A Bribe from Any Angle

The prime minister of Israel and his American BFF simultaneously face legal proceedings related to corruption allegations. Unlike the Israeli indictments, bogged down in the political deadlock, the American impeachment is moving along quickly. As the Times of Israel reported, the Judiciary Committee of the US House of Representatives conducted a hearing yesterday on the constitutional law aspects of US-Ukraine dealings, as part of its Impeachment proceedings.

Four law professors testified. Three agreed that the evidence in the record showed impeachable offenses.  Those scholars concluded that, in the language of Article II, Section 4 of the Constitution, the president had committed “Bribery or other High Crimes and Misdemeanors.” They mentioned bribery, in particular. The fourth opined that the evidence showed that nothing wrong happened and that the conduct did not rise to the level of bribery..

The White House version of a call with the president of Ukraine and testimony of those who heard the conversation as it happened showed that, when Ukraine asked for military help in a war against Russia, the US president said, “I would like you to do us a favor, though.”

The “favor”? Announce — even if not intending to conduct — an investigation of Joe Biden, at the time, the leading contender for the Democratic nomination in the 2020 election.  In addition,the Report of the House Committee on Intelligence details that the US president withheld a White House meeting with his Ukrainian colleague as part of the scheme to get “dirt” on Mr. Biden. https://intelligence.house.gov/report/ at p. 83. No evidence existed that Mr. Biden had done anything wrong and, by asking the Ukrainian to deal with the matter through a personal attorney, outside official channels, the US president circumvented international legal protocols.

The Judiciary Committee hearings delved into the disagreement between the professors over what constitutes bribery under the US Constitution. The three in the majority cited to the definitions of the Founding Fathers or the 1755 edition of Samuel Johnson’s A Dictionary of the English Language (“original intent,” which conservative Republicans embrace, except here).They equated bribery in the Constitution to abuse of office for personal gain. Israeli law calls the crime a breach of trust and 20th Century American law called it “deprivation of honest services.“ The request for an announcement of an investigation to tarnish a political opponent in exchange for military aid constituted an abuse of office, and, therefore, bribery under the Constitution, the three concluded.

The man in the minority disagreed.  Instead of divining the historical definition of bribery, he pointed to current understanding of US criminal law. (“the Living Constitution,” which Republicans normally hurl as an epithet). He claimed that in 2019, we must read bribery much more narrowly. The expert pointed out that the Supreme Court, in the famous case, McDonnell v, US, 136 S. Ct. 2355 (2016), held the “deprivation of honest services” law unconstitutional, limiting official corruption to bribery. Therefore, the professor said, the Constitutional term “bribery” requires a similarly narrow reading.  One of the Republican members of the Judiciary Committee added that the Court specifically found nothing wrong with arranging meetings in exchange for money. He implied that withholding meetings also constituted acceptable behavior.

In response, one of the other professors said that the Constitution’s original definition overrides that in the later criminal law. He explained that impeachment reaches broader offenses than criminal law.  True, but in this context, beside the point. The McDonnell decision arose in the context of US political campaigns. The Supreme Court had held that the First Amendment to the Constitution allowed individuals and corporations to give unlimited money to political candidates. The owner of a firm marketing a “miracle pill” showered McDonnell, the Governor of the Commonwealth of Virginia, with lavish gifts. In return, the governor lent his prestige to the product, including arranging meetings with state regulators.

The government obtained a conviction for deprivation of honest services The Supreme Court held that, when someone exercises a right to contribute to a politician, he has a right to expect favors in return. Otherwise, the flow of contributions would slow to a trickle. The Court drew the line at official acts. An officeholder may not dispense something under his control in return for money. The governor had not used his official powers on behalf of his benefactor.

Dealings with foreign nations differ. Aid flows on the merits. Moreover, dispensing foreign aid constitutes an official act, under the control of the US Executive Branch. Releasing it in exchange for a political dirty trick constitutes bribery. Similarly, in the context of diplomacy, a meeting with the US president at the While House conveys support for the foreign country and constitutes an official act.

Whichever side has the better of the argument, once all the evidence emerges as of now, the Republicans’ witness did not help his side. .

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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