The Ukraine Connection

The Constitution Says ‘Bribery’ Is Impeachable. What Does That Mean?

By Ben Berwick, Justin Florence, John Langford
Thursday, October 3, 2019, 8:00 AM

Now that Congress has launched an impeachment investigation into President Trump’s effort to use the Ukrainian government to target a political rival, much ink has been spilled on the question of whether Trump’s actions amount to “high crimes and misdemeanors” for which he may be impeached. In analyzing the president’s conduct, some commentators have pointed to one of the two specific grounds for impeachment enumerated in the Constitution: bribery. Yet, by and large, those who have examined Trump’s efforts to put pressure on Ukrainian President Volodymyr Zelensky as potential bribery have done so through the narrow lens of modern federal statutory criminal law.

But that is the wrong place to look when considering impeachment. In fact, the Founders had a broader conception of bribery than what’s in the criminal code. Their understanding was derived from English law, under which bribery was understood as an officeholder’s abuse of the power of an office to obtain a private benefit rather than for the public interest. This definition not only encompasses Trump’s conduct—it practically defines it.

The Ukraine scandal began in the spring of 2019, with a series of contacts between Trump’s personal lawyer, Rudy Giuliani, and Ukrainian officials. In mid-July, Trump decided to withhold nearly $400 million in aid to Ukraine that had already been appropriated by Congress. The White House offered no explanation, except to blame “interagency delay.” A week later, Trump spoke by phone to the recently elected Ukrainian president, Volodymyr Zelensky. The memorandum released by the White House describing that call—which is consistent with the accounts of the whistleblower complaint that first brought this scandal to light—reads like a classic shakedown.

According to the memo, after exchanges of flattery, Trump states that “we do a lot for Ukraine” and that “[w]e spend a lot of effort and a lot of time,” before he complains that the relationship is not always “reciprocal.” Zelensky then raises the question of military aid to Ukraine, to which Trump immediately responds, “I would like you to do us a favor though,” and proceeds to ask Zelensky to investigate two unfounded conspiracy theories: one involving the server containing emails stolen from the Democratic National Committee during the 2016 election, and the other involving the thoroughly debunked claim about then-Vice President Biden, his potential reelection opponent. Trump asks Zelensky to work with Giuliani and Attorney General William Barr to investigate his potential opponent and so aid his own reelection campaign—and Zelensky appears to agree. There can be no misunderstanding that Trump was using his official power in the conduct of foreign policy to get a foreign government to investigate his political rival.

Recall that Article II, Section 4, says the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In contrast to the prescriptive definition of “treason” in Article III, Section 3, the term “bribery” is not defined there or elsewhere in the constitutional text. Some of Trump’s defenders have taken advantage of that silence by attempting to apply the standard in the modern federal criminal bribery statute, arguing that impeachment for bribery is off the table unless there is a quid pro quo. They claim that Trump’s conduct falls short of that standard because he did not explicitly link the withheld aid to the requested investigation of a political rival.

In fact, Trump’s conduct almost certainly satisfies the modern statutory standard for bribery. As Randall Eliason has explained, a quid pro quo “need not be stated in express terms; corrupt actors are seldom so clumsy, and the law may not be evaded through winks and nods.” We have little doubt that a prosecutor would be able to establish a quid pro quo based on what was said on the call and the surrounding facts and context. (As an aside, Trump’s conduct also likely qualifies as extortion. As James Lindgren has explained at length, historically there has been a substantial overlap between the concepts of extortion and bribery, and around the time of the Founding, the terms were often used to describe the same conduct.)

But even if Trump’s actions do not satisfy the modern criminal standard for bribery, the argument from Trump’s defenders is misplaced—because the federal statute isn’t the relevant statement of the law in the context of impeachment.

