What happens when the President of the United States asks for a bribe?
I know what you’re thinking: what could possibly have inspired this topic? I’m not here to throw partisan stones or to take sides on the House’s ongoing impeachment inquiry, though publicly available information is pretty damning. Instead, I want to look at what we know now—and what we might know in the future—through the lens of the federal criminal law governing bribery.
I want to briefly explain four things:
- What the bribery statute says
- Why the facts about Ukraine-gate potentially implicate the solicitation—but not the offering—of a bribe by the President
- Whether the bribery statute applies to the President
- What legal defenses the President may have if he’s ultimately prosecuted
I. The Federal Bribery Statute:
Even though bribery is mentioned in Article II of the Constitution as an example of the sort of “high Crimes and Misdemeanors” for which an officer of the United States—including the President—can be impeached and removed from office, that’s not my focus here. For one thing, I know very little about the law of impeachment, and there are great resources on the subject that are now widely available. For another, the conception of “bribery” that can get a president booted from office is broader than the kind of bribery that can land you in jail. I’m more interested in that second one today.
That kind of bribery is defined in section 201 of Title 18 of the United States Code. Under this section, any “public official [who] directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value . . . in return for . . . being influenced in the performance of any official act . . . or being induced to do or omit to do any act in violation of the official duty of such official or person” has committed a crime. 18 U.S.C. § 201(b)(2). It’s also a crime to corruptly promise anything of value to a public official in exchange for an official act. Id. § 201(b)(1).
Here, if the President sought a public announcement that Ukraine was investigating the Bidens in return for releasing congressionally authorized aid, that seems an awful lot like seeking something of value for an official act.
II. Soliciting a Bribe:
The public record shows emerging evidence for several facts:
- The President empowered his personal lawyer, Rudy Giuliani, to take a leading role in diplomacy with Ukraine, outside normal channels, and it made career State Department officials uncomfortable
- Giuliani and other associates pressed current and former Ukrainian officials for dirt on Joe Biden and his son, despite no evidence of criminal wrongdoing by either, and for support for a debunked conspiracy theory about the hacking of the DNC servers leading up to the 2016 election
- The President halted the release of hundreds of millions of dollars in congressionally approved aid to Ukraine, despite strong support for the release from the Departments of Defense and State
- Several State Department officials understood that a White House meeting with Ukrainian officials, and perhaps other benefits, were conditioned on investigations of the Bidens
- After the Ukrainian president mentioned a wish to purchase anti-tank missiles from the U.S. in a call with President Trump, the President responded, “I want you to do us a favor though” and asks him to “get to the bottom” of the debunked DNC-server theory. In the same call, President Trump asked the Ukrainian leader to work with Attorney General Barr and Rudy Giuliani and to investigate the Bidens
- White House lawyers ordered the memorandum summarizing the call placed in a classified server with access limited more tightly than it would typically be for similar calls
- One or more State Department officials came to believe that the aid to Ukraine would not be released without an investigation of the Bidens
- When an official raised concerns about the impropriety to a colleague, the colleague called President Trump to ask what he wanted from Ukraine, then passed on the President’s message that there was “no quid pro quo”
- After the White House and congressional intelligence committees learned of the existence of a whistleblower complaint (the substance of which the White House may have learned of some time earlier), the aid was released without explanation
- When Congress got wind of what’s going on and launched an impeachment inquiry, the President tried to prevent executive-branch officials from testifying
There’s a lot to take in, with new information flowing in every day. NPR has a helpful timeline of events with links to sources here.
The information that’s come to light justifies a bribery investigation of President Trump. If evidence admissible in court supports what is already public, the facts could even support a criminal prosecution once the President leaves office (DOJ’s understanding is that the Constitution prohibits the criminal prosecution of a sitting president).
So let’s break down a few key elements of bribery under § 201.
“Public Official.” At the outset, you might be wondering why, assuming that the President offered foreign aid or a White House meeting for the launch of Ukrainian investigations into his rivals, the President wouldn’t be guilty of offering a bribe. Under the statute, he wouldn’t be. As Renato Mariotti explains in an op-ed and in a Twitter thread that are both worth reading in full, § 201 ‘s definition of “public officials” includes U.S. government officials, not the officials of a foreign government like Ukraine.
