Democrats’ case for a high crime

House Speaker Nancy Pelosi told reporters Thursday that the previous day’s opening public testimony of the impeachment inquiry had “corroborated evidence of bribery.” The San Francisco Democrat’s colleague from Southern California, Intelligence Committee Chairman Adam Schiff, told National Public Radio on Tuesday that the evidence suggests “any number of potentially impeachable offenses, including bribery.”

Unlike “quid pro quo,” the sometimes synonymous Latin phrase that has pervaded the debate over President Trump’s Ukraine misadventure, “bribery” carries a plainspoken punch. It also happens to be, along with treason, one of two “high crimes” specified by the Constitution as impeachable.

The impeachment inquiry began with strong evidence that Trump offered Ukrainian President Volodymyr Zelensky “something for something,” the literal definition of quid pro quo. The administration’s notes on their July 25 conversation find the president urging his counterpart in Kiev to investigate the 2016 election and 2020 contender Joe Biden while dangling promises of a White House meeting and military aid.

The testimony of career officials has only reinforced the evidence that a presidential audience and nearly $400 million in security assistance, both extremely valuable to a country at war with Russia, were withheld in a nearly successful effort to force Zelensky to announce baseless political probes that might improve Trump’s reelection prospects. While the precise extent of the president’s personal involvement and the terms expressly communicated to Ukraine remain open to some question, thanks largely to the White House’s avid obstruction of the inquiry, there is no serious argument that this was not a quid pro quo.

But was it bribery? To paraphrase the last president who faced impeachment, that depends on what the meaning of bribery is.

Federal law prohibits public officials from seeking “anything of value ... in return for being influenced in the performance of any official act.” The exchange Trump suggested to Zelensky arguably falls within that proscription. Lawyers and judges can and have differed over the scope of the statute, however, and defining the value of the desired political investigations would be fertile ground for dispute.

But bribery in the Constitution is not the same as bribery in the criminal code, which came long afterward. The founding document’s impeachment provision lists bribery among qualifying “high crimes,” indicating offenses against the public office one holds. Such bribery is traditionally defined more expansively to include misuses of public authority to derive or provide private benefits. “As the founders understood bribery, it was not as we understand it in law today,” Schiff said in the same interview. “It was much broader. 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.”

Like the obstruction of Special Counsel Robert Mueller’s probe, the Ukraine plot drew on the president’s unique power — in this case, to interfere with military aid appropriated by Congress and withhold the explicit support of a superpower — to advance goals in line with Trump’s and at odds with the country’s. It’s in this sense of bribery as a crime committed against his office that Democrats have the most powerful case.

“The bribe is to grant or withhold military assistance in return for a public statement of a fake investigation into the elections. That’s bribery.”

House Speaker Nancy Pelosi