The Crimes in the Articles of Impeachment

Last week the House Judiciary Committee voted out two Articles of Impeachment of President Trump. The full House is expected to vote on them this week. Article One charges Trump with Abuse of Power for his actions toward Ukraine, and Article Two charges him with Obstruction of Congress. One common refrain among the president’s supporters is that impeachment is not appropriate because these articles do not allege the president committed a crime. But this is not correct: although the articles do not cite specific federal statutes, the facts they allege do establish several federal offenses. There are indeed crimes in the Articles of Impeachment.

But First: Impeachment Doesn’t Require a Crime

The Constitution provides the president may be impeached and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” Alexander Hamilton, in Federalist 65, wrote that impeachment is a remedy for abuse of office and is appropriate for “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

Although there is some debate about the exact meaning of “high Crimes and Misdemeanors,” there is a general consensus that impeachment does not require proof of a federal crime. Of the four law professor experts on impeachment who testified before the House Judiciary Committee on December 4, all four – including the expert called by the Republicans – agreed that impeachable offenses are not limited to conduct that violates federal criminal statutes. Professor Noah Feldman of Harvard Law School testified: “the essential definition of high crimes and misdemeanors is the abuse of office,” and that the “classic form … is using the office of the presidency for personal advantage or gain, not for the public interest.” He went on to note that: “the traditional meaning of high crimes and misdemeanors was not restricted to acts defined as ordinary crimes by statute.”

Even if you believed conduct should be criminal to be impeachable, that wouldn’t mean the conduct should have to track the precise elements of the current U.S. criminal code. The men who wrote the Constitution could not have been thinking of the federal criminal code because it did not exist at the time. Crimes such as bribery have been around as long as there have been politicians, and have common-law meanings not tied to the language of particular statutes. What’s more, the current federal criminal code contains a number of different statutes that prohibit bribery, and they do not all share the same definition of the offense.

Linking impeachable offenses to particular acts of Congress would mean Congress effectively could amend the Constitution by passing criminal statutes. For example, if “bribery” in the impeachment clause is defined by the current federal bribery statute, Congress could amend that statute and thereby alter the standard for impeachable offenses, rather than going through the normal Constitutional amendment process. This is exactly backwards: the Constitution is the supreme law of the land. Acts of Congress must conform to the Constitution, not the other way around.

In the Judiciary Committee report released on December 16 to accompany the articles of impeachment, the Republican committee members who dissented from the report admitted that impeachments of past presidents have included articles of impeachment that did not allege a specific crime. But they claimed this is the first time a presidential impeachment has consisted solely of articles that do not state a criminal offense, and that this is improper. According to the Republicans, “The Majority’s Articles of Impeachment are unprecedented in American history because they are not based on criminality, as were all prior presidential impeachments.”

But the Republicans are wrong: there are crimes in the Articles of Impeachment, and they are indeed “based on criminality.”

A Crime By Any Other Name

The claim that these Articles of Impeachment do not allege criminality reminds me of the claim from the days of the Mueller investigation that “collusion is not a crime.” There was an almost obsessive focus on the label applied to the conduct under investigation. Yes, it’s true there is no crime called “collusion.” But if people agree to engage in criminal activity, that act of collusion may violate the federal conspiracy statute. There’s also no crime called “shooting someone until they are dead” – but if you do that, you will be prosecuted for the crime called homicide. What matters in criminal law is the conduct, not the label applied to that conduct.

The Articles of Impeachment don’t cite specific federal statutes that the president allegedly violated. As noted above, there’s no particular reason they would; impeachable conduct is not defined by the terms of federal criminal statutes, and this is not a criminal indictment. But the facts alleged in those Articles would, if proven at a criminal trial, establish the commission of a number of federal crimes.

Article One: Bribery and Honest Services Fraud

The blog Just Security just published a collection of articles about the crimes implicated by president Trump’s conduct, called “Federal Criminal Offenses and the Impeachment of Donald J. Trump.” (I wrote the piece on bribery for the collection.) It identifies a number of crimes that Trump may have committed in his dealings with Ukraine. The first Article of Impeachment most clearly establishes two of those crimes: bribery and honest services fraud.

Bribery

The first Article of Impeachment, charging Abuse of Power, focuses on Trump’s attempts to pressure Ukraine into announcing two investigations that would be personally beneficial to Trump. One investigation was into the Bidens and the Ukrainian energy company Burisma, and the other into a debunked conspiracy theory involving alleged Ukrainian interference in the 2016 election. It alleges that Trump acted with “corrupt purposes” in pursuit of this personal benefit. And it alleges that he “conditioned two official acts” on Ukraine’s public announcement of the investigations: release of the Congressionally-approved military aid to Ukraine, and agreeing to a White House meeting that was desperately sought by Ukrainian president Zelensky.

