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.