“Where are the high crimes and misdemeanors?” That’s the question opponents of impeachment keep asking as Democrats investigate President Donald Trump.
“There aren’t any high crimes and misdemeanors,” Rush Limbaugh declares. “There aren’t any impeachable offenses.”
“There are no high crimes and misdemeanors,” House Minority Whip Steve Scalise insists.
That ambiguous phrase, high crimes and misdemeanors, comes from the Constitution. “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” it states.
But there is no need to debate whether Trump’s behavior with respect to Ukraine rises to the threshold of “high Crimes and Misdemeanors,” whatever that actually means.
Look again at the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Bribery is at the heart of the Ukraine allegations. If the rough transcript of Trump’s call with Ukraine’s president and various testimonies given to House investigators are accurate, Trump was soliciting a bribe.
The bribe would be obvious to everyone if Trump and the people acting on his behalf had told the Ukrainians, We’ll release your military aid, but do us the favor of contributing $1 million to Trump 2020.
Instead, they pressed Ukraine for a favor as valuable to Trump 2020 as $1 million: They asked Ukraine to launch, or at least to announce, a corruption investigation into the Biden family. In return, Team Trump implied, Ukraine would get its military aid or an Oval Office meeting.
Trump asked for a favor that would benefit him politically and tied it to foreign aid. He sought a thing he valued because it would help him get reelected with the implied promise that it would change his behavior as president.
It doesn’t matter that Ukraine didn’t deliver the thing of value––mere solicitation of a bribe is verboten. Former Illinois Governor Rod Blagojevich went to prison for soliciting money in exchange for an appointment to the U.S. Senate. It didn’t matter that he never got paid. The recording of his request was enough.
The bribery charge sticks to Trump whether one looks to federal law or to the understanding of bribery in the era of the Framers.
Aaron Blake reports on current law at The Washington Post:
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.
As for bribery as the Framers understood it, a trio of attorneys writing at Lawfare quote 18th- and early-19th-century legal treatises to show that the constitutional understanding was even broader than what federal law now prohibits––put simply, 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.”
They go on to explain:
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.
In fact, Rudy Giuliani has since stated, “The investigation I conducted concerning 2016 Ukrainian collusion and corruption, was done solely as a defense attorney to defend my client against false charges, that kept changing as one after another were disproven,” characterizing his own actions as something not done to benefit the American people, but done “solely” to benefit Trump.
The Lawfare authors continue:
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.”
In reference to other Trump scandals, a debate about what constitutes “high Crimes and Misdemeanors” may be necessary. But on the Ukraine matter, that debate doesn’t matter. What matters is whether Trump is guilty of “Bribery” as it is used in the Constitution. It would appear that he is.
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