President Trump's actions toward Ukraine do not constitute "bribery" and resisting Congressional request is not "obstruction" George Washington University law professor Jonathan Turley told the House judiciary committee Wednesday.
Turley took aim at what he called a "boundless" definition of bribery employed by the Democrats in their impeachment report. He also criticized the Democrats for attempting to construe Trump's challenging House subpoenas or refusing to cooperate with the impeachment inquiry as "obstruction of justice."
"You can't accuse a president of bribery and then when some of us note that the Supreme Court has rejected your type of boundless interpretation say, ‘Well, it's just impeachment. We really don't have to prove the elements,'" Turley said. "If you are going to accuse a president of bribery, you need to make it stick because you are trying to remove a duly elected president of the United States."
Turley said that proponents of impeachment, including Rep. Adam Schiff and the legal experts called by Democrats to the Wednesday panel, were wrong when they said that Trump's alleged actions would fit the definition of bribery at the time the constitution was adopted even if it did not fit the statutory definitions of the current era.
"The bribery theory being put forward is as flawed in the 18th century as it is in this century," Turley said.
Bribery was not an "over-arching concept" in the 18th century, Turley said. Instead, it constituted such a narrow crime that some of the attendees of the constitutional convention worried that restricting impeach to "Treason and Bribery" was too limited. An originalist interpretation of bribery would limit it to the actual acceptance of money from someone seeking favorable treatment or policy from a public official.
In his prepared remarks, Turley quoted from a legal treatise that explained: "The core of the concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised."
"Bribery, as used here, did not indicate some broad definition, but a classic payment of money," Turley explained in his written remarks.
Turley argued that the narrow definition does not fit Trump's alleged actions in the current controversy. Even if Trump sought to pressure Ukraine to open investigations by withholding military aid or offering a White House visit, this would not constitute bribery under common law definitions.
"President Trump can argue military and other aid is often used to influence other countries in taking domestic or international actions. It might be a vote in the United Nations or an anti-corruption investigation within a nation," Turley said in his prepared remarks, adding that invitations to the White House are regularly used as bargaining trips and not something that is typically "gratuitously" given.
Trump's alleged withholding of aid or a White House invitation also did not fit modern definitions of bribery, which require proof of corrupt intent and the formal exercise of an important public function akin to an agency ruling. Neither withholding a White House invitation nor temporarily delaying, within statutory limits, military aid meets the criteria of a formal exercise of government power and the House's evidence is insufficient to support the allegations of corrupt intent, Turley argued.
"It is a dangerous thing to take a crime like bribery and apply a boundless interpretation," Turley said. "These crimes have meaning."
Turley also said that the record does not establish the crime of obstruction because under the constitution presidents are allowed to resist Congressional intrusions into executive branch records by appealing to the judiciary branch. Otherwise, any assertion of executive privilege would constitute an obstruction of Congress.
"The theory being put forward is that President Trump obstructed Congress by not turning over material requested by the committee," Turley said. "President Trump has gone to the courts. He's allowed to do that. We have three branches, not two."