Thread by @CBHessick

Earlier this morning I published an essay with @TheAtlantic about how the crime of bribery fits into impeachment.

The editors at Atlantic did a great job trimming my writing down for a general audience, but I wanted to offer a deeper dive for the legal nerds out there ....

https://twitter.com/TheAtlantic/status/1197518733511741441

@TheAtlantic The Constitution specifically lists Bribery as grounds for impeachment. There is a credible argument that President Trump committed bribery. So we must be very careful and very about what it means.

@TheAtlantic I’ve seen a number of people offer opinions on the issue. And while I appreciate that there are no completely clear cut answers here, some of the opinions that I’ve seen get things wrong. And I want to lay out a nuanced argument for those who still care about nuance.

@TheAtlantic To be clear, I’m offering this critique as a criminal law professor—not a constitutional law professor. But, as I’ll explain in a moment, I think that the criminal common law has a lot to tell us about how to interpret the word “bribery” in the impeachment clause.

@TheAtlantic First, let’s be crystal clear that current federal bribery law DOES NOT tell us what the word bribery means in the Constitution itself. The current federal bribery statute, 18 U.S.C. 201 wasn’t enacted until well after the Constitution was adopted.

@TheAtlantic That doesn’t mean that whether Trump committed *statutory* bribery is irrelevant to impeachment. It could most certainly establish that Trump committed a high crime or misdemeanor. But it doesn’t tell us whether he committed *constitutional* bribery.

@TheAtlantic So what is constitutional bribery?
Here is Ben Wittes saying that the House of Representatives gets to define it.
I have a ton of respect for Ben. But I don’t think that the House gets to adopt its own definition of bribery.

https://twitter.com/benjaminwittes/status/1196838843648897024?s=20

@TheAtlantic To be clear, Ben’s point may be that the House has the de facto power to define bribery. But I don’t think that’s a very good argument.
I mean, the police have the de facto power to arrest me even if I do nothing. But that doesn’t mean they *legally* have that power.

@TheAtlantic So what does bribery mean in the Constitution as a legal matter?
After all, the Constitution specifically defines the only other crime that it lists as grounds for impeachment—treason.
The Constitution doesn’t define bribery.

@TheAtlantic But that doesn't mean we have no definition. As As Justice Story said in his influential Commentaries on the Constitution, we have to look at the common law crime of bribery.

@TheAtlantic So what was the common law crime of bribery at the time the Constitution was written? Does it include a President who solicits a bribe but never receives it?

Unfortunately, there are a few takes floating around out there right now suggesting this Q is cut and dry.

It is not.

@TheAtlantic Here, for example, is the Wall Street Journal editorial board saying that the President’s behavior doesn’t qualify as common law bribery.
wsj.com/articles/adam-…

@TheAtlantic The folks at WSJ who wrote this relied on a “friend” to help them with the historical argument.
I don’t think that friend did them any favors.
And because these authors apparently aren’t lawyers, there are some real ambiguities in the arguments that they are making.

@TheAtlantic So what is the WSJ argument? It seems like it has two pieces: First, that there was no bribery because no investigation had actually begun. And second, that that Trump had to seek something “specific and tangible” like money.

@TheAtlantic For the second argument – that bribery has to involve money—the sources that the WSJ editors quote (Blackstone and Jacob’s Law Dictionary) don’t seem to support that at all.
The sources talk about “any undue reward,” which is much broader than just money.

@TheAtlantic The first argument—that the exchange never happened—also has serious problems. An exchange definitely isn’t necessary under current bribery law. And even the sources that the WSJ editors cite don’t say that an exchange is necessary.

@TheAtlantic Ben Berwick and Justin Florence have an essay that explains this critique in some detail.
They cite a number of treatises which include the offer of a bribe in the definition of bribery.
lawfareblog.com/bad-arguments-…

@TheAtlantic I have some concerns about the Berwick/Florence essay too.
I agree with them that the majority of relevant treatises include the *offering* of a bribe in the definition of bribery, the treatises don’t include the solicitation of or demand for a bribe in their definitions.

@TheAtlantic Instead, those treatises speak in terms of the official accepting or receiving a bribe.
(I think the WSJ was trying to make this point, but as I said, the editorial wasn't very precise.)

@TheAtlantic To be clear, it was still illegal for officials to solicit or demand bribes. But if an exchange didn’t actually occur, then the official may have been charged with a different crime—like attempted bribery or extortion—rather than bribery itself.

@TheAtlantic FWIW, it makes sense that the treatises were a bit unclear. There was no need to clarify

As an old Harvard Law Review case note explains: “At common law the distinction between bribery and an attempt to bribe was largely academic; both were misdemeanors, and equally punishable.”

@TheAtlantic So where does that leave us? Are Trump's defenders correct (at least as a constitutional matter) that this is only “attempted bribery”?
Maybe. But only if we look at Trump as the official *seeking* the bribe. But let’s not lose sight of the fact that he also *offered* a bribe.

@TheAtlantic Think about this from Ukraine’s perspective. Trump offered them hundreds of millions of dollars in return for the official act of launching an investigation.

This is important:
*President Trump offered a bribe!!*

@TheAtlantic Nobody is really talking about this because the federal bribery statute is concerned with bribing officials here in the U.S. And a lot of the discussion has been about statutory bribery.

But common law bribery didn’t have those statutory jurisdictional limits.

@TheAtlantic Looking at Trump as the person who offered the bribe, the common law case against him is incredibly hard to dismiss. It fits in the definitions provided by Blackstone and other treatises. It’s also consistent with the actus reus of a bribery crime that Congress adopted in 1790.

@TheAtlantic So where does that leave us as a constitutional matter? As I said in the Atlantic essay—it’s not entirely clear cut.
But the weight of the historical record is against the President’s defenders.
The weight of the record suggests this was common law bribery.

@TheAtlantic I've posted a slightly modified version of this thread as a blog post over at @PrawfsBlawg. Happy to engage with comments over there --- my Twitter mentions are a bit too crazy to keep up with today!
prawfsblawg.blogs.com/prawfsblawg/20…