Friday, December 6, 2019

Blue State Blues: 'Bribery' Is a Bogus Charge

Democrats apparently intend to focus their case for impeaching President Donald Trump on the accusation that he attempted to commit “bribery” by asking Ukraine to investigate alleged interference in the 2016 election and an oil and gas company on whose board Hunter Biden, the son of former Vice President Joe Biden, served until recently.

Article II, Section 4 of the Constitution says impeachment shall be for “Treason, Bribery, or other high Crimes and Misdemeanors.” It does not include attempted bribery. Regardless, Trump did not commit the crime or the attempt..

As Alan Dershowitz points out in his recent book, The Case Against the Democratic House Impeaching Trump, the Constitution does not define bribery as carefully or explicitly as it defines treason. As such, he writes, “it is unclear whether the word ‘bribery,’ as used in the constitutional criteria for impeachment and removal, incorporates the ’emoluments’ clauses or is limited to the crime of bribery as defined at the time of the Constitution or by subsequent statutory enactments.”

The framers worried about foreign powers using large sums of money to corrupt American officials. But merely accepting payment for goods and services — as happens every day at Trump’s businesses — is unlikely to violate the Emoluments Clause, and it would be hard to show a link between those purchases and the desire that President Trump take specific official action — the common-law definition of bribery in 1789.

House Intelligence Committee chairman Rep. Adam Schiff (D-CA) argued earlier this week that bribery, as it was understood by the Founders, was even broader. He told National Public Radio: “Bribery, first of all, 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.”

Never mind, for the moment, the astonishing fact that Schiff has suddenly discovered that he is a constitutional originalist. His understanding of the late eighteenth century definition of bribery is not only dubious, but also overly broad — and hence unconstitutional. There is a “personal or political reason” for every official act, and minds may differ as to what is in the national interest.

So we are left with contemporary bribery statutes.

Federal law — U.S. Code Title 18, Section 201 — defines bribery very carefully. A public official is guilty of bribery if he or she “corruptly” seeks or accepts “anything of value personally” in exchange for “being influenced in the performance of any official act.” The law also says public officials cannot seek anything of value “otherwise than as provided by law for the proper discharge of official duty.”

President Trump is accused of asking the Ukraine to conduct investigations in exchange for a) a meeting; and b) aid.

But it is unclear whether those investigations would qualify as a thing of “value.” They have no monetary value, and the Department of Justice has already investigated whether they qualify as an in-kind campaign contribution. They do not; the case was closed.

Moreover, it is entirely possible that an investigation of the Bidens could exonerate the former vice president. In that case, the chief beneficiary would actually be Biden and his presidential campaign.

In addition, Trump was engaged in the discharge of his official duty. Everyone — including the officials who have testified against him this week — admits that Ukraine has a problem with corruption, and it is in America’s national interest to fight corruption at home and abroad, especially when we are about to send other countries our money. State Department bureaucrat George Kent even testified this week that Burisma ought to be investigated, and that he himself had raised concerns about then-Vice President Biden’s self-evident conflict of interest.

Democrats tried to argue that Trump only cared about the Bidens, not corruption in general. But that is contradicted by testimony from closed-door hearings in which it was revealed he had also held up an earlier batch of aid in 2017 and lectured then-Ukrainian President Petro Poroshenko about corruption (and how Ukraine needed to start paying its own way).

Moreover, as Democrats have argued for years, it is necessary to know whether a leading presidential candidate could be compromised by foreign corruption — and it is important to investigate past election interference — well-documented in the case of both Russia and Ukraine — so that future election interference can be prevented.

It would also be very difficult to argue that Trump had corrupt intent. He released the transcript immediately. And it would be odd, to say the least, for him to solicit a bribe — and then ask the target of that solicitation to work closely with the Attorney General, the chief law enforcement officer of the U.S. Chargé d’affairs Bill Taylor, who testified this week, said he was glad thatTrump had turned to an official channel to handle his request for investigations.

So much for “bribery.” And “attempted bribery” — even if it were an impeachable offense, which it is not — also requires specific intent. The argument against corrupt intent, above, is enough to deal with that particular element.

There is only one reason Democrats are turning to “bribery”: because they have failed to find any other crime the president committed. Indeed, now they are arguing that they do not need one. It is a sign of their desperation.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.

Joel B. Pollak

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