Lawfare: The Bad Arguments That Trump Didn’t Commit Bribery

This opinion originally ran in Lawfare and can be found here. 

Last month, we and another colleague at Protect Democracy argued that the meaning of “bribery” as the term is used in the Constitution goes beyond the criminal offense of bribery as defined in the U.S. Code. Because the Constitution pre-dated the federal criminal code, the meaning of “bribery” referenced in the Impeachment Clause cannot be found in the statutory prohibition on bribery, and therefore some modern constraints that Congress and courts have placed on that criminal offense are not relevant to the constitutional inquiry. The evidence of President Trump’s conduct available at the time we wrote—primarily the summary transcript of Trump’s call with Ukrainian President Volodymyr Zelensky—indicated that Trump’s conduct certainly fell within the scope of bribery for purposes of the Impeachment Clause. In particular, Trump solicited a bribe (help for his own campaign by opening an investigation into his political rival) in connection with his performance of official acts (releasing military aid for Ukraine and scheduling a White House meeting with President Zelensky).

Since then, that argument has been echoed and expanded upon in a number of outlets. And new facts have emerged to make the case that Trump engaged in impeachable bribery even clearer. To cite just one, Rudy Giuliani, Trump’s private attorney, tweeted that the entire effort to get Ukraine to investigate the Bidens was done for Trump’s personal benefit.

Notably, as they consider impeachment, members of Congress have increasingly been using the language of “bribery.” On Nov. 12, House Intelligence Committee Chairman Adam Schiff told NPR that there’s a clear argument to be made that Trump committed “bribery.” And on Nov. 14, after the first public impeachment hearing, Speaker of the House Nancy Pelosi said the testimony of the two witnesses “corroborated evidence of bribery uncovered in the inquiry.”

It’s therefore not surprising that Trump’s defenders are now trying to rebut the powerful case that Trump committed impeachable bribery. This weekend, the Wall Street Journal editorial board argued that Trump’s conduct does not fit within the scope of constitutional bribery, making the case that because the investigation into the Bidens and Crowdstrike that Trump solicited wasn’t ever announced by Ukraine, the bribery was never consummated and therefore doesn’t actually qualify as bribery. This claim is contradicted by a wide range of authoritative legal sources—and were it correct, would lead to absurd consequences.

The Journal appears to concede the point we made in our earlier Lawfare post, that “bribery” for impeachment purposes does not depend on current federal statutory law. (As an aside, although the modern federal bribery statute is not the standard for impeachment, it seems increasingly clear that Trump could be convicted of bribery under that standard as well.)  Looking to the original meaning of “bribery” in the Constitution, the Journal cites three legal sources—William Blackstone, the Founding-era Jacob’s Law Dictionary and a remark by Goveurneur Morris during the Constitutional Convention—for the proposition that impeachment clause “bribery” was understood narrowly as requiring a consummated exchange. But none of those sources actually support the Journal’s reading of them.

Regarding Blackstone, the Journal quotes his “Commentaries on the laws of England” as describing bribery as “when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in his office.” The word doing all the work here is “takes,” which the Journal uses to suggest that Trump must have actually received the private benefit of an investigation in order to have committed the offense. Merely asking for an investigation, in the Journal’s view, isn’t enough. But the Journal conveniently neglects to include the rest of Blackstone’s commentary on “bribery,” which a mere five sentences later states that, “[i]n England this offense of taking bribes is punished, in inferior officers, with fine and imprisonment; and in those who offer a bribe, though not taken, the same” (emphasis added). In other words, merely attempting a bribe, though not consummated, was punished as bribery at the time of the Founding according to Blackstone.

And lest the reference to “inferior officers” suggest to readers that more superior officers were treated differently—well, indeed they were. As Blackstone notes in the next sentence, this transgression was considered “so heinous an offense” that superior officers who engaged in it were hanged. (No one, of course, is suggesting capital punishment in the current case of impeachment.)

The Wall Street Journal also quotes from Jacob’s Law Dictionary on the matter of bribery: “taken largely it signifies the Receiving, or Offering, any undue Reward, to or by any Person concerned in the Administration of publick [sic] Justice.” The Journal states that this means a consummated “quid pro quo” is required. But it’s not entirely clear where the editorial board is getting this reasoning, as the quote itself makes clear that mere offering of a bribe, in addition to taking one, is punishable. And further reading of Jacob’s Law Dictionary makes clear that attempting a bribe was considered the same as actually receiving one: “If a judge refuses a bribe offered him, the offeror is punishable.”

