Reviewing the Impeachment Clause and the Crime of Bribery as the Hearings Begin in Washington
Under the Constitution, Congress does not have to prove a specific crime to remove the President from office, but in this case Donald Trump probably committed the crime of bribery in addition to violating his oath of office. Still, for purposes of impeachment, Democrats in the House of Representatives will likely focus on Trump's abuse of the public's trust.
The Constitution defines an impeachable offense as "treason, bribery, or other high crimes and misdemeanors." In the Federalist Papers, Alexander Hamilton described "high crimes and misdemeanors" as including both specific criminal statutes and an “abuse or violation of some public trust.”
And it wasn't just Hamilton who took an expansive view of the "Impeachment Clause."
Atlantic: "Moreover, the founders, both during the ratification period and afterward, identified multiple noncriminal acts they believed to be impeachable. At the Virginia ratifying convention, James Madison and Wilson Nicholas said abuse of the pardon power would be impeachable. Impeachment, some founders said, would also follow from receipt of foreign emoluments or presidential efforts to secure by trickery Senate ratification of a disadvantageous treaty. During the first Congress of 1789, Madison even argued that presidents could be impeached for “wanton removal of meritorious officers.”
Judge Andrew P. Napolitano of Fox News made a similar point in a recent opinion piece: "The president need not have committed a crime in order to be impeached, but he needs to have engaged in behavior that threatens the constitutional stability of the United States or the rule of law as we have come to know it." And, despite his ties to Fox News, Nepolitano recently argued that Trump committed impeachable offenses.
Despite this history, Republicans in Congress will still argue that Trump's attempts to extort dirt on Joe and Hunter Biden from Ukrainian President Volodymyr Zelensky were unethical, but don't constitute specific crimes punishable by federal law. That misses the point of the "Impeachment Clause" and probably isn't true. Trump's actions may violate the current federal bribery statute and certainly contravene the founders' understanding of the crime.
The federal bribery statute says someone has committed bribery if he or she is a “public official” who “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally … in return for … being influenced in the performance of any official act.” The argument here would be that Trump sought politically helpful investigations from Ukraine in exchange for releasing military aid and/or granting a much-sought Oval Office meeting for its president, Volodymyr Zelensky. To date, six officials have said there was some kind of quid pro quo there.
It's important to note that it's enough to "demand or seek" something of value and that the crime has been committed even in cases in which the "value" [dirt on Biden] hasn't been received.
Moreover, the real question isn't whether the President violated the current federal bribery statute, it's whether he committed bribery as understood by the founders of the nation, and they had a much more expansive understanding of the crime.
The Atlantic: "As for bribery as the Framers understood it, a trio of attorneys writing at Lawfare quote 18th- and early-19th-century legal treatises to show that the constitutional understanding was even broader than what federal law now prohibits––put simply, bribery was “understood as an officeholder’s abuse of the power of an office to obtain a private benefit rather than for the public interest.”
America's founders would have understood instantly what Donald Trump was seeking from Zelenski and called it what it is.
Lawfareblog.com: "The understanding of bribery at the Founding maps perfectly onto Trump’s conduct in his call with Zelensky. As noted above, Trump made clear to Zelensky that he was asking him for a “favor”—not a favor to benefit the United States as a whole or the public interest, but a favor that would accrue to the personal benefit of Trump by harming his political rival. Trump’s request that Zelensky work with his private attorney, Rudy Giuliani, underscores that Trump was seeking a private benefit. And Trump was not seeking this “undue reward” (to quote “Russell on Crimes” and the Delaware statute) as a mere aside unrelated to the president’s official role. Rather, he did so in the course of an official diplomatic conversation with a head-of-state."
The House's ultimate decision to impeach may not hinge on one specific criminal statute, and there are many witnesses we have not heard from yet. However, from what we know so far, the founders would not have hesitated to label Trump's actions as impeachable.
By: Don Lam & Curated Content