Why Bob McDonnell Won’t Save Bob Menendez

U.S. Senator Robert Menendez is facing trial this fall on corruption charges. His lawyers will claim the Supreme Court’s recent decision in the Bob McDonnell case means the charges against Menendez cannot stand. But the effect of the McDonnell case on the Bob Menendez trial is likely to be pretty limited.

New Jersey Democrat Menendez and his co-defendant Dr. Salomon Melgen were indicted in April 2015. (You can find my detailed analysis of the indictment here.) The case has been on hold for two years while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trial court and the U.S. Court of Appeals for the Third Circuit rejected those arguments. The Supreme Court recently declined to hear his appeal, finally clearing the way for the case to go to trial.

But while Menendez was pursing his Speech or Debate appeals, the U.S. Supreme Court decided McDonnell v. United States. The Court reversed the convictions of the former governor of Virginia, holding that McDonnell did not perform “official acts” as defined by federal bribery law.

Senator Menendez and his lawyers are hoping that McDonnell will breathe new life into his own defense. They will argue that Senator Menendez, like Governor McDonnell, did not agree to perform any official acts. But for Menendez that’s going to be an uphill battle.

Senator Robert Menendez

Senator Robert Menendez

The Charges Against Senator Menendez

The Menendez/Melgen indictment describes a long-term bribery scheme. It charges that Melgen repeatedly provided Menendez with valuable gifts including multiple trips on his private jet, repeated stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to campaigns and legal defense funds. In exchange, Menendez allegedly interceded on Melgen’s behalf in several different government disputes. The government also alleges Menendez took steps to conceal these facts, including failing to report any of Melgen’s gifts.

The actions Menendez allegedly took on Melgen’s behalf fall into three general categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel to help three different foreign girlfriends of Melgen obtain visas to come to the United States.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the Dominican Republic to provide x-ray screening of cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes. Menendez and his staff contacted different State Department officials, urging them to pressure the Dominican government to implement the contract. At one point Menendez met with an Assistant Secretary of State and said he was unsatisfied with the way State was handling the matter. Menendez allegedly threatened to hold a hearing and call the Assistant Secretary to testify.

Medicare dispute:  Melgen, a prominent Florida ophthalmologist, was embroiled for several years in a multi-million dollar dispute over his Medicare billings. He was allegedly using an eye medication designed for a single patient to treat two or three people. He would then bill Medicare as if he had purchased a separate vial for each patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling.

Menendez and his staff worked for several years to help Melgen resolve this dispute. Menendez personally met with the Secretary of Health and Human Services and with the acting director of the Center for Medicare and Medicaid Services to advocate on Melgen’s behalf.

(As I write this, Dr. Melgen is currently on trial in Florida on a separate indictment charging him with Medicare fraud based in part on this scheme.)

What will be the effect of the McDonnell case on the Bob Menendez trial?

Former Virginia Governor Bob McDonnell

The McDonnell Decision

A jury convicted former Virginia Governor Robert McDonnell and his wife Maureen of multiple counts of corruption in September 2014. The McDonnells accepted more than $170,000 in gifts and undocumented “loans” from businessman Jonnie Williams. In return, prosecutors charged, the McDonnells agreed to promote Anatabloc, a dietary supplement made by Williams’s company, within the Virginia government.

A unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld the convictions. But in June 2016 the U.S. Supreme Court unanimously reversed, holding that the steps taken by McDonnell on Williams’s behalf did not constitute “official acts” under federal bribery law. (You can find my more detailed analysis and critique of the Court’s opinion here.)

The Court based its decision on the language of the federal bribery statute, 18 U.S.C. § 201. That statute defines bribery, in part, as a public official accepting something of value in exchange for agreeing to be influenced in the performance of any “official act.” It further defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . . ”

The evidence had shown that McDonnell made phone calls on Williams’s behalf, arranged meetings for Williams with other Virginia government officials, and hosted a product launch event for Anatabloc at the Governor’s mansion. The Court held that these actions, standing alone, did not amount to “official acts” and could not support a bribery conviction.

The Court broke its analysis down into two steps, focusing on the precise language of the official act definition. First, one must identify the relevant “question, matter, cause, suit, proceeding or controversy” to which the alleged bribe relates. This language, the Court held, connotes a “formal exercise of government power, such as a lawsuit, hearing, or administrative determination.” It suggests something that is “relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and checked off as complete.”

Second, the Court said, the public official must agree to take a “decision or action” “on” the relevant matter, suit or controversy. This requires that the official take some steps to address or decide the matter, or to influence or advise others to do so. In particular, the requirement that the decision or action be “on” the matter – and not merely “about” or “related to” the matter – suggests the official is working to resolve it somehow.

The Court concluded that McDonnell’s actions did not amount to official acts under this analysis. There were several Anatabloc-related issues that could constitute a “question, matter, cause, suit, proceeding, or controversy.” But simply making phone calls or arranging meetings did not amount to “decisions or actions on” any of those questions. McDonnell introduced Williams to various officials and extended other political courtesies related to Anatabloc. But McDonnell did not himself take steps to resolve any of the matters or pressure others to do so. Accordingly, the Court concluded, a bribery conviction based on McDonnell’s actions could not stand.

Did Senator Menendez Perform “Official Acts?”

Even before McDonnell was decided, Senator Menendez had filed motions arguing he had not performed any official acts. The trial court denied those motions back in 2015. Now, in the wake of McDonnell, Menendez will undoubtedly renew those arguments.

If we follow the Supreme Court’s two-step approach from McDonnell, it’s pretty easy to define the relevant “question, matter, cause, suit, proceeding or controversy” for each aspect of Menendez’s case:

1) Should the State Department grant a visa to allow this individual to enter the United States?

2) Should the U.S. government work to persuade the Dominican government to implement the port security contract?

3) Should HHS modify its rules concerning the dosing of a particular eye medication? Or, more specifically, should the Department pursue its claims against Dr. Melgen about alleged overdosing?

Each of these is a circumscribed issue, a question that could be put on an agenda and checked off as resolved. They are the type of specific administrative or policy matters that McDonnell requires.

Menendez will argue that he, like McDonnell, did not take any “decisions or actions on” the defined matters. But Menendez’s actions were much more substantial than McDonnell’s. Menendez did not simply arrange meetings for Melgen or introduce him to other officials. The Senator himself attended various meetings and otherwise advocated for Melgen’s interests. Unlike McDonnell, Menendez was actively engaged in trying to influence the outcome of the matters in question.

An official act must also involve a matter that is “pending, or which may by law be brought before any public official . . . . ” Menendez will also argue that the identified matters were never pending before him and that he did not have the power to decide them. As a result, he will claim, his advocacy on these matters cannot amount to official acts by him.

But the Supreme Court in McDonnell squarely addressed this question. The Court held that a “decision or action” may include influencing another public official who has the power to decide: “decision or action may include using his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.’”

In other words, the official act does not have to be one the defendant himself has the power to resolve. It is sufficient if the defendant attempts to pressure, persuade, or advise another public official to perform an official act.

In the Menendez case the relevant matters were pending before various Executive Branch officials. Their resolution of those questions would constitute official acts. The indictment alleges that Senator Menendez attempted to pressure or persuade those officials to resolve the matters in Melgen’s favor. McDonnell makes it clear that such efforts can be official acts by Menendez,.

Heads I Win, Tails You Lose

Menendez has put himself in a bit of a box with the legal arguments he has already pursued. He argued all the way to the U.S. Supreme Court that the actions he took on Melgen’s behalf were part of his official duties as a U.S. Senator and should therefore be shielded by the Speech or Debate Clause. Courts rejected those arguments because the Speech or Debate Clause shields only legislative activities. Lobbying Executive Branch officials is not protected.

Now Menendez will be arguing that those same actions were so unconnected to his position as a Senator that they could not be official acts. As the government has pointed out, Menendez effectively has argued that nothing a U.S. Senator does can be prosecuted as bribery: if it’s not a legislative act shielded by the Speech or Debate clause, then it’s not an official act and can’t support a bribery conviction. Heads I win, tails you lose.

For example, in their original motion to dismiss based on failure to allege official acts, filed on July 20, 2015, his lawyers argued: “With respect to a U.S. Senator, invoking oversight authority and a threatened use of official powers would be an official act, but it also would be immunized by the Speech or Debate Clause.” (p. 6 fn. 4). But the courts have now rejected the latter half of that claim.

With respect to the Medicare dispute and the port contract issue, the government is indeed alleging that Menendez threatened to hold hearings and otherwise to invoke his oversight authority. Having conceded that these would amount to official acts, it will be a challenge now for the defense to claim otherwise without developing whiplash.

Effect of the McDonnell case on the Bob Menendez trial

As with all criminal trials, the Menendez case is going to come down to the government’s evidence. Menendez may claim that in his interactions with Executive Branch officials he was merely seeking information. He may argue he was not advocating for Melgen or trying to influence those officials. If that turns out to be true, it may be a defense. Merely attending a meeting to gather information would probably not fit the Supreme Court’s definition of official act.

But the government is alleging much more. It intends to prove that Menendez was vigorously advocating on Melgen’s behalf, trying to persuade or pressure Executive Branch officials to decide questions in Melgen’s favor. Such actions would fall squarely within McDonnell and would qualify as official acts by Menendez.