Although Article One does not cite the bribery statute, the Article’s language closely tracks that law’s requirements. The statute, Title 18, United States Code, Section 201, provides that a public official commits bribery if he corruptly solicits or demands a thing of personal value in exchange for being influenced in the performance of an official act. All of the elements of the offense are clearly alleged in impeachment Article One. It alleges that Trump acted to obtain a thing of personal value, that he acted corruptly, and that he was agreeing to be influenced in the performance of official acts in exchange. This is the language of bribery.

In the Just Security piece on bribery, and in other articles (here and here, for example), I’ve written in detail about how the elements of the bribery statute are satisfied here. President Trump is a public official, the announcement of the Ukrainian investigations would be a thing of personal value to him, granting the White House meeting and releasing the aid are both “official acts” under the statute, and he acted corruptly by wrongfully linking his official actions to his demand for the announcement of the investigations.

Again, what matters are the facts of the president’s conduct. You can call it Abuse of Power, or you can call it Bribery. But the largely uncontested evidence of the president’s conduct toward Ukraine does in fact constitute bribery under current federal law.

Honest Services Fraud

When it comes to honest services fraud, the analysis is largely the same. Honest services fraud is a species of federal mail and wire fraud. In an honest services case, the defendant is charged with defrauding the victims of the right to fair, honest, and impartial services they are owed by someone. It’s most commonly used as a public corruption theory, with corrupt public officials charged with defrauding their constituents of the fair and honest services the officials owe the public.

In the 2010 case of Skilling v. United States the Supreme Court ruled that honest services fraud prosecutions are limited to cases involving bribery or kickbacks. The Court also held that it would define bribery for purposes of honest services fraud by using the definition in the bribery statute, 18 U.S.C. 201. As a result, the legal analysis for honest services fraud ends up mirroring the bribery analysis discussed above. As president, Trump owes a duty of honest services to the public. Because his conduct meets the elements of federal bribery, these facts also would qualify as honest services fraud. The only additional requirement would be proof that he used the mail or a wire or wireless transmission in furtherance of the fraud. The telephone call with president Zelensky would easily satisfy that requirement.

Article Two: Obstruction of Congress

The second Article of Impeachment charges the president with Obstruction of Congress. It alleges that Trump has improperly obstructed Congress’s impeachment inquiry by declaring it illegitimate and completely refusing to cooperate. He instructed numerous executive branch officials and key witnesses to defy subpoenas and refuse to testify. He also instructed the White House, State Department, and other agencies to refuse to turn over any documents in response to Congressional subpoenas. Article Two alleges that:  “In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors’”. 

Obstructing the impeachment inquiry itself was also one of the impeachment charges against presidents Nixon and Clinton. It relies heavily on the fact that the Constitution gives Congress the “sole power” to conduct impeachments. By declaring the entire inquiry illegitimate and refusing to cooperate, the Article alleges, Trump has “sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct.” This undermines the system of checks and balances set forth in the Constitution, which gives Congress the power to check a president’s conduct through impeachment. It is like a criminal suspect seeking to dictate to the FBI exactly how it should investigate him and what techniques it could use.

The president’s defenders argue that Congress should go to court and seek rulings on the president’s refusal to cooperate, rather than simply moving forward on impeachment. The House Report explains why the Democrats reject this claim. First, it would likely result in unacceptable delay, because court rulings and appeals can take months or even years. Particularly where the misconduct concerns an attempt to manipulate the upcoming 2020 election, the Democrats argue that they need to move quickly. Second, they argue that because the Constitution grants Congress the sole power to try impeachments, Congress has never relied on court review concerning its impeachment powers. The House Report states: “Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review.”

Unlike the term “Abuse of Power” alleged in Article One, “Obstruction of Congress” actually is a crime – although again, the Article of Impeachment does not cite any particular criminal statute. Obstruction of Congress may be prosecuted under at least two different federal statutes that prohibit obstruction of justice: Title 18, United States Code, Sections 1505 and 1512.  Section 1505 applies to anyone who “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House . . . . “  Section 1512(c)(2) punishes anyone who “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.”  “Official proceeding” is defined to include Congressional investigations. 18 U.S.C. 1515(a)(1)(B).

These statutes readily apply to conduct such as defying Congressional subpoenas and ordering subordinates not to testify. If this were a criminal prosecution, then as with most obstruction of justice cases the key issue would be proving corrupt intent. The president would argue he is simply asserting valid executive privileges in response to Congressional overreach and is not acting with corrupt intent. Congress would respond by pointing out the unprecedented nature and breadth of the president’s complete refusal to cooperate in the investigation or even to recognize its legitimacy.

It seems there would be a compelling case that by completely stonewalling Congress’s efforts to conduct an impeachment inquiry, the president did indeed act with the requisite corrupt intent to obstruct. And that’s a federal crime. The merits of the president’s defense would be up to the Senate during the impeachment trial. But there’s no question that Article Two contains allegations of criminality.

