The Case for Impeaching Trump

by Elizabeth Holtzman

  5

  Bribery and Emoluments

  President Donald Trump is a rich man who wants to get richer. He is a businessman who is always looking for more business. He is a self-described dealmaker who always wants to make a new deal.

  Yet we know very little about his businesses. He was the first president in forty years not to release his tax returns. We do know that he runs a business enterprise that uses more than five hundred independent legal entities, or limited liability companies, to receive and spend money on his behalf. His enterprise does business throughout the United States—in New York, Miami, Chicago, California, Hawaii, New Jersey, Virginia, and elsewhere. He has international business operations in more than twenty foreign countries, many of their dealings hidden by the use of corporate camouflages. The voting American public can see few details of the foreign assets he owns—where they are, or what he earns overseas. And it cannot know what foreign bank accounts he might control.

  President Trump occupies the most famous office in the world and has an almost unfathomable amount of power: military, financial, legal, bully pulpit. His comments can (and have) crashed corporate stock prices. He can (and did) implement sanctions that would threaten the existence of a company, or he can reverse those sanctions and spare it. He can (and did) approve or deny arms sales abroad. He can launch missiles at foreign countries (and has) without anyone’s approval. Companies, individuals, and nations thus have strong incentives to try to influence the president of the United States.

  The combination of so much governmental power in the hands of one person with such an extensive, secretive, profit-driven group of companies is a recipe for influence peddling or far worse. Rather than scrupulously or faithfully observing the Constitution, President Trump has rolled out what appears to be a red carpet for those who believe money talks, including foreign governments.

  This is something our Constitution’s framers feared and tried to prevent. They gave us prohibitions and the powerful remedy of impeachment if nothing else worked.

  Bribery

  Bribery strikes at the heart of democracy and seriously endangers the country. It is one of the constitutionally specified grounds for impeachment for good reason, because a president who is swayed by bribes is no longer acting in the best interests of the country and its people. It was no theoretical concern when the Constitution was being written: the framers knew that King Charles II had secretly been bribed by Louis XIV to ally with France in a war against Holland; Louis XIV also bribed Charles’s successor, James II.

  Nor is it a theoretical concern today. In 2018 alone, the former New York State assembly speaker and New York senate majority leader were convicted of bribery. One, a Democrat, took nearly $4 million to help researchers at a major university and real estate developers. The other, a Republican, took more than $300,000 to get his son a no-show job from businesses that were dependent on his goodwill and threatened by his official power.

  There are a number of publicly reported instances involving President Trump that suggest the possibility of bribery and that could support impeachment. More, non-public information may be in the hands of special counsel Robert Mueller, other branches of the Department of Justice, or our intelligence agencies. All the publicly available instances would require further investigation, which could be undertaken as part of an impeachment inquiry conducted by the House Judiciary Committee or by another committee of the House or Senate. (Non-public information might be turned over to an impeachment inquiry, which happened in Watergate.) As with high crimes and misdemeanors, impeachment for bribery need not be based on a conviction under a specific criminal statute. We do not have to wait for the president to be convicted of bribery before he can be impeached, a seemingly impossible pre-condition for impeachment since the policy of the Department of Justice appears to be that a president cannot be indicted while in office.

  President Trump understands and revels in the quid pro quo more than most. “As a businessman and a very substantial donor to very important people, when you give, they do whatever the hell you want them to do,” then-candidate Trump told the Wall Street Journal in July 2015. “As a businessman, I need that.” He made the same point on camera during a debate among the Republican primary candidates. “Before this, before two months ago, I was a businessman. I give to everybody. When they call, I give. And you know what? When I need something from them, two years later, three years later, I call them. They are there for me,” he bragged.

  Bribery within the meaning of the Constitution’s impeachment clause is not implausible when it comes to Trump. He has refused to separate himself from his numerous and far-flung business interests such as hotels and golf courses and is still able, while president, to earn and/or receive money from those businesses. Bribes may easily be disguised in the business context—for example, by overpayments for property, goods, or services. Three recent transactions involving President Trump raise the specter of bribery and should be fully investigated.

  Chinese Trademarks

  For ten years, Trump and his organization sought Chinese government approval for the registration of numerous trademarks, without success. But on November 13, 2016, five days after his election as president, preliminary approval was granted on a Trump trademark for construction services. On December 2, President-elect Trump took a congratulatory phone call from the president of Taiwan, though no American president had done so since 1979. Nine days later, President-elect Trump stated that the United States might change the One China policy if trade concessions were not forthcoming from China. The Chinese government lodged a formal complaint with the United States.

