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Lawfare
We disagree with this framework for analyzing bribery in the political context. Indeed, this theory, if adopted by the House, could have consequences for the separation of powers. The executive branch could come to view routine political compromises and horse-trading as illegal, and subject members of Congress to investigation and indictment. This theory would also make it effectively impossible for the president to exercise his personal constitutional authority to investigate wrongdoing by anyone, including those closely affiliated with his opponents, lest he be charged with a quid pro quo. The better theory, we contend, is that President Trump made a lawful request to Ukrainian President Volodymyr Zelensky to begin an investigation of Hunter Biden, just as he could regarding any other Americans for that matter.
We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What’s good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.
In some cases, disentangling the former public motivation from the latter personal motivation can be straightforward. For example, a government official demands a briefcase full of cash in exchange for voting for a particular bill. Here, the politician receives a benefit that inures entirely to his or her personal advantage. Even if the official uses that money to fund his or her campaign for reelection, the case for bribery is straightforward.
Consider another case where disentangling the two motivations is more complicated. A politician running for reelection holds a fundraiser. He asks a donor to contribute to his reelection campaign. The donor tells the candidate that passage of a particular bill is very important to him. Then the donor writes a contribution check for the maximum amount permitted by law. Ultimately, the politician votes for the bill and states that he did so to promote the general welfare. In this scenario, the benefit does not go to the candidate’s private coffers but, instead, is deposited into his campaign’s treasury. Of course, the candidate cannot legally spend that money on his personal expenses, but the existence of those funds helps to ensure he remains in office. This run-of-the-mill scenario would not amount to bribery. We suspect that almost every member of Congress has engaged in similar conduct.
We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What’s good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.
In some cases, disentangling the former public motivation from the latter personal motivation can be straightforward. For example, a government official demands a briefcase full of cash in exchange for voting for a particular bill. Here, the politician receives a benefit that inures entirely to his or her personal advantage. Even if the official uses that money to fund his or her campaign for reelection, the case for bribery is straightforward.
Consider another case where disentangling the two motivations is more complicated. A politician running for reelection holds a fundraiser. He asks a donor to contribute to his reelection campaign. The donor tells the candidate that passage of a particular bill is very important to him. Then the donor writes a contribution check for the maximum amount permitted by law. Ultimately, the politician votes for the bill and states that he did so to promote the general welfare. In this scenario, the benefit does not go to the candidate’s private coffers but, instead, is deposited into his campaign’s treasury. Of course, the candidate cannot legally spend that money on his personal expenses, but the existence of those funds helps to ensure he remains in office. This run-of-the-mill scenario would not amount to bribery. We suspect that almost every member of Congress has engaged in similar conduct.
Lawfare
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