2/ The bribery statute is all about bribing public officials *in the United States*, and defines public officials in that fashion. (You can check out the definition yourself, below.) So I disagree with legal analysts who cite that statute. https://t.co/0BusBM1u3r
— Renato Mariotti (@renato_mariotti) September 20, 2019
But a public official who can be guilty of seeking a bribe under § 201(b)(2) includes “an officer or employee or person acting for or on behalf of the United States.” 18 U.S.C. § 201(a)(1). The next section of the U.S. Code gives definitions for terms that recur in that same chapter. It says that for certain sections within the chapter, notably not including § 201, “officer” and “employee” do not include the President. This specificity implies that the term “officer” in § 201 does include the President. And, as discussed below, DOJ has already taken that position both in its internal memos and in other investigations.
“Corruptly.” As for the President’s state of mind, that would typically be proven through circumstantial evidence. The essence of corrupt intent under the bribery statute is when the bribe is the “prime mover or producer of the official act.” United States v. Strand, 574 F.2d 993, 995 (9th Cir. 1978) (quotations omitted). To assess intent, courts may look to whether an actor lied about the content of interactions, took steps to prevent public discovery of the impropriety, or tried to create a false trail of evidence.
Here, the public information is mixed. On the one hand, the White House chose to release both the memorandum of the President’s phone call with Ukrainian leaders, and ultimately didn’t put up much of a fight on releasing the whistleblower complaint. But efforts to secure the call memorandum on a classified server outside normal protocols and to block officials from testifying or producing documents to Congress may weigh in favor of finding that the President acted corruptly. So too with the President’s conversation with a State Department official, Gordon Sondland, when Sondland asked him what he wanted from Ukraine after Sondland was confronted by another official about the impropriety of conditioning aid on investigations. The President allegedly responded that there was no quid pro quo, and Sondland communicated that to the official who had raised the concern with him. If the evidence shows that in fact there was a quid pro quo, the President’s fervent denials will cut in favor of finding criminal intent.
“Anything of Value.” I tend to disagree with the position Mariotti stakes out in his op-ed that a foreign government’s investigation of a rival is unlikely to be “anything of value.” I lean instead toward former U.S. Attorney Barbara McQuade’s view that fabricated dirt on the Bidens is a thing of value.
Courts interpret that phrase “broadly . . . to encompass intangible benefits, so long as the jury is instructed that they must determine whether the donee placed any value on the intangible gifts.” United States v. Williams, 7 F. Supp. 2d 40, 52 (D.D.C. 1998), vacated in part on other grounds by United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001). A thing of value can also include a campaign contribution if the contribution was received in exchange for official acts. United States v. Terry, 707 F.3d 607, 614 (6th Cir. 2013) (Sutton, J.).
Those of you who’ve read the Mueller Report will remember that this broad definition is used throughout the federal public corruption statutes. The Special Counsel’s Office concluded that derogatory information about a political opponent could be a thing of value. Yet it also recognized that it could be difficult to quantify the value of unsolicited political dirt and that courts may be reluctant to characterize “the voluntary provision of uncompensated opposition research” consisting of “historically accurate facts” as a thing of value. Special Counsel Robert S. Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election (“Mueller Report”) Vol. I at 185–87 (2019).
Those problems don’t exist here. First, there’s no minimum value for criminal liability for bribery like there is in the campaign finance statutes the Mueller Report considered. What’s more, the dirt here was hardly unsolicited. Both the President and his lawyer, as well as State Department functionaries, had been working for months to drum it up. And here, the manufactured dirt would not be “uncompensated”—the official act that may have been exchanged for it was the release of hundreds of millions of dollars in aid. Besides, there is no evidence of criminal wrongdoing by either Joe Biden or his son to justify an investigation, and the President’s own former homeland security adviser described the DNC-server theory as “completely debunked.” That’s a far cry from the “historically accurate facts” that comprise true opposition research.
“Official Act.” For a prosecution, the best bet for the “official act” element is the release of aid, if indeed that was contingent on Ukraine aiding the President’s reelection efforts.
But what about the conditions that we have more evidence for? A lot of the information that’s come to light so far suggests that the President and his proxies conditioned a White House meeting with Ukrainian leaders on the launch of an investigation of the Bidens or an announcement of such an investigation. A meeting at the White House is a big “get” for many foreign leaders. But it’s not an “official act” under the bribery statute.
Why am I so sure? Well, the Supreme Court unanimously decided an almost identical issue just a few years ago. When Bob McDonnell was the Governor of Virginia, he and his wife accepted a Rolex, $20,000 in designer clothes, and another $150,000 or so in loans and other benefits from the owner of a company that made nutritional supplements. A jury found that the McDonnells accepted those benefits in exchange for setting up meetings between the owner and other state officials, hosting events for the company at the Governor’s Mansion, and speaking to other officials about the supplements. It was gross. The Supreme Court, however, ruled that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit [the] definition of an ‘official act.'” McDonnell v. United States, 136 S. Ct. 2355, 2372 (2016).
