Defining a Theory of ‘Bribery’ for Impeachment

The House of Representatives is currently preparing articles of impeachment against President Trump. A vote this year looks increasingly likely. The Constitution enumerates three categories of offenses that warrant impeachment: “Treason,” “Bribery” and “other high Crimes and Misdemeanors.” There are no claims (yet at least) that President Trump engaged in treason. There are some allegations that Trump violated an appropriations statute, which could, under some circumstances, fall within the catch-all “other high Crimes and Misdemeanors” category. We have doubts that those circumstances are at play here. Customarily, the president does not personally transfer funds to foreign nations. That discrete matter, which is usually entirely ministerial, is most frequently handled by political appointees and civil servants. They have the most direct responsibility to see to it that timely transfers are made and done consistent with statutory obligations imposed by Congress. In 1868, President Andrew Johnson’s impeachment was premised on his personally violating the Tenure of Office Act. By contrast, we have not seen any specific evidence that Trump himself personally violated any statute.

If Trump’s underlings delayed making a timely transfer of funds to Ukraine, as required by the relevant appropriations act, then it is they who are legally responsible (though the president always bears political responsibility for the actions of all his subordinates in the executive branch). In the impeachment context, Trump’s liability could result from knowingly failing to take care that his subordinates faithfully executed the law. We say “knowingly” because it is unreasonable to expect any president to be intimately familiar with every action taken by every subordinate. Additionally, Trump may violate his oath of office if he personally directed others not to make a timely transfer of funds with an intent to block the statute’s implementation.

The most clearly articulated proposed article of impeachment would appear to fall into the second category of the Impeachment Clause, bribery. Speaker of the House Nancy Pelosi defined the offending conduct this way: The president “violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival—a clear attempt by the president to give himself an advantage in the 2020 election.” Pelosi’s explanation seems to map onto the standards for liability under 18 U.S.C. § 201, the federal bribery statute. The statute provides, in relevant part: “Whoever ... being a public official ... 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” has committed the offense (emphasis added).

We do not think that a White House meeting is an “official act” under McDonnell v. United States. Generally, who the president meets with, and what he says to them—even in the White House—remains constitutionally protected free speech. Thus, the only relevant official act for purposes of impeachment would be the alleged unlawful withholding of military aid.

More importantly, Pelosi contends that Trump solicited a bribe because the benefit from the proposed investigations by Ukraine into the family of presidential candidate Joe Biden would be personally valuable to the president. Benjamin Wittes drew a similar conclusion. He wrote that Trump made “a corrupt demand for something personally valuable (investigations of political opponents) in return for being influenced in the performance of two official acts (granting a White House meeting and releasing hundreds of millions of dollars in military assistance)” (emphasis added). Ben Berwick, Justin Florence and John Langford of Protect Democracy agreed. They claimed that “Trump made clear to [Ukrainian President] 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” (emphasis added).

In a helpful explainer for the New York Times about bribery, Charlie Savage framed the issue this way:

Is it more likely that Mr. Trump was earnestly concerned about protecting American interests by pressing for the investigations? Or was he instead looking for personal gain and, in the case of the Bidens, cynically seeking to engineer a basis to be able to call his political rival “corrupt” on the 2020 campaign trail? If the latter, one way of thinking about the matter is that Mr. Trump solicited a bribe: He was seeking a personal favor from Mr. Zelensky that would benefit him as a condition for performing two official acts—scheduling a White House visit that Mr. Zelensky coveted and releasing military aid that Congress had appropriated. (emphasis added)

Savage seems to entertain the possibility that Trump acted with mixed motives. (One of us, Blackman, wrote about mixed motives in the context of the obstruction of justice here.) Perhaps Trump was motivated in part by an earnest concern about Ukrainian corruption but was motivated even more by an intent to weaken his political opponent. If the latter motivation predominated over the former motivation, Savage suggests, then Trump may have solicited a bribe.

We disagree with this framework for analyzing bribery in the political context. Indeed, this theory, if adopted by the House, could have consequences for the separation of powers. The executive branch could come to view routine political compromises and horse-trading as illegal, and subject members of Congress to investigation and indictment. This theory would also make it effectively impossible for the president to exercise his personal constitutional authority to investigate wrongdoing by anyone, including those closely affiliated with his opponents, lest he be charged with a quid pro quo. The better theory, we contend, is that President Trump made a lawful request to Ukrainian President Volodymyr Zelensky to begin an investigation of Hunter Biden, just as he could regarding any other Americans for that matter.

