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The Original Constitutional Meaning of Bribery as Applied to the Ukraine Scandal
Andrew Hyman

Giles Jacob wrote the leading law dictionary of the founding era, and he defined bribery as, “[T]he receiving, or offering, any undue reward, to or by any person concerned in the administration of public justice, whether judge, officer, etc., to act contrary to his duty….” 

There is also a modern federal statutory definition of bribery, but it does not seem relevant. The general federal bribery statute is at 18 U.S.C. 201, but only defines bribery “for purposes of this section,” and even then it only applies to bribing United States officials rather than foreign officials.  There is also the Foreign Corrupt Practices Act which also refers to “anything of value” but apparently does not define or even use the words “bribe” or “bribery.”  Congress could hypothetically write a statute about what it means to “bribe” a foreign official, and that statute might be relevant to the Impeachment Clause of the Constitution, but only to clarify or detail the constitutional term “bribery” rather than to enlarge or expand it; this is because the rule of construction noscitur a sociis applies, and therefore a “high crime or misdemeanor” within the meaning of the Constitution cannot be less serious than bribery and treason were in 1789. 

One of the current issues in the impeachment hearings is whether promising a visit to the White House could be enough to impeach, even if there is insufficient evidence of a monetary bribe.  As Giles Jacob wrote, “To take a bribe of money though small, is a great fault….”  So any amount of money could constitute a bribe for impeachment purposes, though the higher the better.  As to payments that basically have no market value, puny or trivial rewards probably cannot be bribery or at least cannot be high bribery.  For example, offering gratitude, applause, a pat on the back, or a public endorsement would not be enough to be what Jacob called an “undue reward.”  Probably offering a mere visit to the White House would fall into that same category.  But offering hundreds of millions of dollars would surely be enough, provided of course that it is offered to induce a violation of duty.

Another current issue is whether the Impeachment Clause refers to the President accepting bribes, as opposed to the President offering bribes.  From a textual point of view, it does not matter whether the President of the United States is the offerer or the offeree, even though the framers were probably more concerned that he would be the offeree. James Iredell  said, "I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other" (emphasis added).  Textually, though, there is no distinction between giving and receiving a bribe, and Jacob covered both (see the first paragraph of this post).  Perhaps accepting a bribe might be a “higher” crime than offering one, but both are potentially impeachable.

A further current issue is whether the deal has to be consummated for the offense to be impeachable.  The answer is no.  Jacob wrote that, “if a judge refuse a bribe offered him, the offerer is punishable,” and of course that applies equally to “judges” as to any other official.  So no consummation is needed for the offerer to be held liable, although it’s usually much more difficult to prove that a bribe was offered if it was never consummated. 

There are currently two potential bribes at issue.  Chronologically, the first potential bribe was Joe Biden withholding aid to Ukraine until the Ukrainian government fired a prosecutor who was widely deemed to be corrupt; complicating that matter is the fact that Biden’s son’s company (Burisma) may have been an actual or potential target of that fired prosecutor.  The second potential bribe was when President Trump suggested that the new President of Ukraine (Zelensky) investigate various matters pertaining to the 2016 election and/or Burisma and/or Joe Biden.

Regarding the allegation that Joe Biden offered a bribe to get the prosecutor fired, he may have benefited from the firing, but there was no violation of duty by Ukrainian officials when they fired that prosecutor because they had other good reasons besides helping Biden’s personal situation with his son at Burisma.  Likewise, even supposing Trump was eager to get an electoral advantage over Biden in the 2020 election by having Democratic frontrunner Biden investigated by Ukrainian authorities, any failed attempt by bad actors in Ukraine to buy influence with an American Vice-President would be well worth investigating and punishing.  Foreigners who try to bribe high-ranking American officials (even incorruptible ones) represent perhaps the most dangerous form of foreign corruption, and so Trump would have had every reason to single out that sort of corruption for special attention, and it would be no violation of duty for a Ukrainian President to look into a failed bribery attempt.

It is troubling that Trump may have wanted Zelensky to publicly announce an investigation of Burisma in exchange for a White House visit, if not in exchange for military aid. After all, usual best practice is for investigators to keep quiet about their investigations until they obtain enough evidence to actually make an accusation, but Trump understandably might have wanted Zelensky to publicly commit to some sort of investigation to ensure that Zelensky would not renege on the investigation once he got the U.S. money.  

Here is a key exchange between Trump and Zelensky:

President Trump: There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it... It sounds horrible to me.

President Zelensky: I wanted to tell you about the prosecutor. First of all, I understand and I'm knowledgeable about the situation. Since we have won the absolute majority in our Parliament, the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look into the situation, specifically to the company that you mentioned in this issue. The issue of the investigation of the case is actually the issue of making sure to restore the honesty so we will take care of that and will work on the investigation of the case.

So, it looks like Zelensky agreed to investigate something, though perhaps not all Trump had hoped for, but maybe enough to satisfy Trump.  Judging by this transcript, Trump was not asking Zelensky to go beyond what the U.S. Attorney General would approve, and as far as I know the U.S. Attorney General has never approved any joint U.S.-Ukrainian investigation of bad actors at Burisma who attempted to buy influence with Joe Biden, much less an investigation of Joe Biden himself.  

It is fortunate for everyone that the House of Representatives is currently focusing on a “bribery” charge, because the original meaning of that word is much clearer and more relevant than the more nebulous “high crimes and misdemeanors” term.  Even if the charge of “bribery” was selected by a focus group, it may expedite resolution of the controversy.

MICHAEL RAMSEY ADDS:  Here are some other views of the issue, from Carissa Byrne Hessick (North Carolina) at Prawfsblawg and Ben Berwick & Justin Florence (Protect Democracy) at Lawfare.

But I'm with Andrew on this one (only maybe more so).  Without expressing a view on high crimes and misdemeanors, the bribery argument seems strained to me.  I don't see either (in Jacob's words) an "undue reward" or an "act contrary to [one's] duty" on the Ukrainian side.  As far as I can tell, President Zelensky did not receive anything he shouldn't have nor do anything he shouldn't have.  I would be very surprised if there were any founding-era precedent for applying the term "bribery" to anything like this situation.

Put another way, I presume that exchanges of political favors are routine in domestic politics and (especially) in foreign affairs, and if we start calling them bribery a lot of surprised people are going to jail.  For example, suppose a member of Congress agrees to vote for a bill benefiting another member's district, with the understanding (or hope) that the other member will vote for a different bill benefiting the first member's district.  I doubt members of Congress think this is bribery.