{"id":5180,"date":"2020-03-27T18:04:20","date_gmt":"2020-03-27T22:04:20","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/nsj\/?p=5180"},"modified":"2020-04-08T14:27:09","modified_gmt":"2020-04-08T18:27:09","slug":"yes-trumps-shakedown-of-ukraine-was-impeachable-bribery","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2020\/03\/yes-trumps-shakedown-of-ukraine-was-impeachable-bribery\/","title":{"rendered":"Yes, Trump\u2019s Shakedown of Ukraine Was Impeachable \u201cBribery\u201d"},"content":{"rendered":"

A Government Lawyer<\/strong><\/em>[*]<\/a><\/p>\n

[This essay is available in PDF at this link<\/a>]<\/p>\n

<\/a>Introduction<\/h1>\n

About two weeks before the U.S. House of Representatives impeached President Trump, Professor Josh Blackman and Seth Barrett Tillman published an article on Lawfare<\/em>. In it, they argue that Trump\u2019s withholding from Ukraine of military aid and a White House meeting, meant to pressure it to announce an investigation of Joe and Hunter Biden, did not amount to bribery for impeachment purposes.[1]<\/a> Trump was ultimately impeached, and subsequently acquitted, for \u201cabuse of power\u201d rather than bribery,[2]<\/a> but because their argument may be invoked during future impeachments, it still warrants close scrutiny. Blackman and Tillman are incorrect\u2014Trump\u2019s effort to coerce Ukraine into smearing his political rival is bribery in a constitutional sense.<\/p>\n

The Constitution allows Congress to impeach and remove a President for \u201cTreason, Bribery, or other high Crimes and Misdemeanors.\u201d[3]<\/a> It does not, however, define the term \u201cBribery.\u201d The federal bribery statute imposes criminal liability on any \u201cpublic official\u201d who \u201ccorruptly demands, seeks, receives, [or] accepts . . . anything of value personally . . . in return for . . . being influenced in the performance of any official act.\u201d[4]<\/a> Blackman and Tillman seem to assume that this statute also supplies the framework for understanding bribery in a constitutional sense.[5]<\/a> I am willing to stipulate that the Constitution defines \u201cBribery\u201d in a way that generally tracks the bribery statute\u2019s language\u2014though perhaps, as discussed later, with some differences.<\/p>\n

Trump\u2019s shakedown of Ukraine certainly seems to meet all of statutory bribery\u2019s elements. Trump, a public official, demanded that Ukraine smear his political rival, which would help him secure reelection, and thus be valuable to him.[6]<\/a> In return, Trump would release military aid to Ukraine and meet with its President at the White House, both official acts. Trump\u2019s motive for this demand was predominantly (in fact, entirely) to procure a personal benefit, not simply to reap the political benefits of acts that serve the public interest, and was thus corrupt.[7]<\/a> Blackman and Tillman nonetheless argue otherwise. As they see it, neither Trump\u2019s withholding of military aid nor his offer of a White House meeting amounted to bribery. Their analysis is riddled with errors, and their conclusion is wrong.<\/p>\n

<\/a>I.\u00a0 Withholding Military Aid Amounted to Bribery<\/h1>\n

Blackman and Tillman argue that Trump did not commit bribery by withholding military aid from Ukraine to pressure it to announce an investigation of the Bidens. Their argument unfolds in three steps. First, they assert that statutory bribery cannot cover ordinary legislative horse-trading\u2014for example, when a Member of Congress agrees to support another\u2019s bill if funding is added for a pet project in the Member\u2019s district.[8]<\/a> Otherwise, they say, virtually all Members would be subject to prosecution.[9]<\/a> From this premise, Blackman and Tillman then derive a more generalized rule\u2014that a reciprocal exchange of official acts by two public officials can never<\/em> amount to bribery.[10]<\/a> This is so, they say, even if both officials acted with self-serving motives, such as the simple desire to secure reelection.[11]<\/a> Because Trump merely sought to trade one official act (the announcement of an investigation) for another (the release of military aid), Blackman and Tillman conclude, he cannot have committed bribery.[12]<\/a> As explained below, this argument is defective at each turn.<\/p>\n

