Impeachment Primer #1: "Official Acts"
As we embark on the momentous process of deciding whether the president of the United States is so dangerously unfit for office as to require removal, I will be trying to supply bits of context.
In keeping with the legalistic framing of the two draft Articles of Impeachment released by the House Judiciary Committee yesterday, this first note will stick with vocabulary.
President Trump, reads Article 1, “conditioned two official acts on the investigations he had requested.” Intelligence Committee Chairman Adam Schiff used that term repeatedly during the hearings he led, when discussing an Oval Office meeting the Ukrainian president sought, and the release of Congressionally-mandated military assistance to that country.
The words come from the U.S. bribery statute, which penalizes any public official who, “directly or indirectly, corruptly demands, seeks, receives…anything of value…in return for being influenced in the performance of any official act.” So, even if the Judiciary Committee decided not to make bribery (a rationale for impeachment that the U.S. Constitution mentions explicitly) the basis for one of its Articles, the drafters did implicitly reference that crime by using the term official acts.
Those two words gained a sudden importance in 2016, just as the presidential election campaign was heating up. On June 27, the Supreme Court handed down its decision in McDonnell v. United States. Former Virginia Governor Bob McDonnell had received various gifts and cash loans from a pharma executive who was trying to convince some reputable laboratory to conduct clinical trials on a tobacco-based compound he was marketing for its purported health benefits. Skeptical researchers had stayed clear. In return for the money and bling, McDonnell leaned on the University of Virginia system, pressuring subordinates to give his benefactor a favorable hearing, and using his staff and the governor’s mansion for events tailored to allow the exec. to lobby relevant officials.
The quid pro quo was blatant. Anyone could see that the governor’s actions were corrupt. Twelve jurors did, and McDonnell was convicted in U.S. district court. All three judges on a court of appeals panel read the evidence the same way, and upheld his conviction. But when the case reached the Supreme Court, every single justice on the bench concluded that McDonnell’s actions did not meet the standard of the Bribery Statute.
Why not? Because even though there was a quid pro quo – even though McDonnell had done helpful things in return for the money and Rolex and vacations at his benefactor’s mansion – his efforts on the man’s behalf did not add up, in the justices’ view, to “official acts.” They were just normal constituent services. In overturning McDonnell’s conviction, the Court radically narrowed what legally counts as corruption in the United States. And it did that right when American citizens were making their disgust with the corruption of our politics increasingly clear.
The ruling had immediate repercussions. Corruption defendants, including New Jersey Senator Bob Menendez, were acquitted. Cases were dropped. Crack anti-corruption prosecutors requested transfers to other divisions, because corruption just wasn’t a rewarding field any more. As one put it: “You have to be really bad at being corrupt to be prosecuted now.”
It is in this context that Trump was demanding that the president of Ukraine agree to a transaction: two U.S. official acts in return for something of great value to Trump.