Bribery and the Constitution 


Published: 12/1/2019 8:43:20 AM

The Republican obfuscation attempt is grounded on an apparent discrepancy between what the public generally thinks bribery means, and what it actually means legally, and in the Constitution. People generally think bribery refers to the act of bribing someone — offering something of value to a public official to perform some public action. Whereas in law, and in the Constitution, bribery also refers to the solicitation of a bribe (whether it is received or not). For example, the first Google hit for a definition of bribery is the Legal Information Institute, which gives the following definition: “Bribery refers to the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty.” The “individual” in this case, is, of course, Trump.

Clearly, the Constitution is mainly concerned about the president receiving or soliciting bribes in exchange for taking or ordering executive action. After all, isn’t this the classic case of public corruption? The corrupt big city mayor leans on a businessman for some cash in exchange for giving him/her a big fat government contract. And isn’t this what Trump has done — lean on the president of Ukraine (by threatening to withhold military funds and a White House visit) in exchange for a private benefit (some bogus investigations designed to (1) discredit the findings of the Mueller investigation, and (2) discredit a likely 2020 political rival)?

It is incumbent on the Democrats to not fall into this trap by trying to argue that Trump bribed Zelensky, which is unlikely to seem that serious to people. After all, we try to influence the behavior of other countries in many ways that we hope will benefit the US. For example, aren’t we “bribing” Russia to get out of Ukraine by offering to remove our economic sanctions if they do? If Trump had “bribed” Zelensky to do something in the US national interest (such as lower trade barriers with us) by threatening to withhold aid, people might not think it wise, but they wouldn’t think it corrupt or impeachable.

If you want to, there is a way to consider Trump’s threats to be corrupt bribing of Zelensky, in the more general understanding of the term. First, if you consider his “ask” to be a private benefit (election assistance), then offering a public action (aid, meeting) as a condition of receiving that private benefit is classically corrupt. This kind of offer to a foreign government official is prohibited by the U.S. “Foreign Corrupt Practices Act”, which Trump has publicly ridiculed. Although the FCPA was primarily designed to prevent U.S. businessmen from bribing foreign officials, it has been used to convict a U.S. congressman. If Trump offered Zelensky $1 million of his own money to undertake the Biden investigations, I think many people could easily see that as a violation of the FCPA. Under the FCPA, does it really matter if the inducement is military aid to Ukraine rather than cash to Zelensky?

Notwithstanding this way of looking at things, I reiterate that the Democrats don’t need to, and should not, take that more complicated linguistic route. They should stick to pointing out that (1) Trump solicited a bribe from Zelensky, and (2) that “bribery” in the Constitution primarily refers to receipt or solicitation of a bribe.

Henry Hardy is a resident of Greenfield.

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