The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. — U.S. Constitution, Article II, Section 4.
Bribery As A Basis For Impeachment.
Most suggestions related to potential impeachment of President Trump invoke the ambiguous “high crimes and misdemeanors” provision. This is true for Russia collusion, where the criminal statutes are rarely specified, and for obstruction of justice.
The obstruction charges often focus on the firing of Comey, which the President, and his crack shot lawyer, Rudy Giuliani, claim cannot form a basis for impeachment because the President’s power to fire executive branch employees is plenary (though Trump would never use a word like “plenary”).
However, two crimes are specifically mentioned as impeachable, treason and bribery. There is no doubt about the impeachability of those offenses. I believe the Stormy Daniels Hush Agreement, the payments and property transfers related to it, suggest facts that may fit within the definition of bribery established by United States law.
First, the facts as they now appear:
- Porn star Stormy Daniels claims she had an affair with the President in 2006. Whether that claim is true or not is not relevant to this analysis.
- The Access Hollywood tape came out with Trump bragging about how he could get away with sexually assaulting women.
- Some women filed lawsuits accusing the Trump of various sexual misconduct, but they had no real evidence to support their claims.
- In the few weeks before the election the President’s personal lawyer, Michael Cohen, began negotiating a “Hush Agreement” designed to prevent Daniels from disclosing her alleged affair with Candidate Trump.
- The best explanation for Trump settling with Daniels is that, unlike his other accusers, she had evidence embarrassing to Trump and supporting her story, which the Hush Agreement would require her to surrender.
- Communications during the negotiations included discussion of the need to complete the Hush Agreement, to include the payments for it, prior to the election.
- Ten days before the election the Hush Agreement was signed.
- While Trump did not sign the agreement, he was a party to it because the agreement states he personally provided consideration to Daniels that was essential to the agreement.
- The agreement required Daniels to turn over to Trump property she had containing what the agreement defines as “confidential information.”
- Michael Cohen originally paid Daniels $130,000 out of his own pocket.
- Donald Trump repaid Cohen after the election. For purposes of this discussion we will assume the repayment was not from campaign funds.
The Facts Support That Campaign Finance Law Was Violated.
I do draw one conclusion of law from this, that is helpful, but not absolutely necessary, to sustain the bribery charge. The payment to Daniels violated campaign financing law. This conclusion is not a reach.
The law defines a campaign contribution as any payment or loan made to influence an election. The Hush Agreement was hurriedly entered into just days before the election with explicit discussions between the parties as to how it related to the election.
Rudy Giuliani tried to disingenuously say Cohen’s payment to Daniels was not for that purpose but rather to spare Trump personal embarrassment, particularly in regards to his wife. Given many women had made similar allegations already, that never made any sense. Giuliani undercut his own message by also saying “Imagine if that came out of Oct. 15, 2016, in the middle of the last debate with Hillary Clinton?”
Because the payment to Daniels was intended to influence the election, it was a campaign contribution in excess of legal limits. A second violation for not reporting it applies. That Trump supposedly paid it back later does not salvage the situation. That would just make it a loan to the campaign in excess of legal limits with a second violation for not reporting it.
The Federal Bribery Statute.
The Federal Bribery Statute is at 18 U.S.C. § 201. It requires the bribe be made to, or by, a “public official” or “person selected to be a public official.” This may create the greatest complication, because at the time Daniels was paid by Cohen, Donald Trump was not yet a public official.
However, Trump appears to have repaid Cohen after the election. Thus, Trump’s role in the bribe was after he was a “person selected to be a public official.” As seen below, the statute requires only that he engaged in collusion related fraud, after his selection to be a public official, to satisfy the bribery statute.
Assuming this threshold is met we move to the truly operative language. I will first focus on the following. Bribery occurs when:
a public official or person selected to be a public official, 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 to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States.
To sum it up, bribery occurs when a person selected to be a public official (e.g. President-elect) receives or agrees to receive anything in return for colluding, or allowing, any fraud on the United States. The Hush Agreement requires that Daniels give Trump stuff.
The essential element to meet here is that the Hush Agreement and/or related payments, to include the property Daniels was required to give Trump, provides “opportunity for the commission of any fraud on the United States.” I believe the following provides such fraud.
- The violations of campaign finance law in the excess payment or loan to the campaign and failure to report it. Campaign fraud is a fraud against the United States.
- The money laundering of the payments from Cohen later repaid by Trump.
- The agreement suppressed speech on a matter of public concern, depriving the American people of important information in their choice for the highest office in the land.
- The agreement silenced a potential witness in lawsuits filed by other Trump accusers before the agreement was entered into.
In regards to that final point, the bribery statute also defines bribery as:
directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person’s absence therefrom.
The reason Trump settled with Daniels, but not the other accusers, is that Daniels had evidence. Her evidence and testimony would potentially help in lawsuits already filed by other accusers. Trump sought to ensure Daniels’ “absence” from testifying in such suits by silencing her from even informing such plaintiffs of her potential as a witness. Trump gave Daniels 130,000 reasons to absent herself as a potential witness.
Ultimately, an impeachable offense is whatever Congress decides. However, the Constitution states bribery is an impeachable offense and Trump’s conduct arguably falls within the Federal bribery statute.