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The Establishments war on Donald Trump Title: New and Improved House Judiciary Committee Report on Impeachment New and Improved House Judiciary Committee Report on Impeachment nolu chan The House Judiciary Committee has released their new and improved Report on Impeachment, expanded from the original 55 pages to 159 pages (658 pages with attachments). In case you missed it (ICYMI), the committee’s lengthy hearing discussion is memorialized with charges of Constitutional Bribery and Honest Services Fraud with the underlying Wire Fraud statute. If you missed that discussion, as I did, I suspect it is because you were not using a Mark II, Mod 6 disgronifier to listen to the proceedings, resulting in your hearing only about Abuse of Process and Obstruction of Congress. In any case, see what you apparently missed. https://rules.house.gov/sites/democrats.rules.house.gov/files/CRPT-116hrpt346.pdf House Judiciary Committee Report on Impeachment, 13 Dec 2019 version, 658 pp. At pp. 117-127 (footnotes omitted) The first Article of Impeachment charged President Trump with an abuse of power as that constitutional offense has long been understood. While there is no need for a crime to be proven in order for impeachment to be warranted, here, President Trump's scheme or course of conduct also encompassed other offenses, both constitutional and criminal in character, and it is appropriate for the Committee to recognize such offenses in assessing the question of impeachment. a. Constitutional Bribery “Bribery” under the Impeachment Clause occurs where a President corruptly offers, solicits, or accepts something of personal value to influence his own official actions.” In that respect, “Bribery is . . . an especially egregious and specific example of a President abusing his power for private gain.” Based on their lived experience, the Framers had good cause to view such conduct as grounds for impeachment. Bribery was considered “so heinous an Offence, that it was sometimes punished as High Treason.” And it was received wisdom in the late-17th century that nothing can be “a greater Temptation to Officers [than] to abuse their Power by Bribery and Extortion.” Since the Founding, “[a] number of impeachments in the United States have charged individuals with misconduct that was viewed as bribery.” However, “the practice of impeachment in the United States has tended to envelop charges of bribery within the broader standard of ‘other high Crimes and Misdemeanors’ and, for the most part, “the specific articles of impeachment were framed as ‘high crimes and misdemeanors’ or an ‘impeachable offense’” without ever “explicitly referenc[ing] bribery.” Here, the First Article of Impeachment alleges what is, among other things, a bribery scheme, whereby President Trump corruptly solicited things of value from a foreign power, Ukraine, to influence his own official actions—namely, the release of $391 million in Congressionally- authorized assistance and a head of state meeting at the White House. The elements of impeachable bribery under the Constitution are not expressly set forth in our founding document. As Justice Joseph Story and other authorities have made clear, however, the Anglo-American common law tradition supplies a complete and “proper exposition of the nature and limits of the offense.” This Committee has reaffirmed for more than a century that “[t]he offense of bribery had a fixed status in the parliamentary law as well as the criminal law of England when our Constitution was adopted, and there is little difficulty in determining its nature and extent in the application of the law of impeachments in this country.” Indeed, the four legal experts who testified before this Committee agreed on the basic definition of common law bribery: it occurs where a President (1) offers, solicits, or accepts (2) something of personal value (3) to influence the official duties he is entrusted with exercising by the American people; (4) corruptly. The experts also agreed that an impeachable offense need not be a crime. Two aspects of this definition merit special note. First, at the time of the Constitutional Convention, bribery was well understood in Anglo-American law to encompass soliciting bribes. As Judge John T. Noonan, Jr. explains, the drafting history of the Impeachment Clause demonstrates that “‘Bribery’ was read both actively and passively, including the chief magistrate bribing someone and being bribed.” In a renowned bribery case involving the alleged solicitation of bribes, Lord Mansfield explained that “[w]herever it is a crime to take, it is a crime to give: they are reciprocal.” William Blackstone likewise confirmed that “taking bribes is punished,” just as bribery is punishable for “those who offer a bribe, though not taken.” In addition, at common law, soliciting a bribe—even if it is not accepted—completes the offense of bribery. “[T]he attempt is a crime; it is complete on his side who offers it.” Second, under common law, bribery occurred when the thing offered or solicited was of personal value to the recipient. Common law treatises explained that a bribe broadly encompassed “any undue Reward,” “valuable thing,” or valuable consideration, even where “the things were small.” The value of the thing was measured by its value to the public official who was offering, soliciting or receiving it. Accordingly, as Professor Turley recognized in his testimony, the common law encompassed non-pecuniary things of value—even including, in the case of King Charles II (as would have been well known to the Framers), “a young French mistress.” Consistent with this broad understanding, in guarding against foreign efforts to corrupt American officials, the Constitution forbids any “Person holding any Office of Profit or Trust,” from accepting “any present, Office or Title, of any kind whatever, from . . . a foreign State,” unless Congress consents. An equally capacious view applies to the impeachable offense of “Bribery.” Applying the constitutional definition of “Bribery” here, there can be little doubt that it is satisfied. President Trump solicited President Zelensky for a “favor” of great personal value to him; he did so corruptly; and he did so in a scheme to influence his own official actions respecting the release of military and security assistance and the offer of a White House meeting. b. Criminal Bribery, 18 U.S.C. § 201 Although President Trump's actions need not rise to the level of a criminal violation to justify impeachment, his conduct here was criminal. In this section we address the federal statute banning bribery; in the next section we address the wire fraud statute. Both of these laws underscore the extent to which Congress and the American people have broadly condemned the use of a public position of trust for personal gain. As this Committee observed decades ago, “[n]othing is more corrosive to the fabric of good government than bribery.” The federal anti-bribery statute imposes up to fifteen years' imprisonment for public officials who solicit or obtain bribes. The wire fraud statute, in turn, imposes up to twenty years imprisonment for public officials who breach the public trust by depriving them of their honest services. President Trump's violation of both statutes is further evidence of the egregious nature of his abuse of power. Starting with the federal anti-bribery statute, criminal bribery occurs when a public official (1) “demands [or] seeks” (2) “anything of value personally,” (3) “in return for being influenced in the performance of any official act.” Additionally, the public official must carry out these actions (4) “corruptly.” We address the four statutory elements in turn. i. “Demands” or “Seeks” The evidence before the Committee makes clear that the President solicited from the President of Ukraine a public announcement that he would undertake two politically motivated investigations. That conduct satisfies the actus reus element of bribery under the federal criminal code. Section 201 prohibits a wide variety of solicitations, including solicitations that are “indirect[].” Courts have concluded that a bribe was solicited, for example, where a public official with authority to award construction contracts requested that a contractor “take a look at the roof” of the official's home. Notably, where the other elements are met, the statutory offense of bribery is complete upon the demand—even if the thing of value is not provided. That is because “the purpose of the statute is to discourage one from seeking an advantage by attempting to influence a public official to depart from conduct deemed essential to the public interest.” President Trump solicited from President Zelensky a public announcement that he would conduct two politically motivated investigations into President Trump's political rival and into discredited claims about election interference in 2016. These demands easily constitute solicitation under federal law. To begin with, the President's improper solicitation is apparent in the record of his July 25 phone call with President Zelensky. As the record makes clear, after President Zelensky raised the issue of United States military assistance to Ukraine, President Trump immediately responded: “I would like you to do us a favor though[.]” President Trump then explained the “favor,” which involved the two demands for baseless investigations. In addition, the July 25 call “was neither the start nor the end” of these demands. In the weeks leading up to it, for example, Ambassadors Volker and Sondland had both personally informed President Zelensky and his staff of the President's demands and advised the Ukrainian leader to agree to them. These and other related actions by the President's subordinates were taken in coordination with Rudolph Giuliani, who was understood to be “expressing the desires of the President of the United States.” There can thus be no doubt that President Trump's conduct constituted a solicitation. ii. “Anything of Value Personally” The next question is whether any of the “things” that President Trump solicited from President Zelensky count as a “things of value.” Section 201 makes clear that bribery occurs when the thing offered or solicited is “anything of value personally” to the recipient—and in this instance, President Trump placed significant personal value on the “favor[s]” demanded. “The phrase ‘anything of value’ has been interpreted broadly to carry out the congressional purpose of