<\/a>A.\u00a0 Bribery Can Cover Reciprocal Exchanges of Official Acts<\/h2>\n

As an initial matter, reciprocal exchanges of official acts are not categorically beyond the bribery statute\u2019s reach. I agree with Blackman and Tillman that Members cannot be indicted for ordinary legislative horse-trading, but for a different reason. Legislative horse-trading is unlike other reciprocal exchanges of official acts. It is a special case, protected by a specific provision of the Constitution: the Speech or Debate Clause.[13]<\/a> That Clause shields Members from liability for any \u201clegislative act.\u201d[14]<\/a> Legislative acts include \u201cthings generally done in a session of [either] House by one of its members in relation to the business before it.\u201d[15]<\/a> When a Members votes for a bill in exchange for its sponsor\u2019s adding funds for a project in her district\u2014something \u201calmost every member of Congress\u201d has done[16]<\/a>\u2014that trade is a protected legislative act.[17]<\/a> The Speech or Debate Clause thus protects both Members from indictment for bribery based on that trade.<\/p>\n

Importantly, the Speech or Debate Clause is the only<\/em> reason that legislative horse-trading cannot be indicted as bribery. Legislative horse-trading, after all, falls squarely within the bribery statute\u2019s elements, if done with a corrupt motive.[18]<\/a> Indeed, Blackman and Tillman do not even attempt to justify a horse-trading exception to bribery liability as a plausible construction of the statute\u2019s language. Curiously, they do not mention the Speech or Debate Clause either. Their only<\/em> argument is that legislative horse-trading is so common that every Member could be prosecuted were it illegal.[19]<\/a> But the mere fact that a certain practice is ubiquitous among Members has no bearing on whether it is bribery. After all, if every single Member routinely accepted duffel bags full of cash in exchange for voting a certain way, it would still be bribery.[20]<\/a> Only the Speech or Debate Clause prevents legislative horse-trading from being indictable.<\/p>\n

This punctures any claim that reciprocal exchanges of official actions can never be bribery. A common lawyer\u2019s trick is to draw an overgeneralized rule from a small set of examples. Blackman and Tillman do that here, stretching the horse-trading analogy to sweep up Trump\u2019s Ukraine shakedown. But what Trump did is too unlike legislative horse-trading to be treated alike. While Speech or Debate immunity protects legislative horse-trading, it does not cover Trump\u2019s acts, and there is no Speech or Debate Clause analogue for Presidents.<\/p>\n

Trump\u2019s conduct also differs from legislative horse-trading in several other important ways. First, horse-trading is a routine and usual part of the legislative process\u2014indeed, that is why the Speech or Debate Clause protects it[21]<\/a>\u2014whereas shaking down foreign governments to secure personal benefits is anything but a routine, usual, or proper aspect of American foreign policy. Second, Members have genuine discretion in how they cast their votes, even if they are capable of exercising that discretion corruptly. Trump, however, lacked discretion under the Impoundment Control Act to withhold the military aid to Ukraine that Congress had appropriated.[22]<\/a><\/p>\n

Finally, legislative horse-trading by its very nature at least conceivably produces genuine benefits to the public, and thus is worthy of constitutional protection, whereas Trump\u2019s actions did not. When a Member demands funding for a project in her district in exchange for her vote, that funding presumably has real value to her constituents. Otherwise, she would not have wanted it, as it would not have helped her secure reelection. What Trump sought, in contrast\u2014the mere announcement<\/em> of an investigation into the Bidens\u2014would have yielded no conceivable benefit to the American people. There is a fair argument that an investigation into alleged corruption by an American official and his son may be of value to the American people.[23]<\/a> But tellingly, Trump did not<\/em> ask Ukraine to conduct an actual investigation of the Bidens. He asked only<\/em> that Ukraine announce<\/em> one.[24]<\/a> This naked effort to harm a political rival produced no conceivable benefit to the American public, and thus should not merit constitutional immunity.[25]<\/a><\/p>\n

Trump\u2019s shakedown of Ukraine thus is simply too unlike legislative horse-trading, both legally and factually, to support a categorical rule that reciprocal exchanges of official acts can never be indictable bribery.<\/p>\n

<\/a>B.\u00a0 Any Limit on Statutory Bribery Need Not Apply to Constitutional Bribery<\/h2>\n

Even if the bribery statute cannot extend to reciprocal exchanges of official acts, bribery under the Constitution<\/em> does not necessarily has a similar limit. A term can carry different meanings under the Constitution and a statute, after all. For example, the Supreme Court famously held that the Affordable Care Act imposed a tax in the constitutional sense, but not in a statutory sense.[26]<\/a> Here, too, there are good reasons to construe the term \u201cbribery\u201d more broadly under the Constitution\u2019s impeachment provisions than under the bribery statute.<\/p>\n