McDonnell’s primary effect will be on the jury instructions. Menendez’s lawyers will not get the case dismissed prior to trial based on the official act issue. Even in McDonnell the Supreme Court did not say it was impossible for any jury to find McDonnell guilty. The problem was that the jury was not properly instructed about the definition of official acts.

The McDonnell case will therefore shape the Menendez jury instructions concerning what the government must prove about official acts. The defense will argue the government has not met its burden. But if it proves the allegations in the indictment, the government should have no trouble meeting the McDonnell standard.

Every public corruption defendant for the foreseeable future is going to seek salvation in the McDonnell opinion. Menendez may have some other viable defenses, including his claim that there was no quid pro quo and that Melgen’s gifts were based simply on friendship. But the McDonnell case and the definition of official act are unlikely to save him.

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Michael Flynn’s Immunity Request: What it Means and How Immunity Works

What does Michael Flynn’s immunity request mean?

President Trump’s former National Security Advisor Michael Flynn has offered to testify about potential Russia connections to the Trump campaign if he is given immunity from prosecution. This raises questions about why he would seek immunity, how the immunity process works, and the potential implications for Flynn and the Trump administration. So here is a primer on Immunity 101, with a focus on the Flynn case.

Michael Flynn's immunity request raises tough issues for Congress

Does This Mean Flynn Is Guilty of Something?

Many sources have pointed out that when talking about aides to Hillary Clinton, Flynn himself suggested that if you seek immunity it probably means you’re guilty of a crime. President Trump has said the same thing and has also urged Flynn to insist on immunity. If you play that syllogism out the conclusion is pretty clear.

But the truth is usually more complicated. Seeking immunity doesn’t always mean you are guilty of something. It does indicate the witness has at least some reason to be concerned about potential criminal exposure. In a politically-charged investigation a witness could fear an unfair prosecution even if convinced he did nothing wrong. Flynn’s attorney has said that in the current political maelstrom Flynn would be crazy to testify without immunity. That’s probably sound advice.

Even without knowing the details of what Flynn would say, it’s not surprising he would seek immunity at this early stage. That doesn’t necessarily mean Flynn has some huge bombshell to drop into the middle of the investigation. It also doesn’t necessarily mean Flynn has information about wrongdoing by others. He may be concerned only about his personal liability for things such as his foreign lobbying activities or potentially lying to the FBI. Or it may just be that his lawyer is acting out of an abundance of caution and Flynn ultimately will not be implicated in any crime at all.

Flynn has maximum leverage right now. Nobody can force him to speak. There’s little downside for Flynn in remaining silent and little upside to testifying now without a deal. His lawyer has tantalizingly dangled the claim that Flynn “has a story to tell” and would be happy to tell it if he receives immunity. There’s a lot of political pressure to get to the bottom of this controversy. Investigators may be tempted to give a quick grant of immunity in order to get Flynn’s story. That’s no doubt what Flynn’s attorney is hoping. That seems like a smart play.

What Does Immunity Cover?

Immunity comes into play when a potential witness has a Fifth Amendment right not to incriminate himself. This right to “take the Fifth” applies not just in court but in other proceedings as well, including Congressional investigations. The request for immunity indicates the witness believes that if he testifies truthfully his testimony could potentially implicate him in some kind of criminal activity.

Immunity means only immunity from criminal prosecution. You can’t get immunity to protect yourself from embarrassment, political damage, civil suits, or other non-criminal fallout. A witness who testifies under a grant of immunity is still potentially subject to all of these other consequences — in fact, those other consequences may be more likely once the witness can no longer remain silent.

Immunity also doesn’t protect you from a prosecution for perjury, obstruction of justice, or related charges based on your immunized testimony — just ask Barry Bonds.

The federal immunity statutes,18 U.S.C. 6001-6005, provide what’s known as use and derivative use immunity. That means whatever the witness says can’t be used against him either directly or indirectly in any criminal proceeding. (Transactional immunity – a broader promise never to charge the witness at all – is not provided for by statute. It can only be obtained by agreement with prosecutors and is extremely rare.)

Direct use would be taking a transcript of the witness’s testimony and introducing it at his criminal trial. Derivative use means using the witness’s testimony to track down other leads and discover new information that is then used against the defendant. For example, if investigators used information learned from the immunized testimony to find new witnesses, those witnesses could not be called to testify against the immunized witness in a criminal trial.

The immunity order is supposed to ensure that, at least as far as criminal proceedings are concerned, the witness remains in exactly the same legal position as if he had never testified at all. Nothing that comes out of the immunized witness’s mouth can lead to evidence used against him in a criminal case.

Congress could choose to grant Michael Flynn's immunity request

Who Can Grant Immunity?

Under the federal immunity statutes immunity can be granted by the Department of Justice or by Congress. Administrative agencies can grant immunity as well, but they need the Attorney General’s approval. Congress does not – it can grant immunity even if DOJ objects.

If immunity is sought in a court or grand jury proceeding, the Department of Justice obtains an immunity order from a district court judge. DOJ will seek the immunity order after determining the public interest in obtaining the testimony outweighs the public interest in potential prosecution of the witness. The judge signs the order but does not review the wisdom of the decision — whether to grant immunity is  up to the Executive Branch.

Congress can likewise seek immunity for any witness called to testify in any Congressional proceeding or committee hearing. In a proceeding before the full House or Senate the request for immunity must be approved by a majority of the members. If the testimony is before a committee, the request must be approved by two-thirds of the members of that committee. Congress must give ten days notice of the request to the Attorney General.

The Attorney General can apply to the court to delay the issuance of the Congressional immunity order for up to an additional twenty days. DOJ can ask Congress not to grant the immunity, but cannot prevent it if Congress insists. Once again, the immunity order is issued by a judge but the court does not review the merits of the decision to grant immunity.

Once a court issues an immunity order, the witness no longer has a Fifth Amendment right to remain silent. The order directs the witness to testify and provides that nothing the witness says can be used against him, directly or indirectly, in a criminal proceeding. If the witness continues to refuse to testify, he is subject to contempt.

News reports refer to Flynn seeking immunity from the FBI, but the FBI itself cannot grant immunity. Immunity in connection with the FBI investigation of the Trump campaign would have to be granted by Department of Justice prosecutors working with the FBI. With Attorney General Sessions recused and calls for an independent prosecutor, there might currently be questions about who exactly within DOJ would make such a decision.

The FBI is investigating but as far as we know no grand jury proceeding has begun. For now, at least, Flynn’s immunity request appears to be primarily in connection with the Congressional investigations. If immunity were granted at this stage it appears Congress would grant it in order to have Flynn testify on Capitol Hill.

News sources on Friday reported that the Senate Intelligence Committee has already rejected Flynn’s request for immunity, calling it premature. Of course, that does not prevent the Committee from reconsidering and granting the request down the road. There have been no reports yet of any decision by the House Intelligence Committee, whose investigation seems mired in partisan gridlock.

How Will Investigators Decide Whether to Grant Michael Flynn’s Immunity Request?

Immunity should only be granted if there is a reasonable basis for the witness’s claim of self-incrimination. Investigators obviously don’t want to run around handing out immunity to every witness who refuses to talk without knowing what the witness will say. This is the “buying a pig in a poke” problem – you don’t want to give someone a free pass on unknown criminal conduct and have him end up confessing to the Kennedy assassination or something.

The most common way to determine whether immunity is appropriate is through a proffer session, either from the witness himself or from his attorney. In such an off-the-record proffer the witness or counsel tells investigators what the witness would say if granted immunity. The investigators, in return, agree not to use anything said during the proffer against the witness.

Before any immunity decision is made, Flynn or his attorney likely would give such a proffer to investigators. They may have already done so.

But the witness is not required to give a proffer. Flynn could remain silent and take the position, “You want to know what I have to say? Give me immunity.” This would be a hardball play by Flynn and his lawyer, but again, at the moment they have the most leverage. Granting immunity under those circumstances would certainly be a high-stakes gamble for Congress.

What If the Fifth Amendment Claim Is Bogus?

If a witness claims he has a Fifth Amendment privilege and investigators don’t believe the privilege claim is valid, they should refuse to grant immunity. They can go ahead and subpoena the witness to testify and see whether he in fact invokes the Fifth. Once actually on the stand the witness may decide to testify after all.

If the witness does refuse to testify, investigators can challenge the Fifth Amendment claim in a hearing before a judge. If a judge determines the privilege claim is valid, the witness may continue to remain silent unless and until he is granted immunity. If the judge finds there is no valid Fifth Amendment privilege, the judge may order the witness to testify. If the witness still refuses, he is subject to punishment for contempt of court or contempt of Congress. He may be jailed for contempt and held until he agrees to comply with the court order and testify.

This all takes a fair amount of time, of course, particularly if either side ends up appealing any court orders. If investigators don’t want to wait and the Fifth Amendment claim is even arguably valid, they may decide just to grant the immunity. That keeps the investigation moving rather than spending months litigating the privilege claim.

Does Getting Immunity Mean Flynn Could Never Be Prosecuted?

Strictly speaking, no. A grant of immunity under the federal immunity statutes doesn’t actually mean there is no way you can ever be prosecuted. The statutes provide only that in the event you are prosecuted your own testimony can’t be used against you directly or indirectly.