But releasing military aid authorized by Congress is an official act; it’s a decision or action on a “question, matter, cause, suit, proceeding or controversy” pending before the executive branch. 18 U.S.C. § 201(a)(3). If that release was indeed conditioned on a public announcement of investigations into the President’s rivals or the fabrication of evidence against those same rivals, that seems like a crime to me. Nor is there anything in the statute the requires the exchange of the thing of value for the official act to have been consummated for criminal liability to attach. It’s enough for a public official to request the thing of value for the official act, even if he or she doesn’t go through with executing the official act, for a crime to have been committed. So the Mulvaney defense (“the money flowed“), isn’t going to fly, especially because the aid was released only after its freeze had been publicly reported and the White House and congressional intelligence committees knew of the original whistleblower’s complaint.
III. Does the Bribery Statute Apply to the President?
Even if the President’s conduct seemingly satisfies all the elements of bribery, there’s a threshold question to answer: does the statute apply to the President at all? DOJ says the answer is yes, and I have no reason to think otherwise.
One of the most fascinating yet underreported aspects of the Mueller Report was its discussion of whether the obstruction-of-justice statutes apply to the President. See Mueller Report, Vol. II at 169–71. To be clear, I’m not talking about whether the President can be indicted while in office, or whether the Constitution limits the conduct for which the President can be prosecuted even after he leaves office. Instead, I’m talking about DOJ’s general understanding that, when applying a statute to the President could arguably infringe on presidential authority granted by the Constitution, the statute itself should be read to not apply to the President unless Congress makes it clear in the text that it does. There has been criticism of Mueller’s analysis of this question in the obstruction context in some quarters, and he has been defended in others.
Here’s the background: The Office of Legal Counsel (“OLC”) is the DOJ component chiefly responsible for giving legal advice to the President, the Attorney General, and all executive-branch agencies. It often has the final say on legal questions that will not be decided by courts, and its views generally bind DOJ and the rest of the executive branch unless OLC is overruled by the Attorney General or the President. OLC has explained that “general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President’s constitutional role.” OLC, Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 351–52 (1995). In other words, a clear statement that a statute that could limit the President’s constitutional prerogatives applies to the President. This principle is rooted in the norm of avoiding serious constitutional questions when interpreting statutes and in the understanding that Congress would not alter the balance of constitutional powers among the branches without clearly saying so. See id. at 352. OLC has confirmed its adherence to variations of this understanding in several opinions.¹
Bribery doesn’t fall under this rule. Even OLC, sometimes criticized for being too willing to sanction broad exercises of presidential power, recognizes the difference. As OLC put it, the clear statement rule doesn’t apply to the bribery statute because “[a]pplication of § 201 raises no separation of powers question, let alone a serious one.” 19 Op. O.L.C. at 357 n.11. Nor does the Constitution confer any power on the President to receive bribes. It moreover identifies bribery as a “high crime” justifying impeachment and prohibits any increase in presidential salary while the President is in office. See id.
So even fairly committed guardians of executive power concede that the bribery statute covers the President.
IV. The President’s Possible Defenses:
In responding to an investigation or—once he leaves office—prosecution by DOJ, the President might make several arguments.
To start, he’d likely raise factual defenses that are beyond the scope of what I’m writing today. For instance, what is the evidence (and is it admissible) of the President’s corrupt intent? Or that there was an understanding that the President would release the aid only if Ukraine investigated the Bidens and the DNC server? But those aren’t legal defenses, and their resolution is for DOJ in making its charging decisions and, if charges are brought, a jury in deciding the President’s guilt.
The President may also argue that prosecuting him over this conduct would be criminalizing political differences. This kind of thinking was likely in play in deciding not to prosecute any Bush Administration officials for violating the federal torture statute during coercive interrogations of suspected terrorists. It was also at the heart of broad pardons of Confederate soldiers after the Civil War and President Ford’s pardon of Nixon following the latter’s resignation. But this isn’t a legal argument, even if it may be effective.
I’m skeptical of the merits of this theory. To be sure, it’s a special thing in liberal democracies that leaders who lose elections to members of opposing political parties go home—rather than to prison or worse—after the lost election. That’s not true everywhere, and it’s something we should jealously guard. Even so, declining to prosecute someone merely because that person was a public official of the other party gives a pass to the powerful for criminal conduct that many people would never receive. And it sends entirely the wrong message about ensuring our leaders comply with the law. If the President sought a bribe, he should be prosecuted for it—though he probably won’t be.
