Omar Bennett
Bribery is a form of corruption that involves offering, promising, or providing a gift or service to someone in a position of power to influence their behaviour or actions. While the definition of bribery may vary across cultures and legal systems, it is generally considered an immoral and illegal act. In the context of the United States Constitution, bribery is specifically mentioned as an impeachable offence in Article II, Section 4, which states that the president shall be removed from office for treason, bribery, or other high crimes and misdemeanors. However, the term bribery is not explicitly defined in the Constitution, and its interpretation has been a subject of debate, with some arguing for a narrower definition based on modern federal criminal law, while others advocate for a broader understanding derived from English law.
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What You'll Learn
Bribery of public officials
The definition of bribery has evolved over time, and the understanding of bribery during the drafting of the US Constitution differed from modern interpretations. The Constitution includes bribery as one of the grounds for impeachment, demonstrating its significance as an abuse of power. However, the term "bribery" is not explicitly defined in the constitutional text, leaving room for interpretation.
Modern federal statutes in the US, such as 18 U.S.C. § 201, provide a more detailed framework for prosecuting bribery. This statute distinguishes between bribery and gratuities, with bribery involving a direct quid pro quo exchange, while gratuities involve looser connections between the gift and the official act. The statute also applies to witnesses, recognising that bribery can impact the integrity of testimony and evidence in legal proceedings.
The US has also enacted laws to address bribery involving foreign officials, such as the Foreign Corrupt Practices Act (FCPA) introduced in 1977. International cooperation in anti-bribery enforcement has increased, and organisations like the International Organization for Standardization have contributed by establishing international standards, such as the anti-bribery management system in 2016.
Efforts to combat bribery of public officials are ongoing, and the definition and understanding of bribery continue to evolve to address new challenges and contexts.
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Active and passive bribery
While there is no universal definition of bribery, it typically involves someone in an appointed position acting voluntarily in breach of trust in exchange for a benefit. The benefit does not have to be monetary and can take the form of lavish gifts, hospitality, expenses, access to assets, or a favour made to a relative or friend.
Active bribery refers to the act of promising or giving a bribe, as opposed to passive bribery, which is the act of receiving a bribe. The instigating party is considered to have committed active bribery, while the receiving party is deemed to have committed passive bribery. Active bribery involves offering, promising, or giving a bribe to a person holding public authority, carrying out a public service mission, or holding a public electoral mandate. It is often the focus of bribery legislation in most countries.
Passive bribery occurs when individuals or businesses ask for or receive a bribe. This can include requesting, agreeing to receive, or accepting a bribe. The consequences of passive bribery can be severe, and even if a person has made their intentions of receiving a bribe very clear, their actions can still be regarded as passive bribery. Examples of passive bribery include a security officer accepting a bribe from criminals to allow access for theft, and a procurement executive demanding a "kickback" to award a contract.
Both active and passive bribery are unlawful practices that involve the breach of trust and can result in legal sanctions for either or both sides of the transaction.
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Rent-seeking behaviour
While bribery is considered an impeachable offence in the US Constitution, the term is not defined therein. The Constitution mentions bribery as one of the grounds for the impeachment of a president, as seen in the case of the impeachment investigation into President Trump's conduct.
The interpretation of bribery in this context is derived from English law, where it is understood as an officeholder's abuse of power to obtain a private benefit. This is distinct from the modern federal statutory criminal law definition, which focuses on the act of giving or accepting something of value with the intent to influence official actions.
The economic harm caused by rent-seeking behaviour is significant, with global bribery estimated at one trillion dollars in 2007. The international community has made efforts to address this issue, with the US introducing the Foreign Corrupt Practices Act in 1977 to criminalise bribery of foreign officials and other countries following suit with their own legislation.
The negative consequences of rent-seeking behaviour are clear, and violators may be prosecuted under federal statutes. The understanding of bribery is evolving, with a broader conception considered during impeachment proceedings than what is outlined in modern federal criminal law.