Theoretically the government can still prosecute a witness who has testified under a statutory grant of immunity. In such a case the government must establish that none of the evidence it will use is derived in any way from the immunized testimony. If there is a question the court will hold a hearing, and the government must prove by a preponderance of the evidence that it has an independent basis for each piece of evidence.

But practically speaking, if Congress agrees to immunize Flynn he almost certainly will never be prosecuted. Immunized witnesses rarely are. Even if they want to prosecute, it’s usually quite difficult for the government to meet the burden of proving that its case was not tainted by immunized testimony. The most famous example of this problem involves the prosecution of Oliver North.

Oliver North testifies on Capitol Hill

Oliver North testifies on Capitol Hill

Lessons of the Oliver North Case

Oliver North was a member of the National Security Council staff under President Reagan. He was implicated in the Iran-Contra affair, where the U.S. government illegally sold weapons to Iran and used the money to fund the Contra rebel group in Nicaragua. Iran-Contra led to an Independent Counsel investigation, and North was one of the targets of that investigation.

While the criminal investigation was going on, North was subpoenaed to testify before a joint Congressional committee that was also investigating Iran-Contra. Congress granted North immunity, against the wishes of the criminal prosecutors. He subsequently testified for several days and admitted to his role in the scheme, as well as to shredding relevant documents and lying to federal investigators.

North was later indicted and convicted of obstruction of justice and other crimes. But the U.S. Court of Appeals for the D.C. Circuit overturned his conviction on the ground that it improperly relied on the fruits of his immunized testimony.

Prosecutors and agents working on the criminal case had taken great pains to avoid any exposure to North’s Congressional testimony, which was widely televised. But the Court of Appeals held that, for each individual government witness called at trial, prosecutors had to prove the witness had an independent basis to recall every fact about which they testified. The government was required to show that the witness’s recollection had not been influenced in any way by viewing North’s immunized testimony. Prosecutors ultimately were unable to meet that burden and dismissed the case.

The same concerns surround a decision to immunize Flynn. Congress could take steps to minimize any potential exposure to the testimony, such as having Flynn testify only in a closed session, but the risk to any potential future criminal case would still be substantial.

The Congressional grant of immunity in North’s case ended up torpedoing his criminal prosecution. Congress must take great care when considering whether to immunize Flynn, lest it be accused of doing the same thing in his case.

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Supreme Court Allows Challenges to Jury Deliberations Based on Evidence of Racial Bias

What should a court do when confronted with evidence of racial bias in jury deliberations? At common law, once a case was over a verdict could not be challenged based on evidence of what happened during jury deliberations. This historical rule against the impeachment of jury verdicts is codified in Rule 606(b) of the Federal Rules of Evidence. The rule serves to encourage free and frank communications within the jury room, to prevent the harassment of jurors once a case is over, and to promote respect for and finality of jury verdicts.

Last week in United States v. Peña-Rodriguez the Supreme Court ruled 5-3 that the Constitution requires an exception to this rule when there is evidence of racial bias in jury deliberations. (I first wrote about the case when it was argued last fall, you can find that post here.) Faced with the evidence of such bias, the Court was understandably reluctant to leave the defendant without a remedy. But the implications for the jury system go far beyond this single case.

The Issue in Peña-Rodriguez

A Colorado jury convicted Mr. Peña-Rodriguez of unlawful sexual contact with two young women. After the case was over, two jurors reported to his defense attorney that another juror had demonstrated bias against Hispanics during deliberations. That juror reportedly made several statements demonstrating his prejudices, including that the defendant was likely guilty because Mexican men have a macho attitude and believe they can take whatever they want when it comes to women.

The Colorado courts ruled Peña-Rodriguez could not challenge his conviction based on this evidence. Colorado has a rule similar to Federal Rule 606(b), which prohibits the impeachment of jury verdicts based on evidence of what happened during deliberations. The great majority of states follow this same rule.

Nine states, however, follow a more relaxed standard known as the Iowa rule. These states prohibit inquiry into a juror’s own subjective beliefs following a verdict but do allow scrutiny of things that take place during deliberations, including statements reflecting bias by other jurors.

Scene from 12 Angry Men - Racial Bias in Jury Deliberations

Confronting Racial Bias in Jury Deliberations

Peña-Rodriguez argued in the Supreme Court that his Sixth Amendment right to a fair trial required that he be allowed to challenge his conviction. In an opinion by Justice Kennedy, the Supreme Court agreed. The Court ruled there must be an exception to the no-impeachment rule when there are allegations of racial bias in jury deliberations.

The Court held, in effect, that race is different. Our country has a long and troubled history involving racial discrimination, including within the justice system itself. In light of that history, it is essential that there be mechanisms to ensure racial bias does not infect jury verdicts. When there is evidence of such bias, there must be a remedy: “When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.”

It’s true there are other safeguards against biased jurors, including the voir dire process of jury selection. But the Court argued these might not be as effective when it comes to rooting out potential racial animus. Attorneys might be reluctant to press potential jurors about bias out of fear of alienating or offending them. Fellow jurors might be hesitant to report biased conduct that takes place prior to deliberations because it is difficult to accuse a fellow juror of being a bigot.

The Court noted that not every offhand comment or stray remark will justify a hearing challenging the verdict: “For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” The Court said the statements “must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Determining whether that threshold is met will be up to the discretion of the trial judge, who may evaluate the evidence in light of the entire case.

Notably, the Court did not spell out exactly what procedures a trial court should follow when presented with such evidence. Nor did it specify what exactly a defendant must show in order to set aside a verdict and obtain a new trial. The question before the Court was simply whether a defendant has the right to raise such a challenge at all. The details of how that is done will be worked out in the lower courts.

The Court concluded:

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.

The Dissenting Opinions

Justice Thomas dissented. He claimed the historical understanding of the right to a jury trial, as embodied in the Sixth Amendment, did not include the right to impeach a jury’s verdict for any reason. As a result, he argued, even if there were sound policy reasons that might cause a legislature to allow such an inquiry, there was no basis for the Court to find that the Constitution requires it.

Justice Alito also wrote a dissent, joined by Chief Justice Roberts and Justice Thomas. He too claimed the Court’s decision, although well-intentioned, lacked a constitutional foundation. Like Justice Thomas, he argued that historically there was no right to impeach a jury’s verdict and such a right thus could not properly be found in the Sixth Amendment. Congress adopted the traditional no-impeachment policy in Rule 606(b), and the Court had no basis to disturb that policy decision.

Justice Alito argued jury deliberations should be protected because jurors are “ordinary people” who “make decisions the way ordinary people do in their daily lives.” They should not be second-guessed by “trained professionals” who “do not speak the language of ordinary people.” In order to ensure free and frank communications, jury deliberations should be immune from scrutiny even if they occasionally reflect potential improper bias. The law protects other communications, such as those between spouses or attorney and client, even when they include evidence of misconduct. The same should be true, he argued, of jury deliberations.

In addition to agreeing with Justice Thomas’s historical arguments, Justice Alito challenged the majority’s empirical claims that other safeguards in the jury system are inadequate to protect against racial bias. He noted there are many resources discussing how to raise the issue of potential discrimination during voir dire without offending potential jurors. He also said it made little sense to  claim a juror might be somehow reluctant to report biased statements prior to deliberations but more willing to report them after the verdict.

Justice Alito noted that although the majority tried to limit its holding, once the no-impeachment rule was breached it would be difficult to limit the rule only to cases involving racial bias.

jury room door - what should a court do with evidence of racial bias in jury deliberations

Opening the Door to the Jury Room

The central dispute in Peña-Rodriguez was not whether the juror’s comments were reprehensible; all agreed that they were. It wasn’t even over whether it would be a good idea to allow the verdict to be impeached. The dispute was simply over who gets to decide: Congress or the Court. The dissenters argued Congress had already made a policy choice by enacting Rule 606(b) and that there was no basis for the Court to intervene. The majority held the Constitution trumps that decision by Congress when racial bias is involved.

The Court’s decision is understandable; it would be difficult for something that calls itself a justice system to provide no remedy at all when confronted with the evidence in this case. But at the same time, bright-line rules do have some advantages. Now that the door to the jury room has been cracked open, a lot of unanswered questions remain.

Justice Alito is correct when he says there is probably no principled way to prevent the Court’s decision from being expanded in the future. As the majority notes, our country’s history with racial discrimination is unique. But when it comes to an individual defendant’s Sixth Amendment right to a fair trial, it is hard to justify a rule that allows challenges to only some types of discrimination. What about juror bias based on the fact that the defendant is a Muslim? Or a woman? Or gay?

The Court held that remedying racial bias in deliberations is necessary in order to prevent “a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” But surely verdicts that were upheld in the face of other types of discrimination would result in a similar loss of confidence and would require a similar remedy. Logic seems to demand that the Court’s rationale be expanded to other forms of bias in future cases.

Unintended Consequences and Practical Difficulties

 The Court’s decision may have additional unintended consequences. The rule against impeachment of verdicts was designed in part to shield jurors from harassment. There may be greater risk now that attorneys will aggressively seek out jurors after a loss to see if there is information to support a challenge. As the Court observed, those contacts will be limited to some degree by state legal and ethical rules governing when parties and their counsel may contact jurors.

