The Criminalization of Politics, Obstruction, and Trump: A Reply to Professor Dershowitz

If you’ve been reading this blog for a while or have been following me on Twitter, you know I’ve been engaged in a bit of a back-and-forth with Harvard Law professor Alan Dershowitz. Dershowitz has emerged as one of the leading critics of the Robert Mueller investigation into the Trump campaign and possible Russian meddling. Professor Dershowitz argues there is no evidence of a crime and no basis for a criminal investigation. More broadly, he believes Mueller’s investigation is the latest example of the criminalization of politics: what he sees as a troubling tendency by both political parties to use criminal law to attack political opponents.

Last week Dershowitz published an op-ed in the New York Times about this issue, and I published a reply in the Washington Post. But the argument about politicization is just the latest in a series of claims Dershowitz has made arguing there is no basis for Mueller’s investigation. In this blog post I’ll review the arguments Dershowitz has been making over the past few months and my responses to those arguments.

The Argument about Collusion

Dershowitz has repeatedly argued that collusion is not a crime.  He claims that if Trump campaign officials colluded with Russians to influence the campaign that might be deplorable but would not be criminal. The remedy for any such misconduct, he says, should be at the ballot box, not in criminal court. Therefore, he concludes, there is no basis for the Special Counsel’s investigation.

This argument is really a smokescreen. It’s true there is no crime called “collusion” — but that’s not what Robert Mueller is investigating. The criminal counterpart to collusion is conspiracy – an agreement to commit some other criminal offense. The Special Counsel likely is investigating a number of potential conspiracies, which could include conspiracy to defraud the United States, conspiracy to violate federal election laws, or conspiracy to engage in computer hacking. He is also investigating a number of potential related cover-up crimes, which could include false statements or perjury by various campaign officials who may have lied about or failed to disclose contacts with Russian individuals. Those already convicted of cover-up crimes include former campaign aide George Papadopoulos, whose guilty plea was unsealed in October, and former National Security Advisor Michael Flynn, who pleaded guilty last Friday.

In this post, Yes, Colluding with Russians to Interfere with the Election is a Crime, I discussed the various conspiracy charges that might be implicated by the allegations in the Russia investigation. In Lying on a Security Clearance Form: The Crime of False Statements, I discussed the criminal implications for individuals such as Jared Kushner or Jeff Sessions if they willfully failed to disclose contacts with Russian nationals when they completed their security clearance applications.

The Obstruction of Justice Argument

Back in June I wrote a post called Trump and Obstruction: What Alan Dershowitz gets wrong. Dershowitz has argued (and continues to argue, including in the most recent New York Times piece) that president Trump could not be charged with obstruction of justice for firing James Comey or trying to interfere with the investigation of Michael Flynn. He points out that the president, as head of the Executive Branch, has the unquestioned power to fire the FBI director and to oversee investigations by the Justice Department. To charge the president with obstruction for these actions, he argues, would be an unconstitutional infringement of the president’s powers. President Trump’s attorney John Dowd has recently adopted this argument, claiming that as head of the Executive Branch the President cannot be charged with obstruction.

Dershowitz believes the president could not be prosecuted for obstruction based on these actions no matter how corrupt his motive. Even if the government could prove beyond a shadow of a doubt that Trump fired Comey because he knew Comey was closing in on him and he wanted to try to thwart the investigation, Dershowitz claims that would not be obstruction. But as I pointed out in that June post, things that one otherwise has a lawful right to do can become criminal obstruction if they are done with corrupt intent. I have a right to destroy my laptop, but if I do it because it’s been subpoenaed by the grand jury and I’m trying to get rid of incriminating evidence, that lawful act becomes obstruction. The same is true of firing the FBI director: the President has the right to do it, but not if he does it with the corrupt intent to obstruct justice.

Dershowitz agrees that if the president took a bribe in exchange for firing Comey, that could be prosecuted. But there is no logical reason for treating obstruction of justice differently. In the bribe scenario, the otherwise lawful act of firing the director becomes a crime due to the corrupt motive that underlies that action. The same is true for obstruction.

Dershowitz argues that to charge Trump with obstruction for firing Comey or seeking to influence the investigation would be to prosecute him for “constitutionally authorized acts.” This amounts to a claim that the constitution authorizes the president to corruptly shut down any investigation into his own potentially criminal behavior. I think Madison would be surprised. Dershowitz has offered no legal authority for the extraordinary proposition that when it comes to the crime of obstruction of justice, the president of the United States is immune and above the law unless he also engages in some additional criminal act.

Whether a sitting president can actually be indicted and prosecuted is a separate question, and I’m not dealing with that here. It may be that if Trump obstructed justice the only appropriate remedy is impeachment, not prosecution. But as long as we live in a country governed by the rule of law, it can’t be the case that the ordinary rules of obstruction of justice law do not apply to the president.

The False Comparisons to Hillary Clinton

The next post where I took issue with Dershowitz was based on his comparison of the allegations against the Trump campaign and allegations involving the Democrats’ involvement in the preparation of the infamous Trump Russian “dossier.” Dershowitz has been using the two cases as examples of what he claims is the criminalization of politics, arguing that neither case is appropriate for a criminal investigation. In my post, Trump, Clinton, and the Russia Dossier: Fallacies and False Comparisons, I pointed out that the two cases involved very different facts and how, while the allegations about Russia and the Trump campaign fully justify a criminal investigation, the allegations about the dossier do not.

This led to an interesting exchange on Twitter between two Harvard Law School titans (and Twitter titans as well), Dershowitz and professor Larry Tribe. Tribe tweeted out my post:

Which led Dershowitz to respond:

Actually that response itself proved my point: Dershowitz is asserting that the two cases are on equal footing and deserve to be treated equally. And just a week earlier on Twitter, Dershowitz had made exactly the comparison that he later denied:

Facts matter. Opponents of the Trump investigation can’t simply say “Well, what about Hillary?” without discussing the facts and allegations involved. The two cases are not at all the same. Based on what we know so far, a criminal investigation into the dossier would be unjustified. As I explained in the post, the same is definitely not true when it comes to Russia and the Trump campaign.

The “Criminalization of Politics” Claim

The latest round took place last week in the pages of the New York Times and the Washington Post. In a Times op-ed titled “When Politics is Criminalized,” Dershowitz repeated many of the same arguments he has been making about the Mueller investigation, as well as his broader argument about political prosecutions in general. He claimed the Mueller investigation is simply one example of what he sees as an increasing practice of using criminal law to attack political enemies. He also repeats some of the arguments discussed and refuted above, about how the president could not be charged with obstruction and how calls for investigations of Hillary Clinton are essentially on the same footing as calls to investigate the Trump campaign.

The Washington Post published my response,  “No, the Mueller probe isn’t politically motivated“.   As I noted in that piece, Dershowitz’s underlying concern is valid, but the facts in this case and in the other examples that he cites simply don’t back him up. It’s true that criminal law should never be used for political purposes, but there’s no evidence that Mueller’s investigation suffers from that flaw.

The Latest Tweet from the President

The arguments about obstruction of justice were fueled this past weekend by the President’s Tweet in the wake of Michael Flynn’s guilty plea, in which he appeared to admit that he knew Flynn had lied to the FBI at the time when former FBI director James Comey says Trump asked him to back off the Flynn investigation. This led to a flurry of activity over the weekend. Critics claimed the Tweet provided solid evidence that the President obstructed justice when he asked Comey to drop the investigation of Flynn. Trump’s attorney John Dowd responded by claiming that he drafted the Tweet, not the president, and in any event that the president can’t be charged with obstruction of justice. 

Dershowitz was back as well, this time on Fox News, claiming the president is immune from obstruction – which led to this presidential Tweet:

No doubt these debates are going to continue and only become more heated as Mueller appears to close in on the president’s inner circle.

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Trump, Clinton, and the Russia Dossier: Fallacies and False Comparisons

Special Counsel Robert Mueller is investigating Russian interference with the 2016 presidential election and possible collusion with the Russians by members of the Trump campaign. But news that the Clinton campaign and the Democratic National Committee helped fund the infamous “dossier” about President Trump has led to charges that the Clinton campaign also colluded with the Russians. Some, including the President himself, claim the preparation of the dossier is the real scandal and that prosecutors should be examining Clinton, not Trump. Others, including some prominent law professors, claim the dossier demonstrates that both campaigns were equally culpable and so if Trump’s  Russian collusion is fair game, Clinton’s should be as well.

These arguments capitalize on the vagueness of the word “collusion” which, as I wrote here, is not really a criminal law term. It’s easy to claim that if someone working for the Clinton campaign at some point met with someone from Russia, that qualifies as “collusion” and equally deserves to be investigated. But such claims ignore the crucial factual distinctions between the two situations. They also rely on various logical fallacies that only serve to obscure the real issues.

