If We Cared About the Constitution, We’d Impeach Trump for Bribery

America’s Founders worried a great deal about corruption. They worried so much about a president acting for personal financial gain, rather than exclusively for the interests of the United States, that they forbid it in the Constitution three times.

Bribery and treason are the only impeachable offenses specified in Article II, accompanying the more ambiguous “high Crimes and Misdemeanors.” And Article III limits what counts as treason:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

These caveats aim to prevent manufactured accusations (two witnesses, overt act) as well as politicization (only war against the U.S. or aiding America’s enemies). Regular policy choices cannot constitute treason, no matter how passionately one disagrees with them.

There are no equivalent clarifications of bribery in the Constitution, indicating the Founders thought it was less ambiguous than treason, harder to issue false accusations, and arguably a more pressing concern.

As if this weren’t enough, there’s also the Emoluments Clause in Article I, Section 9, which declares that no officeholder may “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And there’s also Article II, Section 1, which forbids the president from accepting any “Emolument” from the United States or any state within, meaning any payment beyond his legally designated salary.

One could argue that bribery requires quid-pro-quo — accept something of value in exchange for something else — but the Emoluments Clause forbids acceptance alone. Officeholders don’t need to give, or even promise something in return to be in violation. The Constitution allows exceptions with the consent of Congress, indicating an officeholder receiving something of value must prove it isn’t a bribe, rather than the other way around.

In this, the Founders reveal their worry that officials could be influenced, even unconsciously, by personal gain. Today, we call that problem “conflicts of interest.” President Trump has a lot of them.

America’s Bribeable President

Most public discussion of Trump’s potentially impeachable conduct focuses on how he obtained the presidency. There’s extensive speculation, though no direct proof, that he knowingly colluded with Russia’s efforts to influence the election. And recently his long-time personal attorney Michael Cohen pleaded guilty to fraud and campaign finance violations, which Cohen claims he undertook at Trump’s direction.

Those matter, but as the text of the Constitution indicates, the Founders’ primary concern was a president’s conduct in office. Trump, and the family members he’s empowered, have accepted many things of value from foreign governments. And there’s multiple cases that, at the very least, raise suspicion of quid-pro-quo.

The most blatant ones involve the Trump Organization’s properties, especially hotels in Washington and New York. Some foreign governments jumped at the opportunity to patronize the president’s private businesses, none more than Saudi Arabia.

Lobbyists representing the Saudis reserved about 500 rooms at the Trump International Hotel near the White House shortly after the 2016 election. In an effort to improve Saudi Arabia’s image, they gave American veterans free trips to Washington, DC. The vets were scheduled to stay in northern Virginia, but in December 2016, the lobbyists switched the reservations to Trump’s hotel.

Additionally, in May 2018, the general manager of Trump International Hotel in Manhattan proudly told investors that room rental revenue increased by 13 percent thanks to “a last-minute visit to New York by the Crown Prince of Saudi Arabia,” reversing two years of decline.

In office, Trump has acted very favorably towards Saudi Arabia. He picked Riyadh as his first place to visit as president, strongly backed the Saudi-led isolation of Qatar against the Pentagon’s wishes, and casts doubt on the CIA’s conclusion that Saudi Crown Prince Mohammed bin Salman ordered the murder of journalist Jamal Khashoggi, contradicting prominent Senators who have seen the intelligence, such as Lindsey Graham.

Since Trump’s been in office, China has approved numerous trademarks for Ivanka Trump-branded products. One set of approvals came after Chinese President Xi Jinping visited Trump’s Mar-a-Lago resort in April 2017. And in November 2018, China granted 16 more, even though the president’s daughter/adviser/business partner said in July she was shutting down her brand.

In May 2018, Trump saved Chinese tech company ZTE, which the U.S. blocked because the company violated sanctions against Iran and North Korea. The Pentagon told stores on military bases to stop selling ZTE devices due to suspicion that Chinese intelligence could access them to spy on Americans. Trump restored ZTE’s ability to purchase American-made components two days after China invested $500 million in a massive resort project in Indonesia that includes Trump-branded hotels and a golf-course.

There’s a lot more — donations to his inauguration, some of which ended up going to the Trump Organization, are now under investigation, and I haven’t even mentioned Jared Kushner — but the hotel room rentals, trademarks, and resort investment cross the Founders’ red line on their own.

It’s important to note that there is no direct evidence of quid-bro-quo bribery. No recordings, nor witness testimonials of Trump changing U.S. policy only because a foreign government paid him off. Trump’s strong support for Saudi Arabia may be driven by the president getting serious about confronting Iran. He could have genuinely believed saving ZTE would smooth trade negotiations with China.