There is also a fear that allowing these challenges will simply drive prejudice underground. Perhaps the biased juror will not speak up, where his ideas may be challenged and refuted by the other jurors, but will simply keep his prejudices to himself out of fear of having his statements challenged later. But this assumes a certain baseline of legal knowledge and perhaps is not a realistic concern. It’s hard to know how much the free-flowing discussion among a jury of Justice Alito’s “ordinary people” is influenced by the intricacies of the law on post-verdict challenges.

Practical issues will confront trial courts faced with a challenge to deliberations. The Supreme Court purposely did not spell out exactly how a court should decide whether a defendant deserves a hearing, or when a court should order a new trial. How does a judge determine whether expressions of bias by a single juror had an impermissible impact on the unanimous verdict of twelve? Should evidence of a single racist juror automatically result in a new trial? Is the court to presume the remaining eleven jurors were passive sheep unable to resist? It may be at least as likely that the remaining jurors rejected the improper views and disregarded any further statements by that juror.

The Peña-Rodriguez jury deliberated for twelve hours. Assessing the impact of a handful of biased statements on that entire deliberative process is a daunting challenge for a judge. It may require examining individual jurors one by one. This again implicates the interests about juror harassment and finality of verdicts that justified the rule against impeachment in the first place. Nevertheless, in those (probably rare) cases where this type of evidence emerges, it will now be up to trial courts to undertake that inquiry, with little guidance from the Supreme Court on how to proceed.

Amending Rule 606, and Schools of Constitutional Interpretation

Now that the Court has constitutionalized the right to challenge some deliberations, it would make sense for Congress to amend Federal Rule of Evidence 606(b) to make something like the Iowa rule the federal standard. Challenges to jury verdicts should be allowed if there is evidence of any kind of improper bias or animus during deliberations. It makes little sense to wait for years while lower courts try to sort out whether Peña-Rodriguez requires them to entertain challenges based on other forms of discrimination.

A final side note: in light of the upcoming confirmation hearings for the nomination of  Neil Gorsuch to the Supreme Court, the different schools of constitutional interpretation highlighted in Peña-Rodriguez are particularly interesting. With its concluding flourish about a maturing legal system confronting the country’s history of racial discrimination, the majority embraced a “living Constitution,” where constitutional norms grow and adapt to support a developing society. The dissenters, on the other hand, represent a classic textualist or originalist view. They interpret the Constitution strictly based on its text and how it was understood at the time it was adopted.

Judge Gorsuch falls squarely within the originalist school of interpretation, as did the man whose seat he would fill, Justice Scalia. It seems likely that if he had been on the Court, Gorsuch would have sided with the dissenters and it would have been a 5-4 decision. This is one of those areas where replacing Justice Scalia with Justice Gorsuch probably would not result in a significant shift in the balance of the Court.

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Why Jeff Sessions Is Unlikely To Face Perjury Charges

Did Jeff Sessions commit perjury? Washington is abuzz over whether the new Attorney General may have lied during his confirmation hearing before the U.S. Senate. During his sworn testimony and in a written questionnaire, Sessions denied having any communications with Russian officials during the course of President Trump’s campaign.

Then last week the Washington Post reported Sessions had met with the Russian ambassador to the United States in July and September of 2016. At the time, then-Senator Sessions was a member of the Senate Armed Services Committee but was also serving as a top foreign policy advisor to the Trump campaign.

In public statements and at a press conference last Thursday, Sessions claimed his responses were truthful. He said he understood the questions to relate only to contacts with Russians on behalf of the campaign. His meetings with the Russian ambassador, he maintained, were in his role as a Senator, not as a Trump campaign surrogate. As such, he did not consider those meetings relevant. Although he said in hindsight he wished he had mentioned the meetings, he said he had no intent to lie.

Attorney General Sessions has now recused himself from any investigation involving President Trump’s campaign. But this has not put to rest the controversy surrounding his Senate testimony. Some Democrats have called on him to resign, and there have been widespread allegations that the new Attorney General may be guilty of perjury.

The political implications of all of this are still playing out. But criminal implications are a different matter. New information may come to light, but based on the facts we have now it’s extremely unlikely a perjury case against Sessions would be appropriate or successful.

Did Jeff Sessions commit perjury? Testifying before Congress.

The Questions and Answers

The precise questions and answers are extremely important in any perjury case. Here is the question posed by Senator Al Franken during the Senate Judiciary Committee hearing on January 10, and Senator Sessions’s response (video here):

Franken: CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, “Russian operatives claimed to have compromising personal and financial information about Mr. Trump.” These documents also allegedly say quote, “There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.”

Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?

Sessions: Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

As many have observed, Sessions did not answer the question asked. Rather than saying what he would do as Attorney General, he volunteered information about his own contacts with the Russians. After this non-response, Franken did not follow up about Russian contacts but simply said, “Very well,” and moved on.

In a written questionnaire submitted after the hearing, Sessions again denied any contact with Russian officials regarding the 2016 election. In that questionnaire Sen. Patrick Leahy asked: “Several of the President-elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Sessions responded: “No.”

The Law of Perjury

The relevant perjury statute, 18 U.S.C. § 1621, applies to any witness under oath who “willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.” Sessions was under oath. He now admits he met with the Russian ambassador. There is little doubt this information would have been material to the Senate’s inquiry. So as with so many white collar cases, the issue boils down to the potential defendant’s state of mind.

Not all false statements under oath are perjury. A perjury charge requires the government to prove the defendant was deliberately lying. If the witness misunderstood or misinterpreted the question, that is not perjury. Nor is it perjury if the witness didn’t remember relevant information. Even if a witness is deliberately evasive, it’s not perjury if the testimony is literally true. To convict, the government must prove beyond a reasonable doubt not only that the statement was false but also that the witness believed it was false when he made it.

Bronston v. United States

Any discussion of perjury should begin with the leading Supreme Court case, Bronston v. United States (1973). Mr. Bronston testified in a bankruptcy proceeding involving his motion picture company. During that testimony the following exchange took place:

Q:      Do you have any bank accounts in Swiss banks, Mr. Bronston?

A:      No, sir.

Q:      Have you ever?

A:      The company had an account there for about six months, in Zurich.

At the time of this testimony Bronston had no Swiss bank accounts and his company had previously had an account in Zurich. His answers were therefore literally true. It was also true, however, that Bronston had previously held a personal Swiss bank account. That account was closed at the time of his testimony. His non-responsive answer to the second question effectively concealed that information.

The government later prosecuted Bronston for perjury. It alleged that his answers, although literally true, were misleading and left a false impression and therefore constituted perjury “by negative implication.”

The Supreme Court rejected this theory and held perjury requires testimony that is actually false. The Court noted that true statements do not violate the language of the statute, even if they are non-responsive or potentially misleading. The statute requires that the witness make a statement he does not believe to be true.

Even if a witness is deliberately evasive, the Court noted, that is to be expected in an adversary proceeding. The burden is on the questioner to pin the witness down. Perjury will not be charged “simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth.”

President Clinton denies allegations concerning Monica Lewinsky

What Is the Meaning of “Is?”

A more well-known example of allegations of perjury involved former President Bill Clinton. When testifying in the grand jury he was asked about a statement made by his lawyer in a civil deposition. His lawyer had stated that Monica Lewinsky filed an affidavit saying there “is no sex of any kind in any manner, shape or form, with President Clinton.” When asked whether that statement by his lawyer was false, Clinton famously replied, “It depends on what the meaning of ‘is’ is.”

As Clinton explained, his lawyer’s statement was present tense – there “is” no sexual relationship. At the time of the statement the relationship between the President and Ms. Lewinsky had ended some time ago. As a result, Clinton testified, the statement that there “is” no sexual relationship was literally true.

The House of Representatives characterized this testimony as perjury in its Articles of Impeachment. But no criminal prosecutor worth his salt would have brought a perjury case. In a trial for perjury the President would have had a rock solid defense: his answer was true. The political consequences of an answer seen as slick and evasive were devastating, but the testimony was not criminal.

Why Proof of Perjury Is So Demanding

As these cases demonstrate, proving perjury is difficult. This is by design. As the Court noted in Bronston, if perjury is not narrowly construed even honest witnesses might fear to testify. Being examined under oath is stressful and unfamiliar territory for most people. Questions may be misunderstood or misinterpreted. Witnesses might forget relevant information. People should not fear being charged with perjury for inaccurate testimony that may have resulted simply from confusion, stress, or misunderstanding.

This is particularly true considering how easy it usually is for a skilled questioner to avoid any such confusion. The questioner must be alert to any evasion or uncertainty and ask appropriate follow-up questions. For example, the lawyer in Bronston failed to ask the obvious next question: “I didn’t ask about the company Mr. Bronston. Did you personally ever have any Swiss bank accounts?” And the questioner in President Clinton’s deposition also failed to follow up: “OK, so you say there is no sexual relationship of any kind. Was there ever?”

It’s not enough if testimony ends up being misleading or unclear. Perjury prosecutions are only successful when a good questioner has removed any reasonable possibility of uncertainty or confusion. Short of that, there is usually too much wiggle room. If the witness later claims the answer was literally true or the question was misinterpreted, proving a deliberate lie beyond a reasonable doubt will be extremely difficult.

