Elements of bribery: what is a &quot;thing of value&quot;? There is lately some suggestion that a US president who withholds aid to a foreign country on the condition that the foreign country investigate a political opponent constitutes bribery. The definitions I've found of that offense all involve a "thing of value." It is clear how such an investigation could be valuable to a US president, for the investigation would damage the reputation of the president's political opponents, probably making it easier for the president (or the president's political allies) to win the next election. But I am asking here on Law because curious: Is there precedent for such an intangible act to serve as a "thing of value" in a bribery prosecution (or impeachment)? For the purpose of this question, I am not particularly interested in promises of employment, since employment implies a salary. It seems like the distinguishing characteristic is that the thing of value is an act that only indirectly benefits the person seeking the performance of the act. Suggestions about other distinguishing elements are welcome. The question principally concerns US federal law, but because the delegates to the constitutional convention would have understood bribery as a common-law offense, it would also be helpful to know about common-law precedent from before 1789, which may have influenced their understanding of the word bribery.
The Federal Election Commission (FEC) recently put out a summary of what constitutes a thing of value. While it is a summary from the FEC, I still think it's relevant because it uses the term thing of value, which, as the summary notes, appears in (quoting from the summary) "many criminal statutes throughout the United States". Because of that, I will quote the summary here, minus the footnotes. THE LAW OF A ‘THING OF VALUE’ A Summary of the Sorts of Tangible and Intangible Goods and Services that have been Found to have ‘Value’ by the Commission and Other U.S. Government Entities October 2019 What is a “thing of value” under the law? The Federal Election Campaign Act (the “Act”) defines a contribution to include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” “Anything of value” includes all “in-kind contributions,” defined as “the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.” Goods or services provided at the usual and normal charge may not constitute a contribution under the Act. Commission regulations permit any person or company to provide goods or services to a political committee, without making a contribution, if that person or company does so as a “commercial vendor,” i.e., in the ordinary course of business, and at the usual and normal charge. The legal concept of a “thing of value” is not unique to the Act. The words “thing of value” “are found in so many criminal statutes throughout the United States that they have in a sense become words of art,” wrote the U.S. Court of Appeals for the Second Circuit. “The word ‘thing’ notwithstanding, the phrase is generally construed to cover intangibles as well as tangibles.” Federal courts have consistently applied an expansive reading to the term “thing of value” in a variety of statutory contexts to include goods and services that have tangible, intangible, or even merely perceived benefits, for example: promises, information, testimony, conjugal visits, and commercially worthless stock. The word “anything” means “all things.” “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind,’” according to the Supreme Court. As the U.S. Court of Appeals for the Eleventh Circuit explained, “The United States Supreme Court and this Court have recognized on many occasions that the word ‘any’ is a powerful and broad word, and that it does not mean ‘some’ or ‘all but a few,’ but instead means ‘all.’” The summary goes on to provide a list of examples: The Commission has held a long and diverse list of goods and services (both tangible and intangible, both easy and difficult to value) to qualify as contributions, including: opposition research; an activist’s contact list; an email list; staff time; a business name or logo; a severance payment; the production elements for an event; election materials; a rent-stabilized apartment; office space; a boat; stocks and commodities; barter credit units and cryptocurrency mining awards; a gold coin; poll results; and more generally, securities, facilities, equipment, supplies, personnel, advertising services, membership lists, mailing lists. Thus, the Commission has, consistent with judicial rulings, interpreted “anything of value” broadly under the Act. The Commission has found that even where the value of a good or service “may be nominal or difficult to ascertain,” such good or service is nevertheless a “thing of value” under the Act.
Embezzlement is criminally prohibited by 18 USC 666, and this DoJ manual page on what is embezzlement cites the answer in Moore v. United States, 160 U.S. 268 that Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in that the original taking was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking Following other case law, the elements of the crime are there was a trust or fiduciary relationship between the defendant and the private organization or State or local government agency; the property came into the possession or care of the defendant by virtue of his/her employment; the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his/her own use; and the defendant acted with the intent to deprive the owner of the use of this property. This page lists over 32,000 disbursements; filtering just for rent give over 2,400 disbursements, a number of which are recent and made to some business with Trump in the name (Trump Tower LLC etc). The conversion would have to be fraudulent to be embezzlement. There actually is not any evidence provided that a transfer violated FEC regulations (we have dates, amounts, and recipient), so we would have to speculate about what else is true. There are processed disbursement images up to 10/21/2020 such as this receipt for 3 charges for food and lodging paid to Trump Hotel Collection. In fact this payment was made by Donald J Trump for President, Inc. although the search term was the aforementioned PAC: I will overlook that anomaly. This is the FEC page on that committee (you have to follow the committee number because the name was also used in the 2016 campaign but was terminated). There vast numbers of filings linked there, but nothing that I saw indicates that Trump is in any sense an employee of the organization, so there is no actual evidence that there were any &quot;Trump actions&quot;. First, it would have to be shown that there were Trump actions. Second, it would have to be show that the action was fraudulent. Technical misappropriation is not fraudulent. This FEC page describes the safe harbor provisions for misappropriation. This page specifically addresses embezzlement. Although they use the word &quot;embezzlement&quot;, they do not purport that misappropriation constituted embezzlement as defined above, to point out that civil penalties may result from violation, see 11 CFR Part 104. Ultimately, the legal propriety of the disbursements depends on its purpose: here is what the FEC say about illegal conversion for personal use (food for daily consumption, mortgage or rent for personal residence, tuition...). The available evidence does not even suggest embezzlement.
