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.