Did Jeff Sessions Commit Perjury?

With these principles in mind, let’s consider whether there might be a valid perjury case against Sessions. His critics have focused on his statement to Senator Franken that he “did not have communications with the Russians.” Taken in isolation, that is untrue. But Franken’s question was based on a news report that Trump campaign representatives had been in contact with Russian officials. Sessions’s statement was preceded by his observation that he was occasionally considered a campaign surrogate.

Given the context of Franken’s question and Sessions’s full response, it’s not unreasonable for Sessions to maintain he was referring to any Russian contacts he may have had in his role as a campaign surrogate. Both the question and answer were couched in terms of contacts by the campaign. If it’s true his meetings had nothing to do with the campaign, Sessions could have thought they were not relevant.

Senator Franken has said he believes Sessions should have mentioned the meetings anyway. Sessions himself said in his news conference he now thinks it would have been better if he had done so. But testimony that ends up being misleading or incomplete is not perjury if it is based on an unclear or misinterpreted question the witness thought he was answering.

When it comes to the written questionnaire the potential case against Sessions is even weaker. It specifically asked whether he had communicated with any Russian officials “about the 2016 election.” If in fact his meetings did not involve the election, then his “no” response was completely truthful.

Senator Sessions may have been honestly trying to respond to the questions. He may have been confused or may have interpreted the question differently, as he says. He may have been trying to be cagey to conceal relevant information. Or he may have been deliberately lying. Just as in the case of Mr. Bronston, we’re not sure. And in criminal law, that kind of uncertainty usually translates to reasonable doubt.

Senator Al Franken questions Jeff Sessions

The Unasked Follow-Up Questions

Some have argued that Sessions used his non-responsive answer to pre-empt further questioning by his blanket denial of any contact with the Russians. That doesn’t make a lot of sense to me. Even if you are willing to commit perjury if forced, why go out of your way to lie about something that wasn’t asked? Why try to head off a line of questions that Sen. Franken did not even appear to be pursuing? Sessions could have easily given some non-committal answer about what he would do as Attorney General without exposing himself to possible perjury charges.

In any event, a non-responsive answer does not “pre-empt” further questioning — it invites it. As the Court said in Bronston, the burden is on the questioner to pin a wily witness down. Imagine if Sen. Franken had followed up with this series of questions:

“Well, OK, I didn’t ask you about your own contacts with the Russians, but since you brought it up — are you testifying that you never had any contact with any Russian officials in your role as an advisor to the Trump campaign?”

“Did you have any contact with any Russian officials at all during the time you served as an advisor to the Trump campaign, whether or not those contacts were on behalf of the campaign?”

“Are you aware of anyone else involved in the Trump campaign who had any contact with representatives of the Russian government?”

“Did anyone in the Trump campaign ever ask you to contact any officials in the Russian government on behalf of the campaign?”

If we had answers to these questions, there would be no ambiguity. If Sessions had denied any contact with Russian officials in any capacity at all, the perjury argument would be much stronger. On the other hand, if he had responded truthfully about his meetings with the Russian ambassador, all the controversy of the past week would have been avoided.

Political Remedies v. Criminal Remedies

Critics of Sessions may say I am being too lenient. They may say I am bending over backwards to give him the benefit of the doubt. Yes, I am. That’s how the criminal justice system works. Sessions is innocent until proven guilty – not the other way around. And proving guilt beyond a reasonable doubt to a unanimous jury is a lot tougher than indicting someone on Twitter.

Many are convinced that Sessions deliberately lied. They may be correct. But a criminal case has to be based on evidence, not on gut feelings and suspicious circumstances. Currently the government could muster little in the way of admissible evidence to contradict what Sessions has said about his intent.

Of course this assumes no additional evidence comes to light. If emails, other documents, or witness testimony were to surface indicating that Sessions’s meetings with the ambassador were in fact on behalf of the campaign, that would completely change the picture.

As with President Clinton and his “meaning of is” answer, the political consequences of all of this for Sessions and Trump may be severe. But political remedies are one thing, and criminal remedies are quite another. At least at this stage, those calling for perjury charges are off the mark.

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Emoluments Clause Violations as a Conspiracy to Defraud the United States

If President Trump violates the Constitution’s Emoluments Clause, what might be the remedy? One possibility is a suit challenging such violations as a conspiracy to defraud the United States.

Since Donald Trump was elected, a great deal of attention has been focused on the Foreign Emoluments Clause. This previously obscure provision forbids federal officials from accepting any gifts or emoluments – payments for services rendered — from a foreign state. President Trump maintains an ownership interest in his far-flung business operations and has resisted calls to divest. As a result, many believe he has been violating the Clause from the moment he was sworn in. (For a more detailed discussion of the Emoluments Clause and what it prohibits, see my earlier post here.)

Just last week there were reports of a new Emoluments Clause issue. The Trump Organization apparently had been in a decade-long legal battle to secure a trademark for the Trump name in China. One month after Trump’s inauguration, China finally granted the trademark – even though doing so may have been a violation of its own regulations. This decision came a few days after Trump publicly reaffirmed the U.S. commitment to a “One China” policy. He had expressed some skepticism about that policy shortly after he was elected. The timing of these events raises obvious concerns about the President’s possible divided loyalties and about foreign governments gaining leverage over him. Given Trump’s extensive international holdings, similar potential issues abound.

The Difficult Question of Standing to Sue

If indeed Trump is violating the Emoluments Clause, who can bring a lawsuit to remedy that violation? Plaintiffs in a lawsuit must have standing, a concrete injury that can be addressed by the court. Finding someone with legal standing is a serious obstacle to enforcing the Emoluments Clause. Some argue that only political remedies (including impeachment) are possible. These commentators believe a court likely would find that any private lawsuit based on the Clause presents a non-justiciable political question.

A public watchdog group called Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit shortly after the inauguration, claiming that Trump is violating the Clause. CREW asserts it has standing because Trump’s actions have forced it to devote time and resources to fighting him on these issues.  As a result, CREW maintains, it cannot do much of the other work it would otherwise be doing. CREW has some very prominent attorneys working on the case, but many are skeptical of this standing theory.

Others have suggested a competing business might have standing. For example, if the Bank of China sent all its business to the new Trump hotel in Washington, D.C., a competitor hotel might claim it was injured. But it’s not clear a court would uphold such a private right of action. The Clause’s purpose is to ensure government integrity, not to protect private competitors. And even if standing were found, such a lawsuit likely would face significant hurdles in proving causation and damages.

Image of President Trump at a rally - he may have been violating the Emoluments Clause since day one.

Quo Warranto: A Possible Solution to the Standing Issue

Last week a new legal theory concerning how to enforce the Clause began making the rounds (see articles here and here). Prof. Jed Shugerman at Fordham University Law School first proposed the idea. It avoids the problem of establishing standing to sue President Trump directly. Instead, it focuses on pursuing the Trump Organization for its participation in the President’s receipt of foreign emoluments.

Shugerman notes that states may use a procedure know as quo warranto to bring a civil action against a corporation engaged in illegal behavior. Corporations are creatures of state law, and the state has the power to discipline those that act illegally. For example, New York Business Corporation Law § 1101 allows the state attorney general to bring an action for dissolution against any corporation that has “transacted its business in a persistently fraudulent or illegal manner.” Shugerman argues a state could use this procedure to charge a Trump corporation with serving as a conduit for improper emoluments.

The New York Attorney General would be an ideal candidate to bring such a case, Shugerman says, because the Trump Organization is organized under the laws of New York. If the suit were successful, a court could revoke the Trump Organization’s corporate charter. Shugerman and some others have already filed a letter with the New York Attorney General asking him to consider such a lawsuit. Shugerman believes a number of other jurisdictions could bring similar claims against Trump organizations within their state.

The beauty of Shugerman’s theory is that it avoids the problem of finding private individuals with standing to sue the official violating the Emoluments Clause. Instead it involves public officials – the state attorneys general – filing suit against a private company. There’s no question that the attorneys general have standing to bring such a proceeding. But I think potential legal issues remain.

What Constitutes Illegal Behavior for a Quo Warranto Proceeding?

Prof. Shugerman’s theory faces at least one potential roadblock: proving the Trump Organization or related corporations are conducting business in a “fraudulent or illegal manner” within the meaning of the law. For example, Shugerman suggests a suit could be brought against Trump’s new hotel in D.C. for violating its lease with the General Services Administration. But violation of a lease typically would be considered just a breach of contract, not fraudulent or illegal. It would be surprising if every lease dispute potentially subjected a corporation to an action for dissolution.

Similarly, private corporations typically can’t violate the Constitution, which applies to government actors. So it’s probably unlikely the New York legislature had constitutional violations in mind when it wrote the statute prohibiting illegal corporate behavior. A quo warranto suit based on a constitutional violation would face a strong argument that the statute does not apply.

Even if constitutional violations could serve as the illegal conduct for a quo warranto proceeding, it’s not clear the Trump Organization would violate the Emoluments Clause by receiving gifts from a foreign state. The Emoluments Clause bars only actions by federal officials. On its face the Clause does not prohibit anything done by the Trump Organization or any private company. The corporation is a separate legal entity, even if it does bear Trump’s name.