punishing the abuse of public office.” It “is defined broadly to include ‘the value which the defendant subjectively attaches to the items received.’” For example, it has been held to include shares of stock that had “no commercial value” where the official receiving the bribe expected otherwise. As the court in that case explained, “[c]orruption of office occurs when the officeholder agrees to misuse his office in the expectation of gain, whether or not he has correctly assessed the worth of the bribe.” The term “thing of value” encompasses intangible things of value as well. As used throughout the criminal code, it has been held to include (among other things): research work product, conjugal visits for a prison inmate, confidential government files about informants, information about the location of a witness, a promise of future employment, a promise to contact a public official, “the amount of a confidential, competitive bid” for a government contract, copies of grand jury transcripts provided to the target of an investigation, and the testimony of a witness at a criminal trial. In this case, President Trump indisputably placed a subjective personal value on the announcement of investigations that he solicited from President Zelensky. The announcement of an investigation into President Trump's political rival would redound to President Trump's personal benefit; and the announcement of an investigation into purported Ukrainian interference in the 2016 election would vindicate the President's frequent denials that he benefitted from Russia's assistance. Mr. Giuliani recognized as much many times as he pursued his client's own interests in Ukraine. Furthermore, Ambassador Sondland and others testified that President Trump's true priority was the public announcement of these investigations more than the investigations themselves. This fact makes clear that “the goal was not the investigations, but the political benefit [President] Trump would derive from their announcement and the cloud they might put over a political opponent.” The promotion of these investigations and the political narratives behind them thus “served the [President's] personal political interests . . . because they would help him in his campaign for reelection in 2020.” iii. “In Return for Being Influenced in the Performance of any Official Act” In Return for Being Influenced: This element of the criminal anti-bribery statute requires showing “a specific intent to give or receive something of value in exchange for an official act.”—i.e., a quid pro quo. As detailed above, the evidence satisfies this standard. President Trump sought an announcement of these investigations in return for performing two official acts. First, the President “conditioned release of [] vital military assistance . . . on [President Zelensky's] public announcement of the investi gations.” Second, he “conditioned a head of state meeting at the White House . . . on Ukraine publicly announcing the investigations.” Official Act: Federal anti-bribery law defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy” that may be pending or brought before a public official in that person's official capacity. Both of the acts in question—releasing $391 million in approved military and security assistance, and hosting an official head-of-state diplomatic visit at the White House—plainly qualify as “official act[s]” within the meaning of the statute. First, the release of much-needed assistance to Ukraine was unquestionably an official act. Release of these funds, totaling $391 million, involved a formal certification process by the Department of Defense regarding certain preconditions and an official notification to Congress, among other things. In addition, President Trump's placement of a hold on the funds precipitated “a series of policy meetings involving increasingly senior officials” across numerous federal agencies. These processes unmistakably involved “formal exercise[s] of government power” as defined by the Supreme Court in McDonnell v. United States. Indeed, McDonnell confirmed that a decision to allocate funds obviously qualifies as an “official act.” Second, when the President hosts a foreign head of state for an official diplomatic visit, he performs an official act specifically assigned to him by Article II of the Constitution. The President's official functions include the duty to “receive Ambassadors and other public Ministers.” By receiving ambassadors and foreign heads of state under that authority, the President recognizes the legitimacy of their governments. Furthermore, an official diplomatic visit by a head of state is an extensive governmental undertaking. During the type of visit sought here (an official “working” visit), the visiting official is typically hosted at Blair House for several days, during which time the official meets with the President and attends a working luncheon at the White House, along with the Secretary of State. Such engagements usually involve weeks of preparation and agenda-setting, at the end of which significant new policy initiatives may be announced. For these reasons, it is beyond question that official White House visits constitute a “formal exercise of governmental power” within the meaning of McDonnell. In