Conclusion: The Crimes Are In There

Once again, you don’t need to prove specific federal crimes for impeachment. But those who argue that these Articles of Impeachment are not based on criminal misconduct are wrong. The Articles may not cite specific federal statutes, but the conduct they describe would be indictable under several federal criminal laws.

Trump and Ukraine: Call it Bribery, Not Extortion

There is now overwhelming evidence that president Trump withheld Congressionally-approved aid to Ukraine to pressure that country to conduct investigations that would benefit Trump politically. As Congress begins public impeachment hearings, there is widespread disagreement over whether this conduct is best described as bribery or extortion. Based on this evidence you could say the president extorted Ukraine or you could say the president demanded a bribe from Ukraine — both would be accurate. But for purposes of impeachment, it’s better to call it bribery.

Impeachment is not a criminal proceeding, and it’s important not to buy into the argument that impeachment requires proof of a criminal offense. On the other hand, both bribery and extortion are in fact crimes, and deciding whether there was serious presidential misconduct justifying impeachment will inevitably be guided by reference to criminal law. In federal law, the elements of extortion by a public official and bribery are very similar. But if this were a criminal prosecution, there would be compelling legal reasons to charge bribery rather than extortion. And those same reasons, coupled with the language of the Constitution, mean that for purposes of impeachment it also is best to refer to the president’s conduct as bribery.

 

Giving bribe into a pocket

The Elements of Bribery

The federal bribery statute, 18 U.S.C. 201, makes it a crime for a public official to corruptly demand, seek, receive, accept, or agree to receive or accept anything of value in exchange for being influenced in the performance of an official act. In this case, the public official is president Trump. The thing of value he demanded was public investigations of his political rival Joe Biden and of a debunked conspiracy theory involving interference in the 2016 election and a computer server supposedly located in Ukraine.  And the official act Trump would perform in return would be releasing the approved military aid to Ukraine. Trump’s behavior toward Ukraine readily meets the elements of the bribery statute.

A key factor in this charge is the breadth of the term “thing of value.” It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

The Elements of Extortion

A person commits the crime of extortion when he induces the victim to part with something of value under some kind of duress. There are different kinds of extortion, including extortion by fear or threats of violence – the more familiar, mob-style, “pay up or we’ll break your kneecaps” scenario. But when it comes to extortion by public officials, the most commonly-charged theory is extortion “under color of official right” under a statute called the Hobbs Act, 18 U.S.C. 1951. That statute prohibits affecting interstate commerce through robbery or extortion, with extortion defined as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

In the 1992 case of Evans v. United States the Supreme Court held that Hobbs Act extortion under color of official right does not require any kind of express threat, demand, or shakedown by the public official. At common law, the Court held, this offense was the “rough equivalent of what we would now describe as ‘taking a bribe.’” All that is required is that the public official accept a payment to which he or she is not entitled, knowing it is being given in return for the performance of some official act. That does indeed sound just like bribery, which explains why extortion under color of official right is a common charge in cases where the conduct looks more like bribery than extortion.

The facts of the Ukraine case also suggest another extortion theory under the Hobbs Act: extortion by fear. Such a charge would allege that president Trump extorted Ukraine to begin the investigations through fear of the harm that would result, economically and militarily, if the approved aid continued to be withheld. This is a more classic extortion model (“Nice little country you got here, be a shame if something happened to it”). Trump’s coercive behavior toward a much weaker, vulnerable nation could readily be characterized as extortion by fear.

Map of Ukraine

Was Trump’s Behavior Bribery or Extortion?

As noted above, after Evans there is little difference between charging a public official with bribery or with extortion under color of official right. In many cases, either statute could be applied. Extortion under color of official right is a common charge in cases involving bribery of state and local officials, because the federal bribery statute applies only to federal public officials. For example, Virginia Governor Bob McDonnell was charged with multiple counts of extortion under color of official right, even though the conduct in his case was best described as bribery.

But a key distinction between the two charges is the legal status of the payor. In a bribery case, there generally is a two-sided, consensual transaction. The bribe payor and the bribe recipient enter into a corrupt agreement and both are culpable. The statute prohibits both sides of the transaction, and both may be charged.

In an extortion case, by contrast, the person who pays is generally considered a victim rather than a willing participant. Extortion statutes do not punish the payors, who are paying under duress. That’s certainly true in a case involving extortion by violence or fear. But it’s also true in extortion under color of official right – the Hobbs Act contains no provision for charging those who are, in effect, paying bribes. As a result, the Court’s interpretation in Evans created something of an anomaly: a bribery statute that punishes only one side of the transaction. This has led prosecutors in some cases to develop creative theories to pursue the bribe payors in a Hobbs Act case, such as charging them with Hobbs Act conspiracy.

