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.

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

  1. Every person charged with wrongdoing deserves a defense, and I enjoy reading your blogs, but I think your task here is nigh-impossible. On a personal level, I wish you well, as far as Trump is concerned, I hope for the benefit of all that Trump is forced to recognise the gravity of what his administration has done, and appropriate sanctions are implemented.

    1. Why bother reading lies, obstruction of the 2016 Presidential Election and megalomiancs attempting a coup?

      Tell them to move to Bolivia where residents there might take them

  2. “President Trump didn’t jet off to Madrid for this week’s United Nations climateklatsch, but Nancy Pelosi brought a congressional delegation—and a message. “By coming here,” she proclaimed at a news conference, “we want to say to everyone: We’re still in. The United States is still in.”
    – WSJ

    The Speaker of the US House is underming the US President globally on foreign relations.

    Had it been John Bohener doing this to Obama, the Left and MSM would have been screaming “RACISM”

    Pelosi should be shot, hung and thrown to the sharks…but they will throw her dead body back


    1. Black teens resort to violence against an armed CHP who refused to draw his weapon. He should have shot them

      Violence is the way to address all of our whims. So be it

      Off-duty officer attacked by teens in Emeryville after helping woman robbed of cellphone

      EMERYVILLE, Calif. (KTVU) – An off-duty officer was attacked by a group of teens on Friday in Emeryville after a woman accused them of stealing her cellphone.

      Surveillance video of the incident shows the off-duty California Highway Patrol officer trying to intervene and help the woman whose phone had been stolen at Bay Street

  3. Would that be the Thomas Porteous who unanimously impeached on four counts in the House and then convicted in the Senate on all four counts by 96-0, 69-27, 88-8, and 90-6 votes in the Senate…. followed by a 94-2 vote to prohibit him from office ever again….

  4. It would have been within the official duties of the President to inquire about possible corruption in Ukraine before releasing the assistance. What Trump did using Rudi Guiliani to get Zelinsky to influence the news cycle, dangling the threat of delayed assistance, was clumsy and disreputable….but not unusual for the way all US politicians “play the PR game” to their own advantage.

    A good summary would be “Let he who is without sin cast the first stone”.

  5. “If we broaden the definition of ‘bribery’ to include ‘demanding something of personal value from another party in exchange for performing professional duties already owed to that party’, then who among us would be innocent?” — Jonathan Turley, apparently

  6. The Dems are stupid if they go ahead with impeachment they got as much as they could out of this Witch hunt, and there’s an election next year

  7. 12/3/2019
    Dear Diary
    Stopped by Turley’s today looking for some lively intelligent banter. Found he was out somewhere giving his take on why it’s probably not a good idea to destroy the Constitutional Republic.
    Only found low key discussions as everyone waited for him to get back.
    Left Turley’s and went over to MSNBC to look for some libs set on autorage, autofear, autoignorant or autostupid to trigger.

  8. I think that the aid is leverage to guide Israel in the right direction,” Buttigieg said. “If, for example, there is follow-through on these threats of annexation, I’m committed to ensuring that the US is not footing the bill for that.

    Impeach! Oh wait, that’s just a Democrat candidate threatening Israel. Nothing to see here.

    1. “US aid should be used as ‘leverage’”

      Quid Pro Quo allert!!! Start the impeachment before Buttigieg has a chance to become the Democratic nominee.

      1. …to guide Israel in the right direction,

        The key point here is the leverage must be for what is considered by the progressive left as “the right direction.” If it in any way benefits Republicans, that’s of course “the wrong direction” and an impeachable offense.

  9. 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.

    Oh come on Turley, you’ve been preparing for this testimony for 3 years. The only thing daunting for you will be figuring out how to present your constitutional expertise without without falling off the political fence.

    All politicians are self-dealers who use their offices to advance themselves politically.

    Well of course. Charging the president with bribery or extortion, or whatever they want to call this is ridiculous. If you change the alleged bad actors to Republicans and had he released funds without taking care to ensure they weren’t going to be used for corrupt purposes, they would want him impeached for that.

    1. The corruption was in Yanukovich and Poroschenko. They are responsible for say, the prosecutor who was also corrupt. The one Guiliani is pals-ing around with. The one trump fired Ambassador Marie Yovanovitch for. The actions of trump et al have left footprints that deny their words of being corruption fighters, but rather have shown they are corrupters themselves. Btw, this is so important to understanding who is on who’s side. This can happen here. We should be supporting the new admin in Ukraine in their efforts against corruption and annexation.:

  10. The East India Company held tremendous power in the subcontinent and was accused of perpetuating the corruption for its own ends

    The Democrats held tremendous power in the US House and is accused of perpetuating corruption for its own end.


  11. Is anybody here saying that if there were hard evidence of a “quid pro quo” that that would not be sufficient for an impeachment conviction? That is, if there were substantial evidence that Trump or his minions at his instructions told the Ukraine President that the U.S. (Trump) would release the approved $400 million in defense money ONLY if that country undertook an investigation of the Bidens – that this would NOT be an impeachable offense?

    So then this is simply a matter of whether the evidence is sufficient to establish these allegations.

    1. Which Biden? The election opponent Biden or the corrupt international schemer Biden?

      1. Biden as political election opponent.

      2. Biden as corrupt global charlatan and swindler.

  12. “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.”
    The irony, of course, being that “high crimes and misdemeanors” under the common law contained the element of maladministration that Madison complained about. Serves Jimmy right for never being a lawyer. That said, you’ll find no Founder who contended that impeachment was a substitute for an election. The Dims are “form over substance” rabble who will try any maneuver to win. To beat them, you adopt their method of warfare. The Republicans should open up an inquiry into Schiff for “high crimes and ,is demeanors.” He conspired with Russian disc jockeys!

  13. The ‘Ukraine scandal’ is a Biden family scandal from which the Democratic Party has attempted to deflect attention with these shampeachment hearings. Democratic voters who have an opinion on these matters are fine with this sort of scamming around. The Democratic Party is a criminal organization and the rot goes all the way down.

    1. Quite the allegation. Just what crimes do you allege that the Democratic Party is supposed to have committed?

  14. So, Schiff has tried this stuff before? Please be sure to call him on it. They are still in search of a crime.

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