Below is my column on the latest alleged crime by President Donald Trump: “Felony bribery.” The allegation shows not only a fundamental misunderstanding of legal standards but a fundamental failure in legal analysis.
Here is the column:
The headlines blasted the news: “Trump Accused of Bribery.” From Forbes to Newsweek, the latest crime was breathlessly reported after former George Bush ethics lawyer Richard Painter declared President Trump a criminal for raising campaign funds for senators who would sit as his jury in any impeachment trial. Over the last three years, such crimes have been declared by legal analysts with a certainty equaled only by their lack of permanency. It began with months of criminal collusion, which is not a crime, before evolving into treason, conspiracy, subornation of perjury, obstruction of justice, campaign finance violations and other offenses.
None of those crimes are included in the impeachment inquiry approved by the House in a partisan vote this week. Despite Democratic leaders insisting the special counsel report gave “ample” basis for impeachment charges, the resolution was conspicuous for its absence of any discussion of these prior “clear” crimes. The whole Russian scandal appears mere prelude to the real criminal conspiracy focused on a July phone call, after special counsel Robert Mueller presented his findings to Congress.
Even on cable news, Painter has distinguished himself as a perpetual motion machine of accusations. He previously said that Trump could be impeached and removed on such grounds as a tweet referencing his ability to use nuclear weapons against an attack by North Korea. Painter also claimed that Trump met the “dictionary definition” of treason, based on Russian interference in the 2016 election. He called for the removal of Trump, under the 25th Amendment, as constitutionally incapacitated.
Now Painter claims that the use of a “vast fundraising network” for some senators seeking reelection in 2020 is a crime. He flatly declared that “this is bribery,” no different than bribing jurors. Any senator accepting such contributions, he insisted, would be “guilty of accepting a bribe” and “should go to the slammer.” Just because a president may face a Senate trial, he is not required to end political activity, particularly with control of Congress in the balance. If that were the case, an opposing party could shut down any political activity by the president by impeaching him.
What is curious about this theory is that Painter does not appear to have any ethical problems with the potential “jurors” including himself running on their support for impeachment. He unsuccessfully ran for the Senate seat vacated by Democrat Al Franken of Minnesota by promising to vote against Trump if elected. Last year, Time magazine reported that Painter “made clear that calls for impeaching the president would be a major part of his platform” and quoted Painter as saying that the removal of Trump was a “very important component” of his campaign for the Senate.
In their campaigns and fundraising, various members of Congress have declared that Trump is guilty of numerous crimes. Future Senate jurors such as Democratic presidential candidate Elizabeth Warren have raised money based on impeachment pledges and stating that Trump is guilty. Not waiting for a trial, fellow candidate and Senate juror Kamala Harris declared in the last debate, “As a former prosecutor, I know a confession when I see it. He did it in plain sight. He has given us the evidence.”
Candidate Julián Castro announced that Trump has not only committed impeachable offenses but should be immediately removed. Various House members have pledged to seek impeachment. Representative Rashida Tlaib has sold profane shirts with her impeachment slogan for $29. If Trump is guilty of bribery, then Democrats are guilty of solicitation.
Why is it ethical for a potential Senate juror to raise money or campaign on a promise of voting for conviction, before charges are brought and let alone tried, yet call Trump a criminal for raising campaign funds to keep control of the Senate? Of course, this is a standard that did not apply to President Clinton, who actively campaigned for and helped finance Democratic senators who sat in judgment at his impeachment trial.
The bribery allegation also contradicts the Democratic talking point that impeachment is a political process rather than a legal one. When some of us have objected that such claims of clear criminal acts did not meet the standard of the criminal code or prior rulings, experts have insisted that this is more of a political judgment. Representative Maxine Waters has insisted that this is a political judgment and that “impeachment is about whatever Congress says it is.” So why is it a crime to respond in a political way by fundraising to maintain a Republican majority in the Senate?
I have never agreed with dismissals of impeachment as a purely political process. The Constitution includes a legal standard of “high crimes and misdemeanors” that has long been defined in light of controlling legal definitions and case law. I disagree with former acting Attorney General Matthew Whitaker, who seemed to suggest that “abuse of power” cannot be the basis for impeachment because “abuse of power is not a crime.”
Abuse of power is clearly impeachable. If the Senate established such abuse of power in a quid pro quo arrangement with Ukraine, it could be the basis to remove Trump. However, the fact that abuse of power is not a standalone crime does not make it a purely political judgment. It is based on the misuse of public authority and trust in carrying out duties defined by law and practice. It is a difficult standard to prove. All elected officials use their offices to advance themselves. The Senate would need to clearly distinguish the conduct of Trump from the myriad decisions made by his predecessors that benefited their positions or those of their parties.
Moving forward with an allegation of abuse of power is problematic if that is the sole grounds for removal. Abuse of power is stronger in the context of other specific articles of impeachment. If abuse of discretion is the sole or primary charge, it would maximize the chances for the defense in a Senate trial, in which the president can cite a variety of motives, allowing for claims of reasonable doubt by senators. Politics inspires many things, but ethical clarity is not one of them. However, the law is based on both clarity and consistency. That is why no one is “going to the slammer” for bribery. The greater problem is not jurors, but analysts, behaving like politicians.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.