Bribery Is Right There in the Constitution

And “attempted” bribery, even if unsuccessful, is still bribery all the same.

The word bribery is suddenly at the center of the House’s impeachment inquiry. Last week, Speaker of the House Nancy Pelosi accused President Donald Trump of bribery when he offered “to grant or withhold military assistance” in exchange for a public statement by Ukrainian President Volodymyr Zelensky about pursuing investigations related to the 2016 election and to Hunter Biden. At the hearing of Marie Yovanovitch, last Friday, Republican Representative Chris Stewart asked Yovanovitch whether she had information about the president accepting bribes. (She said no.) Yesterday, Ambassador Gordon Sondland confirmed that a quid pro quo existed for the Ukrainian president to meet with President Trump. House Intelligence Committee Chairman Adam Schiff seized upon this testimony, saying, “It goes right to the heart of bribery and other misdemeanors.”

Accusing the president of bribery could have incredibly important consequences for the impeachment inquiry because, as Pelosi noted, the Constitution specifically identifies bribery as grounds for impeachment. The Constitution says, “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.”

There may be political reasons motivating the Democrats to use this specific word. The Washington Post reported last week that the Democratic Congressional Campaign Committee asked focus groups which term—quid pro quo, extortion, or bribery—was the most “compelling” way to describe Trump’s conduct. Bribery won.

But the decision to use the term bribery rather than quid pro quo is unremarkable from a legal perspective. Quid pro quo is a Latin phrase that means “something for something.” As Justice Antonin Scalia explained 20 years ago, a quid pro quo is what distinguishes bribery from other crimes of corruption, such as graft or illegal gratuities. So people who are familiar with the law of bribery have always understood the discussion about whether there was a “quid pro quo” in the dealings with Ukraine to be a discussion about whether this was a case of bribery.

Defenders of the president, such as the Fox News host Laura Ingraham, have said that Trump’s actions are, at worst, “attempted bribery,” not bribery itself.

In making this argument, they are relying on the facts that the military aid was ultimately delivered to Ukraine and that the Ukrainian president never made a public statement announcing those investigations that President Trump wanted. Because things didn’t go as President Trump wanted, some seem to think that he can’t be guilty of bribery—he only attempted to commit bribery. This distinction matters, according to Ingraham, because “attempted bribery isn’t in the Constitution.”

But this view is incorrect about the crime of bribery. Nothing has to actually change hands for bribery to occur. It is enough that the exchange was offered or suggested. The law generally defines bribery as the “corrupt payment, receipt, or solicitation of a private favor for official action.” That definition appears in one form or another in criminal laws across the country.

Take, for example, the federal law of bribery. It prohibits public officials from corruptly accepting anything of value in return for an official act. But it also prohibits officials from corruptly demanding or seeking anything of value in return for an official act. In other words, the crime of bribery is committed as soon as the public official asks for or demands something in return for exercising his or her power. Even if the other person refuses to give the public official anything, the official is still guilty of bribery.

Here, the allegation that President Trump insisted on a public announcement of an investigation indicates that his motives were corrupt—that is to say, he was seeking something that would benefit him personally, rather than something that would benefit the nation more generally. While it is unremarkable for world leaders to make requests or demands in the ordinary course of diplomatic negotiations, Trump’s demand falls outside of those ordinary negotiations because, according to Sondland’s testimony, the Ukrainian president did not actually have to conduct the investigations (something that could arguably help U.S. interests); he merely had to announce them (something that could help only Trump).

Of course, the people who wrote and ratified the Constitution did not know what modern bribery laws would say. Nor is it possible to tell from the text of the Constitution what the Framers thought the crime included. Unlike treason—the other crime that the Constitution specifically lists as a ground for impeachment—bribery is not defined elsewhere in the Constitution itself.

To understand, then, what those who wrote the Constitution meant by “bribery,” we must look outside the Constitution to the common law—the body of rules that judges develop as they decide cases over time—of the era. It’s clear, based on the books that documented common law in the late 18th century, that it was illegal for an official to solicit a bribe. But these books do not settle whether that behavior qualified as bribery, or whether it was merely attempted bribery. Some books say one thing; some say another. The experts who wrote these books likely did not worry about settling this issue, because any potential difference between bribery and attempted bribery didn’t matter—the classification and punishment for both crimes was the same.

Importantly, the fact that the people who wrote the Constitution singled out bribery as one of only two crimes specifically listed as grounds for impeachment shows how concerned they were with ensuring that government officials steered clear of such behavior. The particular danger posed by the combination of bribery and foreign affairs had the Framers especially worried. That is why, as the Harvard Law professor Laurence Tribe and his co-author Joshua Matz explain in their book, To End a Presidency, the Constitution not only lists bribery as grounds for impeachment, but additionally forbids federal officials from taking gifts or “emoluments” from other governments.

The Constitution clearly states that presidents who commit bribery should be impeached and removed from office. Right now, Democrats are calling witnesses to support their argument that Trump’s pressure on the Ukrainian president meets the modern definition of bribery. As Democrats make that case, Republicans seem to be left arguing that the Founders would have interpreted President Trump as having attempted to commit a crime that the Constitution clearly says is impeachable. That seems like a questionable argument—certainly as a matter of history, and perhaps as a matter of politics too.