I would argue the Constitutional basis of these actions would be the Constitution itself, namely Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. and Article I, Section 3, Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Note also, that as Hamilton explained in the Federalist Papers, the Impeachment process was a check brought over from England (it predated the formation of Britain by several centuries) as a check on Executive (read Monarchal) power of royal appointments, including Judges. So, to answer your questions directly: Serving out one's term or resigning is not a shield to impeachment, otherwise one could simply play &quot;whack-a-mole&quot;, appointing the same individual repeatedly (which is also why future barring of the individual from governmental office is an option). The purpose of impeachment is, per Hamilton, to react to &quot;political crimes&quot;; &quot;mundane&quot; crimes are to be handle by the normal judicial system. Nixon did famously resign rather than be impeached, but he was barred from running again anyway, having served two terms as President. Congress at that time chose not to continue the impeachment process after his resignation (note that disqualification is an option, but not required, punishment that can be levied by Congress in the event of impeachment). See Article I, Section 3, Clause 7, quoted above.
This is a rather elaborate version of receiving stolen property. It is a crime because you know that the property is not yours and you know who it belongs to. The fact that funds were returned mitigates the punishment that might be imposed, but disgorgement of profits as well as principal would be a typical criminal restitution in such a case. A prosecutor could decline to press charges (and often would decline to do so), but would have the authority to do so. An analogous case that comes up more frequently is when an attorney takes client funds out of his trust account (either accidentally or intentionally) and then uses the funds in a way that produces a profit or avoids, for example, a late payment penalty, and then returns the funds improperly withdrawn from the trust account. This is still conduct for which attorneys are routinely disbarred and prosecuted criminally. Even if the person didn't know that the money belonged to someone else when it was used, the true owner of the money could sue for unjust enrichment for both the funds and the proceeds from the funds. For example, if funds were accidentally deposited in your bank account rather than the correct one due to a transposition of numbers in the account number, and you didn't notice this error, you would have liability to return not just the accidentally deposited funds, but also the profits from those funds, because both would be unjust enrichment. But, in an accidental case where there was no knowledge that the funds were wrongfully placed in your account, you could deduct from the amount to be returned any banking charges you incurred with respect to the transactions and it would not be a crime.
This is likely to be a matter of policy rather than law That is, it’s not likely there is a law prohibiting it but it is highly likely that the person’s training and their employer’s policy on the matter is that they must complete a ticket once they start it. It’s a pretty universal anti-corruption measure - it prevents the situation where they are writing the ticket, the owner appears and offers them half the value of the fine in cash to stop: well, they can’t stop so they can’t be tempted by the bribe. Of course, the bribe can be offered before they start but, when fighting corruption, you minimise the opportunities rather than eliminate them. I know that police and rangers (private people can’t issue tickets) in new-south-wales are so restricted.
The language argument about the constitution is that the Constitution uses the pronoun "he" in referring to the president – they would not have used the construction "he or she", or "s/he". Article I also uses "he" to refer to qualifications of representatives and senators (residency, age). Then in creating the office of predident pro tempore of the Senate, it uses "he" to refer to a Vice President who is exercising the office of President of the United States. In Article IV Section II it states: A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. Thus women cannot be extradited, if the "'he' means male" theory prevails. In 1872, Victoria Woodhull ran for president, and while it is true there were questions about her eligibility, that was because of her age rather than sex. Belva Lockwood ran for president in 1884 and 1888. This is not strong enough to constitute proof that being female was not a bar to holding the office, but it is indicative of that conclusion. The strongest evidence that the use of "he" in the Constitution had no significance is the fact that Jeanette Rankin was elected US Representative from Montana in 1916, 2 years before Congress approved the 19th Amendment. Since the only way to impose any restrictions on the presidency is via the Constitution (i.e. Congress can't pass a law redefining the qualification for office), and since the use of "he" has never been strictly interpreted to preclude female senators and representatives, we have to conclude that there never has been a prohibition against a female president.