Finally, the President’s lawyers may dust off the Supreme Court’s 80-year-old decision in United States v. Curtiss–Wright Export Corp.—a favored refuge for proponents of near total executive power in foreign affairs—to contend that the the President is the “sole organ of the federal government” in international relations, and thus can’t prosecuted over his negotiations with foreign leaders. 299 U.S. 304, 319–20 (1936). But I don’t think this argument would likely succeed.
First, authorities of a more recent vintage have walked back that extreme formulation of presidential power. In Zivotofsky ex rel. Zivotofsky v. Kerry, the Supreme Court explained that the “sole organ” description of presidential power “was not necessary to the holding of Curtiss–Wright” and that “whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.” 135 S. Ct. 2076, 2090 (2015). Indeed, despite the “expansive language in Curtiss–Wright . . . [the Supreme Court’s] precedents have never accepted such a sweeping understanding of executive power.” Id. at 2115 (Roberts, C.J., dissenting).
Second, proponents of robust presidential power in foreign affairs often rely on a theory that the “executive power” that the Constitution vests in the President includes a broad reservoir of power that can overcome even congressional statutes. But as my former teacher, Julian Mortenson, has shown, that view completely misapprehends both 18th-century legal and political theory and Founding-era understandings. Of course, theories of broad presidential power to conduct foreign affairs aren’t based on original meaning alone. Historical practice and a slew of judicial decisions, including Curtiss–Wright and Zivotofsky themselves, also prop up those views. But a court is unlikely to accept arguments of this sort in a bribery case, or even to concede that criminal punishment in this context infringes on presidential power. After all, and as the Supreme Court has explained, “it is taking the bribe, not performance of the illicit compact, that is a criminal act.” United States v. Brewster, 408 U.S. 501, 526 (1972).
Third, DOJ has already investigated whether a president accepted a bribe for an official act taken while he was in office. In the early 2000s, the U.S. Attorney’s office for the Southern District of New York investigated whether donations to the DNC, Hillary Clinton’s 2000 Senate campaign, and Bill Clinton’s presidential library were bribes for pardoning hedge-fund manager Marc Rich. (As an aside, the U.S. Attorney leading the investigation was James Comey—small world, huh?) Pardons, like managing foreign affairs, are a core part of presidential authority. And the Supreme Court has struck down congressional efforts to regulate the pardon power. See United States v. Klein, 80 U.S. (13 Wall.) 128, 147–48 (1872).² Even so, DOJ has deemed it appropriate to investigate whether a pardon was exchanged for a bribe.
V. The Bottom Line
There’s a lot here to be troubled by. The questions that will grab the headlines (and rightfully so) revolve around what Congress will do in response to obvious abuses of power and irregularities in the conduct of diplomacy. And even if the President is impeached and (far less likely) removed from office, a criminal prosecution is probably not in the cards. But the criminal laws passed by Congress are implicated here, especially if more evidence emerges tying the freeze of aid to the request for unfounded investigations.
Even if nothing comes of the military aid to Ukraine, there may be other incidents of bribery which I don’t explore here. For example, this troubling story that seems to have been forgotten amidst the deluge of other news in the last four weeks:
Trading an official act (not signing legislation) in exchange for something of value is a federal crime. It’s the same crime Rod Blagojevich is in prison for. https://t.co/FdvgPHyjeH
— Renato Mariotti (@renato_mariotti) September 27, 2019
Not even the President’s most committed opponents should be happy about any of this. The President asked a foreign leader to investigate an unhinged conspiracy theory. That’s scary. He asked that same foreign leader to fabricate dirt on his rivals. That’s abusive. If he conditioned military aid on compliance with these asks, that’s a crime. It’s a sad moment for the Republic.
* * *
¹ For what it’s worth, I think that OLC’s “clear statement rule” is, at least in the criminal context, hogwash. For understandable reasons—like that presidents haven’t historically been prosecuted for crimes they committed in office—the OLC opinions explaining the principle don’t cite judicial decisions in criminal cases. And the notion that presidents are exempt from generally applicable criminal statutes whenever their powers would even arguably be affected is repugnant to the rule of law and the system of checks and balances that undergirds our constitutional order. But OLC has made its view clear, and it binds the rest of DOJ. If that view is reconsidered in the future, great. Yet it should not be changed for the specific purpose of going after this or any other particular president for crimes that wouldn’t satisfy the clear statement rule. Not abandoning your principles to go after a particular person you find odious is part of the rule of law too, and you don’t enforce norms by breaking them.
² Here’s a fun fact: the Justia link I provided for United States v. Klein says the case was decided in 1871, but it was handed down in 1872. The dates that appear in many early volumes of the United States Reports are inaccurate. The Supreme Court’s website provides a list of the correct date for cases in those volumes here.