It doesn’t matter. Merely accepting things of value from foreign governments violates the Constitution.

But does it count as accepting things of value if they’re patronizing his businesses? He provides something of value in return, so arguably it’s free exchange.

To answer that, I’ll turn to textualism, the legal doctrine championed by Justice Antonin Scalia among others, which tells us to follow the objective meaning of the text itself, using definitions from the time the law was written.

(This is sometimes confused with original intent, which tries to determine the purpose of the law, factoring in context and sometimes the writers’ outside arguments and explanations. I like the textualism argument, but original intent works too.)

Corporations as we know them didn’t exist in the 1780s. The doctrine of corporate personhood, which treats companies as persons in some legal contexts — for example, you can sue them — wasn’t established until Dartmouth College v. Woodword in 1819.

There’s no way the words “accept of any present, Emolument, Office, or Title, of any kind whatever” have the unwritten but implied addendum “except if the foreign government sends it to a bank account labeled ‘My Company’ rather than one labeled ‘My Personal Finances.’” And “accept” doesn’t specify “in exchange for nothing.”

Claiming the Trump Organization — a private business owned by Donald Trump and run by his children — is separate from Donald Trump himself would be ridiculous in the 1780s.

It’s pretty ridiculous now.

Politics > Constitution

Does anyone seriously dispute that the Trump Organization has accepted gifts or payments “of any kind whatever” from a foreign country, and that President Trump has profited as a result?
(Seriously? Come on.)

The interesting question is why America isn’t treating this as cut-and-dry conflict of interest — exactly the sort of bribery or bribery-like activity the Founders forbid in the Constitution. There are multiple answers, all of which prioritize politics.

1 — Don’t care
In response to a question about Michael Cohen implicating Trump in crimes, Senator Orrin Hatch said “I don’t care, all I can say is he’s doing a good job as president.”

Hatch walked it back a few days later, but he aptly described his party’s position. For immigration, tax cuts, judges, electoral prospects, owning the libs, whatever, many Republicans have decided that Trump’s Constitutional violations are, if not good, at least acceptable.

2 — Can’t win
Conviction takes 2/3 of the Senate, which would require at least 20 Republicans, and if Trump wouldn’t get removed from office, why should House Democrats bother? Impeachment could unify Republicans by raising the partisan stakes — like Brett Kavanaugh’s Supreme Court confirmation — and the media could portray Democrats as overreaching.

Many Democrats see significant risks for the party and almost no chance of success, and have therefore decided to let the Constitutional violations slide. Not let them go entirely — the House will investigate the Trump administration and try to gain political advantage from the results — but not pursue the Constitution’s designated remedy of impeachment either.

3 — It’s not collusion
Incoming Speaker of the House Nancy Pelosi argues that Democrats shouldn’t discuss impeachment at least until Robert Mueller’s investigation concludes. Some Republicans argue that the #Resistance said Trump conspired with Russia to steal the election, so that’s what they have to prove.

Their motivations are different, but both of these arguments say Congress should let the bribery slide. At least for now.

4 — Everyone does it
Don’t all politicians accept things of value (campaign contributions, meals, travel, etc.)? If Trump’s just doing what all politicians do, it’s unfair to single him out.

This is a deeply cynical worldview. First, Trump’s not doing what all politicians do. No one else maintains a private business that regularly receives direct payments from the U.S. and foreign governments. Jimmy Carter put his peanut farm in a blind trust. Dick Cheney sold his Halliburton stock (though he held on to some options). What Trump’s doing isn’t normal.

Second, even if it were normal, that doesn’t mean it’s good. Widespread Constitutional violations mean we should be more concerned, not less. Crackdowns on illegal activity often start by making an example of an egregious violator, and there’s no better example than President Trump.

5 — Fearing violence
What would Trump’s most ardent supporters do if faced with the president’s impending removal?

For example, here’s frequent Fox guest and pro-Trump Super PAC official David Clarke, threatening to out-do violent protests in Paris:

The chances of widespread violence might not be especially high. But they’re not as close to zero as one might like.

So... Impeachment?

Many Americans revere the Founders, and treat the Constitution almost as holy writ. But they clearly don’t mean it.

This applies to me too. I think there’s a good chance Republicans will back Trump no matter what, and that a failed impeachment could harm the country. Better for the House to conduct investigations, Mueller to continue prosecuting crimes, and voters to remove Trump in 2020.

But that’s a political argument. We’re way past the point where the Constitution calls for impeachment based on bribery in office alone.