Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787

The Trial of Warren Hastings

Below is my column in the Wall Street Journal on case that may be looming in the background of tomorrow’s opening hearing in the House Judiciary Committee on the impeachment of President Donald J. Trump.

I have been called to testify at the hearing. With only a few days to prepare, I will be completing my testimony today and I will hopefully post it before leaving for the hearing in the morning. This is a daunting but not unfamiliar challenge as an academic. It has been 20 years since I testified at the Clinton impeachment hearing with other constitutional and historical experts on this same question. It has been 10 years since I served as the last lead counsel (with Dan Schwartz) in the impeachment trial of Judge Thomas Porteous. The hearing will begin at 10:00 am in the Longworth House Office Building.

Here is the column:

Warren Hastings

In the push for a December impeachment vote, House Democrats appear poised to make history. It will be the shortest investigation producing the thinnest record of wrongdoing for the narrowest impeachment in history. There is, however, a precedent for the Democrats’ expansive interpretations of bribery and impeachment: the trial of Warren Hastings, 230 years ago in Britain. But Hastings’ tale is a cautionary one that nobody should aim to repeat.

House Speaker Nancy Pelosi says she has “corroborated evidence of bribery.” House Intelligence Committee Chairman Adam Schiff agrees, explaining that, “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.”

Mr. Schiff’s sudden transformation into an originalist may be short-lived. The Framers did not, in fact, view bribery as some overarching concept of corruption. At the Constitutional Convention, George Mason objected to listing only “treason” and “bribery” as impeachable offenses because they were too narrow and limited. He suggested a broader term, “maladministration,” citing the still-unfolding Hastings case, which was based on interpretations of bribery and corruption that would soon be exposed as dubious.

Edmund Burke

Warren Hastings was Britain’s governor-general in India, a realm rife with corruption and bribery. The East India Company held tremendous power in the subcontinent and was accused of perpetuating the corruption for its own ends. Hastings had sought greater control over Indian governance, and his actions became controversial in Britain, where Parliament was bitterly divided. Hastings’s greatest detractor was the statesman Edmund Burke, who pilloried him as the “captain-general of iniquity” and a “spider of Hell.” Even today’s overheated rhetoric pales in comparison with Burke’s denouncing Hastings as a “ravenous vulture devouring the carcasses of the dead.” Burke would lead the impeachment of Hastings, who was arrested in 1787 by Parliament’s sergeant-at-arms.

Hastings was charged by the impeachment committee with bribery and other forms of abuse of power. The case dragged on for seven years before Hastings was acquitted on every article of impeachment. Even though Hastings did have some dodgy personal financial dealings, his impeachment today is widely viewed as an injustice, and Burke was ultimately censured for his intemperate rhetoric.

George Mason

While Hastings had not yet stood trial in London, in Philadelphia Mason spoke of the Hastings impeachment with approval. He wanted the U.S. Constitution to include a similarly broad scope for impeachable offenses, covering everything that could “subvert the Constitution.”

Mason failed. The Framers rejected terms ranging from “corruption,” obtaining office by improper means, betraying one’s trust to a foreign power, “negligence,” “perfidy,” “peculation” and “oppression.” All these were rejected along with “maladministration” and kept off the Constitution’s list of impeachable offenses.

James Madison

Notably, perfidy means dishonesty and peculation means self-dealing — two common allegations in today’s Trump hearings. The Framers dropped these terms, however, as too broad and undefined. Indeed, in arguing against the inclusion of maladministration, Madison remarked that “so vague a term will be equivalent to a tenure during the pleasure of the Senate,” an outcome repugnant to him. Mason then substituted “high Crimes and Misdemeanors,” which was approved.

Since then, politicians have often sought to adopt expansive interpretations to make impeachment easier. When I served as lead defense counsel in the Senate impeachment trial of federal Judge Thomas Porteous, the lead House manager sought to convict my client on the novel theory that even conduct before taking office could be impeachable. That impeachment manager was Adam Schiff.

There is much that is worthy of investigation in the Ukraine scandal, and it is true that impeachment doesn’t require a crime. But the Framers expressly warned against lowering the impeachment standard to a mere discretionary option for any party that happens to control the Senate. That’s what interpreting bribery to include any action viewed as “offering public acts for some personal or political purposes” would do.

All politicians are self-dealers who use their offices to advance themselves politically. That doesn’t make their acts criminal or impeachable. Just ask Warren Hastings.

Jonathan Turley (@JonathanTurley) is the chair of public interest law at George Washington University and served as the last lead counsel in a Senate impeachment trial in defense of Judge Thomas Porteous. He has testified with other constitutional experts in the Clinton impeachment.

118 thoughts on “Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787”

  1. As someone independently-minded and economically apolitical who has never for an instant even remotely considered voting for a dem0crat. (not entirely true, I almost voted for Gore) I find I am yet quite impressed with your testimony and obvious constitutional erudition; yes, a conundrum indeed.

    I agree with you on Schiff’s account of bribery, which I interpreted as “one more bold-faced lie” so typical of historical revisionists, the one question I have concerns “high crimes.” Didn’t Benjamin Franklin also reference this? Didn’t he also use this phrase in reference to prior events? The problem I have is that I can no longer remember the context or exactly what he said. The point is, it was my impression that the phrase was rather common in the vernacular, possessing in their minds rather succinct definition.

    In terms of bribery I tent to think of more immediate contemporaneous events; although not impeached are there no Founding words that describe the bribe of Benedict Arnold? Surely a traitor, a turncoat for cash and commission, is there nowhere in the record use of the word bribery? Because surely these events, articulated, were fresh in the minds of Founders. Although perhaps not a legal definition, would they not yet lend insight as evidence?

  2. Way to go. Trump will win in 2020. It’s sad that our country cannot find common ground to get more important things done than a donkey show impeachment. That’s the problem with swamps, muck, quick sand, gators and lotsa snakes. .

  3. The only factual witness I recall hearing testified to Schiff’s committee already. He asked President Trump directly about Quid Pro Quo, Trump responded “I want nothing, no quid pro quo.” So I’m confused on conviction over hearsay and speculation by non fact witnesses. But this is the same party that celebrated Mueller/Wisemann report which stated Trump was Not not guilty. Basically reversing 100’s of years of jurisprudence in Western Civilization by saying President Trump was guilty until he could be proven innocent.

  4. a thin and unconvincing argument from Turley that ignores too many things while attempting to confuse distinct things.
    this seems like a defense argument rather than a scholarly examination

    1. “a thin and unconvincing argument from Turley that ignores too many things while attempting to confuse distinct things. this seems like a defense argument rather than a scholarly examination.”
      *******************
      Do explain foxtrot. Conclusions are cheap; supporting facts are precious. All ears …

  5. Right now there is no immediate consequence for the house of reps (either party) to impeachment the president of the other party in order to inflict some perceived political pain. How about adding consequences to these political attacks by balancing the scale and adding the consequence of immediate recall of house members who voted for an impeachment that was not sustained by 2/3 vote of senate. If they have to stand for an immediate re-election they may approach the matter with more sobriety.

    1. Paul, I kinda like the consequences in this beautiful display of colors, shapes, movement and mushroom cloud.

      Ronnie Reagan we sure could use your wit right now

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