At Lawfare, Josh Blackman & Seth Barrett Tillman: Defining a Theory of ‘Bribery’ for Impeachment. Form the introduction:
[House Speaker] Pelosi contends that Trump solicited a bribe because the benefit from the proposed investigations by Ukraine into the family of presidential candidate Joe Biden would be personally valuable to the president. Benjamin Wittes drew a similar conclusion. He wrote that Trump made “a corrupt demand for something personally valuable (investigations of political opponents) in return for being influenced in the performance of two official acts (granting a White House meeting and releasing hundreds of millions of dollars in military assistance)” (emphasis added). Ben Berwick, Justin Florence and John Langford of Protect Democracy agreed. They claimed that “Trump made clear to [Ukrainian President] Zelensky that he was asking him for a ‘favor’—not a favor to benefit the United States as a whole or the public interest, but a favor that would accrue to the personal benefit of Trump by harming his political rival” (emphasis added).
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We disagree with this framework for analyzing bribery in the political context. Indeed, this theory, if adopted by the House, could have consequences for the separation of powers. The executive branch could come to view routine political compromises and horse-trading as illegal, and subject members of Congress to investigation and indictment. This theory would also make it effectively impossible for the president to exercise his personal constitutional authority to investigate wrongdoing by anyone, including those closely affiliated with his opponents, lest he be charged with a quid pro quo. The better theory, we contend, is that President Trump made a lawful request to Ukrainian President Volodymyr Zelensky to begin an investigation of Hunter Biden, just as he could regarding any other Americans for that matter.
I agree (see here). But I would have liked to see more originalist analysis, or at least the point that (so far as I'm aware), no one regarded otherwise lawful political favors as bribery in the founding era.
Posted at 12:51 AM