Mueller’s investigation is focused not on “collusion” but on allegations of conspiracy and related criminal offenses. When it comes to potential criminal violations, the preparation of the dossier has almost nothing in common with the allegations surrounding the Trump campaign. Claims to the contrary are simply a smokescreen.

Background: The Trump Dossier 

The dossier consists of information gathered about Trump’s activities and connections in Russia and possible coordination with Russia to influence the presidential campaign. Work on the dossier was initially funded during the GOP primaries by an anonymous Republican who was opposed to Trump. After Trump locked up the nomination, the Democratic National Committee and Clinton campaign agreed to continue funding the research.

The dossier was prepared by a company called Fusion GPS. To do the work, Fusion retained the services of Christopher Steele, a former British intelligence agent with extensive experience in Russia and ties to the U.S. intelligence community.

Steele was so troubled by what he found that he shared the information with the FBI. The intelligence community found the information sufficiently credible that FBI Director James Comey briefed both President Obama and President-elect Trump on the dossier’s contents after the election. U.S. intelligence reportedly has verified some of the allegations in the dossier and has been unable to verify others. There are recent reports that Steele believes the dossier will be proven to be 70-90% accurate.

White House Response: What About Hillary?

The White House has argued that the preparation of the dossier represents the real Russia scandal. President Trump has Tweeted:

White House press secretary Sarah Huckabee Sanders recently said: “The real collusion scandal as we’ve said several times before has everything to do with the Clinton campaign, Fusion GPS and Russia.”  Referring to Democratic funding of the dossier, Fox News commentator Chris Wallace opined that there was more evidence of Democractic collusion with the Russians than of Republican collusion.

This tactic is a rhetorical deflection commonly known as “whataboutism.”  When accused of something, the whataboutist doesn’t respond on the merits but essentially charges the accuser with hypocrisy by pointing to something the accuser has done that is allegedly similar. Ironically, “whataboutism” is thought to have originated as a Soviet propaganda technique.

The “whataboutist” response is a fallacy because it does not address the merits of the underlying charge. Assume for argument’s sake the Clinton campaign did do something wrong by participating in the preparation of the dossier. That would not detract from any culpability that those involved in the Trump campaign may have for working with the Russians. If I robbed the bank it doesn’t affect my guilt if I respond by saying, “Yeah, well, what about you — you robbed the liquor store!”

So even if the Clinton campaign may have something to answer for based on the preparation of the dossier, that doesn’t demonstrate the Trump campaign did nothing wrong or that Mueller’s investigation has no basis. And even if both campaigns were culpable, many would agree that investigation of the candidate who actually won the election and is the sitting President should be a higher priority than the investigation of a private citizen who lost.

But this is all hypothetical. In terms of potential criminal violations, the preparation of the dossier is not at all similar to the alleged activities of the Trump campaign. The “whatabout” arguments simply create confusion and deflect attention, which is, of course, precisely their purpose.

Langdell Library – Harvard Law School

The Law Professor Responses: The Fallacy of False Equivalence

A different logical flaw is displayed by two prominent law professors: Alan Dershowitz of Harvard and Jonathan Turley of George Washington University. Both have repeatedly argued that collusion is not a crime and that there is no basis for a criminal investigation of the Trump campaign. When the dossier allegations emerged, Dershowitz and Turley seized on them to accuse liberals of hypocrisy. If you support a criminal investigation of the Trump campaign, they argued, then you must also support a criminal investigation into the Clinton campaign’s role in the preparation of the dossier.

In a series of Tweets on November 5th and 6th, Dershowitz repeatedly claimed that the Trump and Clinton campaigns were basically on equal footing when it comes to Russia:

“Do you agree that Clinton shouldn’t be prosecuted for a non crime? Why is it irresponsible to make same argument re Trump?”

“Neither side should be making up crimes against the other”

And, in a masterful example of another fallacy, the straw man:

“Should there be one law for Democrats & a different one for Republicans?”

For his part, Turley wrote in an article for The Hill and on Twitter that he was skeptical of criminal allegations concerning either campaign, but that sauce for the Trump gander was sauce for the Clinton goose: “If seeking dirt from the Russians on Clinton is now a federal crime, how about seeking dirt from Russian sources against Trump?”

These arguments suffer from the fallacy known as false equivalence. They assert that the two cases are fundamentally the same and should result in the same outcome. But about the only thing the allegations against Clinton and Trump have in common is that both involve campaigns and Russia. Otherwise the facts and circumstances are not at all equivalent. And when it comes to criminal law and criminal investigations, facts matter.

The Trump Campaign vs. the Dossier

Profs. Dershowitz and Turley argue that if a criminal investigation of the Trump campaign is appropriate, then an investigation into the preparation of the dossier would be as well. But based on what we know so far, there are critical factual differences between the two.

Historical research v. proactive interference – The most important distinction is that between gathering historical information and proactively working to influence the campaign. Steele prepared his dossier by gathering intelligence about Trump and Russia. He did research and passed the information along. There is no allegation that he or anyone else in the Clinton campaign collaborated with any Russians to do anything in the future to influence the campaign or undermine Trump.

The Trump campaign, on the other hand, is suspected of possibly working proactively with Russian nationals to influence the outcome of the election. Mueller is investigating whether any members of the Trump campaign may have cooperated with Russians concerning leaks of emails stolen from the Democratic National Committee and Clinton campaign managerJohn Podesta, to create phony Twitter and Facebook accounts, and to flood social media with false stories intended to influence the election. There also are allegations that a data-crunching firm called Cambridge Analytica hired by Jared Kushner for the campaign may have helped the Russians target particular areas and demographic groups with their social media campaigns. Contrary to Prof. Turley’s claim, the investigation is not merely about “seeking dirt” about Clinton — it’s about working proactively to influence the election.

Campaign officials directly involved – The dossier was prepared by Steele, who was retained by Fusion GPS, which was hired by a law firm retained by the Clinton campaign and the DNC. There is no allegation that individuals who were part of the Clinton campaign met with any Russian individuals in connection with the dossier or knew what Steele was doing. In fact, Clinton and the leaders of her campaign apparently did not even know about the dossier until reports about it appeared in the press.

Within the Trump campaign, the allegations are that individuals at the very highest level met directly with Russians offering information on Hillary Clinton and claiming to have stolen emails. The infamous June 2016 meeting in Trump Tower with Russians promising dirt on Clinton included top members of the Trump campaign including the president’s own son and son-in-law and campaign manager Paul Manafort. Campaign officials such as Jared Kushner and now-attorney generalJeff Sessions failed to disclose meetings with Russians on their security clearance forms and only later admitted to such meetings. Foreign policy advisor George Papadopolous, who has pleaded guilty and is cooperating with Mueller,  was actively cultivating contacts with Russian nationals and sharing that information with others in the campaign, including at meetings that Trump himself attended.

Potentially dealing in stolen property – The Trump campaign may have accepted help from Russians on matters involving information illegally hacked from the DNC computer system and stolen emails. Computer hacking is a federal crime.  Mueller is investigating whether Trump campaign officials knowingly accepted the stolen emails and actively worked to exploit the information contained in them.

With the Steele dossier, again, the allegation is that it consisted of gathering historical intelligence information from contacts Steele had cultivated over many years. There is no allegation that any of the information stemmed from an illegal source.

Concealing information and false statements – A final distinction lies in how the information was handled by the respective parties. Steele was so alarmed by the information he uncovered that he shared it with the FBI. Those engaged in possibly unlawful collusion with a foreign power do not ordinarily report their own activities to federal authorities.

The Trump campaign, on the other hand, allegedly received information suggesting that a foreign power had unlawfully hacked the computers of a U.S. political party and campaign official. They did not report this information to the FBI. Instead, at a minimum they explored the idea of meeting with the Russians who did the hacking to obtain access to those emails and possibly use them against Clinton.

Trump campaign officials have repeatedly concealed information about their contacts with Russians, revealing that information only when confronted with new evidence that the contacts took place. The most recent example is Attorney General Jeff Sessions, who just this week in testimony on Capitol Hill revealed new information about potential campaign contacts with Russians that he previously claimed not to recall. In addition to constituting possible independent crimes, false statements and concealment provide evidence of corrupt intent and knowledge of wrongdoing.

Comparing Apples and Oranges

The allegations about the Trump campaign may ultimately prove to be unfounded. That often happens in white collar investigations. But the allegations provide a solid basis for an investigation to determine whether any criminal laws may have been violated. When it comes to the dossier, there are no comparable allegations of potential criminality.

