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.[1] The experts also agreed that an impeachable offense need not be a crime.[2]
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."[3] 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."[4] William Blackstone likewise confirmed that "taking bribes is punished," just as bribery is punishable for "those who offer a bribe, though not taken."[5] In addition, at common law, soliciting a bribe—even if it is not accepted—completes the offense of bribery.[6] "[T]he attempt is a crime; it is complete on his side who offers it."[7]
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
- ↑ See The Impeachment Inquiry into President Donald J. Trump: Constitutional Grounds for Presidential Impeachment Before H. Comm. on the Judiciary, 116th Cong. (2019) (hereinafter "Constitutional Grounds Hearing (2019)") (written testimony of Professor Jonathan Turley) ("Under the common law definition, bribery remains relatively narrow and consistently defined among the states. 'The core concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.'") (quoting John T. Noonan, Jr., Bribes: The Intellectual History of a Moral Idea xi (1984)); id. (testimony by Professor Noah R. Feldman in response to question by Representative Jerrold L. Nadler) ("Bribery had a clear meaning to the Framers, it was -- when the President, using the power of his office, solicits or receives something of personal value from someone affected by his official powers."); see also id. (written testimony of Professor Pamela S. Karlan); id. (written testimony of Professor Michael J. Gerhardt) (similar).
- ↑ See Constitutional Grounds Hearing (2019) (written testimony of Professor Jonathan Turley); id. (written testimony of Professor Noah R. Feldman); id. (testimony by Professor Michael J. Gerhardt in response to question by Special Counsel Norman L. Eisen); id. (testimony by Professor Pamela S. Karlan in response to question by Special Counsel Norman L. Eisen); see also Constitutional Grounds for Impeachment (2019), at 31-38.
- ↑ Noonan, Bribes, at 430; Pleas of the Crown, ch. 67, § 2.
- ↑ Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
- ↑ William Blackstone, Commentaries on the Laws of England, vol. 2, Book 4, ch. 10, § 17 (1771); A New Law-Dictionary, at 95 (defining "Bribery" as "the Receiving, or Offering, any undue Reward . . . to act contrary to his Duty.").
- ↑ See 4 William Blackstone, Commentaries * 139; Rex v. Plympton, 2 Ld. Raym. 1377, 1379 (1724); Rex v. Higgins, 102 Eng. Rep. 269, 276 (1801) ("A solicitation or inciting of another, by whatever means it is attempted, is an act done"); see also John Marshall Gest, The Writings of Sir Edward Coke, 18 Yale L.J. 504, 522 (1909) ("Of bribery: 'They that buy will sell.'") (quoting Coke, C.J.) (citing 3 Inst. 148); Francis B. Sayre, Criminal Attempts, 41 Harv. L. Rev. 821 (1928) (citing additional cases).
- ↑ Vaughan, 98 Eng. Rep. at 311. American courts subsequently repeated this principle; see, e.g., State v. Ellis, 33 N.J.L. 102, 103-04 (N.J. Sup. Ct. 1868) (importing the common law definition of bribery to include attempts); see also William O. Russell, A Treatise on Crimes and Misdemeanors 239-40 (1st U.S. ed. 1824).
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