First, impeachment\u2019s very purpose is to hold the President accountable for violations of the public trust, even those violations that cannot amount to ordinary criminal offenses.[27]<\/a> Second, and perhaps most importantly, reading the term \u201cBribery\u201d in the Constitution to exclude reciprocal exchanges of official acts would serve no purpose, as it would not narrow the range of impeachable offenses. Blackman and Tillman\u2019s reason to construe the bribery statute to exclude legislative horse-trading, after all, is not that such a construction follows from the statute\u2019s text\u2014it does not\u2014but rather to ensure that Members are not prosecuted for horse-trading. But Trump\u2019s shakedown of Ukraine would be impeachable even if it did not amount to \u201cBribery,\u201d as it would still fall within the class of \u201cother high Crimes and Misdemeanors.\u201d Professor Charles L. Black, Jr., the leading scholarly authority on impeachment, has defined the set of impeachable offenses as those \u201cwhich are rather obviously wrong, whether or not \u2018criminal,\u2019 and which so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.\u201d[28]<\/a> Article II\u2019s language supports this definition: the President\u2019s charge to \u201ctake Care that the Laws be faithfully executed\u201d[29]<\/a> rebuts any argument that an act taken for corrupt purposes cannot form the basis for an impeachment.<\/p>\n

There seems to be little doubt that using one\u2019s power of office to coerce a foreign government to smear a political rival easily fits the definition of an impeachable high crime or misdemeanor. Indeed, Blackman and Tillman do not squarely dispute that Trump\u2019s behavior is impeachable on other grounds, such as abuse of power. They argue only that it is not \u201cbribery.\u201d[30]<\/a> But if Trump\u2019s conduct is impeachable regardless, then the only purpose for excluding it from the scope of \u201cbribery\u201d\u2014limiting the set of behaviors for which a public official can be held legally accountable\u2014would not apply here at all. And because that exclusion neither would serve any purpose nor is justifiable as a textual matter, it has no basis in law.<\/p>\n

<\/a>II.\u00a0 Dangling a White House Meeting Amounted to Bribery<\/h1>\n

Blackman and Tillman also argue that Trump did not commit bribery by using the promise of a White House meeting to induce Ukraine to announce an investigation of the Bidens for an additional reason: that a White House meeting is not an \u201cofficial act\u201d under a 2016 Supreme Court decision.[31]<\/a> That case, McDonnell v. United States<\/em>,[32]<\/a> involved the federal bribery prosecution of former Virginia Governor, Robert McDonnell. McDonnell and his wife had accepted \u201c$175,000 in loans, gifts, and other benefits\u201d from a businessman.[33]<\/a> In return, McDonnell set up meetings with officials for the businessman, hosted events at the Governor\u2019s Mansion for him, and contacted other officials about his interests.[34]<\/a> The issue was whether these were \u201cofficial act[s]\u201d under the bribery statute.[35]<\/a> The Supreme Court held they were not, and vacated McDonnell\u2019s conviction.[36]<\/a> But McDonnell<\/em> does not bind Congress as to what \u201cofficial act\u201d means for impeachment purposes. Trump\u2019s dangling of a White House meeting thus was also impeachable bribery.<\/p>\n

<\/a>A.\u00a0 McDonnell<\/em> Does Not Bind Congress as to the Meaning of an \u201cOfficial Act\u201d<\/h2>\n

McDonnell<\/em> does not control the meaning of an \u201cofficial act\u201d for purposes of impeachable bribery. It held that \u201csetting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an \u2018official act\u2019\u201d under the bribery statute.[37]<\/a> But the Supreme Court\u2019s understanding of the term \u201cofficial act\u201d does not bind Congress sitting as a Court of Impeachment. Congress is not simply one of the inferior courts over which the Court exercises appellate review. It is a separate and co-equal branch of government, free to disagree with the Court and use its independent judgment to determine for itself what is an \u201cofficial act\u201d for purposes of impeachable bribery.[38]<\/a> Congress might conclude, for example, that the term reaches any act that involves an exercise of authority available to one solely by virtue of one\u2019s public office.<\/p>\n

<\/a>B.\u00a0 McDonnell<\/em>\u2019s Reasoning Does Not Apply to Impeachable Bribery<\/h2>\n

In any event, McDonnell<\/em> is of little value to understanding what counts as an \u201cofficial act\u201d for purposes of impeachable bribery, as its reasoning is limited to the bribery statute. McDonnell<\/em>\u2019s exposition of the term \u201cofficial act\u201d turned on the bribery statute\u2019s specific phrasing, precedents construing that statute, and statutory canons of construction.[39]<\/a> But the scope of an \u201cofficial act\u201d for purposes of impeachable bribery cannot possibly depend on the bribery statute\u2019s specific language. The Constitution predated the modern bribery statute by nearly two centuries,[40]<\/a> after all, and it would be absurd to say that impeachable bribery\u2019s scope would be different had Congress, in the 20th<\/sup> century, written the statute using different words. While the broad outlines of bribery under the Constitution and the statute may be similar, any inferences drawn solely from the statute\u2019s lexical particularities about what is an \u201cofficial act\u201d do not apply to impeachable bribery.<\/p>\n

