Under the federal bribery statute, a federal official commits bribery if he corruptly seeks or demands anything of value in return for being influenced in the performance of an official act. The first article of impeachment charges Trump engaged in a scheme to solicit the government of Ukraine to publicly announce investigations that would damage his political opponent. It alleges that he acted “for corrupt purposes in pursuit of personal political benefit.” And it alleges that he corruptly “conditioned two official acts on the public announcement he had requested” — release of the Congress-approved military aid to Ukraine, and agreeing to a meeting at the White House with Ukrainian President Volodymyr Zelensky.
This is clearly the language of bribery. The article alleges that Trump corruptly solicited a thing of value — announcement of the investigations — in exchange for influence in the performance of two official acts. Bribery is singled out in the Constitution as a basis for impeachment. If Congress is going to allege conduct that amounts to bribery, why not expressly make that charge?
The likely strategy is to avoid lawyerly squabbles over whether the precise elements of the federal bribery statute have been satisfied. Throughout the impeachment hearings, various witnesses and members of Congress have suggested that a White House meeting might not qualify as an “official act” under the statute in light of the Supreme Court’s recent decision in McDonnell v. United States. Others have questioned whether Ukraine announcing the investigations would qualify as a thing of value under that statute. There’s no doubt that if there were a separate article of impeachment alleging bribery, such arguments would become a primary focus of the president’s defense.
Current criminal statutes cannot provide the sole standards for impeachment. There’s no particular reason to believe that the term “bribery” in the impeachment clause should be defined by a law written by Congress nearly 200 years after the Constitution was ratified. To take that view would mean Congress effectively could amend the Constitution by changing the language of the bribery statute. That’s not how our constitutional system works. And most agree that conduct may be impeachable even if it violates no criminal law.
Nevertheless, there is widespread agreement that we should at least look to federal criminal law for guidance when considering impeachment. As a result, much of the debate about Trump’s conduct has focused on the particular requirements of the federal bribery statute. And there are some legitimate legal questions concerning the application of that statute to these facts. As I’ve argued before, I think there are good answers to those questions and that Trump’s conduct toward Ukraine would in fact constitute bribery under the statute. But characterizing that same conduct as an abuse of power avoids those technical legal issues and focuses instead on the overall corrupt nature of the president’s actions.
Framing Trump’s conduct as an abuse of power also allows the House to place the bribery in a broader context. The first article of impeachment alleges that “President Trump abused the powers of the presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit.” It further alleges that Trump “betrayed the nation by abusing his high office to enlist a foreign power in corrupting democratic elections.” Harm to national security and election interference would not be central to a bribery charge, but both are directly relevant to the more general allegation of abuse of power.
The charge of abuse of power allows Congress to put the facts of Trump’s bribery, and the risks it posed to the country, in front of the American people without getting sidetracked by debates about the requirements of a particular criminal statute. That’s probably a smart strategic move. After all, bribery is, at its core, about the abuse of power. And in the end what matters is the president’s corrupt misconduct, not the label used to describe it.