Fox News contributor Andy McCarthy is advancing a new argument against impeaching President Donald Trump: He’s claiming that “bribery” in federal law is not the same as “bribery” for impeachment in the Constitution. And with Wednesday’s heavily damaging testimony from Gordon Sondland, the ambassador to the European Union, McCarthy is ramping up this defense big time.

McCarthy, a former assistant U.S. attorney who worked under Rudy Giuliani, appeared on Fox host Brian Kilmeade’s radio show at around the same time as Sondland was testifying before the House Intelligence Committee about the key “quid pro quo” the Trump administration demanded in withholding military aid from Ukraine to pressure Ukrainian President Volodymyr Zelensky to announce an investigation of Democratic presidential candidate Joe Biden.

“It's why since this arose in September, I've thought it was a bad idea for the White House and Republicans to be fighting on the notion that there was a quid pro quo — simply because almost all foreign exchange is quid pro quo,” McCarthy said. “Again, it's just a Latin term that means ‘this for that.’ It doesn't necessarily imply corruption. And it was almost inconceivable to me that there could've been negotiations between these two sides that didn't involve something that would be able to be described as a quid pro quo.”

McCarthy said the question of wrongdoing really depends on which definition of “bribery” people are using.

“Number two — and this is something I don't understand why the Republicans haven't made a stronger point of this, but I think it really cries out to be made — and that is, the ‘bribery’ that the Framers were talking about in the Constitution is not the ‘bribery’ that is one of the crimes that's in a federal penal statute that Congress enacted 175 years after the Constitution,” he said. “What the Framers are talking about when they say ‘treason, bribery, or other high crimes and misdemeanors,’ is the kind of a bribe where a foreign power purchases the presidency.”

McCarthy also repeated a variation of his “no harm, no foul” defense, claiming that Trump should not be impeached because Ukraine never actually announced it was launching the requested  investigation against Biden and the delayed military aid to the country went through. (As Media Matters has previously explained, this defense simply doesn’t work: The plot almost succeeded, but it was defeated at the last minute because of the whistleblower complaint and growing congressional scrutiny.)

Kilmeade then played an audio clip of Sondland’s opening statement from the hearing:

“Yes, there was a quid pro quo,” McCarthy said. “They should've said that from the start.”

“To me, the substance and the bottom line hasn't changed,” McCarthy later said. “What's changed is because the Republicans fought on quid pro quo, it seems like a bigger deal that this guy has conceded that there's a quid pro quo. But it doesn't change the bottom line that the Democrats are trying to fit this now into the rubric of bribery, after they've — you know, they first floated campaign finance, and then they floated extortion. Now they're onto bribery. This bribery is not the bribery that we talk about in the Constitution, number one. Number two, nothing happened here, because they got their aid. And number three, this is important, the president had legitimate reasons to ask for these investigations.”

McCarthy has displayed a remarkable double standard on impeachment, after he previously wrote a book calling for the impeachment of then-President Barack Obama, and had also urged Republicans to impeach Hillary Clinton if she were to win the 2016 election. (One of his proposed articles of impeachment included an alleged “selective targeting of political opponents for harassment and abuse” in investigations.) Back then, he wrote, “The test of fitness for an office of public trust is whether an official is trustworthy” and “need not be violations of the penal code.”