McDonnell<\/em> also warned that a broad view of the term \u201cofficial act\u201d might raise three constitutional concerns, but none has much force in the impeachment context. First, McDonnell<\/em> said that reading \u201cofficial act\u201d expansively may undermine representative government by chilling public officials from \u201chear[ing] from their constituents and act[ing] appropriately on their concerns.\u201d[41]<\/a> But this concern does not apply to behavior that is plainly corrupt, as Trump\u2019s was. It is also doubtful that Members of Congress, who are themselves elected officials, would want to embarrass themselves and incur a significant political cost by impeaching a President for behaviors that they themselves routinely undertake,[42]<\/a> and thus punish a President for truly innocent behavior.<\/p>\n

Second, McDonnell<\/em> warned that a broad reading of \u201cofficial act\u201d might raise due process concerns by failing to give public officials fair notice of what behavior the statute prohibits.[43]<\/a> But there is no serious argument that Trump lacked notice that his behavior was wrongful. More generally, the void-for-vagueness doctrine in which that complaint sounds has little force outside the criminal context, given the particular severity of criminal punishments.[44]<\/a> It applies only to those civil matters that implicate \u201ca particularly severe penalty,\u201d such as deportation proceedings, which can result in \u201clifelong banishment or exile.\u201d[45]<\/a> Mere loss of office, debarment from future office, and the resulting embarrassment a President may experience are not of a comparably \u201cgrave nature,\u201d[46]<\/a> and thus do not trigger vagueness concerns.<\/p>\n

Third, McDonnell<\/em> warned that reading the term \u201cofficial act\u201d broadly \u201craises significant federalism concerns.\u201d[47]<\/a> This concern has no force in the impeachment context, in which both the prosecutors and defendants are federal officials. In sum, McDonnell<\/em> simply has nothing to tell us about what counts as an \u201cofficial act\u201d for purposes of impeachable bribery.<\/p>\n

<\/a>Conclusion<\/h1>\n

Impeaching Trump for bribery, Blackman and Tillman warn, would \u201cmake it effectively impossible for the president to exercise his personal constitutional authority to investigate wrongdoing by anyone, including those closely affiliated with his opponents, lest he be charged with a quid pro quo.\u201d[48]<\/a> But any sensible person could tell you that there is a world of difference between a good faith investigation of a person, even a political rival, who may have committed a crime, and an effort to use one\u2019s power of office to harm that person for one\u2019s personal benefit. To whatever extent it may be hard to tell in a particular case whether the President acted with corrupt purpose, that ambiguity inures to his benefit, given the burden of proof to show guilt. Recognizing Trump\u2019s actions as bribery does not threaten to incriminate a President who acts honestly.<\/p>\n

It is tempting to dismiss Blackman and Tillman\u2019s argument as purely academic, given that a President can simply be impeached for \u201cabuse of power\u201d in place of \u201cbribery.\u201d But that would unduly trivialize the mischief that their argument threatens. While Trump has been acquitted, future Presidents may emulate his behavior, and Congress may impeach them for bribery. If so, their defenders may invoke Blackman and Tillman to claim that their impeachments are illegitimate. Even if such claims could never be tested in the courts of law,[49]<\/a> they could cast a pall over an impeachment\u2019s validity in the court of public opinion. The term \u201cbribery,\u201d moreover, carries special weight in the public\u2019s imagination. It is uniquely well-adapted to convey both the precise nature and gravity of wrongdoing like Trump\u2019s. Congress should be, and is, free to invoke that term\u2019s powerful connotations in impeachment articles should future Presidents act similarly.<\/p>\n

For all of these reasons, and contra Blackman and Tillman, Trump\u2019s shakedown of Ukraine amounts to bribery for impeachment purposes.<\/p>\n

Recommended Citation<\/strong>
\nA Government Lawyer, Yes, Trump\u2019s Shakedown of Ukraine Was Impeachable \u201cBribery<\/em>,\u201d<\/em> Harv. Nat\u2019l Sec. J. Online (Mar. 27, 2020), https:\/\/journals.law.harvard.edu\/nsj\/wp-content\/uploads\/sites\/82\/2020\/04\/Government-Lawyer_Yes-Trump\u2019s-Shakedown-of-Ukraine-Was-Impeachable-\u201cBribery\u201d_FINAL.pdf.<\/p>\n

