That political “C word” — corruption — is hanging in the air these days. Depending on who is talking, everything from President Trump’s phone call with Ukrainian President Volodymyr Zelensky to former national security adviser John Bolton’s book manuscript to Hunter Biden’s hiring by Ukrainian energy company Burisma Holdings to the House impeachment hearings to adoption of the Senate’s rules for Trump’s impeachment trial is characterized as corrupt.
But what is corruption, exactly? And when should people be punished or removed from office for engaging in it?
The line between political deal-making and criminality has proven difficult to draw, because the essence of political deal-making — the trading of support or opposition for one measure for support or opposition to another — is at once both necessary and, if we’re honest, essentially corrupt, in the sense that issues are not considered strictly on their merits but are seen as parts of a web of competing priorities. But when does wheeling and dealing become worthy of prosecution or removal from office?
Here’s an example of a scenario that most would consider corrupt. A U.S. president supports an amendment to the Constitution but, finding the measure two votes short of ratification in the House, instructs his team to “procure those votes” by any means necessary. The votes are procured in direct exchange for jobs and other political favors. That’s bribery by any standard. But the president in question was Abraham Lincoln, and the amendment in question was the 13th, which abolished slavery. So President Lincoln is praised for his statesmanship, rather than lambasted (let alone impeached) for corruption.
Similarly, no administration has been prosecuted for the time-honored tradition of rewarding people who have raised boatloads of campaign money with ambassadorial appointments for which they are all too frequently completely unqualified. Sen. John McCain relished skewering the soap opera producers and hotel magnates appointed as ambassadors by President Obama for their lack of basic knowledge of the designated countries’ language, culture or politics. But no one suggested that the practice be prosecuted or the president impeached.
In short, many clear cases of corruption go completely unpunished. But now consider the converse. A governor seeks support, through a political action committee (PAC), for a ballot initiative to create a lottery to fund education in his state. After a wealthy executive donates $500,000 to the PAC, the governor reappoints him to an advisory board (he had been appointed the first time by a prior governor of a different party). Neither the governor nor any member of his family derives a personal benefit from the donation. The governor — in this case, Alabama Democrat Don Siegelman — is prosecuted on the theory that the appointment to the advisory board was a “theft of honest services” in exchange for the contribution to the PAC. He is convicted and serves 7 ½ years in prison.
What gives here?
The inconsistent treatment of corruption issues stems from the practice of defining corruption-related offenses in general terms, such as “theft of honest services” in the federal bribery statute or “other high crimes and misdemeanors” in the Constitution’s impeachment provisions.
This strategy acknowledges our inability, in precise language, to capture the full range of human mischief; a precise listing of conduct that is proscribed could never exhaust or anticipate the range of human cunning. This argument has been made by the House managers in the current impeachment debate. Give the ill-intentioned a comprehensive list of everything they cannot do, and they will do everything else, even things you’ve never imagined and cannot possibly anticipate.
But what about notice? In a nation that claims to presume innocence and promote individual liberty, it seems anomalous not to let “We, the people” know what we cannot do. As the Supreme Court stated in Kolender v. Lawson (1983), a criminal statute may be unconstitutional if it is so vague that “ordinary people can[not] understand what conduct is prohibited.”
The second problem with relying on inherently vague terms to define corruption offenses is that, in a virulently partisan climate, they can be used aggressively to persecute the political opposition. In my view, this is what happened to Gov. Siegelman.
In the aftermath of impeachment, Congress should call a truce in its partisan war and take a hard look at the corruption statutes. Recognizing the damage that each party may inflict on the other by exploiting vague language, Congress should make clear, to the extent possible, the legal boundaries of corruption. It should amend the “theft of honest services” statute to conform with recent Supreme Court decisions narrowing its reach. And it should consider explicitly outlawing any effort to encourage foreign interference in domestic elections, including but not limited to withholding foreign aid.
In the meantime, the Senate will decide whether President Trump’s dealings with Ukraine, and his refusal to cooperate with the congressional investigation, rise to a level justifying his removal from office. The requirement that the removal vote be by a two-thirds supermajority reflects the Framers’ view that such a nakedly political judgment must reflect a broad consensus.
But let’s not kid ourselves about how this political “verdict,” and important decisions such as whether witnesses should be called, may be deliberated. Pressure will be applied.
President Andrew Johnson survived removal by a single vote. That vote was cast by Republican Sen. Edmund Ross of Kansas, who was celebrated by President Kennedy in his Pulitzer Prize-winning “Profiles in Courage” for having “preserved for ourselves and posterity constitutional government in the United States.”
But Ross, although a savior, was not a saint; he was a senator. According to historian David Greenberg, after casting the deciding vote for acquittal, Ross, acting “like a Mafia henchman running a protection racket,” was able to secure at least five positions for his friends and political allies, including one for his brother as a federal mail agent, before being voted out of office.
So it went. So it may go.
Thank goodness that the final say in 2020 will rest, for better or worse, as it did in Sen. Ross’s case, with “We, the people.”
John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.