House Manager Declares President Guilty Of . . . Attempted Bribery

440px-Jason_Crow,_official_portrait,_116th_CongressRep. Jason Crow, D-Colo., will be one of the seven Democratic impeachment managers prosecuting President Trump this week in his Senate trial. However, he seems a tad unclear on what the trial is about or at least what the defendant is facing as the allegations of impeachable conduct.  Crow declared on CNN’s State of the Union that Trump was really guilty of bribery. The problem is that bribery was rejected as an article of impeachment. Not only is it grossly unfair to go to trial while alluding to uncharged conduct, it is especially bizarre when the Supreme Court seems prepared to reaffirm the very case law that I cited earlier in rejecting such expansive interpretations.

On the show, Crow declared “Yeah, specifically he did attempt to bribe and coerce a foreign government official, in this case, the president of Ukraine.”  However, when asked if it was a mistake not to include a bribery article, Crow stated, “No, absolutely not.”

So it was appropriate not to charge him in an article of impeachment on bribery but it is appropriate to accuse him of that attempted crime before a trial?

I spent considerable time in my testimony and prior writings on why a bribery allegation was unfounded under current definitions and case law.  I also testified against three other articles that were being touted by the House leadership.  I was therefore pleased to see that the Judiciary Committee dropped previous claims of bribery, extortion, campaign finance and obstruction of justice as the basis for impeachment. I testified that the repeated assurances on these allegations from members, legal analysts, and my fellow witnesses were well outside the scope for these crimes. The Committee ultimately went forward with the only two articles that I believed were valid constitutionally in this situation: obstruction of Congress and abuse of power.  However, it rejected my repeated effort to get the House to wait a couple months to prove these allegations and most importantly complete the record.

In an actual trial, the reference to uncharged criminal conduct would be viewed as patently improper.  See e.g.,  United States v. De La Paz-Rentas, 613 F.3d 18, 25-27 (1st Cir. 2010) (finding prosecutors acting improperly in commenting that “the treachery of a renegade police officer who betrays his oath to protect the public” when “the defendants were not on trial for dereliction of duty and[, therefore,] the prosecutor had no business inviting the jury to focus on this aspect of their wrongdoing”).

The issue of uncharged conduct comes up fairly often in actual trials. It is usually however evidence of actual convictions. The suggestion of untried and uncharged crimes would be viewed as wildly inappropriate.   Federal Rule of Evidence 404(b) bars prosecutors from using these convictions as evidence of a defendant’s bad character. It states

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

In this case, there was no charge, let along a conviction, for bribery. Moreover, even when a conviction is allowed, it is also subject to FRE 403 which bar evidence or arguments that produce or threaten greater prejudice than probative value at trial. The reference to bribery is clearly designed to prejudice the minds of senators — and the public — which references to an actual crime.

As a former partner at a large firm, Crow must clearly be aware of why such references are viewed as presumptively unethical and unfair.  With House managers accusing the Republicans of acting as unethical jurors, the managers may want to avoid the same charge in their own arguments.

36 thoughts on “House Manager Declares President Guilty Of . . . Attempted Bribery”

  1. There is an enormous difference between a
    Criminal Case and a Political Witch Hunt.
    Hence the the President will be Acquitted FOREVER.

  2. Prof. Turley:

    Thank you for your excellent writings on the impachment. But respectfully, while your writings on the subject have been excellent, I have yet to see a piece by you or any other author that really gets directly to what I believe to be the real heart of the matter. I therefore request that you consider writing a new piece to address the following topics…

    The first article of impeachment is for abuse of power. Q: Is “abuse of power” by the President a high crime or misdemeanor as defined by U.S. code or some other body of law? If so, please cite section and verse, and discuss relevant case law/precedents for interpretation from prior cases. Clearly, “abuse of power” cannot simply mean doing things the opposite party doesn’t like. So therefore, in order to CONVICT the President of this “crime”, there must be specific criteria. Please include an enumerated list of what the prosecution must prove in order to warrant a conviction for “abuse of power”.

    The second article is for “obstruction of congress”. Clearly, the Framers not only permitted but ENCOURAGED the President to “obstruct” congress at least to some degree else they would not have given the President Veto authority for that exact purpose. So “obstruction of congress” must have some narrower definition here. Is “obstruction of congress” a high crime or misdemeanor as defined by USC or some other body of law? If so, please cite chapter and verse, and discuss relevant case law.

    The second sentence of the impeachment memorandum says that the U.S. Constitution provides remedies for when the President abuses his power. Forgive me, but my copy of the Constitution says no such thing. It only describes impeachment as a remedy for “bribery, treason, or other high crimes or misdemeanors”. So before even getting to all the complexity of the process, it seems to me that the impachment memorandum blatantly mis-quotes the U.S. Constitution in the very 2nd sentence of the document. If I am wrong to draw this admittedly simplistic conclusion, please explain why, citing case law and relevant precedent as appropriate.

    Thanks in advance for considering this suggestion. I have in fact read most of your prior writings on the impeachment process, but I don’t see anywhere that these very basic, simple issues are addressed. To my thinking, this whole thing is no more complicated than the question of whether there is any legal precedent to interpret “abuse of power” or “obstruction of congress” as impeachable high crimes or misdemeanors. Most scholars including yourself seem to agree these are viable charges that can be brought here. But us lay folk are having a hard time finding these “crimes” defined in any statute of law.

    1. The first article of impeachment is for abuse of power. Q: Is “abuse of power” by the President a high crime or misdemeanor as defined by U.S. code or some other body of law?
      Its pretty simple the Constitution provides that the congress will make the laws and the Executive will faithfully execute the laws.
      If the Executive stops faithfully executing the laws then you have the highest law of the land being violated.
      So if you would like to read what law is being allegedly violated go to Article II of the Constitution.

  3. THANK YOU Prof. Turley. I am an attorney/litigator whose blood pressure ticks upward whenever I read about the calculating and immature tactics of Schiff and the House, and I’m hoping that Trump’s legal team will “trump” them at their own [partisan] game. –Not that I think Trump is without fault. But I find his conduct evincing more indiscretion than culpable intent. Thank you again, Professor.

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