that case, the Supreme Court held that the former governor of Virginia did not perform “official acts” when he arranged meetings and hosted events for a benefactor. There, however, the actions in question were frequent and informal in nature. Official diplomatic visits to the White House, by contrast, are conducted pursuant to the President's express Article II authority, involve significant use of government resources, and entail extensive preparation. Indeed, the visiting official must even obtain a special kind of visa—a process that itself involves the performance of an official act. The context addressed by the Supreme Court in McDonnell also bears emphasis. The governor in that case “referred thousands of constituents to meetings with members of his staff and other government officials” and routinely hosted events for state businesses. His arrangement of meetings was commonplace and casual, and the Court expressed deep concern about “chill[ing] federal officials' interactions with the people they serve” by bringing those interactions within the scope of anti-bribery laws. The context here could not be more different, and there is no risk that applying anti-bribery laws to this context would chill diplomatic relations. Foreign nationals are already prohibited from donating to United States political campaigns—or, for that matter, from giving any sorts of “presents” or “emoluments” to the President or other officials without Congress’s express consent. Application of anti-bribery laws in this context—i.e., making it unlawful for the President to exchange official diplomatic visits for personal benefits—is therefore consistent with and compelled by the plain text of federal law. iv. “Corruptly” President Trump behaved corruptly throughout this course of conduct because he offered to perform official acts “in exchange for a private benefit,” rather than for any public policy purpose. Policymakers may of course trade support or assistance, and that type of “logrolling” does not constitute an exchange of bribes. But that is entirely different from the President seeking an announcement of investigations to serve his personal and political interests, as he did here.732 Indeed, and as detailed above, the record is clear that President Trump acted with corrupt motives, including that: For all these reasons, President Trump's conduct satisfies the fourth and final element of the federal anti-bribery statute. c. Honest Services Fraud, 18 U.S.C § 1346 In addition to committing the crime of bribery, President Trump knowingly and willfully orchestrated a scheme to defraud the American people of his honest services as President of the United States. In doing so, he betrayed his position of trust and the duty he owed the citizenry to be an honest fiduciary of their trust. That offense is codified in the federal criminal code, which imposes up to twenty years' imprisonment for public officials who (by mail or wire fraud) breach the public trust by participating in a bribery scheme. In Skilling v. United States, the Supreme Court confirmed that the statute governing “honest services fraud” applies to “bribes and kickbacks,” and noted that this concept “draws content from” the federal anti-bribery statute. As such, public officials who engage in bribery may also be charged with honest services fraud. Fundamentally, the President has deprived the American people of the honorable stewardship that the Nation expects and demands of its chief executive. Since Skilling, federal courts have looked to federal bribery statutes, paying particular attention to Section 201, to assess what constitutes willful participation in a scheme to defraud in the provision of “honest services.” As described above, President Trump engaged in conduct that constitutes a violation of Section 201. President Trump conditioned specific “official acts”—the provision of military and security assistance and a White House meeting—on President Zelensky announcing investigations that benefitted him personally, while harming national interests. In doing so, President Trump willfully set out to defraud the American people, through bribery, of his “honest services.” The underlying wire fraud statute, upon which the “honest services” crime is based, requires a transmission by “wire, radio, or television communication in interstate or foreign commerce any writings . . . for the purpose of executing [a] . . . scheme or artifice.” President Trump's July 25 call to President Zelensky, as well as his July 26 call to Ambassador Gordon Sondland both were foreign wire communications made in furtherance of an ongoing bribery scheme. Thus, the President's telephone calls on July 25th and July 26th lay bare the final element to find him criminally liable for his failure to provide “honest services” to the American people. d. Conclusion For the reasons given above, President Trump's abuse of power encompassed both the constitutional offense of “Bribery” and multiple federal crimes. He has betrayed the national interest, the people of this Nation, and should not be permitted to be above the law. It is therefore all the more vital that he be removed from office. Post Comment Private Reply Ignore Thread |
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