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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Update: California Appeals Court Overturns Ban on Use of Grand Juries in Police Deadly Force Cases

In a post last year on grand jury secrecy, I wrote about how the state of California had banned the use of grand jury proceedings in cases involving the use of deadly force by police officers. The California state constitution provides that all felony cases shall be prosecuted by either grand jury indictment or by an information following a probable cause hearing before a magistrate. Which method to use is generally left up to the district attorney.

But in the wake of several controversial cases nationwide involving police use of deadly force, California legislators concluded that the secrecy of grand jury proceedings contributed to an atmosphere of suspicion surrounding such cases. They argued that the outcomes of grand jury investigations “can seem unfair or inexplicable” because the secret proceedings lack “transparency and accountability.” They concluded that, due to the intense public interest in and concern about cases involving the police, more openness was necessary. Accordingly, they amended the California Penal Code to prohibit the use of a grand jury to investigate any case involving the use of deadly force by a law enforcement officer. As a result, such cases could be charged only via a public hearing before a magistrate.

In that earlier post, I argued that this legislation was misguided and would likely make it more difficult to conduct fair investigations of cases involving police officers. As the California legislature noted, such cases often involve intense public scrutiny and interest. Whether they support the prosecution or the defense, witnesses in those cases may face tremendous public pressure related to their testimony. Grand jury secrecy allows the witnesses in such high-profile investigations to testify truthfully without fear of becoming the target of a vitriolic social media campaign or finding protestors on their front lawn. The grand jury proceeding provides a confidential forum where representatives of the community — the grand jurors themselves — can explore what happened largely free from the political pressure and social passions that may surround these cases.

The California legislation took effect on January 1, 2016 and was immediately challenged by a group of district attorneys led by Vern Pierson, the DA for El Dorado County. They argued that the law was unconstitutional and inhibited their ability to do their jobs effectively. This week a California Court of Appeals ruled in their favor and held that the legislation violated the California constitution.

The court noted that the law was the “first legislative effort in 167 years to constrict the grand jury’s power under the Constitution to exercise its power of indictment.” The state constitution provides for the potential use of the grand jury in all felonies, and the legislature was not free simply to disregard this mandate for a particular category of cases. If the legislature had that power, the court reasoned, the logical implication would be that it could abolish grand juries altogether, which would plainly conflict with the constitutional mandate.

The court noted that if the legislature wanted to restrict the use of grand juries, it was not powerless. It could pursue a constitutional amendment to alter the current language providing for the option of a grand jury investigation in all felony cases. It could also follow the “less cumbersome route” of modifying the rules of grand jury secrecy, which are not constitutionally mandated, to provide for more openness and public disclosure in grand jury investigations. But given the constitutional language, the legislature was not free simply to ban the use of grand jury proceedings altogether for a particular class of cases.

This is a good result for the people of California. As the prosecutors who challenged the law recognized, they are more likely to achieve a just result in police investigations if they are able to utilize the grand jury and the safeguards that it provides. The irony of the California legislation was always that it potentially sacrificed justice on the altar of transparency.

The opinion is narrow; it focuses only on the fact that the legislation was inconsistent with the state constitution. The court does not discuss the benefits of secret grand jury proceedings, particularly in high-profile cases, and why the legislation may have been a bad idea. That’s understandable, but unfortunate. It would have been nice to see a judicial recognition and discussion of how grand jury proceedings can best serve the interests of justice by providing a dispassionate forum to investigate controversial cases.

The concern now has to be that the legislature will follow the court’s suggestion and pass a law to limit or abrogate grand jury secrecy in police cases, or perhaps in all cases. But secrecy is a fundamental characteristic of grand jury proceedings and provides a number of important benefits. Hopefully cooler heads will prevail and the legislature will recognize that the solution to concerns about the police and use of deadly force is not to start tinkering with the essential nature of the ancient institution of the grand jury.

The case is The People ex rel. Vern Pierson v. The Superior Court of El Dorado County, CA Court of Appeal, Third Appellate District, No. C081603 (Jan. 10, 2017). (Click here to download the opinion.) Hat tip to Patrick O’Toole, a district attorney in California, who was involved in the case from the beginning, co-argued it in the California Appeals Court, and kept me updated on its progress.

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