\n

[*]<\/a> I am a lawyer for the federal government, and have requested anonymity for fear of retaliation. I am gratefully indebted to Changhao Wei, Jacques Singer-Emery, and the staff of the Harvard National Security<\/em> Journal <\/em>for bringing this essay to life through their thorough, helpful, and speedy editing. My arguments do not necessarily reflect my employer\u2019s views.<\/p>\n

[1]<\/a> See<\/em> Josh Blackman & Seth Barrett Tillman, Defining a Theory of \u2018Bribery\u2019 for Impeachment<\/em>, Lawfare (Dec. 6, 2019, 12:43 PM), https:\/\/www.lawfareblog.com\/defining-theory-bribery-impeachment<\/a> [perma.cc\/LY2X-ZM4Q].<\/p>\n

[2]<\/a> 166 Cong. Rec. S936\u201338 (daily ed. Feb. 5, 2020).<\/p>\n

[3]<\/a> U.S. Const. art. II, \u00a7 4.<\/p>\n

[4]<\/a> 18 U.S.C. \u00a7 201(b)(2)(A) (2018). The statute defines a \u201cpublic official\u201d to include a \u201cMember of Congress\u201d and \u201can officer or employee or person acting for or on behalf of the United States.\u201d Id.<\/em> \u00a7 201(a)(1).<\/p>\n

[5]<\/a> See<\/em> Blackman & Tillman, supra<\/em> note 1 (assuming that impeachable \u201cbribery\u201d will \u201cmap onto the standards for liability under 18 U.S.C. \u00a7 201, the federal bribery statute\u201d).<\/p>\n

[6]<\/a> See <\/em>United States v. Moore, 525 F.3d 1033, 1048 (11th Cir. 2008), abrogated on other grounds by<\/em> McDonnell v. United States, 136 S. Ct. 2355 (2016), as recognized in <\/em>United States v. Van Buren, 940 F.3d 1192, 1205 (11th Cir. 2019) (holding that \u201cthe term \u2018thing of value\u2019 [as used in the bribery statute] unambiguously covers intangible considerations\u201d). Courts of appeals have also interpreted the phrase \u201cthing of value\u201d in multiple other federal criminal statutes to encompass \u201cintangibles.\u201d E.g.<\/em>, United States v. Blaszczak, 947 F.3d 19, 39 (2d Cir. 2019) (federal conversion statute, 18 U.S.C. \u00a7 641); United States v. Townsend, 630 F.3d 1003, 1011 (11th Cir. 2011) (federal program bribery statute, 18 U.S.C. \u00a7 666); accord<\/em> United States v. Schwartz, 785 F.2d 673, 679 (9th Cir. 1986) (holding that \u201cinformation can be a thing of value<\/em>\u201d under 18 U.S.C. \u00a7 1954); see also<\/em> United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979) (\u201c[The words \u2018thing of value\u2019] are found in so many criminal statutes throughout the United States that they have in a sense become words of art.\u201d).<\/p>\n

[7]<\/a> See<\/em> United States v. Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J., concurring in part and dissenting in part) (\u201c[T]he term \u2018corruptly\u2019 in criminal laws has a longstanding and well-accepted meaning. It denotes an act done with an intent to give some advantage inconsistent with official duty and the rights of others.\u201d (citation, original alteration, and some internal quotation marks omitted)); see also<\/em> Corruptly<\/em>, Black\u2019s Law Dictionary (11th ed. 2019) (defining \u201ccorruptly\u201d in criminal statutes as usually \u201cindicat[ing] a wrongful desire for pecuniary gain or other advantage\u201d).<\/p>\n

[8]<\/a> See<\/em> Blackman & Tillman, supra<\/em> note 1 (\u201cConsider a third hypothetical in which personal and public motivations are inextricably intertwined. . . . The run-of-the-mill horse-trading described in this example might be bad policy and, arguably, is a misuse of discretion. But whatever else it is, it is not bribery.\u201d).<\/p>\n

[9]<\/a> Id.<\/em><\/p>\n

[10]<\/a> See id.<\/em> (\u201cJust as the executive branch should not investigate and prosecute horse-trading and log-rolling by members of Congress, Congress should not investigate and impeach horse-trading by the president. . . . Where one public official act is traded for another public official act, there has not been any illegal conduct.\u201d).<\/p>\n

[11]<\/a> See id.<\/em><\/p>\n

[12]<\/a> See id.<\/em><\/p>\n

[13]<\/a> U.S. Const. art. I, \u00a7 6, cl. 1 (\u201c[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.\u201d).<\/p>\n

