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Why ‘bribery’ is the Democrats’ new impeachment focus

Republicans have repeatedly refused to say whether it was appropriate for President Trump to ask foreign governments to investigate his political rival. (Video: JM Rieger/The Washington Post)

Speaker Nancy Pelosi (D-Calif.) pulled out a new argument in the House’s ongoing impeachment inquiry Thursday: She said President Trump’s Ukraine actions amounted to bribery. Her declaration comes after House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) suggested earlier in the week that bribery could be included in the impeachment articles brought against Trump.

Why is that significant? Because bribery is explicitly listed as an impeachable offense in the Constitution. Yet until recently, Democrats seemed content to focus on the other portion of the impeachment clause: “high Crimes and Misdemeanors.” Indeed, they had seldom even mentioned the other two impeachable offenses: treason and bribery.

Pelosi’s and Schiff’s comments, though, appear to signal a change in course. And there is reason to believe that might be an easier political sell, for reasons I first laid out two weeks ago. Below is that post, slightly updated to reflect the news:

A handful of scholars and legal experts have argued that what Trump did constitutes bribery — or at least, bribery as the Founding Fathers understood it.

The federal bribery statute says someone has committed bribery if he or she is a “public official” who “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally … in return for … being influenced in the performance of any official act.” The argument here would be that Trump sought politically helpful investigations from Ukraine in exchange for releasing military aid and/or granting a much-sought Oval Office meeting for its president, Volodymyr Zelensky. To date, six officials have said there was some kind of quid pro quo there.

“If they find something of value given to the president in exchange for his doing something for them, that could be called bribery,” said impeachment expert Michael Gerhardt of the University of North Carolina.

Frank O. Bowman, the author of a recent book on impeachment (titled, as it happens, “High Crimes and Misdemeanors”), said proving there was a “thing of value” could be tough. The Justice Department opted not to pursue an investigation of the whistleblower complaint because it determined the value of a government investigation could not be quantified. (That decision is not without controversy, though.)

“If we consider Trump as the recipient of a bribe, the ‘thing of value’ is presumably an investigation of Biden/CrowdStrike, or an announcement that such an investigation is being undertaken,” Bowman said. “Whether these are things of value is an interesting legal question. I can certainly make the argument that they are.”

But as we’re often reminded, the existence of an actual crime is neither necessary nor sufficient for impeachment. And in fact, the crime described above didn’t even exist when the Founding Fathers drafted the Constitution. The House has suggested that, because of that, the actual statute shouldn’t apply to impeachment proceedings. “It can hardly be supposed that the Constitution intended to make impeachment for these two flagrant crimes” — treason and bribery — “depend upon the action of Congress,” the House wrote during the 1912 impeachment of Judge Robert W. Archbald.

Indeed, what they understood as “bribery” might have been significantly broader.

As John Noonan wrote in his chronicle of the history of bribery, the framers of the Constitution likely understood bribery to be an offense that includes both giving and accepting bribes. He noted that a committee eliminated “Corruption” from the proposed impeachment language because it was likely viewed as being superfluous next to “Bribery.”

“If it was [superfluous], it was because ‘Bribery’ was read both actively and passively, including the chief magistrate bribing someone and being bribed,” Noonan wrote.

In the same 1912 document above, the House notes that the definition of bribery was broadly understood in the late 1700s. “The offense of bribery had a fixed status in the parliamentary law as well as the criminal law of England when our Constitution was adopted,” it said, “and there is little difficulty in determining its nature and extent in the application of the law of impeachments in this country.”

As for what that “fixed” meaning was, Lawfare notes that William Hawkins’s 1716 “A Treatise of the Pleas of the Crown” defines bribery as “receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of publics justice, in order to incline him to do a thing against the known rules of honesty and integrity.” A 1797 list of “indictable crimes” in Delaware defines bribery as “an offense against public justice,” which includes undue reward for someone in a position of power “to influence him against the known rules of law, honestly, or integrity” and adds: “He who accepts and he who offers the bribe are both liable to punishment.”

Some have argued what Trump did was more extortion than bribery — particularly if he was withholding already-approved military aid for leverage — because Ukraine wasn’t going to get anything it wasn’t already due. But those two words have often been used interchangeably. And even if you want to draw that line, Trump’s conditioning of an Oval Office meeting on the investigations would seem to qualify as an extra benefit and, thus, potential bribery.

A president has never been impeached for bribery. The last time anybody was, it was Rep. Alcee L. Hastings (D-Fla.), who was impeached as a federal judge in the late 1980s and was accused of having “engaged in a corrupt conspiracy to obtain $150,000” in exchange for lighter sentences for defendants in his cases.

Richard Nixon was also effectively accused of bribery in the impeachment articles that were drawn up against him, but the word didn’t actually appear anywhere. Instead, they accused him of “approving … the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses....”

Noonan wrote that bribery was “at the core of the hard evidence set out against” Nixon but that its subordination in the articles was “an apparent design to make a more general indictment of Nixon’s conduct in office.”

And that seemed to be the thinking with Trump. Why get bogged down in specific offenses with actual statutory requirements that the other side could argue must be satisfied, when you’re really making a general case about abuses of power? That risks allowing people to argue this doesn’t technically meet the legal definition of bribery, and maybe allowing the accused to skate. A number of experts have argued against defining what Trump did as bribery, including Renato Mariotti and Teri Kanefield, for that very reason.

But we’re in a different era now, in which polarization has rendered basically any subjectivity and plausible deniability politically weaponized. The phrase “high Crimes and Misdemeanors” is a nebulous one to pretty much every American who doesn’t call themselves a constitutional scholar. That allows plenty of people to convince themselves Trump’s actions don’t rise to the level required.

You could argue that defining Trump’s misdeeds by a less subjective term would be much more fruitful. Does your average person know whether what Trump allegedly did is a “high Crime” or “Misdemeanor?” Perhaps not. And perhaps they think a “high Crime” means something, well, with a high degree of criminality — which isn’t true.

Could they be convinced, by contrast, that it was the kind of presidential bribery that is expressly forbidden in the Constitution? And, on a more basic level, do people even know that bribery is an impeachable offense?

Those are the questions Democrats are beginning to ask themselves, and judging by how their leaders are talking about this issue, they’re warming to this strategy.