Prof. Shugerman suggests a state attorney general could hold the Trump Organization liable as the President’s corporate “conduit.” I’m not so sure. In general it’s true that corporations can be held responsible for actions of their agents under the doctrine of respondeat superior (“let the master answer”). This holds true for criminal violations as well as civil. But it’s not clear the same principle should apply when it comes to violations of a constitutional obligation imposed only on a government official.

In addition, under respondeat superior the actions of the agent must be within the scope of his authority. Trump reportedly has turned control of his organization over to his sons. If that’s the case, then he arguably no longer has authority to act on behalf of the corporation. And if that’s true, the corporation could not be held vicariously liable for any of his conduct. When it comes to accepting emoluments the actions are more likely to be taken by Trump’s sons or other corporate officials – but the Emoluments Clause does not apply to them.

In short, I’m not confident that trying to hold the Trump Organization vicariously liable for Trump’s own constitutional violations will work. But all this got me thinking about whether there might be other legal theories under which a state attorney general could argue that Trump-owned companies act unlawfully when they receive emoluments. And that led me to a core white collar criminal statute: conspiracy to defraud the United States.

Image of the US Constitution - the Emoluments Clause is contained in Article I

The Emoluments Clause and Conspiracy to Defraud the United States

The federal conspiracy statute, 18 U.S.C. § 371, prohibits two types of conspiracies: conspiracy to commit an offense against the United States and conspiracy “to defraud the United States, or any agency thereof in any manner or for any purpose.” A conspiracy requires that two or more people knowingly enter into an agreement to achieve an unlawful purpose and that at least one of them takes some action in furtherance of that agreement.

Conspiracy to commit an offense against the U.S. usually means conspiracy to commit a federal crime – conspiracy to commit securities fraud or conspiracy to obstruct justice, for example. But the second prong of the statute, conspiracy to defraud the U.S. “in any manner or for any purpose,” has a broader reach.

To defraud someone usually means to deprive him of money or property. But conspiracy to defraud the United States under section 371 also includes any conspiracy to impair, obstruct or impede the lawful functions of the U.S. government. In Hammerschmidt v. United States in 1924, the Supreme Court held that conspiracy to defraud the U.S.  includes schemes “to interfere with or obstruct one of its lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest.”

The statute applies to schemes such as disguising transactions to evade some government regulatory program, or hiding assets to thwart the IRS. Individuals can commit the offense even if their underlying conduct, standing alone, would not be illegal. The scheme need not result in any financial harm to the government.

Another important aspect of conspiracy law is that not all co-conspirators need to be capable of committing the underlying offense that is the object of a conspiracy. For example, just last spring the Supreme Court held in Ocasio v. United States that private citizens could be convicted of conspiracy to commit extortion under color of official right. Because they were not public officials, they could not be convicted of the extortion offense themselves. But the Court held they were still capable of agreeing to help a public official commit extortion, and thus could be found guilty of conspiracy.

So with the Emoluments Clause the argument would go like this: the Clause is part of a constitutional structure set up to ensure that officers of the United States are free from outside influences and conflicts of interest. The members of the Trump Organization and foreign government agents who provide benefits to that Organization (and thus indirectly to Trump himself) are impairing, obstructing, and impeding that government function by facilitating the acceptance of improper emoluments by the President. This constitutes a conspiracy to defraud the United States under section 371.

Although corporate officers and foreign agents could not violate the Emoluments Clause themselves, they may conspire to help President Trump violate it. And although their actions may not violate any other law, that doesn’t matter. Those actions may still constitute a conspiracy to defraud the United States by interfering with its proper operations.

This would be analogous to cases involving bribery. Laws against bribery are similar to the Emoluments Clause in that both seek to prevent government officials from being swayed by improper outside influences. Prosecutors have charged schemes to bribe federal officials as conspiracies to defraud the United States. Bribery corrupts the political system and thereby impairs the lawful government functions of the United States. The same is true of violations of the Emoluments Clause.

Image of the Bank of China building. China is one potential source of improper emoluments to President Trump.

Details of a Potential Conspiracy

There are a number of possible co-conspirators in any such case. If we take the China trademark example, co-conspirators could potentially include Chinese officials involved. They could also include any officials within the Trump Organization who took part in the transaction. The Trump Organization itself would be vicariously liable through the acts of those officials. A state attorney general would even have the option of listing the President himself as a co-conspirator. By refusing to divest and by allowing his businesses to accept foreign emoluments, he arguably has joined the agreement.

A conspiracy to defraud must involve some kind of deception or dishonesty. There are a number of possibilities here. Assuming the discussions that led up to something like the China trademark deal are not publicly disclosed, for example, that concealment furthers the scheme to defraud. Other deceptions are likely involved in other potential Emoluments Clause violations. One could even argue that the President’s failure to disclose his tax returns is a part of the deception. By concealing the full scope of his financial holdings and potential conflicts, it helps the conspiracy to succeed.

Of course, it’s not realistic to expect Donald Trump’s own Department of Justice to file a criminal case charging members of the Trump Organization with conspiracy. But that’s not necessary. Building on Prof. Shugerman’s argument, a more promising option is to use conspiracy as a basis to allege fraudulent or illegal corporate behavior in a quo warranto proceeding.

This theory avoids many of the potential quo warranto hurdles discussed above. The unlawful conduct is not the violation of the Emoluments Clause but engaging in a conspiracy to defraud the United States by impeding its legitimate operations. There’s no question that a private corporation is capable of committing that offense. The New York statute quoted above requires that the corporation have engaged in fraudulent or illegal conduct. Participating in a conspiracy to defraud the U.S. fits the bill perfectly.

In a civil proceeding, of course, the plaintiff only needs to prove the conspiracy by a preponderance of the evidence, a much lower bar than the proof beyond a reasonable doubt required in a criminal prosecution. And civil discovery in such a proceeding could lead to disclosure of a great deal of relevant information, including Trump’s tax returns.

Like so much involving the Emoluments Clause, this theory is novel and untested. But given the purpose of the Clause, the breadth of the conspiracy statute’s ban on conspiracies to defraud the U.S. “in any manner or for any purpose,” and the use of a similar theory in bribery cases, I think it’s a compelling argument. A state attorney general or other litigant contemplating a quo warranto proceeding should consider throwing this conspiracy argument into the mix.

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Judge Gorsuch, White Collar Crime, and the Legacy of Justice Scalia

The confirmation battle over Neil Gorsuch, President Trump’s pick to fill the vacant seat on the U.S. Supreme Court, promises to be ugly. All aspects of his record will be thoroughly dissected — and likely distorted — by both political parties. Looming over the proceeding is Democratic anger over the Merrick Garland nomination and the threat of Republican Senators to invoke the “nuclear option” to break any Democratic filibuster. It’s destined to be one of those political knife fights that reminds everyone why they hate Washington.

Partisans on both sides will be trying to predict how a Justice Gorsuch might rule on any number of hot-button issues. But here at Sidebars we are particularly interested in how Gorsuch’s presence on the Supreme Court might influence the law of white collar crime. So I spent some time this week reading opinions written by Judge Gorsuch on the 10th Circuit Court of Appeals in cases involving white collar offenses such as mail and wire fraud, public corruption, obstruction of justice and money laundering, to see if I could glean anything from those decisions.

I didn’t find anything particularly remarkable. Most of the white collar cases where Judge Gorsuch wrote the opinion for a three-judge panel ruled in favor of the government, but that’s true of most criminal appeals. Most of the decisions were unanimous. That’s also not unusual, but at least it suggests a judge who generally colors within the lines of established precedent and is not a bomb-thrower writing dissents advocating extreme positions.

One thing I definitely learned is that Judge Gorsuch is indeed a terrific writer, as many others have noted. His opinions are clear, concise, and free of legal jargon. They are a pleasure to read, which is saying something when it comes to judicial opinions. In that regard he reminds me of Justice Kagan, in my view currently the best writer on the Court. That’s something I really admire — although I guess if you fear a Justice Gorsuch is going to gut your fundamental liberties it’s cold comfort to know he’ll do it with great style and clarity.

In any event, it appears unlikely that any of Judge Gorsuch’s opinions in white collar cases will be particularly controversial or a focus of his confirmation hearing. But that doesn’t mean there is nothing we can learn about how Justice Gorsuch might approach such cases at the high court.

Those who have studied or worked with Judge Gorsuch and know him best describe him as a judge in the mold of Antonin Scalia, the Justice whose seat he would assume. The opinions and other materials I reviewed certainly support that characterization. And if Justice Gorsuch does follow in the footsteps of Justice Scalia when it comes to criminal law, it could lead to some interesting and potentially surprising results.

Antonin_Scalia_Official_SCOTUS_Portrait

Justice Scalia’s White Collar Legacy

When it comes to Justice Scalia and criminal law, it’s complicated. Although conservative, he was definitely not a “hanging judge” ruling against criminal defendants at every opportunity. On the contrary, Scalia’s strict approach to statutory and constitutional interpretation often resulted in decisions that favored criminal defendants – and often led him to side with some of the most liberal members of the Court.