[14]<\/a> Gravel v. United States, 408 U.S. 606, 626 (1972) (\u201c[T]he Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach . . . .\u201d).<\/p>\n

[15]<\/a> Powell v. McCormack, 395 U.S. 486, 502 (1969) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)); see also<\/em> Gravel<\/em>, 408 U.S. at 625 (limiting protectible legislative acts to speech, debate, and those that form \u201can integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House\u201d).<\/p>\n

[16]<\/a> Blackman & Tillman, supra<\/em> note 1.<\/p>\n

[17]<\/a> The Speech or Debate Clause protects only the trade, not the quid (a promise to cast a vote in the future) or the quo (a promise to add funds to a bill in the future) themselves. See<\/em> United States v. Helstoski, 442 U.S. 477, 490 (1979) (\u201c[P]rotection extends only to an act that has already been performed. A promise<\/em> to deliver a speech, to vote, or to solicit other votes at some future date[, or] to introduce a bill is not a legislative act.\u201d (emphasis added)).<\/p>\n

[18]<\/a> That Congress failed to carve out an exception to the bribery statute for legislative horse-trading shows that the statute covers legislative horse-trading by its own terms. See <\/em>The License Cases, 46 U.S. (5 How.) 504, 539 (1847) (\u201c[I]f Congress does not prohibit a particular act, the inference is, that it does not think proper so to do.\u201d).<\/p>\n

[19]<\/a> See<\/em> Blackman & Tillman, supra<\/em> note 1.<\/p>\n

[20]<\/a> See id.<\/em> (acknowledging that \u201cthe case for bribery is straightforward\u201d when \u201ca government official demands a briefcase full of cash in exchange for voting for a particular bill\u201d).<\/p>\n

[21]<\/a> See supra<\/em> note 15 and accompanying text.<\/p>\n

[22]<\/a> See<\/em> 2 U.S.C. \u00a7 684(b) (2018) (limiting purposes for which budget authority can be deferred, and commanding that \u201c[n]o officer or employee of the United States may defer any budget authority for any other purpose\u201d); see also<\/em> Office of Management and Budget\u2014Withholding of Ukraine Security Assistance, B-331564, 2020 WL 241373 (Comp. Gen. Jan. 16, 2020) (concluding that withholding military assistance to Ukraine violated the Impoundment Control Act).<\/p>\n

[23]<\/a> Assuming there was reason to believe the Bidens really had behaved corruptly\u2014a debunked premise, however, based on the known facts. See, e.g.<\/em>, Stephanie Baker & Daryna Krasnolutska, Ukraine Ex-Official Casts Doubt on Biden Conflict Claim<\/em>, Bloomberg (May 7, 2019, 11:37 AM), https:\/\/www.bloomberg.com\/news\/articles\/2019-05-07\/timeline-in-ukraine-probe-casts-doubt-on-giuliani-s-biden-claim<\/a> [perma.cc\/G454-MLAW] (reporting that Joe Biden did not pressure Ukraine to oust its top prosecutor until after the prosecutor\u2019s investigation into a company tied to Hunter Biden had already gone dormant).<\/p>\n

[24]<\/a> See Impeachment Inquiry: Hearing Before the H. Permanent Select Comm. on Intelligence<\/em>, 116th Cong. 51\u201352 (2019), https:\/\/judiciary.house.gov\/uploadedfiles\/2019-11-20_transcript_of_sondland_hearing.pdf<\/a> [perma.cc\/9V46-W3YU] (testimony of Amb. Gordon Sondland) (testifying that Trump wanted only Ukraine\u2019s announcement of an investigation into the Bidens, not an actual investigation); H. Permanent Select Comm. on Intelligence, The Trump-Ukraine Impeachment Inquiry Report, H.R. Rep. No. 116\u2013335, at 101\u201311, 228 n.93 (2019) (recounting that Trump sought only Ukraine\u2019s announcement of an investigation into the Bidens, and never requested an actual investigation of the Bidens by the Department of Justice).<\/p>\n