The Founders had no intent of tying the constitutional definition of bribery to federal criminal statutory law. On the most basic level, no federal criminal code existed at the time that the Constitution was drafted. Beyond that, the Framers had no reason to believe that Congress would enact federal criminal statutes in the future. As Laurence Tribe and Joshua Matz explain in their comprehensive book on impeachment, “To End a Presidency,” criminal law was understood to be the province of the states, and there was very little federal criminal law at all until the mid-20th century. To the extent there was federal criminal law, it followed the common law model. That is why the concept of high crimes and misdemeanors can’t be limited by federal statutes. The same goes for bribery—as there was no general federal bribery statute at all until 1853.

As Zephyr Teachout describes in her study “Corruption in America,” the statutory definition of bribery—and its interpretation by courts—has evolved dramatically over the course of the nation’s history, from a broad conception in the early days of the Republic to today’s more narrow definition, which requires a clear quid pro quo and a very specific “official act.”  Indeed, the idea of an explicit quid pro quo as a necessary element of a bribe is a recent development, borrowed from contract law in the later half of the 20th century.

As Tribe and Matz point out, the current narrow statutory definition of bribery has been influenced by considerations that have no relevance to impeachment. In a 2016 opinion overturning the bribery conviction of former Virginia Governor Robert McDonnell, for example, the Supreme Court cautioned that an expansive reading of the criminal bribery statute “would raise significant constitutional concerns” because it “could cast a pall of potential prosecution over” public officials and would put federal prosecutors in the position of determining and regulating “the permissible scope of interactions between state officials and their constituents.” As that decision indicates, modern courts have been reluctant to accept a broad interpretation of “bribery” that would risk giving unelected federal prosecutors too much power and discretion to involve themselves in state and local politics. Whether or not one agrees with these concerns as applied to federal prosecutors, they have little bearing on the constitutional definition of “bribery” for the purposes of impeachment—and there is therefore no reason that bribery in the constitutional sense should be constrained along these lines. Impeachment does not implicate federalism, and it is an inherently political process, as the Founders well understood.

The history of impeachments provides further support for the point that the concept of “bribery” in the Constitution is not dependent on the elements of a federal criminal statute. In 1912, 60 years after Congress enacted a federal bribery statute, the House of Representatives conducted impeachment proceedings against Judge Robert Wodrow Archbald. On July 8, 1912, the House Judiciary Committee issued a report recommending 13 articles of impeachment against Judge Archbald. The committee’s report included a section analyzing the meaning of “treason,” “bribery” and “high crimes and misdemeanors” under the U.S. Constitution. It explained that “[i]t is well-established by the authorities that impeachment ... [is] not limited to statuable crimes and misdemeanors or to offenses indictable under the common law and triable in the courts of ordinary jurisdiction.” The report quotes John Randolph Tucker’s commentaries on the Constitution in explaining that,

if Congress had ever failed to have fixed a punishment for the constitutional crime of treason or had failed to pass an act in reference to the crime of bribery, as it did fail for more than a year after the Constitution went into operation, it would result that no officer would be impeachable for either crime, because Congress had failed to pass the needful statutes defining crime in the case of bribery and prescribing the punishment in the case of treason as well as bribery. It can hardly be supposed that the Constitution intended to make impeachment for these two flagrant crimes depend upon the action of Congress. The conclusion from this would seem to be inevitable that treason and bribery and other high crimes and misdemeanors in respect to which Congress had failed to legislate would still be within the jurisdiction of the process of impeachment.

Ultimately, the House adopted all 13 articles of impeachment recommended by the Judiciary Committee. The Senate found Judge Archbald guilty of five of those charges and removed him from office.

In short, the Founders’ conception of bribery—and thus the scope of that term in the Constitution—cannot be understood with reference to modern federal statutes and the interpretation of those statutes by modern courts. As Tribe and Matz explain, “[T]he Framers were concerned with abuse of power, corruption, and injury to the nation. At no point did any delegate link the ultimate safeguard against presidential betrayal to intricacies of a criminal code.”