This factor may suggest that extortion is a better fit for the Ukraine scenario than bribery. Ukraine certainly seems more like a victim than a willing participant. On the other hand, the bribery statute does specify that a public official may “demand” a bribe – which suggests some degree of coercion or duress.

Factually, I think the Ukraine transaction could be described as either bribery or extortion. And I agree there is some force to the argument that extortion feels like a better fit, given the bullying nature of Trump’s behavior and Ukraine’s coerced participation. But legally – and politically —  there are compelling factors that favor characterizing Trump’s behavior as demanding a bribe.

The Hobbs Act Property Requirement

If this were a criminal case, there would be a significant hurdle to charging Hobbs Act extortion, either by fear or under color of official right. Extortion requires that the public official obtain “property” of the victim. This is narrower than the “thing of value” that will suffice for a bribery case. “Property” usually refers to a bundle of rights in something, tangible or intangible, that can be exclusively held and enjoyed and transferred to others. An investigation of a political rival could easily serve as a “thing of value” in a bribery case, but it’s much harder to argue that such an investigation would constitute property for purposes of the Hobbs Act.

In addition, under the Hobbs Act the property must be something the official “obtained” from the victim (or at least would have obtained if the extortion had been successful). For example, in a case involving anti-abortion protestors who blockaded abortion clinics, the Supreme Court held that Hobbs Act extortion did not apply because, even if a clinic’s medical practice was considered a property right, the defendants did not “obtain” it themselves by blockading the clinic to interfere with the clinics’ use of the property. Similarly, it’s not clear how an investigation by Ukraine could be property that could be obtained by the president.

If I were a prosecutor looking at bringing a criminal indictment in this case, I would be strongly leaning toward bribery charges rather than extortion charges under the Hobbs Act. Bribery fits the case factually and is a better choice legally, due to the breadth of the “thing of value” element.

Donald Trump

Bribery is Better

Once again, impeachment is not a criminal trial. Conduct does not have to meet all the elements of a federal criminal offense to be impeachable. We could call the president’s behavior extortion as it is commonly understood (even if not technically under the terms of the statute) and an abuse of power that justifies impeachment. But calling the behavior extortion creates potential arguments and muddies the waters. Bribery is better.

It’s easy to anticipate the arguments by president Trump’s supporters, some of whom have already claimed there can be no impeachment if there is no provable crime. If the president’s behavior is called extortion by the Democrats, a likely response will be: “But this wouldn’t qualify as extortion under federal criminal law. How can you impeach a president for something that is not a crime? How can that be a ‘high crime and misdemeanor’?” Although this argument has no constitutional force, it would create an easy talking point: Democrats are trying to impeach the president for a “high crime” that under federal law would not be a crime at all.

When it comes to bribery, on the other hand, all the elements of a criminal offense have been completed. As I’ve noted elsewhere, It doesn’t matter that the quid pro quo was never consummated: with bribery the crime is the corrupt demand, even if it was not ultimately successful. So although impeachment does not require an actual crime, in this case we have one. Republicans will still argue, of course, that the elements of bribery have not been satisfied. But legally the Democrats are on much stronger ground if the charge is that the president demanded a bribe.

Talking about extortion also puts the focus more on the president’s bullying and his demands from Ukraine. That in turn invites the response that sometimes in diplomacy you have to play rough to get other countries to do what you want – the Mick Mulvaney “get over it” defense. Many of the president’s supporters have already argued that bargaining and demands are common in diplomacy and so this was no big deal. That ignores, of course, that in this case the president was demanding a country do something because it would personally benefit him, not because it was in the best interest of the United States. But calling it extortion makes this argument easier by focusing more on what the president did and less on why he did it. Framing the conduct as bribery, on the other hand, puts the focus on the personal benefit the president sought to receive. Trump was not just playing hardball diplomacy, he was using the power of his office to personally enrich himself. That is the language of bribery.

But perhaps the best reason to prefer bribery to extortion is that bribery is specifically listed in the Constitution as a basis for impeachment. Article II, Section 4 provides: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Of course Democrats could argue that extortion qualifies as a “high crime,” and they’d be right. But they will face counter-arguments, particularly if some technical elements of the crime of extortion arguably are not present. When it comes to bribery, there is no ambiguity.

This makes the impeachment messaging extremely clear and simple:

1) Trump corruptly demanded something of personal value in exchange for official action.

2) That’s the legal definition of bribery.

3) The Constitution specifies bribery as grounds for impeachment.

You can’t get much cleaner than that. When described as bribery, there’s simply no room to argue this was not an impeachable offense. Republicans who wish to defend the president will have to do so based on the facts of his behavior, not on claims about legal technicalities.

Call it what it was.  Call it bribery.

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