In constitutional law, Justice Scalia’s originalist approach made him suspicious of expansive notions of government power and protective of the rights of criminal defendants embodied in the text of the Constitution. In areas such as the right of defendants to confront witnesses against them (for example, Crawford v. Washington), the right to a jury trial (Blakely v. Washington), and the right to be free from unreasonable searches and seizures (Florida v. Jardines and Kyllo v. United States, for example), Scalia was a powerful voice warning against government encroachment on these fundamental constitutional liberties. On the other hand, when it came to doctrines he considered judicial inventions not found in the text of the Constitution – such as the exclusionary rule and right to Miranda warnings – he was much less sympathetic.

White collar cases more often involve the interpretation of statutes, not the Constitution. And white collar statutes are notorious for being broad and somewhat vague, using sometimes fuzzy terms such as “fraud” that are not otherwise defined. Justice Scalia authored a number of significant white collar opinions and dissents. His strict textualist approach generally led him to read white collar statutes narrowly. He was skeptical of prosecutors’ attempts to fashion expansive theories of criminal liability not directly spelled out in the statutes. Some Justices are much more willing to hold that courts should flesh out the parameters of broadly-worded criminal laws; Scalia insisted that crimes had to be specifically defined by Congress, not by judges.

For example, Justice Scalia was a long-time critic of a popular species of mail and wire fraud known as honest services fraud. Frequently used in prosecution of state and local corruption, it charges that victims were defrauded not of money or property but of their intangible right to the honest services of a politician or other individual who owed them a duty. Justice Scalia maintained throughout his career that the idea of “honest services” was too amorphous to support criminal liability and failed to provide adequate notice about what conduct was prohibited.

In Skilling v. United States in 2010 the Court responded to vagueness concerns by narrowing honest services fraud liability to cases involving bribes and kickbacks. Justice Scalia wrote a separate opinion arguing that the Court should go further and declare the honest services fraud statute unconstitutionally vague in all circumstances. (He even referred to it as “so-called honest services fraud,” a locution that President Trump might appreciate.)

In another leading mail fraud case, Schmuck v. United States (yes, that’s the real name), the issue was whether the mailings proved by the prosecution actually furthered the scheme to defraud as required by the statute. The majority adopted a broad reading of the “in furtherance” requirement and upheld the convictions. Justice Scalia dissented, criticizing the prosecution for what he deemed an overly-expansive view of the mail fraud statute. His opinion arguing that the defendant’s convictions should be reversed was joined by Justices Brennan and Marshall, two of the most liberal Justices of the 20th century.

Justice Scalia similarly favored a narrow reading of a public corruption theory called extortion under color of official right under the Hobbs Act. In 1992 in Evans v. United States, the majority held that extortion under color of official right was basically equivalent to bribery. Justice Scalia joined a dissent by Justice Thomas arguing that bribery and extortion are distinct crimes and that the majority opinion wrongfully resulted in a vast expansion of federal criminal law and the power of federal prosecutors.

Of course, strict interpretation of the statute sometimes meant the defendant lost. For example, Brogan v. United States involved the false statements statute that criminalizes lying to the government about material matters. Lower courts had created an exception to the statute, known as the “exculpatory no,” holding that prosecution could not be based on a defendant’s mere denial of guilt. Justice Scalia wrote the majority opinion holding the text of the statute contains no such exception and stating “[c]ourts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so . . . .” (He also noted the defendant’s concession that “under a ‘literal reading’ of the statute he loses.” If you had made that concession and then saw that Justice Scalia was writing the opinion in your case, you knew it was not going to be a good day.)

Recently in Yates v. United States the defendant was charged with obstruction of justice, a twenty-year felony, for throwing overboard some undersized fish that were evidence he had violated fishing regulations. During oral argument Justice Scalia expressed outrage that the government had brought such a case. But in the end he refused to join the five-Justice majority reversing the conviction on the questionable ground that fish were not “tangible objects” within the meaning of the law. Instead he joined with Justice Kagan in dissent, arguing that the plain wording of the statute compelled a ruling in favor of the government. He clearly thought the prosecution was misguided, but did not believe the solution was for the Court to adopt a strained interpretation of the statute that was contrary to its plain language.

gorsuch

Judge Gorsuch and White Collar Crime

Would Justice Gorsuch channel Justice Scalia when it comes to white collar crime? It’s always a bit dicey trying to predict how a judge would behave on the Supreme Court based on his appellate opinions. Appellate judges, of course, are bound by Supreme Court precedent, so they generally don’t have the same freedom and opportunities to decide novel legal questions. But there is reason to believe Justice Gorsuch’s approach would indeed look a lot like Justice Scalia’s.

Judge Gorsuch shares Justice Scalia’s belief in strict construction of the Constitution according to the intent of its framers. In a widely-quoted concurrence in Cordova v. City of Albuquerque, he wrote:

Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams . . .  but a carefully drafted text judges are charged with applying according to its original public meaning.

Judge Gorsuch also appears to share the concerns of Justice Scalia about overcriminalization and sweeping criminal statutes that may place too much power in the hands of prosecutors. In a law review article in 2010 Judge Gorsuch wrote: “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

Judge Gorsuch’s strict textualist approach to statutory interpretation has occasionally led him, as it did Justice Scalia, to rulings that narrowly interpret criminal statutes and favor criminal defendants. One example involves a statute that makes it a crime for an individual with a felony conviction to possess a firearm, 18 U.S.C. § 922(g)(1). The 10th Circuit has agreed with the majority of courts of appeal that the government in such a case needs to prove only that the defendant knew he possessed a gun and does not need to prove the defendant knew he had a felony conviction.

Judge Gorsuch disagrees. In a classic Scalia-esque statutory interpretation argument, he has argued that the plain language of the statute requires the government to prove both – an interpretation that, if adopted, would favor defendants and place a heavier burden on the government. In one of the cases, United States v. Games-Perez, notice Judge Gorsuch’s language in his concurrence expressing disagreement with his colleagues:

Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case. . . .

I recognize that precedent compels me to join the court’s judgment. But candor also compels me to suggest that we might be better off applying the law Congress wrote than the one [the court’s earlier decision] hypothesized. It is a perfectly clear law as it is written, plain in its terms, straightforward in its application. Of course, if Congress wishes to revise the plain terms of [the statute] it is free to do so anytime. But there is simply no right or reason for this court to be in that business.

Those final two sentences could have been lifted straight out of a Justice Scalia opinion: the statute says what it says, and if there’s a problem it is up to Congress to fix it, not the court.

But what a marked contrast to the writing style of Justice Scalia, who was famous for disagreeing with his colleagues in the most sarcastic and acerbic terms. In addition to being a gifted writer, Judge Gorsuch displays much more of a traditional judicial temperament than the man he would replace.

Later, dissenting from a denial of a rehearing en banc in the same case, Judge Gorsuch wrote a impassioned defense of the right of criminal defendants to be convicted only if the government proves every element of the offense: “There can be few graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.”

Another 10th Circuit case, United States v. Makkar, involved a prosecution under the analogous drug act, which criminalizes selling substances that mimic a listed controlled substance. In another pro-defendant decision, Judge Gorsuch reversed the convictions and held that the plain language of the statute requires the government to prove the analogous substance had the same chemical structure as the controlled substance, not merely that it had the same effects on the user.

In addition to strictly interpreting criminal statutes, Judge Gorsuch, like Justice Scalia, has a history of holding prosecutors’ feet to the fire and insisting they play by the rules. For example, in United States v. Farr, a tax fraud case, Judge Gorsuch ruled in favor of the defendant and held that prosecutors had improperly convicted him under a theory of tax fraud different from the one that was charged in the indictment.

In a case that might be of interest in the current political environment, Judge Gorsuch also wrote the opinion in United States v. Hasan, reversing the perjury conviction of a Somali refugee. He ruled the trial court had erred by finding the defendant was not entitled to an interpreter when testifying in the grand jury. This was under the extremely deferential “plain error” standard of review, and it would have been easy for an appellate judge simply to defer to the judgment of the trial court. If opponents try to portray Judge Gorsuch as a cold-hearted conservative who cares nothing about the most vulnerable among us, we might see this opinion trotted out in response.

Overall, Judge Gorsuch’s opinions related to criminal law are largely uncontroversial and closely adhere to governing precedent. He definitely takes a strict approach to the interpretation of texts. He does not appear to be results-oriented and will not hesitate to rule against the government and in favor of a criminal defendant if he believes that is required. His approach to criminal law in general and white collar crime in particular does seem to be very similar to Justice Scalia’s.

At least as far as criminal law is concerned, Democrats thinking about opposing his nomination should probably consider they could do a lot worse.

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Selling Access: President Trump, Corruption, and the Legacy of Bob McDonnell

President Donald Trump took office last week amid a storm of controversy over ethics and potential conflicts of interest. There are widespread concerns about possible corruption in the Trump administration. A key focus has been the Emoluments Clause of the Constitution, which forbids federal officials to accept any payments or gifts from foreign governments. Trump’s extensive international business holdings appear to make violations of that clause almost inevitable. (I wrote last November about the Emoluments Clause and how it relates to bribery; you can find that post here.)

Trump recently did announce some steps to transfer control of his businesses to his sons, although it is unclear to what extent that has actually taken place. The head of the U.S. Office of Government Ethics, Walter Shaub, pronounced these efforts wholly inadequate  – and promptly found himself summoned to Capitol Hill to explain his temerity to a Congressional committee. Then this past Monday a public watchdog group and several prominent law professors filed a lawsuit asking a federal court to rule that the new president is already violating the Emoluments Clause.

