Jurisprudence

New York Can Subpoena Ukraine Witnesses and Documents

If the Senate won’t act, Cy Vance must investigate.

Cy Vance
Manhattan District Attorney Cy Vance arrives at federal court on Oct. 23 in New York City. Drew Angerer/Getty Images

Over the weekend, a series of revelations has reshaped President Donald Trump’s impeachment trial in the Senate. First, on Saturday a video was released of an April 2018 donor meeting at Trump International Hotel in D.C., during which indicted Rudy Giuliani associates Lev Parnas and Igor Fruman urged the president to fire Ukraine Ambassador Marie Yovanovitch and he responded by ordering her removed. (This contradicts claims by the president that he “never met” or spoke with Parnas.) Then on Sunday came the bombshell news from the New York Times that former national security adviser John Bolton writes in his forthcoming book that Trump directly told him security assistance to Ukraine was conditioned on investigations into the president’s political rivals, contradicting months of quid pro quo denials by Trump and the core of his impeachment trial defense. The news could strengthen not only the argument for witnesses in the Senate impeachment trial—it could also bolster criminal cases against Trump and many of his officials and associates.

As the Senate votes this week on whether to subpoena witnesses like Bolton, it should understand that its vote is not the final say. For one, the House could still subpoena or begin impeachment inquiries into many of the officials at the center of the Ukraine scandal. Another intriguing possibility for immediate criminal liability turns not on Attorney General William Barr’s Department of Justice but on New York conspiracy and extortion law. If Senate Republicans vote against witnesses or otherwise create a sham trial, then New York state prosecutors have the jurisdiction and the duty to investigate—and potentially indict—Giuliani and others for extortion conspiracy, and to subpoena his possible co-conspirators inside and outside the administration.

A state trial of Giuliani and any associates involved in a Ukraine bribery plot would serve the interests of justice and deterrence, especially given recent evidence raising new questions about the possible stalking and intimidation of Yovanovitch, and given Giuliani flagrantly continuing the same scheme. Such charges would also open an alternative legal process for pursuing subpoenas of key witnesses and documents that the Senate Republicans have been blocking thus far.

Can New York prosecutors like Manhattan District Attorney Cy Vance pursue criminal charges? Under New York’s statute on criminal conspiracy jurisdiction, when two or more people agree in New York to engage in criminal conduct in another jurisdiction, it is punishable as conspiracy if that conduct is criminal in both New York and the other jurisdiction. Thus, there would be three steps to such a prosecution: First, was the conduct criminal in the other jurisdiction, in this case, possibly D.C. (or perhaps Connecticut)? Second, was it criminal in New York state? Third, was the conspiracy advanced in New York state?

The bottom line is that a state criminal prosecution of Giuliani and his team could be based solidly on a combination of federal felonies (bribery and campaign finance, and perhaps stalking), state felonies (extortion), and conspiracy law, plus perhaps a combination of stalking crimes.

First, the conduct in Washington appears to have violated federal felony statutes as Giuliani (along with Trump and others) likely engaged in bribery, honest services fraud, and felony campaign finance violations. The House Judiciary Committee impeachment report details step by step the potential bribery charges against the president, arguing that “President Trump’s conduct satisfies [all four elements] of the federal anti-bribery statute,” which makes it a crime to corruptly seek a thing of value in exchange for official acts. The report also presents the basis for potential honest fraud services charges against the president, arguing “President Trump knowingly and willfully orchestrated a scheme to defraud the American people of his honest services as President of the United States.” Trump was unintentionally correct on Sunday when he tweeted that “transcripts of my calls with President Zelensky are all the proof that is needed” in such a case. Indeed, Trump said, “I would like you to do us a favor, though,” when Ukrainian President Volodymyr Zelensky mentioned arms sales, clearly linking military support to the conditional investigation of a debunked conspiracy theory that Ukraine hacked the DNC in 2016 instead of Russia, as well as an investigation of Joe Biden. Further, the House had already offered an overwhelming amount of documentation and witness testimony to confirm a corrupt solicitation of quid pro quo. Giuliani himself undermined the argument that his efforts in any way related to the public interest when he wrote a letter to Zelensky saying that he was acting on behalf of Trump “as a private citizen, not as President of the United States.”

Since the House voted to impeach Trump, multiple news accounts have strengthened an already clear bribery case. Lev Parnas’ text messages, released by the investigating House committees, are consistent with a pressure campaign in July to force the investigations as the aid was being withheld. On Sunday, meanwhile, the New York Times reported that Bolton’s book draft indicates Trump made these conditions on arms explicit: “Trump replied [to Bolton] that he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation related to Mr. Biden and supporters of Hillary Clinton in Ukraine.” Further, earlier this month, the Government Accountability Office concluded that when Trump withheld arms from Ukraine, he violated the Impoundment Control Act—not a criminal violation, but additional support for proving the criminal cases in D.C. under the federal code and proof of corrupt intent.

