Schiff Raises Bribery As A Possible Impeachable Offense

House Intelligence Committee Chairman Adam Schiff, D-Calif., has caused a stir in suddenly injecting the possible use of bribery as a basis for the impeachment of President Donald Trump. Converting the Ukrainian controversy into a bribery theory is both constitutionally and historically unsound. It would undermine the credibility of the impeachment effort by struggling to reshape the facts into a more compelling criminal image. Impeachment cannot be an exercise in creative reconstruction. It is not license for imaginative or untested theories of criminality. The House needs to establish a clear and credible theory of impeachable conduct based on well-established definitions. Ironically, I testified on this issue in the Clinton impeachment hearings but last had this argument (over broadening such definitions for purposes of impeachment) with my opposing counsel in the last impeachment trial: Adam Schiff.

Note: I will be doing commentary today with CBS and BBC on the impeachment hearings.

Schiff told Morning Edition host Steve Inskeep “Bribery, first of all, as the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.” He added that you only have to show that the president was “soliciting something of value.”

That limitless definition would convert most of the conversations between presidents and other heads of state into potential bribery cases. Presidents often try to get every concession from aid in such conversations. Some of those concessions may clearly advantage a president as a political matter. Likewise, presidents may perform other acts that would meet such a definition. President Bill Clinton not only pardoned a family member but gave a pardon to a leading Democratic donor. The pardon of fugitive Marc Rich was widely and correctly ridiculed as an absurd and corrupt use of the authority. Was that a thing of value being offered or given in return for favors?

I previously wrote a series of academic pieces on the inclusion and meaning of these terms in the Constitution, including SENATE TRIALS AND FACTIONAL DISPUTES: IMPEACHMENT AS A MADISONIAN DEVICE, 49 Duke L.J. 1(1999). In that work, I discussed how the most relevant debate on this standard occurred on a single day and constitutes a couple of pages of record, including an exchange between the main protagonists, Mason and Madison. Mason objected to the use of Treason and Bribery as too limited. For that reason, he wanted to add a broader term “maladministration.” That broader meaning of impeachment was rejected. I also discussed this history as a witness during the Clinton impeachment hearings. As I testified, the trial of Warren Hastings weighed heavily on the forging of the impeachment standard. The former governor of India was charged with “mismanagement and misgovernment in India, including acts of extortion, bribery, corruption, confiscation of property, and mistreatment of various provinces.”  Notably, in light of that trial, people like Mason felt that bribery was not broad enough.

The First Congress criminalized the acceptance of anything of value in exchange for making a favorable judgment or disposition by judges. See Crimes Act of 1790, 1 Stat. 112, 117. That law, which remain in effect, prohibits “being influenced in the performance of an official act.” However, if anything, the Court has limited that definition including the decision in McDonnell v. United States, 136 S. Ct. 2355 (2016).

Congress did not pass its first criminal provision on bribery until 1853 that covers both “bribes” and “presents” when they were given “with intent to influence” federal officials. Indeed, things that are barred today as corrupt gifts were not barred under early English and American notions of bribery. See Edward Coke, The Third Part of the Institutes of the Law of England 145 (1670).

 There are legitimate issues concerning abuse of power for Congress to consider. As I have written, this is shaping up as the most narrow impeachment of a president in history. Redefining the same acts as different crimes is an approach that will not broaden that foundation and will only raise questions of the legitimacy of the effort.

347 thoughts on “Schiff Raises Bribery As A Possible Impeachable Offense”

  1. I know of no politician who does not consistently lie. They all are unethical, so let’s just get this charade over with!

  2. Impeachment is the first of a two step political process, the second step being a Senate Trial. While impeachment has some aspects of a criminal investigation and indictment in common, it is not a criminal process. It is the equivalent of a Grand Jury Investigation and Indictment, that is conducted by the House of Representatives, outside of the Judicial System.

    The criteria for impeachment is vague in the Constitution, but not without guidelines. The interpretation of those guidelines is a matter for the House, used during the investigative portion of the process to search for evidence of malfeasance and abuse of power, whatever form they might take, and during the indictment portion, to draw up the Articles of Impeachment. Those Articles of Impeachment are then tested against those guidelines, by a vote of the House.

    While the validity of those Articles can be debated and challenged by politicians and legal scholars alike, once they are voted on by The House, the results of that vote determine their validity. Again, merits may be argued from any perspective, including legal precedence, but the Constitution leaves determination of the merits, solely to The House of Representatives.

    The other thing I would say is that opinions, no matter how scholarly founded, are frequently proved fickle, if not absurd over time. To wit, your statement during the confirmation of William Barr:
    “As I have stated publicly, I can think of no person better suited to lead the Justice Department at this critical period in history. Bill Barr is a brilliant and honorable lawyer who can ensure stability and integrity in these turbulent times.”

  3. Of course the Deep State exists. Good article:

    In response to these facts, one might still insist “but presidents lie a lot and break laws too!” That’s true, but the difference between presidents and deep-state bureaucrats is well illustrated by the current impeachment controversy. It’s the president who’s facing indictments, public attacks, and the prospect of removal. On the other hand, the deep-state bureaucrats who oversee many counts of corruption, illegal spying and leaking, remain safely hidden from public view. Those who routinely lie, deceive, and abuse their power often go on doing so for decades. As the years pass, they become ever more entrenched in the federal bureaucracy, invisible to the public, and — as we are now seeing — often answerable to no one.

    Presidents come and go, and they often face fierce opposition from the other party or from the media. The deep state, meanwhile, is said to be full of national heroes who “serve their country” and “speak truth to power.”

    It should be easy to see, in the battle between the president and the deep state, which side is the most dangerous.
    https://mises.org/wire/its-trump-vs-deep-state-vs-rest-us?utm_source=Mises+Institute+Subscriptions&utm_campaign=f91df734e1-EMAIL_CAMPAIGN_9_21_2018_9_59_COPY_01&utm_medium=email&utm_term=0_8b52b2e1c0-f91df734e1-228626821

  4. And now comes the news that the term “bribery” was chosen by Democrats after DCCC held focus groups in battleground states to see which terminology (quid pro quo, extortion, bribery, etc.) was considered most “damning”.

    Bribery won, hence, that’s the charge.

  5. I find it so off-putting how Schiff widens his eyes as much as possible in the hearing. It makes him look like a fanatical maniac. Which, I guess, he is.

    I recently heard him try to characterize Trump’s mean Tweets as criminal witness intimidation.

    1. Yeah Karen. I’m sympathetic. I find it off putting that the president is a fat pig, including his behavior.

      Maybe it will help if you know old pencil neck is a triathlete and imagine him running a marathon in skimpy tight shorts.

  6. Pelosi said in CSPAN clip i just saw: “Mr Pres if you have anything that shows innnocence make it known!”

    GUILTY UNTIL PROVEN INNOCENT– THE DEMOCRAT STANDARD OF DUE PROCESS

      1. yes it made me excited when she reversed the usual standard of proof, which is that the burden of proof lies upon the party which makes the assertion. certainly if that applies in simple algebra or a case of jaywalking then it applies in impeachment too. silly me

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