It is one of the most insidious developments of our constitutional discourse that many people still believe that the grounds for impeachment are, “whatever the House of Representatives thinks they are.” The intellectual history of our jurisprudence that is reflected in this absurd assertion is of interest in itself,[1] but suffice it to say that, as we are reminded in Marbury v. Madison, the mere fact that a court cannot deliver a remedy for a violation of the Constitution in no way removes the obligation of government officials to obey the Constitution. Could, for example, the House impeach a federal official because he was a Catholic (in defiance of the prohibition of Article VI that “no religious test shall ever be required as a qualification to any office or public trust under the United States”) even though no judicial writ could undo this legislative offense?
The question is not whether the members of the House are bound by the supreme law; of course they are. The question is: what does that law provide? In the context of impeachment, what exactly is meant by the terms “treason, bribery and other high crimes and misdemeanors”?
I wish to focus on one, sometimes neglected, element in our constitutional construction of the term “bribery” in Article II, sec. 4, namely that, as the great constitutional figure Charles L. Black, Jr. put it in what has become the vade mecum of impeachment studies, “bribery may mean the taking as well as the giving of a bribe” (emphasis mine) (Black, Impeachment: A Handbook p. 26). “Is it bribery, [Black asks] to suggest to a federal judge, engaged in trying a case crucial to the executive branch, that the directorship of the Federal Bureau of Investigation might be available?” It all depends on the motive and intent of the president.
President Trump recently stated in an interview with the NBC presenter Lester Holt, that FBI director James Comey came to dinner at the White House on January 27 and in the course of the evening asked to be kept on as FBI director; that the president said, “I’ll think about it,” and then asked whether he was the subject of an FBI investigation. The fact that the president could simply order the director of the FBI to cease such an investigation[2] does not alter the fact that by offering an inducement to act—offering, for example, to re-appoint Comey or suggesting that his future appointment might hinge on his shutting down an investigation of the president–comes perilously close to offering Comey a bribe.
We’ve since been told that subsequent to the dinner, following an Oval Office meeting with several persons in February, the president asked Comey to stay behind once the other participants had left, expressed his wish that the FBI director, “see your way to letting [the investigation of General Flynn] go.”[3] In the context of Comey’s appointment as director, this too could be construed as suggesting a quid pro quo; and the fact that Trump could always have simply ordered Comey to drop the investigation actually counts the other way: it seems that Trump was loath to give that order and was seeking some extra-constitutional way of bringing about the same result.
Comey’s mention of this encounter records that the president said he thought Flynn had done nothing wrong. A week ago on Lawfare, I speculated as to why the president might indeed believe this. But even if his intentions were to do justice to a loyal subordinate whose acts seem to the president nothing meriting criticism, much less prosecution, that wouldn’t go to the motives behind suggesting to the FBI director that he should, apparently independently, do what the president thought appropriate in the hope that he might be re-appointed (and of course accompanying this suggestion with the implicit threat that if he did not engage in this charade, he would be—as he was—fired.)
As the late John Noonan wrote in his chronicle of the topic, “‘Bribery’ was read both actively and passively [by the Constitutional convention] including the chief magistrate [i.e., the president] bribing someone and being bribed” (Noonan, Bribes: The Intellectual History of a Moral Idea, at p. 43). Too much time and attention has been spent on emoluments and exploring whether the president was on the receiving end of bribes. A more productive line of inquiry is whether the president offered a bribe because that is now the constitutional question of the moment.
[1] Gilmore and Bobbitt, The Ages of American Law (2d edition).
[2] Think also about the unqualified but not constitutionally unlimited presidential power to pardon.
[3] A subsequent White House statement asserted that “the president has never asked Mr. Comey or anyone else to end any investigation,” and Trump surrogates publicly asked why Comey had not offered up this memo before now. One answer might be that executive privilege would surely have covered the after-dinner conversation until the president himself waived this privilege by disclosing his own version of the conversation. Viewed in this light, Comey has behaved impeccably in the matter.