The second legal step toward a Vance investigation is that this conspiracy is also criminal under New York state extortion law. New York bribery statutes cover only New York state and local officials, not federal officials. But the plot could be prosecuted as felony extortion under New York law as a “wrongful taking of property.” The withholding of military aid was wrongful (a federal crime and a civil violation of the Impoundment Control Act) and was also calculated to materially harm Zelensky, Ukrainians, and Biden. In the context of extortion and larceny, the term property includes a “thing of value … for charge or compensation,” and New York courts interpret this phrase broadly, including intangible interests and services, such as milk routes, union contracts, construction contracts, restaurant refuse services, and even access to the subway. It seems very likely that opposition research for a political campaign that will take place in the state of New York would fit under this definition.

The Supreme Court has wisely ruled that similar federal statutes on corruption have limits, for even though they protect “property rights, [they do] not refer to the intangible right of the citizenry to good government.” However, such federal statutes still apply broadly to intangible “things of value.” Federal courts similarly interpret “a thing of value” to include sex and favorable recommendations. Most relevant here, efforts to prevent witness testimony have been interpreted as seeking “a thing of value.” In a 1992 case, a federal appellate court held that a statute about “mailing threatening communications” interpreted a “thing of value” as an effort to stop witness testimony. Conversely, coercing a prosecutor to manufacture testimony— or simply to announce a bogus investigation—is also a thing of value in a campaign context.

Critically, the evidence suggests that Trump and Giuliani were seeking merely the announcement of an investigation—not an actual investigation. This superficial focus suggests bad faith, because such an early public announcement would be more likely to undermine a real investigation by the tipping of any witnesses and co-conspirators to prepare, coordinate, or destroy evidence. It would, however, serve the purpose of offering a valuable political weapon against Trump’s opponents. Whether Trump was seeking from Ukrainian officials a real criminal investigation or simply a staged televised statement, both are covered by New York extortion law. Opposition research is clearly a thing of value for which a candidate would ordinarily compensate the investigator. Similarly, producing a televised statement or document as a false public smear against an opponent is similarly a thing of value for which a production company would charge.

In addition to these crimes, text messages show that Parnas, Fruman, and Robert Hyde appeared to engage in illegal surveillance of Yovanovitch in Kyiv. Stalking is a broadly written federal felony that makes it a crime to travel outside of the United States and place another person under surveillance in a way that “attempts to cause, or would be reasonably expected to cause substantial emotional distress.” It’s also a state misdemeanor in potentially relevant jurisdictions, and there is a long list of computer-tampering federal and state crimes (both felonies and misdemeanors) that cover such surveillance. If there’s a possibility that Giuliani conspired with these three to stalk, surveil, and intimidate Yovanovitch—as the text evidence indicates—New York would have a responsibility to find out.

The third legal step toward a Vance prosecution would be to show whether any conspiracy was overtly advanced in New York City. Indeed, Giuliani met frequently with Parnas and Fruman in New York City. Lev Parnas’ phone records appear to show contacts with Giuliani in New York and Giuliani’s explicit references to meet, “talk and regroup” in New York City. Giuliani has also said that he was in regular direct contact with the president, and phone records show numerous calls to a White House number. It appears likely that Trump made agreements with Giuliani by telephone while Giuliani was in New York. Under New York law, a phone call (or a text) between D.C. and New York as part of a conspiracy agreement would mean the caller in D.C. conspired in New York.

One big advantage of starting a state criminal prosecution for such an extortion conspiracy is that it would clarify to anyone involved that they cannot rely on a presidential pardon from Trump, which would not cover state crimes. There are also no double jeopardy protections blocking federal prosecutors from digging deeper someday even if states have already gone through their own criminal prosecutions.

The biggest downsides of the state process are its slowness and reliance on federal courts for enforcing subpoenas. Giuliani, Parnas, and Fruman are not federal officials and have no claim of executive privilege of their own, and of course they have no other possible immunities for criminal conduct that federal employees might have. While a court fight could be lengthy, it would be difficult for Trump’s lawyers to run out the clock past the election. Prosecutors and courts can expedite these cases, especially because the Supreme Court is already reviewing similar questions of executive privilege already, and the merits of the administration’s claims against these witnesses are relatively weak. It’s worth noting that the federal courts in Watergate’s Oval Office tape cases took four months from trial to Supreme Court decision.

Finally, as House impeachment manager Adam Schiff has repeatedly said in Trump’s impeachment trial, “the truth is going to come out” eventually. “More emails are going to come out. More witnesses are going to come forward,” Schiff warned the Senate. “They’re going to have more relevant information to share and the only question is, do you want to hear it now? Do you want to know the full truth now?” A state trial of Giuliani is legitimate and increasingly necessary for deterrence and the rule of law on its own terms. If the Senate does its job, a state prosecutor could agree to indict but reasonably hold off on any trial. But if the Republican-controlled Senate refuses to fulfill its own obligation to ensure a fair and full trial, New York state cannot be filibustered from pursuing a fair and full trial.