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Thursday, November 21, 2019

Bribery, Impeachment, and the Common Law

Earlier this morning I published an online essay with The Atlantic about how the crime of bribery fits into impeachment. The editors at The Atlantic made me take out a lot of nerdy stuff about legal treatises.  And while I totally understand why that level of detail probably isn’t appropriate for a general audience, I wanted to offer that level of detail to the other law professors and lawyers out there who care about how we ought to understand bribery as it relates to impeachment.

The Constitution specifically lists bribery as grounds for impeachment.  Article II, section 4 says: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  I’m intrigued by the use of the word “shall” in that Clause.  (Does that mean it's mandatory rather than a matter of discretion?!)  But I’m a criminal law professor, not a constitutional law expert, and so I want to try and stay within my area of expertise.

Because there is a credible argument that President Trump committed bribery when he withheld military aid to Ukraine in return for announcements of political investigations, the public obviously cares what the word bribery means in the Constitution.  I’ve seen a number of people offer opinions on the issue. And while I do not think that there are clear cut answers here, I think that the opinions that are being bandied about are insufficiently nuanced, if not wrong.  So here is my more nuanced take.

First, let’s be crystal clear that current federal bribery statute does not tell us what the word bribery means in the Constitution itself.  The current federal bribery statute, 18 U.S.C. 201, wasn’t enacted until well after the Constitution was adopted. That doesn’t mean that whether Trump committed statutory bribery is irrelevant to impeachment. It could most certainly establish that Trump committed a high crime or misdemeanor.  But it doesn’t tell us whether he committed constitutional bribery.

So what is constitutional bribery?  Ben Wittes said on Twitter a couple of days ago that the House of Representatives gets to define the term.

I have a ton of respect for Ben. But I don’t think that, as a legal matter, the House gets to adopt its own definition of bribery.  To be clear, Ben’s point may be that the House has the de facto power to define bribery. But if we are talking about what the Constitution *means*, then we should care about legal definition, not de facto power.  And it makes me a little queasy every time that I hear people say that impeachment is a purely political issue.  Maybe it is as a practical matter.  But as a law professor, I’m unwilling to accept that law has no role to play in Constitutional moments, such as impeachment.

So what does bribery mean in the Constitution as a legal matter?  After all, the Constitution specifically defines the only other crime that it lists as grounds for impeachment—treason.  Yet it doesn’t define bribery. 

Even though it isn’t defined in the Constitution, we still know what the people who wrote and ratified the Constitution meant by the word bribery.  As Justice Story said in his influential Commentaries on the Constitution, they meant the common law crime of bribery.  “For the definition of treason, resort may be had to the Constitution itself; but for the definition of bribery, resort is naturally and necessarily had to the common law; for that, as the common basis of our jurisprudences, can along furnish the proper exposition of the nature and limits of this offence.” 

So what was the common law crime of bribery at the time the Constitution was written?  In particular, does it include a President who solicits a bribe from a foreign official but never receives it?  Well, that’s complicated.  And, unfortunately, there are a few takes floating around out there right now suggesting that it is cut and dry.  It is not.

Here is the Wall Street Journal saying that the President’s behavior doesn’t qualify as common law bribery.  Apparently the folks at WSJ who wrote this relied on a “friend” to help them with the historical argument. But I don’t think that friend did them any favors.  More important, because these authors apparently aren’t lawyers, there are some real ambiguities in the two arguments they make.

One of their arguments is that this isn’t bribery unless President Trump sought something “specific and tangible” like money.  It’s a little unclear if the WSJ editors are making a statutory argument here, or if they are making a common law argument.  As a matter of statutory law, they are definitely wrong.  As Randall Eliason has explained the “thing of value” that the official tries to obtain in a bribery case is very broad:

It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

As a question of common law, the WSJ doesn’t provide any historical support for the idea that bribery has to involve something “specific and tangible” like money.  In fact, the historical sources that the WSJ editors do provide—Blackstone and Jacob’s Law Dictionary—seem to undercut their argument.  Both of those sources talk about “any undue reward.”  The most obvious reading of that phrase is much broader than just money.

The Wall Street Journal op ed also argues that this isn’t bribery because the exchange never happened.  Trump released the aid, and the Ukrainian President never announced the investigation.  Of course, as a matter of statutory law, no exchange is required.  It is enough for someone to solicit a bribe or to offer one.  But what about as a matter of common law?

Well, that’s not entirely clear.  Ben Berwick and Justin Florence have an essay over at Lawfare that explains this in some detail why the common law probably did not require an exchange to have occurred. They cite a number of treatises which include the mere offer of a bribe in the definition of bribery.

However, I have some concerns about the Berwick/Florence essay.  I agree with them that the majority of relevant treatises include the *offering* of a bribe in the definition of bribery.  But the treatises don’t include the solicitation of or demand for a bribe in their definitions.  They speak in terms of the official accepting or receiving a bribe.

To be clear, it was still illegal for officials to solicit or demand bribes.  But if an exchange didn’t actually occur, then the official may have been charged with a different crime—like attempted bribery or extortion—rather than bribery itself.  As an old Harvard Law Review development explains: “At common law the distinction between bribery and an attempt to bribe was largely academic; both were misdemeanors, and equally punishable.”

So where does that leave us?  Is Laura Ingraham correct (at least as a constitutional matter) that this is only “attempted bribery”?

I don’t think so—especially not if we look at the fact that Trump’s actions could be seen not only as an official *seeking* a bribe, but also as someone who offered a bribe.