We really need to look no further than how the FBI reacted to the two matters. The allegations in the Steele dossier were found by the FBI to justify a counter-intelligence investigation and later a criminal investigation. The allegations were also considered sufficiently serious by the Trump Department of Justice to warrant the appointment of an independent counsel. When it comes to the preparation of the dossier, the FBI not only did not see a basis for a criminal investigation into its preparation, but expressed interest in continuing to fund Steele’s research itself.

Professors Dershowitz and Turley, without the benefit of access to the confidential grand jury investigation or the FBI files, feel confident in saying there is no basis for criminal charges. They apparently believe that Mueller and the team of professionals he has assembled either are incompetent or are political hacks. But the prosecutors’ actions thus far reveal just the opposite.

Saying “what about Clinton” is a convenient diversion, but it’s a sloppy argument that ignores the facts and doesn’t respond to the serious allegations about the Trump campaign. Fortunately, Mueller and his team are unlikely to be distracted.

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Mueller Monday: Breaking Down the Charges and Looking Ahead

This past Monday Special Counsel Robert Mueller unveiled the first criminal charges in his ongoing probe of potential ties between Russia and the Trump campaign. Word of an impending indictment leaked last Friday, and Washington was buzzing all weekend about who might be the target. On what the Internet quickly dubbed #MuellerMonday, prosecutors unsealed a twelve-count indictment charging former Trump campaign manager Paul Manafort and his associate Richard Gates.

The charges against Manafort were not a great surprise. The FBI had executed a search warrant at his house last July, and there were reports he had been told to expect an indictment. But Mueller’s other announcement was unexpected: he also unsealed a guilty plea by a former foreign policy advisor to the Trump campaign, George Papadopoulos. It turns out Papadopoulos was arrested last July, was charged under seal, and has been cooperating with Mueller’s office.

The charges indicate that Mueller’s team is moving forward aggressively and effectively. There are likely many more shoes to drop before he is done. And with Monday’s moves he’s sent an unmistakable message to others who may have been involved in any criminal conduct. 

Special Counsel Robert S. Mueller, III

Breaking Down the Charges

Manafort and Gates Overview

The indictment encompasses activity from 2006 to 2017. During that time Manafort ran two different political consulting firms. Gates worked for Manafort and the indictment identifies him as Manafort’s “right hand man.” Beginning in 2006, various pro-Russia political parties and individuals in Ukraine hired Manafort’s firms for lobbying and political consulting, and that work continued for a decade. The defendants allegedly concealed this work from the federal government by failing to register as foreign agents as required.

The defendants used an entity called the European Centre for a Modern Ukraine (the Centre) to retain other lobbying firms in the United States. The Centre was in fact controlled by political leaders in Ukraine working with the defendants. Using the Centre as a front allowed the defendants to distance themselves from the Ukrainian work and conceal it from the government.

Manafort and Gates also allegedly concealed the money they were earning from Ukraine by routing that money through a large number of corporations, partnerships, and bank accounts, including foreign corporations and accounts established in Cyprus, Saint Vincent & the Grenadines, and the Seychelles. To hide the existence of these foreign bank accounts they allegedly failed to report their control over those accounts to the federal government as required, both on their income tax returns and by separate required filings.

In addition, the defendants allegedly used nearly three dozen different offshore entities, primarily located in Cyprus, to wire millions of dollars into the United States to pay for goods, services, and real estate for themselves. None of this money was reported as income by the defendants or by Manafort’s companies. The indictment includes a seven-page detailed list of these payments, which included more than $5 million to a home improvement company in the Hamptons, nearly $1 million to an antique rug store, more than $800,000 to landscape companies in the Hamptons, and more than $1.3 million to clothing stores.

Paul Manafort

Criminal Charges Against Paul Manafort and Richard Gates

 Count One: Conspiracy, 18 U.S.C. 371

Count one charges both defendants with conspiracy under 18 U.S.C. 371. This is an overarching charge that encompasses the entire scheme from 2006 to 2017. The federal conspiracy statute prohibits conspiracies to defraud the United States and conspiracies to commit an offense against the United States. The indictment charges both.

A conspiracy to defraud the United States includes an agreement to impair, obstruct, or impede the lawful functions of the U.S. government. The indictment charges that the defendants’ activities impaired and obstructed the lawful functions of the Department of Justice (which is charged with monitoring the activities of foreign agents) and the Department of the Treasury (which includes the Internal Revenue Service).

The indictment also charges the defendants with conspiracy to commit offenses against the United States, which means a conspiracy to commit any federal crime. It alleges that they conspired to commit the federal crimes contained in the subsequent counts of the indictment.

This is a pretty common structure for a white collar crime indictment. The conspiracy charge up front tells the story of the entire criminal scheme, and it is followed by individual counts of the crimes the defendants allegedly conspired to commit. Conspiracy under 18 U.S.C. 371 is punishable by a maximum of five years in prison.

Count Two: Conspiracy to Launder Money, 18 U.S.C. 1956(h) 

Count two charges that by moving millions of dollars through their various partnerships, corporations, and foreign accounts, the defendants conspired to commit money laundering. Several different money laundering theories are charged as the objects of the conspiracy. The first is that the defendants transferred funds across international borders in order to promote criminal activity, in violation of 18 U.S.C. 1956(a)(2)(A). The second is that the defendants engaged in financial transactions in criminal proceeds with the intent to evade income taxes, in violation of 18 U.S.C. 1956(a)(1)(A)(ii), and knowing that those transactions were designed to conceal and disguise the source, ownership, and control of the proceeds, in violation of 18 U.S.C. 1956(a)(1)(B)(i).

Put more simply, this charge focuses on the defendants’ use of their extensive network of foreign companies and bank accounts to promote their business, conceal their activities and sources of income from the government, and avoid paying taxes. The money laundering conspiracy is the most serious charge in the indictment, carrying a maximum penalty of twenty years in prison.

Counts Three to Nine: Failure to File Reports of Foreign Bank Accounts, 31 U.S.C. 5314, 5322(b)

The Bank Secrecy Act requires U.S. citizens to file reports with the U.S. Treasury concerning any foreign bank accounts they own or have signatory authority over if the balance exceeds $10,000 at any time during the year. These are called foreign bank account reports, or “FBARs.” Willfully failing to file a required FBAR while engaged in other criminal activity is a ten-year felony.

Counts three to six charge Manafort with failing to file a required FBAR for the years 2011, 2012, 2013 and 2014, thus concealing his interest in multiple foreign bank accounts.  Counts seven to nine charge Gates with the same offense for the years 2011, 2012, and 2013.

Count Ten: Failure to Register as Foreign Agent, 22 U.S.C. 612, 618

The Foreign Agents Registration Act (FARA) requires persons who engage in lobbying or public relations work in the United States on behalf of a foreign principal to file detailed reports, under oath, with the Department of Justice. The reports must include the identity of the principal and the nature of the work being done. Count ten charges that between 2008 and 2014 both defendants failed to register as required by FARA for their work on behalf of the Ukrainian government and Ukrainian officials. The FARA violation is punishable by up to five years in prison.

Count Eleven: False and Misleading FARA statements, 22 U.S.C. 612, 618

FARA also makes it a crime to make false or misleading statements in connection with a FARA report. Count eleven charges that in November 2016 and February 2017, both defendants filed documents with the Department of Justice that contained false and misleading statements about their work on behalf of Ukraine. In particular, it alleges that they lied about their own role in the lobbying and falsely claimed that all such work was actually coordinated by the Centre.

Count Twelve: False Statements, 18 U.S.C. 1001

Count twelve charges essentially the same false and misleading FARA statements alleged in count eleven but charges them under a different statute, 18 U.S.C. 1001, the general false statements statute. That statute criminalizes any material false statement made in a matter within the jurisdiction of one of the branches of the federal government. It is also punishable by up to five years in prison.

Summary:

Manafort: Charged in counts 1-6 and 10-12, maximum statutory exposure 80 years.

Gates: Charged in counts 1-2 and 7-12, maximum statutory exposure 70 years.

George Papadopoulos

Criminal Charges Against George Papadopoulos

Papadopoulos pleaded guilty under seal to one count of lying to the FBI in violation of 18 U.S.C. 1001, false statements. His maximum exposure is five years, although his plea agreement indicates he may be sentenced to as little as 0-6  months.

The plea documents contain a statement of facts, which Papadopoulos has admitted as true. He admits he lied to the FBI during an interview on January 27, 2017 about his contacts with Russian individuals while working on the campaign. (Note that this interview was only a week after President Trump was inaugurated, and took place four months before Mueller was appointed Special Counsel.) During that interview Papadopoulos falsely downplayed his interactions with Russian individuals and claimed those interactions took place prior to his work on the campaign.