Speech of foreign nationals is not treated the same as that of citizens. In the case Buckley v. Valeo, 424 U.S. 1, the Supreme Court rules on the constitutionality of various statutory limits on campaign spending. Some parts of the law were upheld, others were overturned in 1st Amendment grounds. They upheld limits on contributions to candidates and volunteers' incidental expenses, and overturned limits on expenditures. In the decision, the court observed that [n]either the right to associate nor the right to participate in political activities is absolute and "governmental 'action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny'" The court stated that Even a 'significant interference with protected rights of political association' may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. This is reasonably-standard strict scrutiny boilerplate language: what it remind you is that no Constitutionally-protected right is absolute, and all rights are subject to limitation, when that right conflicts with a compelling government interest. In the case of the federal contribution laws, that interest is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. The court then found that under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling. 52 USC 30121 imposes a prohibition which, if placed on US persons, would be held to violate the 1st Amendment. That law prohibits, among others, a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election by "a foreign national", defined to not include lawful permanent residents but otherwise includes all foreign citizens and entities. The constitutionality of this law was challenged on First Amendment grounds but affirmed in Bluman v. Fed. Election Comm'n, 800 F. Supp. 2d 281 (written by Kavanaugh in his previous job), and upheld in a one-sentence affirmation by SCOTUS. So, 1st Amendment rights of foreign nationals are not protected to the same extent as those of US citizens. It should be noted that the court also (expressly) did not decide if Congress could also constitutionally ban contributions by LPRs, or could prohibit foreign nationals from engaging in other forms of speech (issue advocacy and speaking on issues of public policy) – that matter was left undecided.
This negotiation tactic is not a crime, but it does implicate an ethical rule for attorneys, Rule of Professional Conduct 4.5, which exists in some states, but has been dropped from the national model rules promulgated by the American Bar Association and is a controversial matter from state to state with several variant forms in different states. In Colorado, the relevant rule of professional conduct for lawyers (Rule 4.5 Threatening Prosecution) states: (a) A lawyer shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter. (b) It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes. The concern about the statement in the question is that mentioning that certain allegations would be put in a publicly filed complaint is an implicit threat to expose criminal acts of the other party if the other party doesn't cooperate, but to refrain from doing so if the other party cooperates. This violates Rule of Professional Conduct 4.5(a) above, and goes beyond Rule 4.5(b) above which states that it is not improper to simply tell someone that it may have been illegal and a crime to do the things that he did. The critical distinction is the implied promise not to disclose these crimes publicly if the other party cooperates by not filing the proposed complaint. Under Rule 4.5, a lawyer can tell someone that certain conduct is probably illegal, and can unilaterally report illegal conduct, but can't hold open the possibility of not reporting illegal conduct to gain a civil advantage. The theory is that it is contrary to public policy for a lawyer to put himself or his client in a position where he is promising to help cover up a crime or other violation of the law. This is controversial, and is not adopted in all states, because it makes some very subtle distinctions that often hinge on strongly implied concepts, and that it provides benefit when applied in many cases to someone who has broken the law, instead of making their violation of the law something that makes them worse off in civil cases as well as in other contexts. There is not a counterpart to Colorado Rule of Professional Conduct 4.5 in the Rules of Professional Conduct of New York State, New Jersey, or Florida. So, to the extent that this conduct is subject to ethical rules in any of these states, it would only be indirectly through, for example, through Rule of Professional Conduct 8.4 in each of these states, which is a general catch all clause prohibiting lawyers from committing culpable crimes or that is dishonest or that is prejudicial to the administration of justice. Rule 8.4 is the counterpart for lawyers of the substantive offense in military justice that a military officer has failed to comport himself as an officer and a gentleman. The history of the decision to remove an express prohibition on threatening prosecution from the ethical rules for lawyers is explained in a 2008 ABA article that also discusses how liability might arise under Rule 8.4. In general, there is nothing wrong with making threats in a negotiation. Often that is precisely what negotiations are about. What is (arguably) wrong is making criminal, administrative or disciplinary charge threats in a civil lawsuit to gain advantage in a civil lawsuit. A prosecutor is perfectly free to make those threats in a criminal case, for example. Similarly, it is perfectly acceptable to make a threat of civil legal action, such as filing a lawsuit, in a civil matter, so long as it doesn't imply a threat to bring criminal, administrative or disciplinary charges if the other side doesn't cooperate. Whether it is proper for an attorney to do this depends heavily upon the state in which this negotiation is taking place, which is not identified in the question.