What’s more, having established that attempting bribery and consummating bribery are treated the same, Jacob’s Law Dictionary goes on to give the following example: “In the reign of King James I, The Earl of M., Lord Treasurer of England, being impeached by the Commons, for refusing to hear Petitions referred to him by the King, till he had received great Bribes, etc., was by Sentence of the Lords deprived of all his offices, and disabled to hold any for the future.” So if Congress had tasked the president, just as the earlier King had tasked the Earl of M., with executing a task—say, providing military aid to an ally—but the president refused to do that until he had received something of personal value in return, the precedent at the time of the Founding would have been impeachment.

The Journal’s third legal source, a quote from Gouverneur Morris during the Constitutional Convention, fares no better. For starters, the example Morris cited of King Charles II taking money from King Louis XIV in return for supporting French policy in Europe sounds an awful lot like President Trump seeking something of value from Zelensky in return for supporting Ukrainian policy in Europe. But the Journal’s point, presumably, is that Charles would have had to receive the money to have committed the offense of bribery. The problem with relying on this example is that Charles was never charged with bribery. Indeed, his secret Treaty of Dover with Louis XIV wasn’t discovered until a century later. By citing Charles’s case, Morris was trying to make the general point that guarding against a foreign power corrupting the president was an important matter to address—and the Founders agreed.

Moving beyond the specific examples cited by the Journal, the editorial board’s broader argument both misses the reason the Founders included bribery as a basis for impeachment and misstates the law of bribery.

As our earlier Lawfare piece explained, “At the time the Constitution was drafted, when people thought of bribery, they thought in broad terms of the corrupt use of an official’s public power to achieve private ends.”  For these purposes, there is no difference whether or not the bribe was consummated.  As the Illinois Supreme Court explained in an 1872 case, Walsh v. People, 65 Ill. 58, 60, a “mere unsuccessful attempt to bribe” is unlawful because it “tends to corrupt, and, as the law abhors the least tendency to corruption, it punishes the act which is calculated to debase, and which may affect prejudicially the morals of the community.” The “tendency to corruption” is even greater when it is the public official seeking to obtain a bribe.  The Founders were rightly concerned about an official wielding power in this way (especially when susceptible to foreign influence), and so provided in the Impeachment Clause a mechanism for such an official’s removal.

Moreover, as we wrote, “To the Founders, bribery was not a concept rooted in traditional criminal law at all and so was not defined with the precision that is required when applying a criminal statute.”  Unlike “treason,” which the Constitution delineates in great detail, the Framers left the concept of bribery open-ended.  The Journal misses this in its effort to parse bribery into a narrow, technical set of elements.

But the Journal’s attempt to cleave attempts out of the law of bribery fails on its own terms. At the Founding and today, the law of bribery swept in attempts. Bribery in almost all manifestations is understood to include the acts of soliciting or offering a bribe just as much as the acts of giving or receiving one.

That was true of the common understanding of “bribery” at the time of the Founding. As Lord Mansfield said in 1769, in the case of R. v. Vaughan, in cases of bribery “the attempt is a crime. It is complete on his side who offers it.” Russell on Crimes, an authoritative treatise originally published in 1819, defines bribery as “the receiving or offering [of] any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity.” That definition encompasses intent or attempt, whether or not the bribe is completed. Indeed, as Russell explained elsewhere in his treatise, “The law abhors the least tendency to corruption; and upon the principle which has been already mentioned, of an attempt to commit even a misdemeanor, being itself a misdemeanor, . . . attempts to bribe, though unsuccessful, have in several cases been held to be criminal.”

The common law swept in attempts of bribery because of the danger that conduct posed to society.  As Prof. Edwin Keedy observed in his 1954 article, Criminal Attempts at Common Law, many common law crimes (like murder) are based on “actual damage to person or property.” “On the other hand,” Keedy explains, “some common law crimes may be committed although there is no damage but only the danger of damage.” Among these is bribery. Keedy continues: “An offer to bribe a public official is punishable although the bribe is refused,” because such an attempt poses “the danger of damage.” When it is the public official himself who is seeking a bribe, there’s not just a danger of damage: this corruption is the very damage the Founders sought to guard against.