The plea documents contain a detailed timeline showing that Papadopoulos in fact had extensive contacts with Russian individuals while working on the campaign. These included Russian operatives with shadowy nicknames such as the “professor” and a “female Russian national” who claimed she was related to Vladimir Putin. Papadopoulos had repeated contacts with these individuals, trying to broker meetings between Russian government officials and members of the Trump campaign. They reportedly told Papadopoulos that Russia could offer “dirt” on Hillary Clinton and that they had “thousands of emails.” At one point the “female Russian national” told him, “We are all very excited by the possibility of a good relationship with Mr. Trump.”

Papadopoulos repeatedly advised other members of the Trump campaign (including an unidentified “senior policy advisor” and “high-ranking campaign official”) of his progress in his contacts with the Russians, and was encouraged to keep pursuing them. These included communications about the Russia ministry of foreign affair’s interest in a possible meeting with Trump in Russia. After repeated communications about a possible “off the record” meeting with Russian officials, a “campaign supervisor” encouraged Papadopoulos to make the trip, if feasible. The proposed trip never actually took place.

Although the Papadopoulos plea contains detailed information about his efforts to work with Russian nationals on behalf of the campaign, he is not actually charged with any crimes related to his Russian contacts. Instead, he pled guilty to lying to the FBI when interviewed about those contacts.

What to Expect Going Forward

The release of both sets of charges on the same day was a shrewd strategic move by Mueller. Manafort, who apparently has refused to cooperate, ends up indicted and potentially facing a decade or more in prison. Papadopoulos, who chose to cooperate and plead guilty, faces a single, relatively minor felony charge and may avoid jail altogether. The message to future witnesses is clear: be like George, not like Paul.

President Trump himself was quick to point out that the charges against Manafort primarily involve conduct that took place before he was involved in the campaign:

It’s true that most — though not all — of the alleged crimes in the indictment predate Manafort’s work on the campaign, but that’s largely beside the point. Mueller’s purpose, in addition to pursuing criminal charges that are fully justified in and of themselves, is to pressure Manafort into cooperating in the broader investigation. The indictment gives him the leverage to do that. As a campaign manager who also had extensive ties to Russia, Manafort may be uniquely situated to provide information central to Mueller’s investigation. He will now be under tremendous pressure to cooperate and share that information to help himself out in his own case.

The nature of the charges is particularly bad news for Manafort and Gates. These financial charges are tough to defend against. They don’t depend on a lot of nuance or witness credibility. The indictment spells out the paper trail in excruciating detail, and the jury needs only to follow the money. There are not many obvious defenses that leap off the pages of the indictment.

Manafort and Gates also need to be aware that this could be just the beginning. The allegations in the indictment suggest other potential charges that have not yet been filed, including tax crimes and bank fraud. Mueller’s team always has the option of bringing a superseding indictment to add more charges. It’s also possible the New York Attorney General could file state charges — and those would be outside the reach of President Trump’s pardon power.

The case against Manafort and Gates will move forward now in the ordinary course, with motions, discovery, and potentially a trial. It will occupy the time of a couple of members of Mueller’s team, but the rest will continue to move the broader investigation forward. Either or both of the defendants could decide to plead guilty at any time. Presumably they will have discussions with the Special Counsel’s office about possible cooperation — a prospect that has to make others involved in the campaign extremely uneasy.

A “Proactive Cooperator”

As for Papadopoulos, there has been a lot of speculation about what his cooperation over the past few months may have entailed. It’s all guesswork for now  – but keep in mind that Mueller had him charged under seal, to keep it a secret. One reason to do that would be if Papadopoulos was covertly assisting in the investigation. Speculation that this might have happened was further fueled by a paragraph in his plea agreement referring to him as a “proactive cooperator.”

Whether Papadopoulos actually worked with the FBI will be revealed in due course. It’s certainly possible that investigators could have had him make recorded phone calls, or arrange meetings with other targets while wearing a wire, to talk about the events under investigation. Or his cooperation may have simply involved providing testimony and documents about past conduct.

The other important aspect of Papadopoulos’s case is the detailed timeline and statement of facts in support of his plea. Although it contains pseudonyms like “senior campaign official,” everyone knows that Bob Mueller’s team knows who those people are. Investigators appear to know in great detail what happened during the campaign. And if future witnesses try to come in and lie to them, they will find themselves in the same boat as Papadopoulos. Once again, the strength of the charges and the amount of detail in the documents sends a clear signal that these investigators aren’t playing around and won’t be easily fooled.

The documents in Papadopoulos’s case don’t prove that collusion with Russia took place — although to steal a phrase from John Dickerson, they certainly establish that the Trump campaign was “collusion curious.” Whether any collusion or attempted collusion that did take place actually amounts to a crime is yet another question. But the guilty plea does make it clear that Mueller’s team is deep into examining the operations of the campaign and potential ties to Russia, and already knows a great deal.

Finally, the release of Papadopoulos’s documents further highlights the jeopardy in which Manafort finds himself. There is widespread agreement that the “senior campaign official” referred to in Papadopoulos’s plea is Manafort, who is now on notice that Mueller has an insider telling him all about the campaign, Russia, and the role played by Manafort and others. If Manafort ends up meeting with Mueller’s team about those issues, he knows he can’t get away with hiding the ball.

Mueller’s team appears to be pursuing a classic investigative strategy of building cases against lower-level players, persuading the to “flip” and cooperate, and moving up the ladder. Whether Manafort flips or not remains to be seen, but regardless, there’s every reason to believe the Special Counsel is just getting started.

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The Menendez Trial and the Future of Bribery

The prosecution has finished presenting its case in the trial of New Jersey Senator Bob Menendez. Menendez and his co-defendant, Dr. Salomon Melgen, are facing multiple counts of bribery and related charges. The government alleges that in exchange for gifts from Melgen including private jet trips, luxury vacations, and large political donations, Menendez interceded on Melgen’s behalf in various disputes he was having with the federal government. (A more detailed analysis of the indictment is available here.)

Senator Menendez faces corruption charges

Senator Robert Menendez

When the government rested last week, the judge made some comments that appeared to question whether the bribery case could survive the Supreme Court’s 2016 decision in McDonnell v. United States. This led to widespread speculation that the judge might dismiss many of the charges. But on Monday the judge ruled there was enough evidence to go to the jury. The defense is now putting on its case.

Menendez makes two primary types of claims concerning the bribery charges. The first is that the things he agreed to do for Melgen did not qualify as “official acts” under McDonnell and thus could not support a bribery conviction. The second is that, even if Menendez did perform official acts, they were not in response to any gifts from Melgen but were simply done out of friendship or as part of Menendez’s routine Senate responsibilities.

The McDonnell case has been looming over the Menendez prosecution from the beginning. If the Senator is convicted, I think there is a good chance that at least some of the bribery charges will indeed be overturned on appeal. But I believe it will be based primarily not on McDonnell but on a different Supreme Court case decided almost two decades ago.

McDonnell and “Official Acts”

The Supreme Court in McDonnell held that in any federal bribery case the prosecution must prove the public official agreed to be influenced in the performance of an “official act” as defined in 18 U.S.C. 201, the federal bribery statute. The Court concluded that Governor McDonnell’s actions —  making phone calls, arranging meetings, and holding an event at the Governor’s mansion — did not rise to the level of “official acts” and could not support a bribery conviction. (For a critique of McDonnell and its “official act” holding, you can see my posts here and here.)

The “official act” argument says, in effect, that even if there were a deal or quid pro quo, what the public official did – the quo – was not substantial enough to justify a bribery charge. The official can admit there was a link between his actions and the gifts he received, but argue that those actions were trivial or were simply routine political courtesies.

The McDonnell opinion has already resulted in some high-profile convictions being thrown out, including that of former New York State Assembly Speaker Sheldon Silver. Senator Menendez has argued from the beginning of his case that the things he did for Dr. Melgen did not amount to official acts, and the judge has repeatedly rejected his arguments. As I wrote here, I think the judge is correct. If Menendez is convicted and those convictions are later overturned, I don’t expect it to be on the McDonnell “official act” ground.

Melgen is accused of bribing Senator Menendez

Dr. Salomon Melgen

Quid Pro Quo and the “Stream of Benefits” Theory 

Assuming Menendez did perform official acts, to be bribery those acts still needed to be done in exchange for the gifts he received from Melgen. This is the requirement of a quid pro quo, or corrupt intent. This is Menendez’s other main line of defense: he says that anything he did for Melgen was either out of friendship or was part of his general oversight and policy duties as a Senator, not in response to the gifts he received.

Some counts of the indictment related to Melgen’s hefty political contributions to Menendez allege a direct quid pro quo (Counts 9-14). They charge that in exchange for a particular donation, Menendez took a particular identified official act, such as advocating on Melgen’s behalf before the State Department or Department of Health and Human Services.

