No, Trump’s Courting of Senators isn’t ‘Bribery’

The President is committing enough high crimes and misdemeanors without us manufacturing them.

A headline at Newsweek blares, “TRUMP IS COMMITTING ‘FELONY BRIBERY’ BY GIVING FUNDRAISING CASH TO GOP SENATORS AHEAD OF IMPEACHMENT TRIAL: EX-BUSH ETHICS LAWYER.”

Attorney Richard Painter, who served as the chief White House ethics lawyer in the George W. Bush administration, warned on Thursday that President Donald Trump appeared to be committing “felony bribery” by giving Republican senators fundraising cash ahead of an increasingly likely impeachment trial in the Senate.

The lawyer shared an article published by Politico on Thursday morning. Titled “Trump lures GOP senators on impeachment with cold cash,” the article outlined how the president is turning to his large network of donors to raise funds for a few senators facing difficult re-election campaigns in 2020. All of those senators have also signed a resolution condemning the Democratic-led impeachment inquiry.

“This is a bribe. Any other American who offered cash to the jury before a trial would go to prison for felony bribery. But he can get away with it?” Painter, a law professor at the University of Minnesota, wrote on Twitter. “Criminal.”

In a follow-up tweet, Painter argued that GOP lawmakers who accept the fundraising support should face criminal charges as well.

“The senators can raise their own campaign cash. Any senator who accepts cash from @realDonaldTrump before the impeachment trial is guilty of accepting a bribe and should go to the slammer,” he tweeted.

I’m not an attorney, much less one who has served in the White House. Regardless, I’m confident in declaring this to be nonsense.

Our system for funding campaigns is rife with questionable ethics. It’s problematic that sitting officials leverage the power of their offices to strong-arm those who they regulate into giving them money. It’s problematic that those who give lots of money are afforded much more access than those who don’t. And, yes, it’s problematic that a President facing the prospect of impeachment is using his campaign war chest to prop up Republican Senators who are publicly fighting said impeachment and withholding it from those still on the fence.

Alas, ain’t none of it illegal, much less bribery. Not under the law, anyway.

And the analogy of “offering cash to a jury before a trial” is just laughable. At the time Trump was handing out cash, the House hadn’t even voted to launch a formal impeachment inquiry. While it seems inevitable that they will—and I think they should—the House certainly hasn’t impeached him.

Further, while Republicans tried very hard to sell Senate Democrats on the idea that they were a jury during the Bill Clinton impeachment process, they rightly pushed back against it, even getting Chief Justice Rehnquist to declare that, no, they were not a jury. That’s because, while the Constitution uses the language of criminal law—“high crimes and misdemeanors”—impeachment is fundamentally a political, not criminal proceeding.

Indeed, even after impeachment, it’s not clear that it would be improper—and certainly not illegal—for a President to meet with Senators. The process can drag on for weeks and the business of the country doesn’t stop. Hell, Bill Clinton gave his State of the Union address to a combined session of Congress in between the House impeaching him and the Senate convening to decide whether to remove him.

I’d go a step further and argue that, even though it would be unseemly as hell, Trump could almost certainly go on dispensing campaign monies during the Senate proceedings. After all, the election isn’t being postponed or canceled (at least, I don’t think it is). And, indeed, Republican Senators up for re-election would need the money more than ever because, not only would Trump’s impeachment potentially shift the political landscape but they’d be stuck in Washington and unable to get out on the campaign trail.

The bottom line here is that Trump has displayed a level of corruption in office unparalleled by any modern President. There’s no need to manufacture offenses. In fact, doing so actually helps him because it makes it appear that his opponents are throwing spaghetti against the wall to see if anything sticks.

FILED UNDER: Donald Trump, Impeachment, Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jen says:

    It does seem sort of swamp-y though.

    I say that tongue in cheek, and you are correct in your assessment. However, this is the sort of thing that makes Americans think that politicians are nothing but sleazy, because it just feels like it should be wrong, but it isn’t.

