Every couple of days, commentators affiliated with Fox News do a tremendous disservice to their viewers by lying about the application of laws to particular behavior. A few days ago, Brit Hume suggested that people who don’t accomplish their criminal goals don’t get punished. That’s blatantly false. And last night, because Nancy Pelosi finally used the word “bribery” (one of the specific acts which requires the impeachment and removal of the President), Laura Ingraham thought she had a checkmate in the waiting.
Oho, Libs! The Constitution doesn’t say anything about attempted bribery. Ha!
This argument obviously tries to follow in the footpath trod by Brit Hume and Congressional Republicans like Jim Jordan who are trying to say “but the aid got released, eventually, so no harm no foul” while ignoring that it got released apparently only because the Whistleblower raised the alarm.
More than that, though, claiming that “attempted” bribery isn’t in the Constitution is, at best, a misunderstanding of the definition of bribery. At worst, it’s blatant disinformation.
This is because bribery, as spelled out in 18 U.S.C. § 201, establishes that quote-unquote “attempted” bribery is bribery.
The Bribery Statute
What constitutes bribery is currently codified at 18 U.S.C. § 201. And it’s not just “Here is $50, and now I’m getting out of my speeding ticket, as we agreed.” It’s a big statute! With lots of parts! For our purposes, 18 U.S.C. § 201(b)(2) is the relevant section. It states:
(b) Whoever—
…
(2) being 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:
(A) being influenced in his the performance of any official act;
(B) 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; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person;
18 U.S.C. § 201(c)(1)(B) is similar. It states:
(c) Whoever—
(1) otherwise than as provided by law for the proper discharge of official duty—
…
(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;
The two subsections carry different penalties, but the general application is the same. The person doing the bad thing is the public official. (Yes, that term is defined by statute.) The bad thing is demanding, seeking, receiving, and/or accepting “anything of value,” (also defined, which we’ll get to in a minute) whether it benefits the official or someone else, for some official act or omission.
You will notice that demanding and seeking are open-ended words. They do not require completion for criminal responsibility to attach. They are, in other words, “attempts.”
Bribery in History
Okey dokey, Mr. Smarty Pants. You can read a statute, and you can explain how Bribery is defined TODAY, but what about when the Constitution was written, hmmmmmm? Did Bribery in 1787 necessarily include attempts? Did the founding fathers really anticipate Congress including attempts as the definition of bribery when they made it clear that a President shall be removed upon impeachment and conviction for Bribery?
The answer is, in short, yes. As far back as 1798, a Circuit Court in Philadelphia considered the case of a man accused of the common law crime of bribery. (This is one of those weird cases where the majority of the case involves a lot of thinking about how the United States doesn’t have common law crimes, and there’s no federal jurisdiction over common law crimes, blah blah blah oh well, he’s convicted anyway and gets 3 months in prison, next.)
It is clear from the commentary in the case that the heart of bribery is not the completion, but the attempt: as argument against liability put it: “it could not be inferred, that the corrupt offer was made to seduce the commissioner from the faithful execution of an official public trust, which was the gist of the prosecution.” United States v. Worrall, 28 F. Cas. 774, 776 (D. Penn. 1798) (emphasis added).
So. Now you know: no matter what Fox News says, Bribery includes, and has always included, attempts, and therefore attempted bribery is in the Constitution.