But a number of the charges (Counts 2-8) rely on a different bribery theory, known as “stream of benefits.” These counts charge that Menendez accepted gifts such as trips on Melgen’s private jet in exchange for “being influenced in the performance of official acts, as opportunities arose.” The specific official acts are not identified in the individual bribery counts, although a large number of official acts are described in the indictment as a whole.

Prosecutors use this “steam of benefits” theory in cases where the bribe payer essentially has the public official on retainer. In exchange for a series of gifts over time, the public official agrees do things to benefit the bribe payer when opportunities arise. It might not be possible to prove a direct link between any particular gift and any particular official act; what is charged is the continuing corrupt relationship, a sort of ongoing “you scratch my back and I’ll scratch yours” theory.

The Supreme Court has never weighed in on this stream of benefits theory. It has been widely accepted in the lower courts, including those in the Third Circuit where Menendez is on trial. But Menendez’s attorneys claim that McDonnell has changed the legal landscape here as well.

The trial judge made some comments last week suggesting he might find that the stream of benefits theory did not survive McDonnell. In the end, though, he agreed with the government that McDonnell’s requirement that an official act be specific and focused does not mean the act has to be identified at the time of the corrupt agreement. In other words, the deal may be, “I’ll give you a stream of benefits over time, and in exchange you agree to do things for me, as the opportunities arise, that qualify as official acts.” The parties have to agree that the public official will perform official acts, but they don’t have to agree up front what the precise official acts might be.

As far as the impact of McDonnell itself is concerned, that seems like the right answer. McDonnell did not discuss the stream of benefits theory and there’s no particular reason to believe that the “official act” requirement, standing alone, would invalidate that theory.

But I think the Supreme Court’s overall approach in McDonnell does suggest the Court might well reject the stream of benefits bribery theory if given the opportunity. That rejection would primarily be based not on the holding of McDonnell, but on the language of the federal bribery statute itself and the reasoning of a 1999 Supreme Court case, United States v. Sun-Diamond Growers of California.

The Sun-Diamond Decision

In Sun-Diamond the defendant, a large agricultural cooperative, was charged with giving illegal gratuities to the Secretary of Agriculture, Mike Espy. The crime of gratuities, 18 U.S.C. 201(c), appears in the same statute as federal bribery, 18 U.S.C. 201(b). It prohibits giving a public official a thing of value “for or because of any official act.” It differs from bribery in that no corrupt intent to influence the official is required; a gratuity can be a mere “thank you” for an official act that has already been performed.

Sun-Diamond was prosecuted on what was sometimes called a “status gratuity” theory. The government didn’t identify any particular official acts by Espy to which the gifts were linked. Instead, it argued it was enough that the gifts were based on Espy’s official position and were made with the hope of building up a reservoir of goodwill with Espy, perhaps to influence or reward some unspecified official act in the future.

The Supreme Court rejected this theory. It was not enough, the Court held, to charge Sun-Diamond with paying gratuities to Espy based on his status or for official acts not named in the indictment. The Court found that section 201(c)’s requirement that a gratuity be “for or because of any official act” means a specific official act must be identified. The Court particularly focused on the phrase “any official act,” holding that this language “seems pregnant with the requirement that some particular official act be identified and proved.” It specifically rejected the alternative, broader interpretation that “any official act” meant any one of the universe of potential official acts “without specification as to which one.”

Did the Stream of Benefits Bribery Theory Survive Sun-Diamond?

Sun-Diamond rejected a gratuity prosecution based on a stream of gifts not linked to any particular official acts. But in the wake of Sun-Diamond, lower courts have continued to uphold the stream of benefits theory in bribery prosecutions. Courts have held that the reasoning of Sun-Diamond does not apply to bribery cases because bribery requires proof of a higher level of intent, a corrupt quid pro quo. That’s true, but as one of my old law professors liked to say, is that a difference that makes a difference?

The language of the gratuities and bribery statutes is strikingly similar. The bribery statute in section 201(b)(2)(A) prohibits a public official from accepting anything of value in exchange for agreeing to be “influenced in the performance of any official act.” That phrase – “any official act” – is precisely the language that the Court in Sun-Diamond said required a particular official act to be identified and proved. It’s not clear to me how the different levels of intent required for the two crimes makes any difference at all when it comes to interpreting this statutory language. For either a gratuity or a bribe, the statute and reasoning of Sun-Diamond appear to require a link to a particular, identifiable official act.

There is another reason to be suspicious of lower court decisions upholding the stream of benefits theory after Sun-Diamond: most of those cases involved prosecutions for honest services fraud or Hobbs Act extortion, not section 201 bribery. Courts in those cases typically were applying general bribery law principles, not parsing the precise statutory language of 18 U.S.C. 201. One of the leading “stream of benefits” decisions, a 2007 case from the U.S. Court of Appeals for the Second Circuit called United States v. Ganim (authored by now-Justice Sotomayor when she was on the appeals court) made precisely that point. Judge Sotomayor noted that Sun-Diamond hinged on the precise wording of section 201 and that the same reasoning did not necessarily apply to other corruption statutes, including the Hobbs Act charges at issue in Ganim.

Menendez is also charged with honest services fraud, but the bulk of the bribery charges in his indictment are under 18 U.S.C. 201. McDonnell and Sun-Diamond make it clear that when interpreting section 201 the Supreme Court will not look to common-law bribery principles but will strictly interpret the precise statutory language. As a result, lower court cases upholding the “stream of benefits” theory in honest services fraud or Hobbs Act cases are of limited value when considering how the Supreme Court would rule in Menendez’s case. And McDonnell suggests that however the Court ends up defining bribery for purposes of section 201, it will apply that same bribery definition to honest services fraud and the Hobbs Act as well.

The Menendez defense argues that the stream of benefits theory does not survive McDonnell. I think the better argument is that it actually did not survive Sun-Diamond and the Supreme Court just has not yet had a chance to say so. The Court’s approach to statutory interpretation in McDonnell simply further highlights why it is unlikely to buy the stream of benefits theory for bribery.

The Defense: Playing the Long Game

The trial judge is likely to let the jury decide the Menendez charges. Even if the judge thinks some of the bribery theories may be invalid, he will likely feel constrained by Third Circuit precedent to let the case go to the jury.

Senator Menendez is in part playing a long game, hoping that even if he is convicted he ultimately will prevail on appeal. Don’t forget that Governor McDonnell was convicted at trial and his conviction was affirmed by a unanimous Court of Appeals before the Supreme Court ultimately took the case and unanimously reversed.

If the Menendez case ever were to reach the Supreme Court, I think there’s a good chance the Court would reject the stream of benefits bribery theory. A number of counts against Menendez and Melgen would remain, so that alone would not mean they would walk free. But it would represent yet another step by the Court to further narrow the scope of federal public corruption law – a process that began nearly twenty years ago in Sun-Diamond.

Update: On November 16, 2017, the Menendez trial ended in a hung jury.

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September Madness: The Problem with the NCAA Basketball Corruption Case

On Tuesday, September 26, the U.S. Attorney’s Office for the Southern District of New York announced with great fanfare that the office had filed charges against ten individuals in a fraud and corruption case involving college basketball. Acting U.S. Attorney Joon H. Kim outlined the charges against four NCAA Division I coaches, a senior executive at Adidas, and five others. A chart in the press release noted that each defendant faces a maximum of between 80 and 200 years in prison.

The charges are the result of a two-year investigation that involved wiretaps, a confidential cooperating witness, and FBI undercover agents. The three criminal complaints outline two different corruption schemes. Although the complaints name several universities as the victims of these schemes, there is no allegation that any university actually lost any money or property. There are no claims that any of the student athletes or their families were financially harmed. The public was not harmed in any way.

But the defendants did violate NCAA rules. Those rules require that student athletes be amateurs and prohibit them from receiving any outside compensation. The rules also prohibit coaches from facilitating any contacts between athletes and outside agents and from receiving any outside compensation for acts related to their athletes. These rules violations (which were, of course, created by the undercover investigation itself) exposed the universities to potential financial penalties and sanctions from the NCAA. That exposure is what’s at the heart of the prosecution. The government’s case effectively takes the rules of the NCAA, a private non-profit corporation, and leverages violations of those rules into federal felony charges.

There’s no doubt the behavior of the defendants was deplorable. But are criminal sanctions exposing them to decades in prison the proper remedy? I’m not saying the charges are legally flawed – not all of them, anyway. But I do question whether this case represents a good use of two years of the time and resources of the agents and prosecutors involved. And I question whether bringing multiple felony charges on these facts is a sound exercise of prosecutorial discretion.

At the U.S. Attorney’s press conference, the very first question was from a reporter who asked (I’m paraphrasing), “It seems like everyone involved was actually benefitting financially. Who’s the victim here?” (19:40)

It’s a good question.

