fallout from Trump’s call to Kiev. But it is not a good way of unpacking what looks like a persuasive case illustrating that the American president has behaved in a corrupt manner.

Are UK aid-funded enforcement efforts to end the UK’s role in corruption working?

The UK is unique in using overseas aid money to fund its own enforcement authorities to help fight corruption in which the UK plays a role. Sue Hawley, Director of Spotlight on Corruption, an NGO that holds the UK to account on enforcing its anti-corruption laws, discusses a new evaluation which shows that this is working, albeit slowly

Since 2006, the UK’s Department for International Development (DFID) has given £48.5 million to UK law enforcement agencies to fight UK corruption that impacts on developing countries. Its stated goal in doing so is to reduce incentives:
• For corrupt individuals from developing countries to launder their money in the UK; and
• For UK companies and individuals to pay bribes in developing countries.

The funding is an important recognition of the “outsized role” the UK plays, as a major financial centre, in facilitating global corruption. Back in 2006 when the funding started, there were few UK law enforcement agencies that would touch a foreign bribery or corruption investigation. The UK was facing international opprobrium for dropping the BAE/Al Yamamah investigation, and its role in laundering the funds of former Nigerian Dictator, Sani Abacha’s, through London banks.

There is no doubt that by providing funding for UK enforcement, DFID helped kick-start more enforcement in this area in the UK. But as a major independent evaluation of the funding from 2006 to the present day is published, the question is: does funding enforcement actually reduce incentives for corruption?

Successful “to some extent” – key findings from the evaluation

DFID has always seen investment in enforcement as bringing good returns and the project has consistently met or exceeded its milestones. In 2019, law enforcement reported that £783.3 million in corrupt assets have been restrained as a result of the program. It is also great value for money: the amount restrained has always far exceeded the amount of money invested by DFID.

But the crucial question is whether this is actually deterring corrupt individuals from investing in the UK or UK companies from engaging in bribery. That is more difficult to gauge.

Deciding what has worked because of law enforcement specifically funded by DFID, as opposed to other significant institutional and policy developments in the UK, such as the introduction of the Bribery Act and Unexplained Wealth Orders, or increased enforcement by other non-DFID funded agencies such as the Serious Fraud Office, isn’t easy.

However, the evaluation’s key findings are broadly positive. It finds that:

1. The DFID funded law enforcement has “to some extent made the UK less attractive for Nigerian PEPs (Politically Exposed Persons)” wanting to launder corrupt wealth but not deterred them completely.

The evaluation focused heavily on Nigeria since the UK has historically been one of the most attractive destinations for Nigerian PEPs seeking to launder the proceeds of corruption. The high-profile UK convictions of various Nigerian governors for corruption, including James Ibori, particularly in the early stages of the DFID funding, and the introduction of Unexplained Wealth Orders (UWOs) were seen as key successes making the UK less attractive for laundering money. And the UK’s introduction of UWOs in January 2018 caused the hotline for Nigeria’s Voluntary Assets and Income Declaration Scheme to crash.

However, the review found that the supply of corrupt funds to the UK from Nigeria to the UK “continues to remain very high” and that Nigerian PEPs are resorting to “indirect means and new “tricks”” to launder money into the UK, “including the use of shell companies and routing funds via third countries.” The report also suggests that Nigerian PEPs are using alternative ‘easier’ locations for laundering money including Dubai, the British Virgin Islands, Ghana and the Caribbean islands, as well as keeping cash in Nigeria.

This increased use of new ‘tricks’ has made UK professional enablers “a more important actor” in laundering Nigerian money into the UK, the report finds. And the evaluation is critical of how few prosecutions there have been of UK-based enablers of laundering.

2. British companies are less likely to pay bribes since the DFID funded program came into existence. But that’s not all down to the program.

The review found that the DFID-funded law enforcement has helped create a “sanctions environment” which has reduced incentives for UK companies to pay bribes. Outreach programs and education by enforcement bodies to UK companies have also been very useful, it says.

However, the DFID-funded law enforcement has only resulted directly in bribery convictions for seven individuals and one corporate. A bigger impact on driving corporate behaviour change has been the introduction of the Bribery Act and enforcement by the Serious Fraud Office (SFO) – which has notched up nine successful criminal actions against companies in the same time frame.

While the SFO is meant to focus on the large players, the DFID-funded NCA’s International Corruption Unit has yet to conclude a successful bribery prosecution against a medium-sized or small company. The report concludes that just one successful case against a medium-sized UK company paying bribes in a developing country “would be highly impactful.”

Lessons for the future

The UK government has announced that it will continue, and increase, aid funding to law enforcement bodies from 2020 to 2025. So, what are the key lessons from the evaluation going forward?

The report makes no bones about its central conclusion in relation to both PEPs and companies, which is that while the threat of enforcement action may have some impact, “the evidence indicates that actual prosecutions are a more powerful catalyst for behaviour change.” Tellingly, the evaluation cites some evidence that companies waited until the first prosecution under the Bribery Act (in 2016) before committing to properly implementing their Anti-Bribery policies. The 2012 conviction of Nigerian governor, James Ibori, also sent major ripples through the Nigerian PEP community.

Overall, the evaluation recommends increased enforcement at all levels: more intense use of UWOs, more prosecutions of medium-sized companies for bribery and increased enforcement action against UK enablers of corruption.

The message is: keep going. Aid-funded law enforcement is working – at least to some extent. But more convictions are crucial to long-term success.

Addition 12 Dec 2019: In order to ensure a fair comparison between the SFO’s overseas corruption efforts and those funded by DFID, the correct figures are that the SFO has brought 9 corporate convictions and 19 individual convictions compared to one corporate conviction and 7 individuals for DFID funded enforcement.