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. . . Article II, Section 4, says the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In contrast to the prescriptive definition of “treason” in Article III, Section 3, the term “bribery” is not defined there or elsewhere in the constitutional text. Some of Trump’s defenders have taken advantage of that silence by attempting to apply the standard in the modern federal criminal bribery statute, arguing that impeachment for bribery is off the table unless there is a quid pro quo. They claim that Trump’s conduct falls short of that standard because he did not explicitly link the withheld aid to the requested investigation of a political rival.
In fact, Trump’s conduct almost certainly satisfies the modern statutory standard for bribery. As Randall Eliason has explained, a quid pro quo “need not be stated in express terms; corrupt actors are seldom so clumsy, and the law may not be evaded through winks and nods.” We have little doubt that a prosecutor would be able to establish a quid pro quo based on what was said on the call and the surrounding facts and context. (As an aside, Trump’s conduct also likely qualifies as extortion. As James Lindgren has explained at length, historically there has been a substantial overlap between the concepts of extortion and bribery, and around the time of the Founding, the terms were often used to describe the same conduct.)
But even if Trump’s actions do not satisfy the modern criminal standard for bribery, the argument from Trump’s defenders is misplaced—because the federal statute isn’t the relevant statement of the law in the context of impeachment.
The Founders had no intent of tying the constitutional definition of bribery to federal criminal statutory law. On the most basic level, no federal criminal code existed at the time that the Constitution was drafted. Beyond that, the Framers had no reason to believe that Congress would enact federal criminal statutes in the future. As Laurence Tribe and Joshua Matz explain in their comprehensive book on impeachment, “To End a Presidency,” criminal law was understood to be the province of the states, and there was very little federal criminal law at all until the mid-20th century. To the extent there was federal criminal law, it followed the common law model. That is why the concept of high crimes and misdemeanors can’t be limited by federal statutes. The same goes for bribery—as there was no general federal bribery statute at all until 1853.
As Zephyr Teachout describes in her study “Corruption in America,” the statutory definition of bribery—and its interpretation by courts—has evolved dramatically over the course of the nation’s history, from a broad conception in the early days of the Republic to today’s more narrow definition, which requires a clear quid pro quo and a very specific “official act.” Indeed, the idea of an explicit quid pro quo as a necessary element of a bribe is a recent development, borrowed from contract law in the later half of the 20th century.