  On February 9, 2017, just before China was to decide on final approval of the trademarks, President Trump suddenly reversed himself. He spoke with China’s president and announced he was for the One China policy. Six days later, China’s trademark office gave final approval for the construction trademark. On February 27, the day President Trump held his first meeting with a representative of China’s government, China announced pending approval of additional trademarks, authorizing the balance on March 6, for a total of thirty-eight trademarks.

  Was this bribery on China’s part? Was China trying to prevent a possible change in US policy toward Taiwan by approving valuable trademarks for President Trump’s business in China? (If Trump were trying to force China to approve the trademarks, then he could have been engaging in extortion, a serious abuse of power and a possible high crime and misdemeanor.) On the other hand, the trademarks could have been an emolument from China—a thing of potential value to demonstrate concretely to President Trump how much it could help his personal business interests (and those of his family) if he would just “play ball” on matters important to China.

  President Trump’s flip-flopping on Chinese tariffs should be viewed through this lens. Are his decisions affected, delayed, modulated, or influenced by various financial enticements China has offered? Are his decisions shaped by its failure to promise or make good on these enticements? The mere suggestion of such concerns erodes confidence in the integrity of our government’s and the president’s decision-making process.

  China/Indonesia Connection

  In the spring of 2018, ZTE, a Chinese electronics and telecommunications company, was penalized by the Trump administration’s Commerce Department for defying US sanctions against North Korea and Iran and rewarding company officials for doing so. In addition, the Pentagon announced it was stopping sales of ZTE phones on military bases for national security reasons. ZTE, in response, announced it was going out of business. Then something unusual happened. China announced it was going to invest “bigly” in an Indonesian theme park with which the Trump organization had a licensing deal. Specifically, the Chinese government was going to invest $500 million. Three days later, President Trump, in a surprise announcement, said he wanted to lift the sanctions against ZTE.

  At best, President Trump may have violated the emoluments clause of the Constitution by accepting the C
hinese government investment in his Indonesian project. At worst, this may be bribery by the Chinese government of President Trump to lift sanctions on ZTE.

  Kushner/Qatar

  According to online news publication The Intercept, the father of Jared Kushner, President Trump’s son-in-law, urged the Qatari finance minister in April 2017 to provide financing for 666 Fifth Avenue in New York City, a building Kushner had bought at an excessive price and that was in serious financial trouble. Qatar refused.

  In June, a coalition of Middle Eastern countries announced a blockade against Qatar. President Trump sided with the coalition—against the position of his own State Department and despite the fact that the largest US military facility in the Middle East is located there—and called Qatar a “funder of terrorism at a very high level.” Roughly a year later, on April 10, 2018, President Trump did an about-face, calling Qatar’s leader a “great friend”; then, about a month later, Kushner’s father announced a financing deal for 666 Fifth Avenue with a major partner of the Qatari government. Was this blackmail by President Trump—again, in itself a serious abuse of power and a likely impeachable offense? Was this the payment of a bribe by Qatar to President Trump’s son-in-law, also an impeachable offense? Was it an emolument to both Kushner and President Trump? Likewise, a possibly impeachable offense.

  The Meaning of Bribery and the Impeachment Clause

  Criminal bribery law is extensive and complex. In the last decade, federal bribery statutes have been narrowly construed by the courts, and a recent Supreme Court decision involving a former Virginia governor has made it much more difficult for criminal prosecutions to succeed. Today, prosecutors need to prove that a politician undertook discrete, identifiable official actions for a bribe. In short, buying “access and ingratiation” is now legal under our federal criminal law. Under the law, however, the bribed-for action need not be taken. For example, agreeing to vote a certain way in exchange for money is criminal even if the vote never takes place.

  But that is criminal law, concerning imprisonment of elected officials for extreme, reprehensible behavior. Impeachment law is different. It is about protecting our nation and our Constitution from grievous injury at the hands of a corrupt officeholder. No individuals go to prison as a result of impeachment, but they do get removed from office.

  Bribery is not defined in the Constitution. The first two federal bribery laws were passed in 1789 and 1790 and dealt only with bribing judges and customs officials. The first law barring bribery of federal legislators was not passed until 1853. A generally applicable anti-bribery federal statute was not passed until the twentieth century.

  Under the 1790 law, the elements of bribery are clear: giving something of value in exchange for an official act is a bribe. Bribery laws were, however, largely honored in the breach throughout the nineteenth century. The first notable high-level prosecution for bribery came in the 1920s, when the secretary of the interior, Albert Bacon Fall, was convicted in the Teapot Dome scandal.

  The current principal federal bribery statute, 18 U.S.C. § 201(b), does not differ significantly from the earlier ones. It provides for the imprisonment of a public official who “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for … being influenced in the performance of any official act …”

  Congress may not be strictly bound in an impeachment proceeding by the elements of the current federal bribery statutes or the recent Supreme Court decisions interpreting them. But impeachment for taking bribes should nonetheless encompass the knowing receipt by a president of money or something of value designed to affect the president’s official behavior—whether the president’s behavior is affected or not. This is the gist of bribery. The examples of ZTE, Qatar, and Chinese trademarks discussed previously would need to be carefully investigated and evaluated to see if they fit this definition.