The Complaints

 The Coach Bribery Scheme

The coach bribery scheme is charged in two separate criminal complaints. The first complaint charges three coaches: Lamont Evans, an assistant coach at Oklahoma State and former assistant coach at South Carolina; Emanuel Richardson, an assistant coach at Arizona; and Anthony Bland, an associate head coach at University of Southern California. It also charges Christian Dawkins, an employee of a sports management company that represents NBA basketball players, and Munish Sood, a financial advisor.

The complaint alleges that the three coaches accepted cash bribes from Dawkins and Sood. The total amount of the bribes ranged from about $13,000 to about $22,000. In return, the coaches agreed to introduce student athletes to Dawkins and Sood and to encourage the athletes to hire Dawkins and Sood once the athletes left college and began playing in the NBA. The deals were brokered by another former financial advisor, Marty Blazer. Blazer, who was facing securities fraud charges of his own, was cooperating with the FBI and recording many of the meetings and phone calls. The complaint also charges that the defendants made improper payments to student athletes and concealed those payments from their universities.

The second complaint related to the coach bribery scheme charges only one coach: Chuck Person, an associate head coach at Auburn. It also charges Rashan Michel, the owner of a clothing store in Atlanta that specializes in making custom suits for athletes. The basic nature of the scheme is the same: Person allegedly accepted more than $90,000 in bribes from Blazer (the cooperating witness) and Michel. In exchange, Person agreed to introduce student athletes to Blazer and Michel and to encourage the athletes to retain them once they left college. Once again, the complaint also charges that the defendants made improper, undisclosed payments to current student athletes.

The charges in the coach bribery scheme include multiple counts of honest services fraud, bribery, honest services fraud conspiracy, bribery conspiracy, wire fraud conspiracy, and travel act conspiracy.

The High School Players Scheme

The scheme set forth in a third complaint involves a conspiracy to pay high school basketball players and their families. The defendants are James Gatto, the global marketing director for basketball at Adidas; Merl Code, an individual identified as affiliated with Adidas and its high school basketball programs; and Jonathan Augustine, program director for an amateur high school basketball program sponsored by Adidas. Also charged in this complaint are Christian Dawkins and Munish Sood, the same sports manager and financial adviser charged in the first complaint of the coach bribery scheme.

The complaint alleges that these defendants conspired to make secret payments to three different high school athletes and their families. In exchange, the families agreed the student would attend particular universities sponsored by Adidas, and that the student would sign deals with Adidas and use the services of Dawkins and Sood after joining the NBA.

The defendants allegedly agreed to pay $100,000 to the family of a top high school graduate from the class of 2017, although apparently only the first installment of $25,000 was actually paid. In return, the student allegedly agreed to attend University of Louisville. They also allegedly conspired to funnel $150,000 to the family of another high school student graduating in 2018, this time to induce that student to attend what appears to be University of Miami. Unnamed coaches at the two universities also were allegedly involved in the schemes.

The charges in the high school players scheme include wire fraud, conspiracy to commit wire fraud, and money laundering.

Analyzing the Criminal Charges

 Bribery and Bribery Conspiracy

 The coach bribery scheme complaints charge bribery and bribery conspiracy using three different theories: 18 U.S.C. § 666, federal program bribery (applies because the universities receive more than $10,000 a year in federal funds); 18 U.S.C. § 1343 and 1346, honest services wire fraud (applies to an employee who takes bribes or kickbacks in breach of a duty owed the employer); and 18 U.S.C. § 1952, the travel act (applies to interstate travel to further violations of state bribery law).

Under each statute the bribery theory is basically the same: the outside advisors (or undercover agents posing as outside advisors) paid the coaches to induce them to violate their duties to their university employers by violating NCAA rules, thereby exposing the universities to potential sanctions.

The bribery charges highlight the centrality of the NCAA rules to these complaints. There is no direct harm to the universities, financial or otherwise. This isn’t a case where an employee took bribes to disclose trade secrets to a competitor or to award a contract to an unqualified contractor, or took some other step that directly harmed the employer. There is only potential harm, and only because of possible sanctions by the NCAA for violating its rules.

Wire Fraud and Wire Fraud Conspiracy

The wire fraud and wire fraud conspiracy allegations (18 U.S.C. § 1343) charge that the defendants defrauded the universities by causing them to pay scholarship money to athletes who were actually ineligible due to the secret payments that were made to them. The high school players scheme also charges that the universities were defrauded of their right to control their limited scholarship assets and how they would be disbursed. Again, any potential harm results only from the possible violations of NCAA rules and penalties that might result. Paying the scholarships didn’t harm the universities, because they received the services of the players they wanted in return. The only potential harm would come if the improper payments were later discovered and the schools were sanctioned.

Money Laundering

Money laundering charges (18 U.S.C. § 1956) appear only in the high school players scheme. The complaint alleges that Gatto and the other defendants tried to conceal the payments going from Adidas to the families by running them through other entities and bank accounts controlled by the defendants and by creating fictitious invoices to cover their tracks.

I think the money laundering charges may be flawed. Money laundering requires that the charged financial transaction involve the “proceeds” of a crime – money generated by a completed unlawful activity. If the parents had received the money and then done something with it to disguise where it came from, that might be a laundering transaction involving the proceeds of the bribery scheme. But here the charged transactions appear to involve the money used to pay the bribes themselves. That money is not yet proceeds of the bribe for money laundering purposes. It only becomes proceeds once the bribes have been paid and the money is in the hands of the families.

There are plenty of cases throwing out convictions where prosecutors charged money laundering when in fact the financial transactions did not involve proceeds of a completed crime but represented the underlying criminal activity itself. This requires a more detailed discussion that I will probably return to in a future post. But unless there are more facts out there that don’t appear on the face of the complaint, I believe it’s likely the money laundering charges will not survive.

The problem with the NCAA basketball corruption case

Criminalizing the NCAA Rules

Review of the charges makes it clear that the entire criminal case hinges on violations of the NCAA rules. The only harm to the alleged victims – the universities – stems from any sanctions that might potentially result from the violation of those rules. Take away the NCAA rules, and there is no criminal case.

As the complaints note, the NCAA rules provide that schools violating the rules may suffer penalties including limitations on post-season play, fines, and limitations on the ability to grant scholarships or recruit athletes. But the rules do not suggest that those who violate them may be subject to federal criminal prosecution.

The defendants could be forgiven for thinking that if they got caught violating the rules, the worst that would happen is they would be fired. Maybe the university would come after them to try to recoup any financial penalties. Their careers would certainly be over. But they likely didn’t believe that violating the internal rules of a private athletic organization would potentially subject them to decades in federal prison.

Prosecution seems even more questionable when you consider that virtually all of the conduct here likely would be legal if it related to professional athletes. The payments would be called finder’s fees or product endorsement deals. The purported criminality stems only from the NCAA’s insistence on maintaining the fiction that these athletes are amateurs and that high-level college basketball is actually about college, rather than about big business and providing farm teams for the NBA.

There’s a lot of behavior that can be squeezed into white collar violations but where criminal sanctions aren’t required. That’s where the exercise of prosecutorial discretion comes in. This case is really about the violation of NCAA rules. NCAA sanctions against the offending schools and individuals would be the more appropriate remedy.

The players weren’t harmed. Their families weren’t harmed. The teams weren’t harmed. The public wasn’t harmed. The coaches were still coaching, and the games were not affected. The universities were only potentially harmed — and only because of the rules of a private organization they voluntarily joined in support of athletics programs that earn them millions of dollars.

And this is where the Department of Justice chooses to devote its resources? Look, I love DOJ, but I can hear the critics now: “You can crash the entire financial system and no one gets prosecuted. But don’t you dare mess with college basketball!”

This year it appears the madness didn’t wait until March.

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The Limits of Friendship: Menendez Trial Update

The corruption trial of Senator Bob Menendez and Dr. Salomon Melgen is underway in federal district court in Newark, New Jersey. The parties reportedly expect the trial to last well into November.

There don’t appear to be any big surprises or bombshells so far. As expected, the trial will come down to whether the government can establish the corrupt intent necessary to prove bribery. The defense claims that anything Melgen and Menendez did for each other was simply out of friendship. The government, on the other hand, charges that Menendez acted on Melgen’s behalf in exchange for extravagant gifts and hefty campaign donations.

The gifts from Melgen included more than a dozen trips on his private jet to take Menendez back and forth to Melgen’s luxury villa in the Dominican Republic, repeated free stays at that villa, a three-day vacation at a luxury hotel in Paris, and more than $750,000 in campaign donations. In return, the government alleges Menendez worked to resolve Melgen’s multi-million dollar billing dispute with Medicare, lobbied the State Department on Melgen’s behalf in connection with a contract dispute, and helped secure visas for three of Melgen’s girlfriends to travel to the United States.