We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What’s good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.

In some cases, disentangling the former public motivation from the latter personal motivation can be straightforward. For example, a government official demands a briefcase full of cash in exchange for voting for a particular bill. Here, the politician receives a benefit that inures entirely to his or her personal advantage. Even if the official uses that money to fund his or her campaign for reelection, the case for bribery is straightforward.

Consider another case where disentangling the two motivations is more complicated. A politician running for reelection holds a fundraiser. He asks a donor to contribute to his reelection campaign. The donor tells the candidate that passage of a particular bill is very important to him. Then the donor writes a contribution check for the maximum amount permitted by law. Ultimately, the politician votes for the bill and states that he did so to promote the general welfare. In this scenario, the benefit does not go to the candidate’s private coffers but, instead, is deposited into his campaign’s treasury. Of course, the candidate cannot legally spend that money on his personal expenses, but the existence of those funds helps to ensure he remains in office. This run-of-the-mill scenario would not amount to bribery. We suspect that almost every member of Congress has engaged in similar conduct.

Consider a third hypothetical in which personal and public motivations are inextricably intertwined. Two members of Congress are engaged in negotiations about a bill. Each agrees to support the bill only after it is amended to provide $1 billion in additional spending in their respective districts. They each have mixed motives. First, they believe that the extra $1 billion will help improve the welfare of their districts—which is part of the public good, as they conceive it. Second, they understand that bringing home the bacon will help their reelection campaigns. “All politics is local,” the old adage goes. The run-of-the-mill horse-trading described in this example might be bad policy and, arguably, is a misuse of discretion. But whatever else it is, it is not bribery.

If we’re wrong, almost every member of Congress could be indicted under the federal bribery statute. Indeed, if every such deal or compromise is a presumptive crime, then the Department of Justice will have the power to investigate every set of political compromises that accrue on nearly all major spending bills. Such a theory of bribery would allow the department to investigate, and later indict and seek to convict, members of Congress involved in political compromise and log-rolling. Even public knowledge of a mere Justice Department investigation might tip a close House or Senate race and thereby effectively decide what party controls Congress. This theory would weaken Congress and make its members wholly subservient either to what unelected Justice Department officials imagine to be the public interest, or to the president’s competing vision of the public good.

Just as the executive branch should not investigate and prosecute horse-trading and log-rolling by members of Congress, Congress should not investigate and impeach horse-trading by the president. Where the president acts for mixed motives while engaging in log-rolling and horse-trading—entertaining related considerations of public policy, his party’s success and his chances of personal reelection—there is nothing to investigate.

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich’s receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” He added that “[g]overnance would hardly be possible without” political log-rolling, “which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”

Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant. Such acts are presumptively lawful, and should not be investigated, let alone be considered for indictment or impeachment. If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

We can think of one high-profile and far more brazen effort by a president to improve his party’s prospects through the use of official communications. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Tecumseh Sherman to allow soldiers in the field to return to Indiana to vote. What was his primary motivation? It was to make sure that the government of Indiana remained in the hands of Republican loyalists who wished to continue the war until victory. This action risked undercutting the military effort by depleting the ranks. Lincoln had dueling motives. Privately, he sought to secure a victory for his party. This personal interest should not impugn his public motive: win the war and secure the nation.

How should we characterize the allegations concerning Trump’s conversation with Zelensky? Did he ask Zelensky to deposit cash into his personal coffers? No. Did he ask Zelensky to make a financial contribution to his reelection campaign? No. But Trump did ask the Zelensky to investigate Burisma, the company on whose board Hunter Biden sat. This request may have been premised on mixed motives.

First, consider the public motivation. Trump’s request would directly promote foreign and domestic policy interests: Ukraine would investigate possible corruption regarding an American citizen. The U.S. government does not commit bribery when it attempts to change the official behavior of a foreign government by offering to grant or withhold American funds, within the zone of discretion provided by statute. Likewise, the U.S. government does not commit bribery by promising continuity or change in American policy when it attempts to change the official behavior of a foreign government. All such offers have always been characterized as diplomacy. These sorts of communications with foreign powers, by their very nature, involve incentives, threats, and explicit quid pro quo exchanges. In our constitutional order, the president has the unique authority to set those priorities. People may agree or disagree with those policy objectives. And those policy objections are registered in elections.