    One thing I’ve observed during l’ affaire Ukraine, is how many people thought that while bribing and pressuring a foreign nation by withholding their aid was wrong, think that this is “just what politicians do.” Whether it’s the negative effect of popular culture or something else, I don’t know, but the idea that everyone in politics is compromised runs deep.

    Contributing campaign cash to strapped Senators in exchange for support might not be illegal, but it’s sure gross, and doesn’t look good.

  2. Political horsetrading like this is as old as politics and it will exist as long as we have representative democracy.

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  3. OzarkHillbilly says:

    If it looks like a duck, sounds like a duck, and smells like a duck, maybe it really is a duck, It just also happens to be legal. Doesn’t mean it’s gonna make a dimes worth of difference in the Senate vote. Senators are gonna vote for their own reelection no matter what. If that means voting in trump’s favor, they will. If it means voting trump out of office, they will. Expecting anything else out of them is not realistic.

  4. DeD says:

    Well, maybe not by the letter of the law, James. Still …

  5. Michael Reynolds says:

    And the analogy of “offering cash to a jury before a trial” is just laughable. At the time Trump was handing out cash, the House hadn’t even voted to launch a formal impeachment inquiry. While it seems inevitable that they will—and I think they should—the House certainly hasn’t impeached him.

    What a vacuous non-sequitur. The House hadn’t even voted. . . what? So, if John Gotti was handing out payola to potential jurors five minutes before he was formally indicted, you’d be OK with that? Even though Gotti knew he was going to be indicted? And why bring up the House vote when you know perfectly well that was in irrelevant Trumpie talking point?

    You’re trying to get back to safe conservative ground, James, trying to find ways to signal that you’re still a conservative, trying to resist being swept along with the liberals. You still don’t get it.
    There was never a legitimate conservatism, it was never anything but racism and greed, everything else was decoration meant to disguise the ugliness inside. Your party didn’t leave you, you never understood what your party was, you bought the decoration and missed the substance. You spent your adult life supporting a white supremacist, misogynist, amoral and greed-fueled party and ideology. You gave them your time, your intellect, your energies, but like a Confederate soldier, whatever was in your heart, and I think you’re a good and honorable man, objectively you were fighting in an evil cause.

    You need to take that on-board, because Trump didn’t change the GOP or American conservatism, he just tore off the mask.

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  6. gVOR08 says:

    Well, it is bribery, it’s just legal and normally accepted bribery. As with the old line about defense contracting, the scandal isn’t what they do that’s illegal, the scandal is what’s legal. Hopefully the old line about Texas politics also applies. If you can’t take their money, drink their whiskey, **** their women, and vote against them, you don’t belong in politics.

  7. Fortunato says:

    @Doug Mataconis:
    Hunter Biden’s lobbying for a Ukrainian energy concern is also perfectly legal and a practice as old as politics itself.

    That fact doesn’t seem to have curtailed the conspiracy addled demagoguery or lessened the impromptu sprays of spittle from the POTUS. Nor has it diminished the frothy fervor elicited among his legions of MAGAcapped deplorables.
    That fact hasn’t prevented the Attorney General of the United States, the Secretary of State and the Secretary of Energy from engaging in a globe trotting jihad seeking to harass and cajole our allies into fabricating from whole cloth crimes committed by the former Vice President of the United States.
    Faux crimes which they’ll feed to their heinous little winger propagandists, trolls like TaterHead Hannity and Rush Limpbaugh.
    Faux crimes which they’ll then wield as a cudgel against Donald Trump’s chief political rival.

  8. James Joyner says:

    @Michael Reynolds:

    You’re trying to get back to safe conservative ground, James, trying to find ways to signal that you’re still a conservative, trying to resist being swept along with the liberals.

    No, I’m responding to what I think is a silly claim by George W. Bush’s former chief ethics attorney. One that, as noted in the post, actually undermines the efforts to go after Trump’s actual crimes.

    So, if John Gotti was handing out payola to potential jurors five minutes before he was formally indicted, you’d be OK with that? Even though Gotti knew he was going to be indicted?

    I’m not even sure how that would work. Flooding the neighborhood with money to buy good will?