But the Emoluments Clause is only one of the conflict of interest issues surrounding President Trump. A related ethical concern is the potential for access to the President and his administration to be used as a bargaining chip in his private business dealings. Businesses or governments could secretly agree to provide benefits to Trump-owned businesses in exchange for a private audience with the President or other Executive Branch officials, where they could lobby for government actions that would benefit them. The breadth of the President’s business holdings — and his refusal to divest himself of those holdings – creates an unprecedented risk of such conflicts.

Trump and his family have already demonstrated what might charitably be called a lack of sensitivity to the ethical issues that surround selling access to the White House. In December a nonprofit where Trump’s sons were registered as directors promoted an inaugural event called “Opening Day,” supposedly to benefit unnamed charities related to conservation. It offered donors of $1 million attendance at a private reception with the President-elect, as well as a four-day hunting or fishing excursion with one of his sons. In another incident, a charitable group ran an on-line auction of an opportunity to have coffee with Trump’s daughter Ivanka. The bidding was above $70,000 before the effort was shut down following media inquiries.

Even though the money from such events may go to charity, the buyer’s motives are not necessarily charitable. For example, the high bidder in the auction for coffee with Ms. Trump told the New York Times that he wanted to urge her to persuade her father not to go too far in restricting immigration. Another bidder hoped to speak to her about the Trump administration’s relationship with the Turkish government.

These efforts to sell access to the President and his family raised ethical red flags for a simple reason: access is valuable. Time on any senior government official’s schedule is a scarce commodity. Those able to meet personally with that official (or his family) have an advantage generally unavailable to ordinary citizens: the ability to directly and privately advocate for their own interests. Attempts to cash in on access to government officials – even for charitable causes – are deemed inappropriate because time with those who are supposed to serve all citizens should not be auctioned off to the highest bidder.

But public charity sales of access are just the tip of the potential ethics iceberg. Of far greater concern are transactions that could take place entirely out of public view. For example, imagine this hypothetical: a foreign company is negotiating some kind of deal with a Trump organization business. The company’s officers make it known that they will offer a sweetheart deal at substantial savings if, in exchange, Trump sets up a meeting for them with the Secretary of Commerce to discuss removing certain import restrictions that apply to the company’s products. (Note that because this hypo involves a private company, not a foreign government, the Emoluments Clause would not apply.)

Trump agrees and the deal goes through. Because it involves two private companies, it is not publicly disclosed. Trump then calls the Secretary of Commerce and says, “These guys are friends of mine, I’d like you to meet with them and hear what they have to say about these import sanctions.” Trump doesn’t tell the Secretary about the art of his deal with the company. He also doesn’t tell the Secretary how to decide the question, but the Secretary is no dummy and can read between the lines to see what would please the boss. The meeting happens, the import restrictions are lifted, both sides are happy, and the country is none the wiser.

Remarkable as it may seem, if such a scheme took place it would not violate federal bribery law. And for that, President Trump can thank the former Governor of Virginia – and the U.S. Supreme Court.

Image of Bob McDonnell, former governor of Virginia, whose case paved the way for corruption in the Trump administration

Access for Sale: McDonnell v. United States

Regular readers know that I’ve written a number of posts about McDonnellhere, here, and here, for example – that provide more details about the case. In brief, former Virginia Governor Robert McDonnell and his wife Maureen were prosecuted for essentially selling access to Virginia government officials. Businessman Jonnie Williams was interested in having Virginia universities conduct research on his company’s dietary supplement Anatabloc. Over a two-year period he gave the McDonnells a variety of personal gifts and loans worth more than $170,000.

In exchange, the McDonnells agreed to help promote Anatabloc within the Virginia government. Governor McDonnell arranged meetings for Williams with various government health officials and researchers so Williams could make his pitch. He also held a product launch event for Anatabloc at the Governor’s mansion, attended by state health officials and other government employees.

The McDonnells were found guilty of multiple counts of corruption following a jury trial, and the Fourth Circuit Court of Appeals unanimously upheld their convictions. But last June the U.S. Supreme Court unanimously reversed, holding that the actions taken by McDonnell on Williams’ behalf were too inconsequential to support a bribery conviction.

The Supreme Court held that simply arranging a meeting, making a phone call, or holding an event did not constitute an “official act” under federal bribery law. An official act, the Court said, requires the public official to take some more substantive steps to resolve a particular question or matter that may be pending before the government, or to pressure another official to do so. Preliminary actions or political courtesies such as arranging a meeting, the Court held, do not rise to that level.

After McDonnell, merely arranging access to government officials may not form the basis of a corruption conviction, even in extreme circumstances. For example, a governor could establish a policy whereby anyone who wanted to meet with a member of his administration had to pay the governor $10,000 to arrange the meeting. Similarly, a company could offer millions of dollars in secret benefits or concessions to a Trump business in exchange for a private dinner with the President or meeting with a Cabinet official. Neither arrangement would violate federal bribery law.

Bribery laws aim to prevent government officials from using their public office to enrich themselves by offering favorable treatment to those willing to pay. Determining whether such a corrupt arrangement exists requires looking at the entire agreement – the quid, the pro, and the quo – and not just focusing on a single side of the equation. The McDonnell decision, through its myopic focus on the meaning of “official act,” effectively took off the table an entire area of public corruption law: the sale of access to government officials.

Image of a bribe taking place - bribery is a key corruption offense

Not All Access is Created Equal

Those familiar with the ways of Washington may observe that access is always up for sale to some extent. It’s just a reality of politics. Large campaign or PAC donors are regularly treated to private events with public officials. For example, large donors to the Presidential Inaugural last week were rewarded with access in the form of a candlelight dinner with Trump and Vice-President Pence at Washington’s Union Station.

This is part of what motivated the Supreme Court in McDonnell. The Court was concerned that if providing access could support a bribery conviction, then many routine interactions with supporters and political courtesies might end up being prosecuted. But again, this mistakenly focuses only on one side of the equation. It’s true that arranging a meeting may be an innocent political courtesy, just as voting on a bill may be a routine political act. But if either is done in direct exchange for a corrupt, secret gift that enriches the politician, that is neither innocent nor routine.

In deciding whether a sale of access might be corrupt, one should consider the whole picture. For example, donations to campaigns take place within a legal framework that generally involves at least some public disclosure and contribution limits. The public is able to see who is supporting the official and to what extent, and to judge the official’s actions accordingly. Sunlight is the best antidote for corruption.

Our current campaign finance system, whatever its flaws, is legal. Contributions made within the framework of that system come with almost a presumption of regularity, and are on a completely different footing from secret, undisclosed gifts. Access may be provided after such contributions, but proving corrupt intent in a case involving lawful contributions will be extremely difficult.

Another distinction is the type of access provided. There’s a big difference between attending a dinner or reception with a few hundred other donors (even by candlelight) and a one-on-one private meeting with an official. The former is more likely to be just a social event where the donors enjoy simply being in the presence of power and perhaps get a chance for a selfie; that is not a setting conducive to corrupt, secret deals.

But the most crucial factor on the quid side of the analysis can be summed up in the immortal words of Watergate’s Deep Throat: follow the money. Campaign contributions go to the campaign, a separate legal entity, as do donations for things such as PACs or Inaugural events. The public official is benefitting indirectly, to be sure, but the support is directed more at the office and campaign and not to line the official’s own pockets.

Contrast this with what Jonnie Williams gave to the McDonnells – secret gifts that enriched the family personally. These were not campaign contributions or other legitimate donations. Rolex watches, New York shopping sprees, and sweetheart loans do not show up on campaign finance reports, are not subject to any legal limits, and personally enrich the official. Unlike routine campaign or PAC contributions, secret gifts to a politician have no legitimate or legally recognized purpose and automatically have the whiff of corruption about them.

The point of all this is simply that it should not be enough to say, “Well, all he did was arrange a meeting, so there can be no corruption.” All of the circumstances surrounding any alleged deal have to be examined. The secret sale of access to public officials causes the exact harm that laws against bribery are intended to prevent: politicians enriching themselves by handing out favors only to those willing to pay. Unfortunately, the McDonnell decision has created a safe harbor for just that kind of corruption.

The Need for Divestiture

Some might suggest this is not a serious problem because there are other potential controls besides the criminal law. For example, the attempts to sell access for charitable causes that I mentioned at the top of this article were exposed and then cancelled. Perhaps the voters and the media can police any such misconduct and shame officials into proper behavior. Ultimately, unhappy voters can always express their displeasure at the ballot box.

But the problem with relying on public pressure and media scrutiny to police such actions is that it assumes full access to information. Most corruption takes place in secret. Although the charitable fundraising efforts were necessarily public, backdoor deals are not. Corruption and conflicts of interest can be very difficult to detect. This is why divestiture of assets that pose a potential conflict is so important: it removes even the possibility of using the power of one’s office to profit off of those assets.

The scenarios outlined here are hypothetical, of course. But the potential for this President to enrich himself and his family through the power of his office is truly extraordinary. With a green light from the Supreme Court, Trump and his family are free to use access to Washington power as a bargaining chip in his private business dealings, taking comfort in the fact that even if their actions come to light, they will not be unlawful.

Yet another way in which the Trump presidency is unprecedented.

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