So what did the Founders understand “bribery” to refer to when they included that term in the Constitution as one of two specific impeachable offenses? There is every reason to believe that the drafters of the Constitution had in mind a scope that easily encompasses Trump’s conduct.

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. 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. According to Teachout’s study, “Bribery and extortion were ... considered per se corrupt, but such crimes were rarely punished criminally, so invocations of bribery were rarely in reference to criminal law standards, and were more often in reference to the use of a gift, political office, or flattery to persuade someone to change a course of action.”

The meaning of bribery at the Founding was derived from English law. In the Judge Archbald impeachment proceedings, the House noted that “[t]he offense of bribery had a fixed status in the parliamentary law as well as the criminal law of England when our Constitution was adopted, and there is little difficulty in determining its nature and extent in the application of the law of impeachments in this country.” While we have not attempted a full survey of the English law on bribery, contemporary treatises are informative. For example, William Hawkins’s “A Treatise of the Pleas of the Crown,” which was originally published in 1716, contains the following description of bribery:

Bribery in a large sense is sometimes taken for the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of publick justice, in order to incline him to do a thing against the known rules of honesty and integrity; for the law abhors any the least tendency to corruption in those who are any way concerned in its administration, and will not endure their taking a reward for the doing a thing which deserves the severest of punishments.

Similarly, “Russell on Crimes,” originally published in 1819, described 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.”

Some of the earliest bribery statutes enacted by the American states tell the same story. For example, as Teachout describes, “A 1797 Delaware list of ‘indictable crimes’ described bribery broadly, as ‘an offense against public justice,’ constituted by undue reward for one in the administration of public justice, in an attempt ‘to influence him against the known rules of law, honesty, or integrity, or [constituted by] giving or taking a reward for offices of a public nature. He who accepts and he who offers the bribe are both liable to punishment.’” As Tribe and Matz explain, consistent with these definitions, in identifying bribery as a specific ground for impeachment the Founders were concerned primarily with “[t]he corrupt exercise of power in exchange for a personal benefit.”

The understanding of bribery at the Founding maps perfectly onto Trump’s conduct in his call with Zelensky. As noted above, Trump made clear to Zelensky that he was asking him for a “favor”—not a favor to benefit the United States as a whole or the public interest, but a favor that would accrue to the personal benefit of Trump by harming his political rival. Trump’s request that Zelensky work with his private attorney, Rudy Giuliani, underscores that Trump was seeking a private benefit. And Trump was not seeking this “undue reward” (to quote “Russell on Crimes” and the Delaware statute) as a mere aside unrelated to the president’s official role. Rather, he did so in the course of an official diplomatic conversation with a head-of-state.

The transcript makes clear that Trump tied together the request for a personal favor with the delivery of military aid. But even if he had not made such a direct connection, this sort of corrupt use of public office to obtain a private benefit fits squarely within the definition of bribery when the Constitution was written.

Moreover, given the specifics of the allegations against President Trump, it is noteworthy that nothing worried the Founders more than the possibility that the president would be corrupted by a foreign power. As Gouverneur Morris said about impeachment during the Constitutional Convention, “[The President] may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard [against] it by displacing him.”

As members of Congress conduct impeachment proceedings and—if the facts warrant—draft articles of impeachment, they should view bribery as the Framers did. The offense of bribery, in the Framers’ view, did not require meeting the narrow, specific elements established by a judicial gloss on a federal statute that would not be articulated for centuries to come. Instead, the Founding generation understood bribery broadly, as covering the corrupt abuse of power to obtain personal benefit. There is little doubt that Trump’s conduct falls within the scope of the constitutional definition. Indeed, Trump’s attempts to use his immense foreign policy power for personal and political gain rather than the public good is a realization of the Framers’ worst fears and the very definition of impeachable bribery.

 

Disclosure: The authors work for Protect Democracy, which has represented Lawfare editors Benjamin Wittes, Jack Goldsmith, Scott Anderson and Susan Hennessey on a number of separate matters.