    In Trump’s case, I don’t like it but I don’t see how you’d stop it. Even if he were already impeached, he’s still the President and gets to meet with Senators to influence their votes. At that point, I’d think it would be unethical for Senators to take his money but it still likely wouldn’t be “bribery” under the law.

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  9. Michael Reynolds says:

    @James Joyner:
    You stop it by first not shrugging it off. You stop it by saying, ‘This is wrong.” And then you punish the wrong-doers by whatever legal means are available. But it starts with not being OK with immoral, unethical, corrupt behavior.

    This is how we get to #MeToo. A bunch of people shrugging and going well. . . well this, well that, well blah blah blah. This is how countries become Italy, by being cynical, by playing ‘worldly wise’ in the face of corruption.

  10. Jay L Gischer says:

    @Michael Reynolds: While the Conservative Movement has been getting emptier and emptier, being a conservative is still a reasonable thing in my book. For myself, I don’t quite get why supporting things that are close to, or more than, 100 years old such as Social Security and the Income Tax aren’t conservative.

    I read James’ response more along the lines of he’s expressing what you might call “fire discipline”. Don’t shoot around wildly, but pick a valuable target, take your time, and shoot to kill.

    Many of us who opposed Trump are, indeed throwing everything at him. And yeah, he’s terrible. And so many people who write about politics engage in very black-and-white hyperbole. Which bothers the heck out of me, but many have told me “that’s how politics is done!”

    That’s probably true, but I still don’t like it.

  11. Sleeping Dog says:

    @Jay L Gischer:

    For myself, I don’t quite get why supporting things that are close to, or more than, 100 years old such as Social Security and the Income Tax aren’t conservative.

    Here, here. This is an example of why movement conservatism as moved away from its philosophical roots and has devolved into a reactionary movement.

  12. JKB says:

    Well, given that the supposed “bad act” here was mentioning one of over a dozen potential rivals in an election 16 months in the future, then three to six of the senators in that pool of potential rivals would need to abstain from participating in the Senate trial given they either stand to materially gain from the impeachment damaging Trump’s candidacy or were themselves potential victims of the “bad act” in question.

    Trying to impeach and remove within 18 months of an election with senators vying for the opposition party candidacy is fraught with conflicts of interest. Can we be sure that bundlers and donors to senate campaigns aren’t trying to influence the impeachment outcome?

  13. Michael Reynolds says:

    @Jay L Gischer:
    Show me a conservative political party in the western world that is not racist or nativist. The Tories? The latest LePen manifestation? Likud?

    The essence of ‘conservatism’ is preserving the status quo. When that status quo is racist or misogynist or anti-gay, the conservative argument for status quo is itself racist, misogynist or anti-gay. When the status quo disproportionately favors the rich and disadvantages the poor, it can be fairly said that the conservative party favors keeping the working man down.

  14. Michael Reynolds says:

    @JKB:
    Your characterization is a lie.

    This is a President using the American people’s money to bully a foreign country into interfering in our election to subvert the will of a democratic people. That is a crime. And it was not a single phone call, that is a lie.

    And since you’ve been corrected on this repeatedly, and never once mounted a serious defense, that makes you a deliberate, calculated liar.

  15. p.anderson@fuse.net says:

    At NYT the lead story is Warren leading in Iowa as Biden fades, followed by more on Warren and then the jobs report.
    WAPO has a couple of impeachment stories followed by Trump’s abandonment of his promise to do something on guns.
    FOX has a story about shoplifting in CA followed by “FOX NEWS FULL COVERAGE OF THE HOMELESS CRISIS” and five stories thereon.

    I often find that the news stories at FOX are more or less even handed. Their bias is not so much in the stories, as in the selection and placement of the stories.

  16. gVOR08 says:

    @Jay L Gischer: I cannot too highly recommend Corey Robin’s The Reactionary Mind He makes it clear that there is no Conservative policy or philosophy. His book is a long historical review of Conservatism showing that the only constant is, to use the meme, opposition to whatever liberals are for, updated daily.