[25]<\/a> Blackman and Tillman acknowledge that their \u201canalysis presupposes that the president was calling for a lawful investigation,\u201d and concede that Trump could be impeached for bribery if he \u201ccalled for an unlawful investigation\u2014for example, if [he] had asked the Ukrainians to manufacture false evidence for use in his political campaign, or if [he] asked the Ukrainians to commit fraud on their own or on our courts.\u201d Blackman & Tillman, supra<\/em> note 1. What Trump actually requested, as best we know, was the announcement of an investigation the merits of which did not especially interest him. Cf. <\/em>Harry G. Frankfurt, On Bullshit 55\u201356 (2005) (explaining that whereas a liar believes the things he says to be false, \u201cthe truth-values of [a bullshitter\u2019s] statements are of no central interest to\u201d him, as the bullshitter \u201cdoes not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.\u201d). It is not clear whether or to what degree he personally believed an investigation of the Bidens was warranted, and there is no public evidence that he asked Ukraine to manufacture false evidence or commit fraud on the courts. What Trump did thus does not seem to be the sort of thing that Blackman and Tillman acknowledged would amount to impeachable bribery. Likewise, it would be disingenuous for them to say that, because their analysis assumes that Trump requested an actual investigation, it does not apply if he instead requested the mere announcement<\/em> of an investigation. The precise factual allegations against Trump were well understood by the time Blackman and Tillman wrote their article, see <\/em>sources cited supra<\/em> note 24, and they cannot now pretend they were not intending to address them.<\/p>\n

[26]<\/a> See <\/em>Nat\u2019l Fed\u2019n of Indep. Bus. v. Sebelius, 567 U.S. 519, 543\u201346, 561\u201375 (2012) (holding that the Affordable Care Act\u2019s individual mandate was a tax within the meaning of the Taxing Clause, U.S. Const. art. I, \u00a7 8, cl. 1, but not a tax within the meaning of the Anti-Injunction Act, 26 U.S.C. \u00a7 7421).<\/p>\n

[27]<\/a> See<\/em> Staff of the Impeachment Inquiry, H.R. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 26 (Comm. Print 1974) (\u201cImpeachment is a constitutional remedy addressed to . . . wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself.\u201d); The Federalist No. 65, at 426 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961) (\u201cThe subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.\u201d); Raoul Berger, Impeachment: The Constitutional Problems 61 (1973) (\u201cIn sum, \u2018high crimes and misdemeanors\u2019 appear to be words of art confined to impeachments, without roots in the ordinary criminal law and which, so far as I could discover, had no relation to whether an indictment would lie in the particular circumstances.\u201d); 166 Cong. Rec. S897 (daily ed. Feb. 5, 2020) (statement of Sen. Romney) (\u201cTo maintain that the lack of a codified and comprehensive list of all the outrageous acts that a President might conceivably commit renders Congress powerless to remove such a President defies reason.\u201d).<\/p>\n

Constitutional bribery also carries lesser consequences than statutory bribery. Conviction under the bribery statute results in criminal penalties, including incarceration, while conviction after impeachment results only in removal from office (and possible debarment from holding future office. Compare<\/em> 18 U.S.C. \u00a7 201(b) (2018) (authorizing fines and a fifteen-year maximum sentence for bribery), with<\/em> U.S. Const. art. I, \u00a7 3, cl. 7 (\u201cJudgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States . . . .\u201d). Giving constitutional bribery a broader reach thus does not threaten to subject a broader swath of conduct to incarceration.<\/p>\n

[28]<\/a> Charles L. Black, Jr., Impeachment: A Handbook 39\u201340 (1974).<\/p>\n

[29]<\/a> U.S. Const. art. II, \u00a7 3.<\/p>\n

[30]<\/a> Blackman and Tillman state that \u201c[t]here are some allegations that Trump violated an appropriations statute, which could, under some circumstances, fall within the catch-all \u2018other high Crimes and Misdemeanors\u2019 category,\u201d but express \u201cdoubts that those circumstances are at play here.\u201d Blackman & Tillman, supra<\/em> note 1. This is a tendentious and misleading way to put it. The charge is that Trump committed an impeachable offense by using his power of office to pressure a foreign government to generate dirt on a political rival, not simply by violating an appropriations statute. While his conduct did in fact violate an appropriations statute, see<\/em> supra<\/em> note 22 and accompanying text, the impeachable offense was the abuse of power, not the statutory violation qua<\/em> itself. Indeed, Trump\u2019s conduct would be impeachable even if the appropriations statute did not bind his discretion. In any event, Blackman and Tillman ultimately avoid taking any clear position on whether Trump committed a non-bribery impeachable offense, nor do they offer any rationale for the position that he did not.<\/p>\n

[31]<\/a> Blackman & Tillman, supra<\/em> note 1 (\u201cWe do not think that a White House meeting is an \u2018official act\u2019 under McDonnell v. United States<\/em>. Generally, who the president meets with, and what he says to them\u2014even in the White House\u2014remains constitutionally protected free speech. Thus, the only relevant official act for purposes of impeachment would be the alleged unlawful withholding of military aid.\u201d). Most of the analysis above respecting the release of military aid applies equally well to a White House meeting, with one exception: though the President lacked the discretion to withhold the military aid, he generally has discretion as to whom he invites to the White House.<\/p>\n