Second, consider the private motivations. Trump certainly understood that an investigation of Hunter Biden would draw greater scrutiny to Joe Biden, a leading contender in the Democratic primary. Such an investigation could benefit Trump’s reelection campaign. Again: Mixed motives are at play.

We consider Trump to stand in a position similar to the log-rolling members of Congress. In our view, he acted to promote the public interest, as he understood it, with the full recognition that his actions also increased the probability that he may prevail at the next election. In those circumstances, Trump’s request does not amount to bribery. Poor political discretion, perhaps. But we see no way on these facts to disentangle a motivation to promote American interests abroad from a competing motivation to assist his reelection campaign.

The proposed articles of impeachment threaten to criminalize routine politics, such as log-rolling, by removing officeholders with dueling motivations. If Congress engages in and legitimates such tactics against the president, it may soon find itself on the receiving end of Justice Department investigations, indictments and trials. Such a precedent would make impeachment and indictments the norm whenever Congress and the presidency are held by different parties, and each branch disagrees with the policy goals of the other.

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Consider a final hypothetical. Let’s assume that the president determined there was sufficient evidence that Hunter Biden’s employment with Burisma violated Ukrainian law, or perhaps even American law. Or maybe the president realized that American funds earmarked for Congress’s announced purposes might flow into Burisma’s coffers. How could Trump, who may run against Joe Biden, possibly order an investigation into Hunter Biden without receiving some personal benefit? The House’s theory of bribery would effectively insulate Hunter Biden, and all similarly-situated affiliates of political candidates, beyond the normal bounds of prosecutorial discretion. In other words, Hunter gets a free pass so long as his father is the president’s political opponent.

In the American political tradition, officeholders, candidates and their families do not get a free pass—even when they are the political opponents of the president. Indeed, we think Trump would have abdicated his duty if he refused to push for an investigation that was otherwise warranted. Failing to investigate conduct that otherwise warranted an investigation would itself create allegations of improper conduct, and rightly so. Trump cannot escape that difficult choice and political responsibility for it merely by saying: My political opponent’s son must not face any accountability because he is my rival’s son.

For the same reason, Trump’s political opponents cannot deny the president the full scope and powers of his elected position merely by asserting in a conclusory fashion that the president is conflicted and that he might derive a personal benefit. We write might because whether the president would, in fact, receive a personal benefit would still be up to the voters. That distinction highlights why the allegations against Trump do not fit within the common understanding of bribery, for example, receiving a discrete personal benefit, such as a suitcase full of money. At most, Trump sought a change in a foreign government’s policy, and any benefit or injury flows to the political community as a whole.

One might respond that no such evidence exists of wrongdoing by Hunter Biden and his associates. But we have yet to see any legitimate justification to explain why Hunter Biden, the son of the vice president, was paid $50,000 a month to sit on the board of a company, even though he had no expertise in the field, and didn’t even speak Ukrainian. Indeed, a fellow Burisma board member conceded that Biden was selected because of his father’s position. “No-names are a nobody,” he said. “Being Biden is not bad. It’s a good name.” In 2015, George Kent, a career diplomat, urged the vice president’s staff to review the situation; nothing was done. At a minimum, an investigation could dispel any doubts about possible misuse of funds—private and public—Ukrainian and American. In these circumstances, Trump was well within his lawful authority to make such a request to the Ukrainian president.

Of course, our analysis presupposes that the president was calling for a lawful investigation. The situation would be entirely different if the president called for an unlawful investigation—for example, if Trump had asked the Ukrainians to manufacture false evidence for use in his political campaign, or if Trump asked the Ukrainians to commit fraud on their own or on our courts.

The House might adopt the theory of bribery articulated by Pelosi and others. But going down that path would establish a dangerous and, in our view, somewhat alien precedent to the American legal system. Opening this door will not root out “corruption.” Rather, the impeachment process will simply drive normal politics and compromise underground. Political compromises will still be made—they will just lack transparency. In the end, it is the voters who will lose the most.