united-states criminal-law common-law bribery impeachment
Elements of bribery: what is a &quot;thing of value&quot;?
<p>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 <em>bribery.</em>  The definitions I've found of that offense all involve a "thing of value."</p>

<p>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:</p>

<p>Is there precedent for such an intangible act to serve as a "thing of value" in a bribery prosecution (or impeachment)?</p>

<p>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 <em>act</em> that only <em>indirectly</em> benefits the person seeking the performance of the act.  Suggestions about other distinguishing elements are welcome.</p>

<p>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 <em>bribery.</em></p>

<p>The Federal Election Commission (FEC) recently put out <a href="https://www.fec.gov/resources/cms-content/documents/2019-10-ELW-the-law-of-a-thing-of-value.pdf" rel="nofollow noreferrer">a summary of what constitutes a <em>thing of value</em></a>. While it is a summary from the FEC, I still think it's relevant because it uses the term <em>thing of value</em>, which, as the summary notes, appears in (quoting from the summary) <em>"many criminal statutes throughout the United States"</em>. Because of that, I will quote the summary here, minus the footnotes.</p>

<blockquote>
  <h2>THE LAW OF A ‘THING OF VALUE’</h2>
  
  <p><em>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</em></p>
  
  <p><strong>October 2019</strong></p>
  
  <p>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.”</p>
  
  <p>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.</p>
  
  <p>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.</p>
  
  <p>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.’”</p>
</blockquote>

<p><a href="https://www.fec.gov/resources/cms-content/documents/2019-10-ELW-the-law-of-a-thing-of-value.pdf" rel="nofollow noreferrer">The summary</a> goes on to provide a list of examples:</p>

<blockquote>
  <p>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: </p>
  
  <ul>
  <li>opposition research;</li>
  <li>an activist’s contact list;</li>
  <li>an email list;</li>
  <li>staff time;</li>
  <li>a business name or logo;</li>
  <li>a severance payment;</li>
  <li>the production elements for an event;</li>
  <li>election materials;</li>
  <li>a rent-stabilized apartment;</li>
  <li>office space;</li>
  <li>a boat;</li>
  <li>stocks and commodities;</li>
  <li>barter credit units and cryptocurrency mining awards;</li>
  <li>a gold coin;</li>
  <li>poll results; and</li>
  <li>more generally, securities, facilities, equipment, supplies, personnel, advertising
  services, membership lists, mailing lists.</li>
  </ul>
  
  <p>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.</p>
</blockquote>

<p>If I were you, I would look at  Skilling v. United States. <a href="https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf" rel="nofollow noreferrer">https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf</a></p>

<p>Start at page six of that PDF, where it reads:</p>

<blockquote>
  <ol start="2">
  <li>Section 1346, which proscribes fraudulent deprivations of “the
  intangible right of honest services,” is properly confined to cover only
  bribery and kickback schemes. Because Skilling’s alleged misconduct
  entailed no bribe or kickback, it does not fall within the Court’s confinement of §1346’s proscription. Pp. 34–51. </li>
  </ol>
</blockquote>

<p>Generally in criminal prosecutions, intangible things taken in bribery schemes are referred to as "honest services". That standard was not around in the 1700s.</p>

<blockquote>
  <p>Most often these cases involved bribery of public
  officials, but over time, the courts increasingly recognized that the
  doctrine applied to a private employee who breached his allegiance to
  his employer, often by accepting bribes or kickbacks. By 1982, all
  Courts of Appeals had embraced the honest-services theory of fraud. <a href="https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf" rel="nofollow noreferrer">https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf</a></p>
</blockquote>

<p>Several cases regarding the formation of the "honest services doctrine" are included in the Skilling opinion. It began with <a href="https://law.justia.com/cases/federal/appellate-courts/F2/117/110/1480190/" rel="nofollow noreferrer">SHUSHAN et al. v. UNITED STATES.</a>. The courts, in <a href="https://supreme.justia.com/cases/federal/us/483/350/" rel="nofollow noreferrer">McNally v. U.S</a>., held that the law used in the Shushan case only applied to mail fraud and said congress must act if it wants all intangibles to be viewed the same way, under an "honest services doctrine". That led to congress passing <a href="https://www.law.cornell.edu/uscode/text/18/1346" rel="nofollow noreferrer">U.S. Code § 1346</a>, the law currently used in "honest goods" cases.</p>

<p>In the Skilling case the Supreme Court said:</p>

<blockquote>
  <p>(5) Interpreted to encompass only bribery and kickback
  schemes, §1346 is not unconstitutionally vague. A prohibition on
  fraudulently depriving another of one’s honest services by accepting
  bribes or kickbacks presents neither a fair-notice nor an arbitraryprosecution problem.</p>
</blockquote>

<p>You can't get much clearer on what law should cover bribery in relation to intangibles. However, it does not define investigations specifically, but is intended to cover all intangibles in bribery schemes to allow prosecution in all cases. If the law only covered certain intangibles there could be problems with it being "unconstitutionally vague", in the court's words.  </p>
