Did Trump Engage in Bribery? And Why No Bribery Article of Impeachment?

I contributed to this Vox round-up of “legal experts” on the bribery charges in the House report. Six out of seven of us “legal experts” agree Trump’s conduct was bribery. And the seventh, Keith Whittington, offered some wise reasons to be more caution, but still finds it “an abuse of power.” I explain why the House Dems wisely didn’t cite a bribery felony in the articles, but then did in its report. (On the day the call summary was released, I explained here why the call itself — “I would like you to do us a favor though.” — made a probable case of bribery.)

The House Judiciary presents a solid case that Trump’s conduct constituted bribery. I would add this observation: Many people were puzzled by why the first article of impeachment was titled “Abuse of Power,” and not “Bribery,” did not cite the federal bribery statute, and did not allege bribery explicitly, even as the article deliberately laid out each element of federal bribery. I’ll offer my explanation why this was wise as a matter of constitutional law and governance.

The committee report spends six pages (p. 120-126) going step by step through the bribery statute: an exchange of a “thing of value” for “an official act” for “corrupt” purposes. As the “thing of value,” The report wisely highlights that Trump was seeking merely “announcement” of an investigation into the Bidens, because it shows Trump was not sincerely interested in a real investigation, and an announcement would usually be counterproductive for starting a background investigation under the radar, to prevent tipping off witnesses to start coordinating their stories.

A mere announcement benefited Trump’s campaign, and that’s one piece of evidence among many of “corrupt” intent. And the report offers a thorough explanation for why the arms and an official White House visit are official acts. The report rebuts the Trump defenders’ argument that an official White House visit is not an “official act” under Supreme Court precedent.

So why not spell out this felony in the article of impeachment? The House Judiciary Committee was making a crucial point now and as a clear precedent for future federal officials: high crimes and misdemeanors do not require a statutory felony. They are more fundamentally about the officer’s abuse of power. This argument notably can cut the other way. If a president cheated on his or her taxes many years before taking office, that would be a felony but probably not a “high crime or misdemeanor” in these terms of “abuse of power.” He or she may have used his office to cover up these crimes, but that abuse would be the impeachment trigger, not the past crime.

The report quotes the conclusion from our historical study (with Andrew Kent and Ethan Leib) of “faithful execution”: The Constitution’s “faithful” language imposes a duty on Presidents “to exercise their power only when it is motivated in the public interest rather than in their private self-interest.” There are many ways for presidents to self-deal and betray the public interest without committing a felony. The Judiciary Committee wisely made this point in the articles and in its reports, while also bolstering its case with a thorough explanation of several felonies including bribery, too.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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