[32]<\/a> 136 S. Ct. 2355 (2016).<\/p>\n

[33]<\/a> Id.<\/em> at 2361.<\/p>\n

[34]<\/a> Id.<\/em><\/p>\n

[35]<\/a> Id.<\/em><\/p>\n

[36]<\/a> Id.<\/em> at 2375.<\/p>\n

[37]<\/a> Id.<\/em> at 2368. The statute defines an \u201cofficial act\u201d as \u201cany decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official\u2019s official capacity, or in such official\u2019s place of trust or profit.\u201d 18 U.S.C. \u00a7 201(a)(3) (2018).<\/p>\n

[38]<\/a> See<\/em> Letter from James Madison to unnamed recipient (1834), in<\/em> 4 Letters and Other Writings of James Madison 349, 349 (Philadelphia, J.B. Lippincott & Co. 1865) (\u201c[E]ach [branch] must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it . . . .\u201d); cf.<\/em> Nixon v. United States, 506 U.S. 224, 228\u201329 (1993) (holding nonjusticiable challenges to the Senate\u2019s procedures for trying impeachments under the Impeachment Trial Clause, U.S. Const. art. I, \u00a7 3, cl. 6).<\/p>\n

[39]<\/a> See<\/em> McDonnell<\/em>, 136 S. Ct. at 2367\u201372.<\/p>\n

[40]<\/a> The modern bribery statute was originally enacted in 1962. See<\/em> Act of Oct. 23, 1962, Pub. L. No. 87-849, sec. 1(a), \u00a7 201, 76 Stat. 1119, 1119\u201321.<\/p>\n

[41]<\/a> 136 S. Ct. at 2372.<\/p>\n

[42]<\/a> Cf. <\/em>Katharine Q. Seelye, Livingston Quits <\/em>over Adultery Admission<\/em>, N.Y. Times (Dec. 20, 1998), https:\/\/archive.nytimes.com\/www.nytimes.com\/library\/politics\/122098impeach-livingston.html<\/a> [perma.cc\/5J3S-ZEWN] (reporting that the Speaker-designate, who had voted to impeach President Clinton, had admitted his own extramarital affairs and would resign).<\/p>\n

[43]<\/a> See<\/em> 136 S. Ct. at 2373.<\/p>\n

[44]<\/a> See <\/em>Johnson v. United States, 135 S. Ct. 2551, 2556 (2015) (\u201c[T]he Government violates this [due process] guarantee by taking away someone\u2019s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.\u201d).<\/p>\n

[45]<\/a> Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (plurality opinion) (citations and internal quotation marks omitted); see also<\/em> id.<\/em> at 1212 (\u201c[T]he Court has \u2018expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.\u2019\u201d (citation omitted)); id.<\/em> at 1228 (Gorsuch, J., concurring in part and concurring in the judgment) (\u201cI cannot see how the Due Process Clause might often require any less than [affording people fair notice of prohibited conduct] in the civil context either.\u201d).<\/p>\n

[46]<\/a> Id.<\/em> at 1213 (citation omitted).<\/p>\n

[47]<\/a> 136 S. Ct. at 2373.<\/p>\n

[48]<\/a> Blackman & Tillman, supra<\/em> note 1.<\/p>\n

[49]<\/a> See <\/em>Nixon v. United States, 506 U.S. 224, 228\u201329 (1993).<\/p>\n","protected":false},"excerpt":{"rendered":"

A Government Lawyer[*] [This essay is available in PDF at this link] Introduction About two weeks before the U.S. House of Representatives impeached President Trump, Professor Josh Blackman and Seth Barrett Tillman published an article on Lawfare. In it, they argue that Trump\u2019s withholding from Ukraine of military aid and a White House meeting, meant to pressure it to announce an investigation of Joe and Hunter Biden, did not amount to bribery for impeachment purposes.[1] Trump was ultimately impeached, and subsequently acquitted, for \u201cabuse of power\u201d rather than bribery,[2] but because their argument may be invoked during future impeachments, it […]<\/p>\n","protected":false},"author":13020,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[24],"tags":[219],"class_list":["post-5180","post","type-post","status-publish","format-standard","hentry","category-online","tag-impeachment"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-1ly","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/5180","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/13020"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=5180"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/5180\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=5180"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=5180"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=5180"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}