I … can’t shake the feeling that this new terminology is part of a deliberate, coordinated Democratic messaging effort as the public phase of the impeachment process begins. “Quid pro quo” is an awkward, infrequently used term, not unlike the word “collusion.” Conspiracy is better than collusion if you’re trying to build popular outrage about some alleged misdeed.
And bribery is better than quid pro quo.
Why, here’s Adam Schiff pushing the Dems’ new talking point in an interview two days ago:
“Bribery, first of all, as the founders understood bribery, it was not as we understand it in law today. It was much broader,” Schiff said. “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.”
To prove bribery, Schiff said, you have to show that the president was “soliciting something of value,” which Schiff thinks multiple witnesses before his committee have testified to in private.
Now here’s the Speaker, making her interest in promoting this as the left’s word of the day as plain as can be:
— CNN Politics (@CNNPolitics) November 14, 2019
Framing the Ukraine deal this way isn’t just a matter of Democrats simplifying their message. Bribery is one of the only two crimes specifically named as an impeachable offense in Article II of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Part of the game for House Dems right now is anticipating and countering the arguments Senate Republicans will make to defend their votes when they end up acquitting the president at trial. One potential argument is that none of the evidence establishes that Trump himself masterminded the quid pro quo with Ukraine; it was Rudy Giuliani or Mick Mulvaney or Gordon Sondland or some combination of the three who went rogue. That’s why Democrats are now chasing that mysterious phone call between Trump and Sondland that one of Bill Taylor’s aides supposedly overheard in Kiev. They need eyewitness accounts that Trump himself was calling the shots in order to undermine the GOP’s “fall guy” plan for Rudy et al.
Bribery is another counter to a potential Republican defense. If Sondland or John Bolton coughs up some bombshell evidence that seems to prove that Trump really was looking to investigate Burisma as a way of damaging Biden in the election, the GOP will need to abandon its factual defenses of the president and turn to a legal one. Forget “no quid pro quo” or “Rudy went rogue” or “the president was trying to fight corruption.” The defense of last resort is that even if the worst-case scenario of military aid in exchange for election help actually happened, it’s still not a “high crime or misdemeanor” under the Constitution. Which is a hard point to refute: “High crime or misdemeanor” can be defined as broadly or as narrowly as one likes, after all. If Senate Republicans choose to define the term very narrowly, well, them’s the breaks.
But if Trump is charged with bribery? Bribery’s right there in the Impeachment Clause. If Democrats can prove it, there’s nowhere for GOPers to run and hide by claiming that the Ukraine business doesn’t meet the legal threshold of an impeachable offense. They still won’t vote to remove Trump, of course, but public opinion could be much more daunting for the party in that case.
Can Democrats convince voters that this was bribery, though? Pelosi defines the bribe in this case as “to grant or withhold military assistance in return for a public statement of a fake investigation into the elections,” which almost makes it sound like Trump was the one doing the bribing. Schiff’s definition of “soliciting something of value” is better. Democrats will argue that Trump was soliciting a bribe in the form of oppo research that could be used to damage the Democratic frontrunner for president — in other words, a campaign contribution. If Ukraine wanted to deal with the U.S. government, whether by gaining a meeting with Trump, gaining military aid, or so on, a fat envelope needed to be handed to the president. It’s just that instead of cash the envelope was supposed to contain a statement by Zelensky announcing the revival of the Burisma probe and Joe Biden’s possible role in protecting his son from a corruption investigation.
Not gonna be that easy, though. Ed noted Jonathan Turley’s point earlier this afternoon that the Framers seem to have wanted “bribery” defined narrowly, and that presidents often benefit politically from deals they strike with foreign governments. Can the Senate really remove the president over a “bribe” that’s at least theoretically in the public interest, i.e. exposing possible corruption by a former VP? Then again, other lawyers argue differently, that in fact the Framers wanted an expansive understanding of “bribery” based on English common law that would presumably ensnare Trump here. It’s also worth noting that the federal bribery statute doesn’t limit the crime of bribery to monetary compensation. “Anything of value” counts:
(2) [Whoever] being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
That does sound like the Ukraine deal. A public official (Trump) seeks something of value (dirt on his likely presidential opponent) in return for performance of an official act (releasing Ukraine’s military aid). But something’s missing — the definition also requires that the official have “corrupt” intent. That brings us back to the question of whether Trump was acting in his personal self-interest in pressing Ukraine about the Bidens or in the public interest. This piece last month at Lawfare by Philip Zelikow offers various arguments based on what we know for why Trump’s motive here probably was corrupt (he used his personal lawyer on the deal instead of diplomats, the U.S. had just certified progress in Ukraine’s anti-corruption efforts, etc). Whether Democrats call it bribery, a quid pro quo, or what have you, the political discomfort for Senate Republicans will come down to how much evidence there is that Trump really was trying to gain an electoral advantage from all this. If Dems have nothing solid to prove that, acquittal will be relatively painless even if the official charge against the president is “bribery.” If they do end up with something solid, hoo boy.