Understanding Adam Schiff’s ‘Bribery’ Theory

Rep. Adam Schiff (center), chairman of the House Intelligence Committee, speaks during a hearing as part of the impeachment inquiry into President Donald Trump, November 13, 2019. (Erin Scott/Reuters)Even assuming Trump’s intent was corrupt, this is not the bribery the Framers had in mind in the impeachment clause.

The Constitution makes bribery a predicate for impeaching and removing a president. Intelligence Committee chairman Adam Schiff is pushing the theory that President Trump has committed impeachable bribery because, as Schiff sees it, the president’s conduct violates a subsection of the federal bribery statute.

As in most criminal statutes, Congress includes several crimes in the bribery law. The offenses have gradations of seriousness, ranging from directly paying a public official a lavish bribe, to a public official’s indirectly agreeing to receive (but not ultimately receiving) some “thing of value” to be influenced in some official act. Like some of the lesser bribery offenses, the one Schiff is homing in on does not require an actual bribery (in the sense of an actual payoff).

Specifically, he is accusing the president of making a “corrupt demand.”

Under the law, if a public official, with corrupt intent, demands that someone provide him a bribe (a “thing of value”) as a condition for performing an “official act,” that is enough to prove guilt, even if the official drops the demand before something of value is exchanged. The Democrats’ theory is that Trump, intending nothing other the advancement of his own political interests (i.e., improving his 2020 reelection chances), corruptly demanded that Ukraine conduct investigations of his political rivals in exchange for two official acts — viz., granting a White House visit for Ukrainian president Volodymyr Zelensky and transferring $400 million in military aid authorized by Congress to help Ukraine defend against Russian aggression.

Schiff theorizes that this statutory bribery crime was complete when the demand was made; it makes no difference that the demand was dropped, and the Ukrainians got their aid. (Zelensky has not yet visited the White House, but Trump did meet him publicly at a session attendant to the annual U.N. festivities in September.)

To be clear, I do not believe Trump could be convicted beyond a reasonable doubt of bribery because there are significant proof problems, on the issues of both (a) corrupt intent and (b) the causal connection between the purported demand and the official acts. (On the latter, I’ve argued that it is foolish for Republicans to deny the existence of a quid pro quo; that does not mean the proof is strong enough to convict in court — so far, the circumstantial evidence that Trump ordered the defense aid to be withheld is not airtight.)

For present purposes, though, I want to focus on bribery — specifically, on what the Framers had in mind when they wrote bribery into the Constitution as a predicate for impeachment.

Hint: It was not the above-described federal bribery statute, the current version of which was enacted in 1962, some 175 years after the Constitution was written.

The Framers made “Treason, Bribery, and other high Crimes and Misdemeanors” the triggers for impeachment. Obviously, they were referring to bribery of a high order, on the scale of treason. The latter offense involves making war on the U.S., including giving the enemy aid and comfort. Enemies are foreign powers with which we are at war. The Framers, however, were worried that other foreign powers — even ones with which we are at peace — could corrupt an American president. Bribery was meant to fill that gap. It made impeachment available if a president was bribed by a foreign power to put the might of the United States in the service of the foreign power at the expense of the American people.

Schiff and the Democrats would reject this construction of bribery in the Constitution. Their position is that if it’s bribery under the federal statute, that’s good enough to impeach a president.

But is that really what they think?

On Wednesday, Ambassador Gordon Sondland testified about the two afore-described “official acts” that the Ukrainians sought from President Trump. Sondland said he could only be sure about one of them: the White House visit. As for the second, Sondland could only “deduce” that Trump was holding back on the defense aid to nudge Ukraine into announcing the investigations. Over time, Sondland inferred that the aid was being delayed and worried that it might not be transferred. He directly asked President Trump, who exclaimed that there was “no quid pro quo” — though this was less than convincing: Trump continued to insist that he wanted to Zelensky to do what was “right,” and Sondland understood that the aid was caught in a “stalemate” that could be undone only if it announced it would do the investigations.

Democrats spent most of Sondland’s hours of testimony pushing him very hard on this second official act, the provision of defense aid. Schiff and majority counsel, Daniel Goldman, repeatedly walked Sondland through the timeline and got him to agree that he’d “put two and two together.” Why the vigorous effort to induce an admission (which Sondland could not give) that the aid was absolutely conditional on the investigations?

Because Schiff knows that not all bribery is created equal. He knows the first official act is not good enough for impeachment, even if it’s good enough for the federal bribery statute. That is: No one in America except the most ardent anti-Trumpers is going to support the impeachment of the president of the United States over the mere denial of a White House visit to a foreign politician.

Let’s assume, for argument’s sake, that all the facts were as the Democrats claim, including that the president’s intent was corrupt. That would indeed establish a corrupt demand under the bribery statute, just as Schiff theorizes. But Schiff knows, like everyone knows, that that would not be close to the bribery needed to justify impeaching and removing a president.

And that’s because the Democrats’ theory is simply wrong. A violation of the federal bribery statute is not the bribery the Framers had in mind in the impeachment clause.

Schiff is anxious to tie the defense aid to the quid pro quo, too, because it’s clearly more serious than denying the White House visit. But that betrays his real problem: A statutory bribery offense is not necessarily enough. Even if he can prove one, there’s a big leap to impeachment and removal.

As we’ve said several times, impeachment is political, not legal. Congress does not need to prove a statutory crime; and no court can tell the House what an impeachable offense is — the brute fact is that Democrats are the majority, and they have the raw power to cite any alleged misconduct that can win a simple majority vote.

Yet, in the GOP-controlled Senate, a two-thirds’ supermajority is necessary to convict and remove a president from power. If House Democrats go down their bribery road, the Senate will have the opportunity to consider what the Framers had in mind when they put bribery in the impeachment clause. Here’s betting the senators will not conclude that a “corrupt demand” makes the cut.

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