Why wrestle with the meaning of “high Crimes and Misdemeanors”? The president can be accused of an offense that’s already well-defined.
Rep. Frank Pallone Jr. (D-N.J.) has described President Trump’s public call for a foreign government to investigate former vice president Joe Biden’s family as an “abuse of power.” Ditto former congressman and 2020 presidential candidate Beto O’Rourke (D-Texas). Speaker Nancy Pelosi (D-Calif.) has characterized Trump’s recent conduct — including his July 25 phone call with Ukraine’s president — as “brazen efforts to pressure foreign powers to intervene in the 2020 elections,” adding that “continued efforts to hide the truth of the President’s abuse of power from the American people will be regarded as further evidence of obstruction.”
For congressional Democrats considering impeachment, there is a case to be made that the Constitution’s reference to “high Crimes and Misdemeanors” applies to Trump’s alleged Ukraine plot, charges of a coverup or possible obstruction of justice. And there would be nothing unusual about Congress considering several articles of impeachment: The House voted on four articles against President Bill Clinton — obstruction passed, abuse of power failed — and 11 against President Andrew Johnson. The Senate ultimately voted on two articles against Clinton and three against Johnson.
Amid a series of House investigations, however, and several public, potentially incriminating admissions by Trump, Democrats haven’t settled on a core legal rationale for impeachment, which is striking, considering the Constitution’s answer is staring them in the face. Trump’s statements and actions with regard to Ukraine appear to fit one of the few offenses the Constitution specifically lists as impeachable: Bribery.
Along with treason, it’s the only impeachable offense expressly listed in Article II, Section 4 before the catchall category, “high Crimes and Misdemeanors,” as a reason to impeach federal officials, who “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The legal case would be that Trump sought a bribe. He encouraged Ukraine’s President Volodymyr Zelensky “to do us a favor” and look into, among other things, the Biden family. Trump would later acknowledge that goal, telling reporters on Oct. 3 that he wanted Zelensky to “start a major investigation into the Bidens.” Evidence and testimony from inside the Trump administration, meanwhile, suggests that the sought after benefit — an investigation of Trump’s rival — was conditioned on U.S. government action: Administration officials have referenced apparent conditions on both a coveted White House meeting between the two leaders, and on disbursement of millions in military aid, pending Ukraine’s government announcing an investigation of the Bidens.
Even though the process would likely call for additional evidence and detail, that’s the logical thrust of the argument that Trump used his office to seek a bribe: corruptly soliciting something of value “in exchange for official action.” As it stands, the case appears straightforward, and, unlike most legal or political issues, several key underlying facts aren’t even in dispute.
A focus on bribery would distinguish this case from the two presidential impeachments in history, neither of which resulted in conviction in the Senate and removal from office. The Johnson and Clinton cases were bogged down by a difficult question: What defines a high crime or misdemeanor in the Constitution?
At Johnson’s trial, the Senate was not convinced by articles of impeachment that fixated on whether he made an illegal recess appointment for the war secretary position, or whether he brought a generalized sense of “ridicule and disgrace” to the presidency, a matter of opinion. For Clinton, even some of his Republican opponents were not convinced a president should be convicted of a “high crime” for alleged perjury and obstruction that did not involve official duties.
By contrast, no one can deny that bribery is impeachable, because the Constitution says it is.
Invoking the Founders’ text also preempts efforts to turn impeachment into a technical debate over federal law. A Senate trial on bribery would evaluate impeachment the way the Constitution does: As a violation so grave it merits removal, without parsing the statutes that Congress passed decades after the Constitution was ratified. As former Justice Department lawyer Ben Berwick argues, “the concept of high crimes and misdemeanors can’t be limited by statutes” since, until the mid-20th century, criminal law “followed the common law model” and the “same goes for bribery,” since “there was no general federal bribery statute at all until 1853.” There’s not much logic, then, to invoking contemporary laws to resolve whether the president’s conduct is impeachable, when the conduct fits within an impeachable offense already spelled out in the Constitution’s text.
If the president or other officials separately committed a felony, that is a matter for prosecutors. The outlook there is mixed. On the one hand, the Supreme Court recently raised the bar for what it takes to convict a public official for bribery, in a unanimous ruling knocking down the conviction of former Virginia governor Bob McDonnell. Remember the “official act” required in return for a bribe? The Court ruled it must involve deploying “governmental power,” not just setting up a meeting. That could be good news for any official who may have arranged Ukraine meetings, but it probably doesn’t help an official who may have corruptly altered foreign aid. On the other hand, when a plot involves a United States official demanding a benefit, strict bribery and extortion rules can kick in. Public officials can be found guilty of federal bribery or extortion even without fulfilling a promised quid pro quo. As the Court stressed in that same case, an official can commit bribery even if he does not actually take an action, “it is enough that the official agree to do so.” In other words, demanding something of value while merely suggesting you will take future government action, such as delaying military aid, might constitute a crime, even if you don’t follow through.
There is a range of evidence against President Trump, including what is known in legal circles as his “voluntary confession,” but he has more than one defense: On his conduct toward Ukraine, Trump argues that regardless of what he requested or hoped for, he didn’t offer any explicit action in exchange for an investigation. “When this came out, it was ‘quid pro quo’ — well, there is none,” Trump told reporters on earlier this month. Thursday, in the White House press briefing room, acting White House chief of staff Mick Mulvaney conceded that military aid for Ukraine was conditioned on a political probe, saying “that’s why we held up the money” — an admission so blunt that Trump’s personal lawyer rushed to distance himself from the statement. Ultimately, though, the Constitution’s bribery prohibition doesn’t turn exclusively on whether officials say the conduct occurred, but rather on Congress’s view of what the evidence proves.
While that argument is about what Trump offered, there is another defense based on what he sought: Trump may argue that whatever personal benefit might accrue from a Biden investigation, he genuinely thought an investigation was in the interest of the country. Trump took this tack on Oct. 4, arguing that he had “a duty” to push a foreign investigation of Biden because “we are looking for corruption.” Legitimately demanding something for the United States does not amount to a benefit for a bribe, which makes his intent the issue.
And there are also institutional defenses: Whatever one thinks of this alleged plot, there’s a question of whether the Senate should set a precedent for indicting, and potentially ousting a president over what some consider only diplomatic “hardball.” Throughout history, the argument goes, presidents have wielded foreign policy powers with an eye on reelection — perhaps that’s what Mulvaney was trying to get at with his now infamous comments in the briefing room, declaring “we do that all the time” and telling everyone to “get over it”.
Most of these defenses turn on credibility. Are they corroborated, or undercut, by firsthand witnesses, the administration’s actions, and the evidence of Trump’s intent? In the end, there may be many things about the president that merit criticism, but few that merit impeachment. That is what the Founders intended when they listed only bribery, treason, and high crimes and misdemeanors as grounds for taking that step.
If Congress, pursuing impeachment, begins with the Constitution’s text, it may find bribery is the right place to focus. That’s true especially because of evidence drawn from Trump’s own words: Remarkably, the president who spent years successfully resisting an interview with special counsel Robert Mueller finds an impeachment probe rapidly escalating, in part, because of interviews he’s given, freely, sometimes standing on the White House lawn.
Correction: A previous version of this article was incorrectly worded to refer to the argument that Trump “offered” a bribe. It has been corrected to refer to the argument that he “sought” a bribe.