    @Michael Reynolds: Robin also says the constant in liberalism is to extend full citizenship to whoever has not got it, which is generally a racial or ethnic group. In reaction, Conservatism tends to “racist or nativist”.

    This thread revolves around the difference between “bribery” as a vernacular word and “bribery” as a legal term of art. We’ve done the same thing with “treason” a couple times. Much confusion falls from the rather large difference between “conservative” in other uses and “conservative” as a political term. You are quite right that conservatism as generally used would mean preserving SS and the Income Tax. Conservatives in the vernacular sense are Democrats these days. Republicans are reactionaries, as Conservatives have always been. Burke was a small c, vernacular conservative in my usage above, when he supported incremental change and respect for tradition. He was a capital C, political, conservative when he bemoaned giving candle makers and hairdressers a say in government.

    This is why we have the pundit claim that we are a center right nation. It comes from polls in which a majority of people identify themselves as conservative. Which only proves they don’t know what the word means in political usage. If you poll issues you get a strongly opposite result.

  17. just nutha says:

    @Jay L Gischer: I would distinguish being conservative from being a conservative these days, things being how they are, but I share the same conviction. Lots of things the movement supports aren’t very conservative at all–except in the classical sense of conservatism as support for an aristocracy/oligarchy (depending on whether they rule on behalf of the society at large or to feather their own nests to the exclusion of society’s interests).

  18. Jax says:

    @JKB: So you’re suggesting we should go the Merrick Garland route and wait for the election? We played that game once, expecting Republicans to play by the established rules and norms, and instead they accepted/invited Russian help to win, with every indication that they’re willing to do it again in order to retain power.

    No. Let the impeachment play out, people like you need to see, up close and personal, who and what kind of bottom feeders you are voting for. It’s not going to change your mind at all, but at least it lets every other citizen of the United States know just how low the Republican Party has fallen.

  19. greg says:

    Regarding “the House hadn’t even voted to launch a formal impeachment inquiry” Though a formal impeachment inquiry had yet been advanced, anyone living on this side of the solar system (which includes Tump) sees this as being as certain as tomorrows sun rise. Even the author states it is inevitable, and this inevitability (by itself) does supports the case for bribery.

    Regarding “they (Senate) were not a jury” – the role of the House is the advance the specter of impeachment and is the roll of the senate to acquit or convict. The former allows the president to remain in office while the latter removes him. Thus, whether we call the senators jurors or not, they do function as such.

    Regarding “impeachment is fundamentally a political, not criminal proceeding” The distinctions between the two types of proceedings revolve around the offense and the consequence. These distinctions don’t affect the process itself, collection of data, putting forth an accusation (impeachment) and deciding on the merits of the accusation (senate vote).

    Regarding campaign giving as bribery -The author is correct that, though this can be called bribery by any definition of the term (as can most if not all lobbyist campaign contributions) it is NOT illegal., So while none of the authors other premises hold up to analysis, this is the ONE that does. This is the ONLY reason that Trumps cannot be charged with bribery. However, there is one little caveat: according to opensecrets the cash limit.

    From opensecrets.org
    “Members of Congress in safe seats are often asked to contribute some of their campaign funds to candidates in need. The maximum amount a lawmaker can give to a candidate from his or her campaign account is $1,000 per election. Leadership PACs are committees sponsored by politicians as a way to help other candidates and to gain clout among their colleagues, especially when seeking a leadership or committee chair position. As with any other PAC, leadership PACs can give up to $5,000 to a candidate per election. Below are the top overall donors to other candidates and the top recipients of money from elected officials who gave through their candidate committees and/or leadership PACs.

    Source: https://www.opensecrets.org/overview/cand2cand.php

  20. gVOR08 says:

    @Michael Reynolds:

    You stop it by first not shrugging it off. You stop it by saying, ‘This is wrong.” And then you punish the wrong-doers by whatever legal means are available. But it starts with not being OK with immoral, unethical, corrupt behavior.

    But the standard conservative response to everything is that’s just the way it is, nothing can be done.