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Bribery in foreign countries
Bribery is an offence that can take many forms, from tipping to extortion. In some cultures, tipping and bribery may be considered the same thing, and in others, they are distinct. For example, in some Spanish-speaking countries, bribes are known as mordida, which literally means "bite", while in Arabic-speaking countries, bribes may be referred to as baksheesh or shay, meaning "tea". French-speaking countries often use expressions such as dessous-de-table ("under-the-table"), pot-de-vin ("wine-pot"), or commission occulte ("secret commission"). In Germany, bribery may be referred to as Schmiergeld, or "lubricant money".
The definition of bribery, as per Article 2 of the Criminal Law Convention on Corruption (ETS 173) of the Council of Europe, is "the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any public official, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions". Passive bribery, on the other hand, is defined as "the request or receipt by any public official, directly or indirectly, of any undue advantage".
The OECD Anti-Bribery Convention, implemented by the FCPA's 1998 amendment, aims to create a unified international approach to fighting bribery of foreign public officials in international business transactions. It requires each signatory country to criminalise foreign bribery, holding individuals and enterprises responsible. Transparency International, a global civil society organisation, also leads the fight against foreign bribery and corruption through advocacy and monitoring mechanisms.
Foreign bribery enforcement is crucial as it can have detrimental effects on the economy, state institutions, and public services of the countries involved. It undermines the integrity of the private sector and the financial system and contributes to weakness and instability that can have broader implications.
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Bribery as grounds for impeachment
Bribery is a broad term that covers a range of actions, including offering, promising, or requesting an undue advantage, often to influence an official act or gain a private benefit. The concept of bribery is not limited to financial transactions and can also include gifts, favours, or other forms of compensation. The definition of bribery has evolved over time and varies across different cultures and legal systems.
In the United States, bribery is specifically mentioned in the Constitution as one of the grounds for impeachment of the president. Article II, Section 4 of the Constitution states that the president shall be removed from office on impeachment for, and conviction of, "treason, bribery, or other high crimes and misdemeanors." It is important to note that the term "bribery" is not defined in the constitutional text, which has led to varying interpretations and debates over the specific actions that constitute bribery as grounds for impeachment.
The Founders of the Constitution had a broader understanding of bribery than what is covered by modern federal statutory criminal law. They derived their understanding from English law, which viewed bribery as an officeholder's abuse of power to obtain a private benefit. This interpretation suggests that the Founders intended to hold elected officials to a high standard of ethical conduct and prevent them from using their office for personal gain.
In modern times, the specific actions that constitute bribery as grounds for impeachment have been the subject of debate and legal interpretation. For example, in the case of former President Trump's impeachment investigation, commentators disagreed on whether his actions in pressuring Ukrainian President Volodymyr Zelensky to investigate his political rival amounted to bribery. Trump's defenders argued that there was no "quid pro quo" and that impeachment for bribery was not applicable in this case.
To further complicate the matter, the current narrow statutory definition of bribery at the federal level has been influenced by considerations that may not be relevant to impeachment. For instance, the Supreme Court has cautioned against an overly broad interpretation of the criminal bribery statute to avoid potential prosecution of public officials and undue involvement of federal prosecutors in state and local politics.
In summary, bribery as grounds for impeachment is a complex and evolving concept. While the Constitution explicitly mentions bribery as a basis for impeaching the president, the lack of a specific definition in the constitutional text has led to varying interpretations. The Founders' intent, the evolving legal landscape, and the specific facts of each case all play a role in determining whether bribery has occurred and if it rises to the level of an impeachable offence.
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Frequently asked questions
Bribery is the act of offering, promising, requesting, giving, or accepting any undue advantage or reward to influence an outcome.
Active bribery can be defined as "the promising, offering, or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions." Passive bribery can be defined as "the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions."
The US Constitution does not define bribery, but it is mentioned as one of the grounds for impeachment in Article II, Section 4. The Founders understood bribery as an officeholder's abuse of power to obtain a private benefit, derived from English law.
Bribery can take many forms, such as a motorist bribing a police officer to avoid a speeding ticket, a citizen bribing a functionary for faster service, or a company influencing a foreign official through rewards or payments. Tipping can also be considered bribery in some societies.
