For as long as I’ve practiced law, non-lawyers have argued that the Constitution ought to mean what it says. To lawyers, this evokes the normal round of head-shaking, since “what it says” is the perennial question, and what that means tends to be whatever the person reading it wants it to mean. Words are not precise instruments, no matter how plain they may seem to you.
At ArcDigital (where I also post on occasion), Illinois political science prof Nicholas Grossman argues that we have a derelict Congress for its failure to impeach Trump. Not because of collusion with Russia, or being incapable of telling the truth, but because he has engaged in rampant bribery before our eyes. If we loved the Constitution, then we should demand it be faithfully applied here. Now.
America’s Founders worried a great deal about corruption. They worried so much about a president acting for personal financial gain, rather than exclusively for the interests of the United States, that they forbid it in the Constitution three times.
Bribery and treason are the only impeachable offenses specified in Article II, accompanying the more ambiguous “high Crimes and Misdemeanors.”
Treason has some requirements, two witnesses to an overt act, which are problematic, but bribery has no similar limitation.
One could argue that bribery requires quid-pro-quo — accept something of value in exchange for something else — but the Emoluments Clause forbids acceptance alone. Officeholders don’t need to give, or even promise something in return to be in violation. The Constitution allows exceptions with the consent of Congress, indicating an officeholder receiving something of value must prove it isn’t a bribe, rather than the other way around.
Essentially, the argument is that the Emoluments Clause* prohibits bribery, but without any hint of a quid pro quo element.
In this, the Founders reveal their worry that officials could be influenced, even unconsciously, by personal gain. Today, we call that problem “conflicts of interest.” President Trump has a lot of them.
In questioning this premise with Nick, I challenged the underlying assumption that the problem we call today “conflicts of interest” violates the Constitution.
As unseemly as it appears, it’s neither bribery nor emoluments in a legal sense. General sense of impropriety isn’t a substitute for offenses. It may be impeachable as a disgraceful political act, but not as crimes. It’s just not bribery.
There is no question that Trump businesses are rife with opportunity to pay money to gain either access to, or curry favor with, the president. From hotels to Mar-a-Lago, it’s a smorgasbord of opportunity to buy one’s way into favor. Others in the office were honest enough to divest (at least to some extent) themselves of businesses and investments that would create the appearance of impropriety because it would have seemed too obviously grossly improper not to do so. Not Trump.
But we knew that when we elected him. He hinted he might, but he never promised he would. And even if he did, his children would still reap the benefits of cash payoffs for rooms only a Saudi prince could love. That this was always meant as the biggest informercial scam pulled off in American history was never in serious doubt, and he was going to milk it for all it was worth. But we knew this, even if his supporters lacked the will to admit it to themselves. It was out there for all to see, if only they chose to see it.
Nick’s response was that I was doing that lawyer thing that lawyers do, making the word “bribery” all lawyerish.
Highly technical in court, yes. In Congress, no. How can emoluments not apply to president? There’s a clause in Article 2. No one in the 1780s would’ve seen a meaningful difference between a bank account marked “my private business” and one marked “my personal account.”
Those words have formal legal meanings and normal common sense meanings (well, at least “bribery” does). I think you’re being excessively lawyerly in insisting that Congress cannot consider the plain meaning of words–as understood in the 1780s or today–when making decisions.
What was the “plain meaning” of bribery in the 1780s? What is the “plain meaning” today? But more importantly, what does “plain meaning” have to do with anything? Lavishing money on the businesses of the man who sits in the Oval emits a decidedly unpleasant odor, but is it bribery?
Nick raised questions that are, on the one hand, complex, but on the other fairly straightforward. There is a suit in the Southern District of New York against Trump for violating the Emoluments Clause which has been ongoing for more than two years. It’s not that Trump will win, but he hasn’t yet lost. It’s hardly “open and shut,” despite the certainty of the passionate.
But that suit, too, is in a court of law, not the court of public opinion or, as articles of impeachment are tried, in Congress. Sure, lawyers would explain why the crime of bribery requires a quid pro quo, for without one it would criminalize a limitless breadth of conduct which seeks to curry favor with the Chief Executive.
Better to have the president like you than hate you, and you had to pay for hotel rooms anyway, right? But if there is no promise that you will gain anything by it, it’s little different than myriad other gifts of material value proffered without promise of gain. Unseemly, for sure, but is unseemly an impeachable offense or just another day in the life of Trump?
It’s important to note that there is no direct evidence of quid-bro-quo bribery. No recordings, nor witness testimonials of Trump changing U.S. policy only because a foreign government paid him off. Trump’s strong support for Saudi Arabia may be driven by the president getting serious about confronting Iran. He could have genuinely believed saving ZTE would smooth trade negotiations with China.
It doesn’t matter. Merely accepting things of value from foreign governments violates the Constitution.
It certainly seems as if it should matter, and matter a great deal. But does it violate the Constitution because it feels like it should? Does the Constitution say what its “plain meaning” appears to say to the eyes of non-lawyers, or does Marbury v. Madison kick in and require the Supreme Court to tell us whether to believe our own eyes or believe their definitions? The lawyerish answer is that it’s complicated, but then, is that because we’re hung up on legal definitions, elements of offense, rationales, rather than the word “bribery” meaning whatever Americans believe it means?
*There are actually two Emolument Clauses in the Constitution, one for foreign (Article I, Section 9, Clause 8), also referred to as Titles of Nobility Clause, and one for domestic (Article II, Section 1, Clause 7).