No one really disputes that any of this took place. The key issue is why. The defense has repeatedly claimed the defendants’ friendship explains all of their behavior, and has suggested that friendship is a “complete defense” to the charges of bribery.

If the defendants acted solely out of friendship that would indeed negate corrupt intent and defeat a charge of bribery. But the notion that the mere existence of a friendship is a “complete defense” to bribery is nonsense. Friends can commit crimes together. I can rob a bank with my friend, and if my friend is a United States Senator I can pay him a bribe to do something for me.

The government is not denying that the two are friends. They simply argue that friendship alone cannot explain what happened here. In fact, the friendship can actually be turned to the prosecutors’ advantage: “Of course they are friends, ladies and gentlemen. Who else would you trust with these kinds of secrets? Engaging in corrupt behavior with a stranger is too risky.”

Challenger private jet, the type owned by Dr. Melgen

With Friends Like These

The difficulty with the friendship claim is that the gifts here seem so far outside the bounds of mere friendship. As Robin Williams might have put it, most of us ain’t never had a friend like this.

Take the jet trips, for example. It would be one thing if Melgen were flying to the Dominican Republic anyway and simply let Menendez catch a ride with him. But the government’s evidence is that Melgen would send his jet for Menendez, sometimes flying from Florida to DC to pick the Senator up, even when Melgen wasn’t going to the villa. When Melgen’s jet wasn’t available he sent another private jet for the Senator, or bought him a first-class ticket.

Then there’s the Paris vacation. Melgen used his American Express points to book a suite for Menendez valued at nearly $5,000. It wasn’t for a trip the two were taking together; Melgen was not there. Prior to the trip, Menendez emailed Melgen specific instructions about the type of room that he wanted and how to book it with Amex points.

The notion that these repeated, extravagant gifts were simply the result of friendship is going to be hard for the jury to swallow. It seems far more likely that Melgen was helping Menendez maintain a luxurious lifestyle he could not afford on his own and that Menendez was doing him political favors in return.

Villa at Casa de Campo, Dominican Republic

Lifestyles of the Rich and Famous

The government apparently has spent quite a bit of trial time in recent days establishing just how luxurious the accommodations were at the Dominican Villa and how nice the private jets were. They also brought into court the foreign fashion model girlfriends of Dr. Melgen to testify about how Senator Menendez helped arrange their visas to come to the United States.

In a pre-trial brief the prosecutors noted the resort, Casa de Campo, is frequented by celebrities such as Jay-Z, Beyonce, and Jennifer Lopez. The defense criticized this brief, suggesting it was meant simply to sensationalize the case for the press. They may have a point; it is hard to see the relevance of the celebrity name-dropping.

The prosecutors need to walk a fine line here. It’s important to establish that the resort was a very high-end place, but that’s something that could be done fairly quickly. Dwelling on it and presenting multiple witnesses could become counter-productive if the jury starts to get bored.

The other danger is if it starts to appear prosecutors are suggesting a luxury lifestyle is itself a crime or that the jurors should resent the defendants for it. The luxurious nature of the trips is relevant to whether Menendez would agree to be influenced in exchange for those trips – but only up to a point. The truth is that giving a senator free stays at a Motel 6 could also be a bribe, if it was done in exchange for an agreement to perform an official act. Spending many hours establishing how luxurious the resort was doesn’t really get you closer to proving the critical question of corrupt intent.

The same is true with the testimony of the girlfriends. It may be titillating to parade the married Dr. Melgen’s young female companions before the jury, but it doesn’t really advance the ball in terms of proving corrupt intent. Menendez could accept a bribe in exchange for getting a visa for someone’s grandmother and the crime would be the same.

The more time prosecutors spend playing up the luxurious nature of the gifts or the relationships with young women, the more they open themselves up to defense arguments that they are simply trying to sensationalize the case and don’t really have any solid evidence of a corrupt agreement. As I said, I think it’s a fine line to walk. But I can’t help but wonder if the prosecutors are at risk of crossing too far over to the sensationalist side of that line.

Political Implications of a Conviction

Washington has been buzzing about the possible political implications if Menendez is convicted. He’s a Democrat, and the Republicans hold a very narrow majority in the Senate. A single vote can make a big difference, as we saw with the recent (and now apparently revived) attempts to repeal Obamacare.

If Menendez leaves the Senate the governor of New Jersey gets to appoint a replacement. This has led to speculation that if Menendez is convicted, the Republican governor Chris Christie could appoint a Republican replacement to serve out the remainder of Menendez’s term, which ends in 2018. That could shift the balance of power in the Senate in the Republicans favor.

This is unlikely to happen. Even if Menendez is convicted, he does not automatically lose his Senate seat. Assuming he does not resign (which seems a safe assumption), the Senate would have to vote to expel him. That requires a two-thirds vote of the Senate, which means a number of Democrats would have to agree.

If convicted Menendez will undoubtedly appeal. He and other Democrats would likely argue that he deserves to hold his seat until his appeals are resolved. Even if the Senate did move to expel Menendez, that would presumably require some kind of hearings and deliberations, which would also take time. Nothing moves that rapidly in Congress, and we are approaching the holiday recess.

The last U.S. Senator to be convicted of bribery was Harrison Williams, also from New Jersey, who was convicted in the Abscam investigation in May of 1981. He managed to hold on to his seat for another ten months before finally resigning just as the Senate was about to vote to expel him.

This all matters because New Jersey is holding a gubernatorial election in November, and polls show the Democrat Phil Murphy is likely to win. So if any appointment of a successor to Menendez is delayed until after mid-January, that appointment likely would be made by a fellow Democrat. For that reason, Menendez and the Democrats will try to delay any resolution of Menendez’s fate, and they will likely be able to succeed.

I’ve joked that if I were the Democrats I’d invoke the “Merrick Garland principle:” argue that the New Jersey governor should not get to make any Senate appointments when there is an election approaching. We should wait until after the election so the voice of the New Jersey people can be heard and the appointment can be made by the newly-elected governor. (I’m sure Mitch McConnell would agree with the wisdom of this approach.)

All the buzz about whether the Republicans might gain a Senate seat seems unrealistic. Regardless of the outcome of the trial, the reality is that Menendez will almost certainly still be in place until after the New Jersey election.

More on Menendez, McDonnell, and Public Corruption

As I’ve argued elsewhere, I don’t think the Supreme Court’s recent decision in the Bob McDonnell case is likely to be a significant issue in the Menendez trial. This past Sunday on the C-Span program “Q & A,” Brian Lamb interviewed me about the Menendez case, the potential effect of McDonnell, and prosecuting public corruption cases in general. If you are interested, you can find that interview here:

C-Span’s Q & A – September 17, 2017

In the meantime, watch this space and I’ll be back with any new developments as the trial progresses.

Update: On November 16, 2017, the Menendez trial ended with a hung jury.

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What to Watch For at the Bob Menendez Trial

After more than two years of legal maneuvering, the trial of U.S. Senator Robert Menendez begins today in New Jersey. Menendez and his co-defendant, Florida ophthalmologist Salomon Melgen, face eighteen counts of bribery and related offenses.

Menendez and Melgen were indicted in April of 2015. The trial has been delayed while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trail judge rejected his arguments and the U.S. Court of Appeals for the Third Circuit affirmed that decision. The Supreme Court declined to hear Menendez’s appeal, which finally cleared the way for trial to begin this fall.

This is the first criminal trial of a United States Senator in nearly a decade. It’s the highest profile corruption case to go to trial since the Supreme Court’s 2016 decision in McDonnell v. United States dramatically altered the landscape for corruption prosecutions. And given the close balance of power in the U.S. Senate, Menendez’s fate could have significant political implications for the entire country.

So in addition to all the nonstop drama in Washington these days, the drama unfolding in a Newark federal courtroom for the next six to eight weeks is worthy of attention. Here are some things to watch for at Menendez’s trial.

Federal courthouse, Newark NJ

The Allegations

The government alleges Menendez and Melgen engaged in a bribery scheme that began shortly after Menendez was first elected to the Senate in 2006 and lasted for about seven years. The government charges that Menendez agreed to use the power of his office to seek to benefit Melgen in exchange for a series of valuable gifts and donations.