  Emoluments

  As with bribery, the framers of the Constitution provide no definition of emoluments, which are first cousins of bribery. They so strongly feared that emoluments would carve a path to corruption that they wrote two provisions to guard against it: one to bar the taking of emoluments from foreign governments and another to bar their receipt from states and the United States government. An antique curiosity of a word, its elusiveness had a federal judge himself thumbing through dictionaries in the case of The District of Columbia and the State of Maryland v. Donald Trump, a suit claiming “unprecedented constitutional violations” by Donald Trump arising from his receipt of income from foreign and state government at the Trump International Hotel in Washington. (Three of his children own 22.5 percent of the hotel combined. He owns the rest.) Evaluating the historical record, the court found that “an ‘emolument’ was commonly understood by the founding generation to encompass ‘profit,’ ‘gain,’ or ‘advantage.’”

  “Though the Court agrees that mere counting of dictionaries may not be dispositive,” the decision stated, “it nonetheless remains highly remarkable that [here Georgetown University Law School professor and associate dean John Mikhail was quoted] ‘every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of th[is] broad definition.’”

  It is worth considering why the two emoluments clauses were incorporated into the Constitution. It seems quite simple: the Founders regarded emoluments as bribes in the making. At the time the Constitution was drafted, the framers were “deeply concerned that foreign interests would try to use their wealth to tempt public servants and sway the foreign policy decisions of the new government,” according to Fordham law professor Zephyr Teachout. They saw the same problem with payments from domestic governments.

  The clauses were critical inoculations against outright bribery or even more subtle but just as worrying influence peddling. Bribery is often hard to prove. The Founders wanted government officials to steer well clear of any hint of bribes, especially from foreign governments. The best way to do that is straightforward: do not take their money.

  The foreign emoluments clause was advocated by South Carolina’s Charles Pinckney, citing “the necessity of preserving foreign Ministers & other officers of the US independent of external influence.” Later, while Virginia was debating ratification of the Constitution, future attorney general Edmund Randolph opined that “[t]his restriction was provided to prevent corruption.”

  During the same Virginia debates, George Mason worried that it would be “difficult to know whether [the executive] receives emoluments from foreign powers or not,” and that “the great powers of Europe” would “be interested in having a friend in the President of the United States.” In doing so, he anticipated the exact problem posed by President Trump’s far-flung business interests and his refusal to separate himself from them. As a 1987 Department of Justice study of the history of the foreign emolument clause and compliance with it concluded: “[c]onsistent with its expansive language and underlying purpose, the [foreign emolument] provision has been interpreted as being ‘particularly directed against every kind of influence by foreign governments upon offices of the United States, based upon our historic policies as a nation.’” As we’ll see below, the pattern of foreign government payments and benefits to President Trump since his inauguration exemplifies “every kind of influence that was condemned.”

  The foreign emoluments clause provides that

  [n]o title of Nobility shall be granted by the United States: And no person holding any Office of Profit of Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state. (Article I, Section 9, Clause 8)

  While under the Constitution emoluments from a foreign government are prohibited unless approved by Congress, emoluments from the United States or from any state (Article II, Section 1, Clause 7) are banned entirely:

  The President shall
, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

  The impeachment proceedings against Richard Nixon, a very useful blueprint for inquiry into President Trump’s possible impeachment, are of less help with respect to emoluments. During that inquiry, the House Judiciary Committee obtained information about emoluments received by President Richard Nixon. The evidence uncovered by another House committee showed improvements made to Nixon’s personal properties in Key Biscayne, Florida, and San Clemente, California, at the federal government’s expense. The IRS estimated that the income Nixon received from these improvements during the years 1969–72 amounted to $67,000. The staff of the Joint Committee on Internal Revenue Taxation estimated the total at $92,000. (The improvements included reconstruction of a shuffleboard court, landscaping items, and a heating system, among other things.) An article of impeachment was proposed against President Nixon on the grounds that these “non-protective government expenditures” were for his “personal enrichment.” It was defeated, 16–12.

  Significantly, nobody on the Judiciary Committee questioned whether a president could be impeached for violating the emoluments clause. Rather, the majority voted against the article because there was “no direct evidence” that President Nixon was aware that payments had been made from public, not private, funds (the requests had been made by the Secret Service), and because it “did not rise to the level of an impeachable offense,” probably because the dollar amounts were relatively insubstantial. The offense was probably seen as less egregious than those described in the other articles of impeachment voted by the committee.