By Charlie Savage, Nov. 15, 2019
This article originally ran in The New York Times and can be found here.
WASHINGTON — House Speaker Nancy Pelosi this week explicitly accused President Trump of “bribery,” suggesting after hearings in the impeachment investigation opened that he is guilty of one of the few specific offenses listed in the Constitution as a basis for impeaching and removing a president.
“The devastating testimony corroborated evidence of bribery uncovered in the inquiry, and that the president abused his power and violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival — a clear attempt by the president to give himself an advantage in the 2020 election,” Ms. Pelosi told reporters at her weekly news conference in the Capitol.
Here is a closer look at the concept of bribery and how the emerging evidence about Mr. Trump may line up with it.
What does bribery mean in criminal law?
Federal and state laws offer various definitions of bribery aimed at criminalizing acts that corrupt the integrity of government by intermingling official actions with private payments or personal favors. For example, Section 201 of Chapter 18 of the United States Code, defines bribery as the gift, offer, promise or solicitation of a thing of value in order to influence a public official to perform or omit an official act.
For impeachment purposes, however, the concept of bribery is not necessarily limited to those narrow terms. After all, Congress had not yet enacted the federal bribery statute in 1787, when the Founders wrote into the Constitution that a president could be impeached for “treason, bribery, or other high crimes and misdemeanors.”
Congress can remove a president for any action that a simple House majority and a two-thirds majority of the Senate vote on — even if it violated no ordinary criminal statute.
What does bribery mean for impeachment purposes?
The Constitution invokes the concept of “bribery” without explaining what the term encompasses. Scholars say that silence is likely because the meaning of the term was well understood from English common law and parliamentary practice.
The Founders intended for the concept of bribery, for impeachment purposes, to broadly cover any “corrupt abuse of power to obtain personal benefit,” three lawyers for the nonprofit group Protect Democracy wrote on the website Lawfare. They recently compiled a survey of early American and English writings and precedents about bribery, as well as discussion in more contemporary scholarly works on impeachment.
How does the Ukraine affair fit this concept?
At the heart of the issue is what motivated Mr. Trump and his proxies to pressure President Volodymyr Zelensky of Ukraine to not just open, but publicly announce, investigations that could benefit Mr. Trump politically. Ms. Pelosi mentioned inquiries that Mr. Trump sought into former Vice President Joe Biden and his son.
Is it more likely that Mr. Trump was earnestly concerned about protecting American interests by pressing for the investigations? Or was he instead looking for personal gain and, in the case of the Bidens, cynically seeking to engineer a basis to be able to call his political rival “corrupt” on the 2020 campaign trail?
If the latter, one way of thinking about the matter is that Mr. Trump solicited a bribe: He was seeking a personal favor from Mr. Zelensky that would benefit him as a condition for performing two official acts — scheduling a White House visit that Mr. Zelensky coveted and releasing military aid that Congress had appropriated.
Why does it matter if this is “bribery” specifically?
Primarily for political messaging. Critics of Mr. Trump have generally been talking about the scandal in terms of more abstract concepts like “abuse of power” and the Latin phrase “quid pro quo,” which means exchanging one thing for another.
Those phrases can be difficult to understand and raise the question of whether they amount to an impeachable offense. Ms. Pelosi’s sharpened rhetoric was part of a shift in which Democrats and other critics of Mr. Trump have sought to talk about their allegations using a more plain-English term — and one that is explicitly impeachable.
What about extortion?
Some analysts have cited extortion as another framework for thinking about Mr. Trump’s pressure campaign on Ukraine. One version of this offense is when a public official unlawfully obtains something of value, like an illegal fee, from another person by threatening to take or withhold some official action in a way that would harm the victim.
Last month, when Mick Mulvaney, Mr. Trump’s acting chief of staff, gave a news conference in which he appeared to admit that the arrangement was a “quid pro quo” — which he later walked back — he also told reporters to “get over it” because it is routine for the United States government to hold up foreign aid to get a recipient country to change some policy.
As a description of using foreign aid as a lever in foreign policy, Mr. Mulvaney was correct. But the question boils down to whether Mr. Trump was seeking to coerce Ukrainian officials into actions to benefit the United States or to benefit himself.
Does it matter whether an attempted bribe succeeded?
Mr. Trump’s defenders have repeatedly argued that Mr. Trump committed no impeachable offense because he ultimately released the military aid to Ukraine in September, even though Mr. Zelensky had not announced any investigations.
Critics note that Mr. Trump released aid to Ukraine only after the White House learned that a whistle-blower had filed a complaint attempting to tell lawmakers that Mr. Trump was using his official powers to coerce Ukraine into helping his re-election campaign, and amid increasing and bipartisan pressure from Congress for the security assistance to be released.
In any case, while the impeachment process is not a court of criminal law, if it were, arguing that the scheme failed would be no defense: The federal statute specifically designates even an attempt to solicit a bribe as a crime.
Jonathan Chait of New York magazine has colorfully labeled this the “Sideshow Bob” defense, after a character in “The Simpsons” whose plot to kill Bart Simpson was foiled. In a 1994 episode, the imprisoned Sideshow Bob denounced his conviction for attempted murder: “Convicted of a crime I didn’t even commit. Hah! Attempted murder? Now honestly, what is that? Do they give a Nobel Prize for attempted chemistry? Do they?”