Melgen’s gifts to Menendez allegedly included the following:

  • On multiple occasions Menendez, sometimes with a guest, stayed free of charge at Melgen’s villa in a luxury resort in the Dominican Republic.
  • On more than a dozen occasions Melgen flew Menendez, and sometimes his guest, to and from the Dominican villa on Melgen’s private jet. When Melgen’s jet wasn’t available, he arranged for other private jet transport for Menendez or purchased a first-class ticket for him.
  • In 2010 Melgen used his American Express points to book a suite at a Paris hotel, valued at nearly $5,000, for Menendez to use for a three day vacation.
  • In 2012 Melgen made more than $750,000 in campaign donations to benefit Menendez, as well as a $20,000 contribution to Menendez’s legal defense fund.

In return, the government alleges Menendez did the following for Melgen:

  • Menendez pressured the State Department to influence the government of the Dominican Republic to move forward on a valuable contract owned by Melgen to provide cargo screening services in Dominican ports.
  • Menendez tried to stop U.S. Customs and Border Protection from donating shipping container monitoring and inspection equipment to the Dominican Republic, because that equipment would have undermined the value of Melgen’s contract.
  • Menendez personally and repeatedly intervened on Melgen’s behalf with the Department of Health and Human Services (including meeting personally with the Secretary of HHS) in a proceeding where HHS claimed Melgen had overbilled Medicare by about $9 million.
  • Menendez and his staff worked to influence State Department officials to grant visas for three foreign girlfriends of Melgen to visit the United States.

The indictment charges Menendez and Melgen with conspiracy, bribery, honest services fraud, and the travel act. It also charges Menendez with false statements for failing to disclose the gifts from Melgen on his annual Ethics in Government Act reports. (For a more detailed analysis of the particular charges, you can read my post here.)

Melgen has separate legal problems of his own related to his Medicare billings. This past April he was convicted of dozens of counts of Medicare fraud in Florida. His sentencing in that case has been postponed pending the outcome of this trial.

The Central Issue: Was There Corrupt Intent?

The key issue in the case is going to be proving corrupt intent, the quid pro quo required for a bribery conviction. There’s not going to be much dispute about the underlying events. No one will deny that the private jet trips, vacations, and political donations took place. Menendez will dispute some details of his various meetings on Melgen’s behalf, but no one will deny the meetings happened.

As in so many white collar cases, the key will be proving what was going on in the defendants’ minds. The government needs to show that Melgen gave the gifts because he wanted some official action from Menendez in return, and that Menendez accepted the gifts with that same understanding.

The defendants claim there was no corrupt intent. Melgen says the things he provided to Menendez were strictly out of friendship. Menendez claims that anything he did on Melgen’s behalf was not because of the gifts but was either part of his Senate legislative and oversight duties or simply favors on behalf of an old friend.

Of course friendship and corruption are not mutually exclusive. Just as my friend and I can rob a bank together, my Senator friend and I can engage in a corruption scheme. Even if friendship was part of the motivation for Melgen’s largess, that is not a defense so long as at least part of the motive was a corrupt intent to influence – and to be influenced in – the performance of official acts.

The sheer lavishness of the gifts will make the “friendship” argument challenging for the defense. There will likely not be many jurors who can relate to the idea of friends giving each other private jet travel and luxury vacations.

The other challenge for the “friendship” defense is that it seems to paint a picture of an oddly one-sided friendship. Friends do give each other gifts, but it is typically more of a two-way street. Melgen gave Menendez about a million dollars worth of gifts, but what did Menendez ever give Melgen in return — other than the exercise of his official powers?

Senator Menendez faces multiple counts of corruption

Senator Bob Menendez

Proving Corrupt Intent

The best way for the government to prove intent in a bribery scheme is to have the cooperation and testimony of one side of the corrupt transaction. For example, in the Bob McDonnell case the man alleged to have bribed McDonnell was granted immunity and testified as the government’s star witness.

There has been a lot of speculation that Melgen might plead guilty and agree to testify against Menendez. Certainly he is under a lot of pressure to cut a deal to benefit himself, given his separate conviction in Florida where he faces substantial prison time. When the sentencing in that case was delayed, I thought it might mean Melgen was about to cooperate. But there has been no sign Melgen is going to roll over on Menendez. If it were going to happen, it probably would have happened by now.

Absent testimony from Melgen, the government will be left to prove intent largely by circumstantial evidence. Timing of gifts and corresponding actions will be important, and can raise an inference of a quid pro quo. For example, the most significant gifts from Melgen – more than $750,000 in contributions to various campaign funds and a legal defense fund – came in 2012. That was the same time Menendez was working most vigorously on Melgen’s behalf in both the port contract dispute and the Medicare billing dispute. In some instances, Menendez met with executive branch officials on Melgen’s behalf the same week – or even the same day — that Melgen made a substantial campaign contribution.

Concealment also is important for proof of intent. That’s where the evidence that Menendez failed to report the gifts on his financial disclosure forms will come into play. Although the false statements charge for failing to report the gifts is only a single count of the indictment, its significance is in helping to establish corrupt intent for the entire case. The government will argue Menendez failed to disclose the gifts because he knew they were corrupt and improper.

Other examples of deception also will help prove corrupt intent. For example, the government will present evidence that once the private jet trips came to light, Menendez made false public statements claiming there had only been three such trips when in fact there were more than a dozen.

In addition, there will be evidence that some of the campaign donations were made by Melgen’s family members, to keep them within legal limits, but that Melgen then used corporate funds to pay the family members back. This amounts to laundering of campaign contributions to disguise the fact that all of the money is actually coming from Melgen’s corporation and helps conceal the depth of the connection between Melgen and Menendez.

McDonnell and “Official Acts”

A key legal issue is whether the Supreme Court’s recent decision in the Bob McDonnell case provides any cover for Menendez. In McDonnell the Court ruled that in a corruption case the government must prove the public official agreed to perform “official acts.” The Court defined official acts very narrowly, and thereby dramatically restricted the scope of federal corruption law.

Menendez has repeatedly argued that his actions on behalf of Melgen did not amount to official acts as defined by McDonnell. This is a strictly legal defense, of a different character than the factual defense based on lack of corrupt intent. Relying on McDonnell Menendez can basically argue, “Even if there was a quid pro quo and I acted in exchange for the gifts that Melgen gave me, that can’t amount to bribery because the actions I took were not significant enough to be official acts.”

Menendez actually undercut his own “official acts” arguments earlier in the case. When arguing that his actions were protected by the Speech or Debate clause, he characterized them as a central part of his duties as a Senator. As the government has pointed out, in one pleading he argued that invoking oversight authority and threatening to use his power as a Senator would qualify as “official acts.” But now that his Speech or Debate arguments have been rejected, his earlier statements have come back to bite him.

With the McDonnell case itself and other cases that have been overturned since McDonnell, such as the  conviction of Sheldon Silver, former Speaker of the New York General Assembly, the problem was the jury instructions. In neither case did the courts say there was no way the defendants could be found guilty of corruption. The problem was that the trials took place before the Supreme Court announced its new “official act” requirement and so the jury instructions didn’t comply with that requirement. The government won’t have that problem here; in an entirely post-McDonnell trial it can ensure that the jury instructions comply with the McDonnell standard.

Menendez has tried unsuccessfully several times to get the judge to dismiss his case based on McDonnell. For reasons that I’ve explained in detail here and here, in the end I don’t expect this to be a problem for the prosecution. I believe the government will be able to demonstrate that Menendez did agree to perform official acts under the McDonnell standard. The key question, as noted above, is going to be why he did so – was there corrupt intent.

Possible Door Opening

The defense will have to tread lightly in some areas to avoid opening the door to the introduction of potentially damaging information. For example, the initial investigation of Menendez and Melgen was based on allegations that the two had consorted with underage prostitutes while at Melgen’s Dominican villa. Those allegations did not result in any criminal charges, but during that investigation the government learned of the other information that led to this indictment.

At various times Menendez has argued his prosecution is politically motivated, claiming, for example, that the Obama administration brought the case to punish him for his opposition to Obama’s policy towards Cuba. The government has said it has no reason to introduce evidence of the prostitution allegations and has no intention of doing so. But if the defense attacks the motives of the prosecution and raises its conspiracy theories, it may open the door to the government bringing in that evidence to explain why the case was actually begun.

Information about Melgen’s conviction for Medicare fraud, or Menendez’s protected Speech or Debate activity, also should not be a part of the case but potentially could be introduced if the defense make arguments or puts on testimony that would allow the government to raise those issues in response.

The Bottom Line

Unlike McDonnell, I don’t expect this case to turn on a technical legal argument. The case is going to come down to whether the government can prove that Menendez corruptly agreed to sell the powers of his office. That’s a factual question that ultimately will be decided by the jury.

The defense has repeatedly shown it is not afraid to be aggressive in responding to the government’s allegations. This will be a hard-fought case. The indictment paints a compelling picture of corruption, but anything can happen at a trial. Stay tuned.

Update: On November 16, 2017, the Menendez trial ended with a hung jury and a mistrial.

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