Demonstrating how seriously the common law took attempts at bribery, a 1928 Harvard Law Review article by Francis Bowes Sayre on “Criminal Attempts” compiles a list of cases from the Founding era in which the mere offer or solicitation of a bribe constituted a crime. These cases include Vaughan, the Lord Mansfield opinion mentioned above, as well as R. v. Plympton, 2 Ld. Raym. 1377 (1724) (money promised to a corporation member in exchange for voting for a particular candidate); R. v. Pollman, 2 Campb. 229 (1809) (conspiracy to receive a payout for causing the Lords of the Treasury to appoint someone to a customs post); R. v. Cassano, 5 Esp. 231 (1805) (information issued for an attempt to bribe a customs officer); and Rex v. Higgins, 2 East 16 (1801) (“But admit the party offereth a bribe to the judge meaning to corrupt him in the cause depending before him, and the judge taketh it not, yet this is an offense punishable by law in the party that doth offer it.”). They show that the common law criminalized offering or soliciting a bribe, whether or not the bribe was ultimately received.

This understanding of bribery has persisted since the Founding. For example, in 1868, the Supreme Court of New Jersey, relying on Founding-era treatises and English common law, held that “any attempt to influence an officer in his official conduct, whether in the executive, legislative, or judicial department of the government, by the offer of a reward or pecuniary consideration, is an indictable common law misdemeanor”—specifically, the common law offense of bribery. State v. Ellis, 33 N.J.L. 102, 104 (Sup. Ct. 1868). And in 1896, the Maine Supreme Court observed that “[b]ribery at common law is the crime of offering any undue reward or remuneration to any public officer or other person intrusted with a public duty, with a view to influence his behavior in the discharge of his duty. The taking as well as the offering or receiving of such reward constitutes the crime, when done with a corrupt intent.” State v. Miles, 36 A. 70, 72 (1896).

And while the definition of bribery under the Impeachment Clause is not reliant on federal statutory law, there, too, the solicitation and offering of a bribe is bribery. As a federal appeals court explained, the statute “is violated even though the official offered a bribe is not corrupted, or the object of the bribe could not be attained, or it could make no difference if after the act were done it turned out that there had been actually no occasion to seek to influence any official conduct.” In other words, as many criminal law experts pointed out when Fox News commentator Laura Ingraham suggested that attempted bribery did not rise to the level of impeachability, the modern crime of bribery includes attempted bribery.

This is as it should be. If the Journal’s argument were correct that the Impeachment Clause carves out efforts by a public official to obtain a bribe, the consequences would be absurd. Under the view of Trump’s defenders, it would apparently be fine for Trump to have asked Zelensky to wire $1 million in cash to Trump’s personal bank account in exchange for Trump releasing U.S. military aid so long as Trump was caught before the payment ever reached his account. That cannot possibly be either legal or acceptable behavior from a president—and yet that’s effectively what happened here.

National Security Council staffer Lt. Col. Alexander Vindman, has testified that he became aware that military aid for Ukraine had been held up on July 3. From at least then until Sept. 9, various emissaries of the president acting at the president’s direction tried to obtain a bribe—something of value for the president’s re-election campaign: an announcement from Ukraine that it would investigate the Bidens. Payment of that bribe had yet to be delivered when, on Sept. 9, the inspector general for the intelligence community informed the House Intelligence Committee of the whistleblower’s complaint. On Sept. 10, Chairman Adam Schiff wrote back to the inspector general demanding information about the whistleblower complaint. Zelensky was set to appear on CNN to announce an investigation into the Bidens—in other words, to pay off the bribe—but that became unnecessary when the bribery scheme was unmasked and, on Sept. 11, the hold the president had placed on military aid to Ukraine was suddenly lifted.

In short, the president got caught before the bribe could be delivered, called off the scheme and his defenders now claim as a result that he’s exonerated. That’s not how the law of bribery works: if you attempt or solicit bribery, you commit the offense, whether or not you get the goods.