Think about this from Ukraine’s perspective.  Trump offered them hundreds of millions of dollars in return for the official act of launching an investigation.  Nobody is really talking about this because the federal bribery statute is concerned with bribing officials here in the U.S.  But common law bribery didn’t have jurisdictional limits. 

Looking at Trump as the person who offered the bribe, the common law case against him is incredibly hard to dismiss.  It fits in the definitions provided by Blackstone and other treatises. It’s also consistent with the actus reus of a bribery crime that Congress adopted in 1790.

So where does that leave us as a constitutional matter?  As I said in the Atlantic essay—it’s not entirely clear cut.  But the weight of the historical record is against the President’s defenders who are trying to say that this behavior doesn’t fall within the Constitution’s use of the word bribery.

Posted by Carissa Byrne Hessick on November 21, 2019 at 11:56 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law | Permalink

Comments

Under the Democrats' theory of bribery, the routine exercise of foreign affairs would be illegal. Every time the president offers X (e.g., aid, tariff relief, a vote in the UN) in exchange for the foreign country doing Y, where the president could then campaign on the claim that his successful foreign policy resulted in the foreign country doing Y, that would be bribery. That pretty much covers all foreign affairs.

Posted by: Douglas B. Levene | Nov 26, 2019 3:32:51 AM

Impeachment *is* a political process and the law plays very little--if any--role. Hamilton admitted as much in Federalist 65:

"The subjects of [the impeachment court's] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

"The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny."

Hamilton pretty well spells out that political concerns and process will drive impeachment processes; that the impeachment will be run by interested and partisan characters; and that the strength of parties, rather than actual guilt of innocence, will most likely decide the verdict.

Next Hamilton explicitly rejects the Supreme Court as the best venue for impeachment trials, in part, *because* the justices' concern with applying case law and the rules of law is too narrow for impeachment proceedings:

"Could the Supreme Court have been relied upon as answering this description [the ideal impeachment court]? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons."

Thus, according to Hamilton, the writers understood that an impeachment was a political process that would be governed by faction and partisanship--not by law. As a result, they rejected the Supreme Court because there were too few members for making such an important decision and because a court of law was the improper venue for deciding an inherently political question.

So the writers made the senate the impeachment court. Of course, one must remember that when the writers did this, the senate was elected by the state legislatures and so it was insulated from the tempers and passions of the people, which the writers (correctly) assumed would be inflamed by an impeachment process on both sides and, thus, rendered the people at large and the representatives who depended directly on the people for their office not sufficiently neutral to decide an impeachment hearing.

Of course, today the senate is also a popular chamber so so much for the writers' careful planning. The 17th Amendment *really* messed us up.

Posted by: thegreatdisappointment | Nov 21, 2019 3:54:51 PM

By the way, here in " Take care " today:

"Versus Trump: What Is Bribery?"

https://takecareblog.com/blog/versus-trump-what-is-bribery

Posted by: El roam | Nov 21, 2019 3:04:40 PM

Here for example:

" US confirms end to funding for UN Palestinian refugees"

https://www.theguardian.com/world/2018/aug/31/trump-to-cut-all-us-funding-for-uns-main-palestinian-refugee-programme


Posted by: El roam | Nov 21, 2019 2:21:35 PM

Great post Carissa, helping to sharpen that messy debate all around with the scope of bribery indeed. Well, we won't stay young here, just some few:

First, you wonder about that word "shall " and its meaning in the constitution. Typically, judges in the US, consider that word as " magic word " for, it does eliminate doubts. Here I quote from:

MICHALUK v. CREDORAX (USA), INC, in the : District Court of Appeal of Florida, Third District. Here quoting:

" Although we noted that the clause did not contain the "`magic words' `shall' or must,'" the parties nevertheless employed language of exclusivity by use of the phrase "agree to select the venue and jurisdiction of...." We held that, by using such language, the parties "agreed that if there was any litigation stemming from the `interpretation or implementation' of the Agreement, it would take place in Madrid, to the exclusion of all other possible"

The ruling can be reached here:

https://www.leagle.com/decision/inflco20150513125

Second, experts don't deal with another issue:

And it is the co- existence of personal valuable thing received, yet combined with clear duty. clear active duty, of the president to take care of US tax payer, not to be granted, without verifying, that such money, would be channeled correctly, for the benefit of the US interest and not otherwise. So, with or without intent of personal interest, that is what he had to do whatsoever. Trump, hadn't created the issue of Biden. Biden has been there. And the server of Mueller also by the way ( mentioned by Trump in that phone call). Avoiding it, could also amount to breach of duty and trust paradoxically. For, Trump couldn't avoid investigation or questioning or alike, just because, Biden is his opponent and front runner. It was his duty, his lawful duty. Active one.

Finally, it is really baseless I must say, that, I quote ( from the "Lawfare" article ):

" But there is no evidence that Trump was concerned about corruption in Ukraine (or anywhere else) in any way beyond his political campaign."

Really ? Countless illustrations, but just some few:

Withdrawing the fund or support to UNRWA ( The United Nations Relief and Works Agency for Palestine Refugees in the Near East ). As well UNESCO (The United Nations Educational, Scientific and Cultural Organization ). Threatening to cut or reduce aid to UN itself ( for him, they are all useless bodies and officers ). Demanding more money from Nato and South Korea for military aid. Almost Firing a minister for using taxpayer-funded private jet ( price ).

What is claimed about him in fact, is typically the opposite:

That he is a cold mind and heart business man. What he cares about, is money and efficiency. Disregarding misery of human beings.

With all due respect. This is scandalous.

Thanks

Posted by: El roam | Nov 21, 2019 2:14:58 PM

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