The likely strategy is to avoid lawyerly squabbles over whether the precise elements of the federal bribery statute have been satisfied. Throughout the impeachment hearings, various witnesses and members of Congress have suggested that a White House meeting might not qualify as an “official act” under the statute in light of the Supreme Court’s recent decision in McDonnell v. United States. Others have questioned whether Ukraine announcing the investigations would qualify as a thing of value under that statute. There’s no doubt that if there were a separate article of impeachment alleging bribery, such arguments would become a primary focus of the president’s defense.
Current criminal statutes cannot provide the sole standards for impeachment. There’s no particular reason to believe that the term “bribery” in the impeachment clause should be defined by a law written by Congress nearly 200 years after the Constitution was ratified. To take that view would mean Congress effectively could amend the Constitution by changing the language of the bribery statute. That’s not how our constitutional system works. And most agree that conduct may be impeachable even if it violates no criminal law.