The Journal also argues that, even if the exchange had been consummated, getting a foreign government to investigate one’s political opponent isn’t a “thing of value” because it’s not tangible like money and therefore doesn’t qualify as a bribe. Yet it is well established in the law that a “thing of value” for bribery purposes can be tangible or intangible, and is not limited to money. Indeed, the two Founding-era sources the Journal cites in its piece make this clear. Both Blackstone and Jacob’s Law Dictionary refer to “any undue reward.” As lawyers know, the word “any” is as broad as it gets. See United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting Webster’s Third New International Dictionary 97 (1976)). This was the case at the Founding too; a 1775 dictionary defines “any” as “Every, whoever, whatever, either, one.” 1 J. Ash, New and Complete Dictionary of the English Language (1775).

Modern law also makes clear that a thing of value can include non-monetary items. For example, the Justice Manual (formerly known as the U.S. Attorney’s Manual) defines “thing of value” as “includ[ing] intangible as well as tangible things,” and federal case law explains that “any thing of value” has “consistently been given a broad meaning” and depends not on whether something “objectively has actual value” or “commercial value,” but rather on whether “the defendant believed that the [thing] had value for himself.” It is clear how much Trump valued such an announcement from his persistence in acquiring it—recall that now two witnesses have testified that ambassador to the European Union, Gordon Sondland, ended a phone call with the president by telling assembled foreign service officers that Trump cared only about the Biden investigation, not U.S. policy on Ukraine.

Finally, echoing arguments made by other defenders of the president, the Journal states that what Trump sought wasn’t for his personal benefit, but rather was for the good of the country—and thus it was no different than any president seeking diplomatic reciprocity for some U.S. offer of support. As the American people continue to watch the impeachment hearings and consider the evidence, this is the key factual question to consider: Was Trump acting for his own personal interests in seeking an announcement of Ukrainian investigations? Because when all of the witnesses have been heard from and all the evidence has been weighed, if the facts suggest that Trump was requesting the investigations for his personal benefit then the legal analysis is clear: he has committed impeachable bribery.

Based on what we know so far, the evidence strongly suggests that Trump’s motivations were personal. Rudy Giuliani has publicly stated that his efforts were undertaken in his capacity as Trump’s personal attorney and to advance Trump’s personal interests. In public testimony, Deputy Assistant Secretary of State George Kent stated that the entire Giuliani-Trump effort was designed to “dig up political dirt against a potential rival in the next election cycle,” and Amb. Bill Taylor said that Trump “cares more about the investigations of Biden, which Giuliani was pressing for” than U.S. policy in Ukraine. Another witness, David Holmes, has testified that Sondland told him that Trump didn’t “give a s–t about Ukraine”; he only cared about “big stuff,” like the “Biden investigation.” What’s more, the cover-up further suggests that the Ukraine dealings were for Trump’s personal benefit. If this were all faithful execution of foreign policy to serve U.S. national security and foreign policy interests, presumably the White House wouldn’t have gone to such great lengths to hide it, including by refusing to include edits to that transcript that would have made Trump’s interest in the Bidens even more stark and attempting to block congressional testimony from officials with information about what actually transpired. As the U.S. Court of Appeals for the 11th Circuit wrote in United States v. McNair, 605 F.3d 1152, 1197, “the extent to which the parties went to conceal their bribes is powerful evidence of their corrupt intent.”

The President’s allies claim that this was all about fighting corruption in Ukraine. But there is no evidence that Trump was concerned about corruption in Ukraine (or anywhere else) in any way beyond his political campaign. The United States provided military aid to Ukraine in 2017 and 2018 under Trump’s presidency—both times after Hunter Biden had been on the board of Burisma—and Trump did not condition those aid payments on any corruption investigation. The only thing that changed before the 2019 payment was that Joe Biden announced his candidacy.

The Founders made “bribery” one of only two specific offenses warranting impeachment precisely because they were concerned about the potential for officers to be corrupted by personal interests. They understood the term broadly to include not just the payment or receipt of a bribe, but also the offering or solicitation of one. And they would have understood anything of value to the officeholder, and not just cash payments, to have the potential to corrupt him or her. If indeed, as the evidence now suggests, Trump was pursuing his personal interests in seeking a Ukrainian investigation of his political opponents, rather than the interests of the United States, then he committed the kind of bribery that the Founders made impeachable.