The Limits of Friendship: Menendez Trial Update

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

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

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

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

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

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

Challenger private jet, the type owned by Dr. Melgen

With Friends Like These

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

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

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

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

Villa at Casa de Campo, Dominican Republic

Lifestyles of the Rich and Famous

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

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

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

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

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

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

Political Implications of a Conviction

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

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

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

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

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

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

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

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

More on Menendez, McDonnell, and Public Corruption

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

C-Span’s Q & A – September 17, 2017

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

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What to Watch For at the Bob Menendez Trial

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

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

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

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

Federal courthouse, Newark NJ

The Allegations

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

Melgen’s gifts to Menendez allegedly included the following:

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

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

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

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

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

The Central Issue: Was There Corrupt Intent?

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

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

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

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

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

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

Senator Menendez faces multiple counts of corruption

Senator Bob Menendez

Proving Corrupt Intent

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

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

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

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

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

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

McDonnell and “Official Acts”

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

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

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

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

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

Possible Door Opening

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

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

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

The Bottom Line

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

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

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Sheldon Silver, Bob McDonnell, and the Sorry State of Public Corruption Law

The Supreme Court’s Bob McDonnell decision claimed its highest-profile casualty last week. On July 13 the United States Court of Appeals for the Second Circuit threw out the corruption convictions of Sheldon Silver, the former Speaker of the New York State General Assembly. The court ruled that, in light of McDonnell, Silver’s jury was not properly instructed on what constitutes an “official act” in a corruption case.

Silver is not out of the woods yet; he may well be convicted again after a new trial. But his case does highlight how much easier it is in the post-McDonnell era for public officials to sell government access to the highest bidder.

Regular readers know I’ve written extensively, and critically, about McDonnell. By adopting an artificially narrow definition of “official act,” the Court in McDonnell cleared the way for public officials to enrich themselves through secret gifts and payments. The Silver case highlights the safe harbors McDonnell creates for corrupt behavior and the sorry state of public corruption law.

Sheldon Silver

Facts of the Silver Case

Sheldon Silver was first elected to the New York State Assembly in 1976, representing much of lower Manhattan. He was elected Speaker in 1994 and held that position until he resigned in 2015. As Speaker, he was one of the most powerful politicians in the state.

In 2015 the United States Attorney’s Office for the Southern District of New York (then headed by the recently-fired Preet Bharara) indicted Silver. The charges were based on two different corruption schemes.

In the first, the government charged that Silver agreed to do political favors for Dr. Robert Taub, a physician and researcher at Columbia-Presbyterian Hospital who specialized in mesothelioma. Silver obtained state grants worth $500,000 to support Dr. Taub’s research, introduced a state resolution commending Dr. Taub, worked to help secure jobs for his children, and did other favors for him.

In return, and to curry favor with Silver, Dr. Taub regularly referred mesothelioma patients who needed legal representation to a law firm with which Silver was affiliated. Silver received a percentage of any legal fees that resulted. Over a ten-year period, Silver earned about $3 million from Dr. Taub’s referrals.

The second scheme involved two major New York real estate developers. Over a number of years Silver took actions in the state legislature to benefit the developers on issues related to real estate taxes and rent legislation. In return, the developers sent tax-related work to another law firm that also had an arrangement with Silver. These referrals resulted in nearly another $1 million in fees for Silver.

In short, the government charged that Silver enriched himself to the tune of about $4 million through these referral schemes, which were not disclosed to the public. In return, he used the considerable powers of his office to benefit those providing the referrals.

The charges against Silver included honest services fraud and Hobbs Act extortion under color of official right. These were also two of the primary statutes used in the McDonnell indictment. Both charges, which are essentially bribery by another name, are commonly used in public corruption cases.

Bob and Maureen McDonnell

Bob and Maureen McDonnell

The Bob McDonnell Decision

Former Virginia Governor Robert McDonnell and his wife Maureen were convicted on multiple counts of corruption in 2014. Prosecutors charged that the two accepted more than $175,000 in secret gifts and loans from businessman Jonnie Williams. In return, Williams sought to have the McDonnells promote his company’s dietary supplement, Anatabloc, within the Virginia government.

In exchange for the gifts, McDonnell introduced Williams to Virginia health researchers and arranged meetings for him with other government employees. He also held a product launch event for Anatabloc at the Virginia Governor’s mansion, attended by other state employees and health officials.

The U.S. Court of Appeals for the Fourth Circuit unanimously upheld the McDonnell convictions. But in June 2016 the U.S. Supreme Court unanimously reversed.

Bribery requires a quid pro quo, an exercise of government power in exchange for something of value. There was no doubt Williams had showered the McDonnells with secret gifts that satisfied the quid side of the equation. But the Supreme Court ruled that in a federal corruption case the quo agreed to by a public official must fit a specific definition of an “official act.” McDonnell’s actions, the Court concluded, did not rise to that level.

The McDonnell Court held that an official act must be a “decision or action on any question, matter, cause, suit, proceeding or controversy” that is or may be pending before the public official. It must be specific and focused, and involve a “formal exercise of government power” similar to a lawsuit before a court or a hearing before an agency. The public official must take an action “on” that matter, such as taking steps to resolve it somehow or pressuring another to do so.

Merely arranging a meeting or holding an event, the Court held, does not constitute an official act. These are simply routine political courtesies and interactions with constituents, not decisions or actions on a particular matter or controversy. If they could form the basis of a corruption case, the Court said, politicians would be unable to perform routine services for any supporter without fearing a potential criminal prosecution.

Timing Is Everything

The McDonnell case was on appeal when Silver went to trial, but the Supreme Court had not yet decided it. Silver’s attorneys requested a narrow definition of “official act” similar to the one argued for by McDonnell. Consistent with Second Circuit law at the time, the trial judge rejected this request. The judge told the jury that official acts included anything the public official did “under the color of official authority.”

As the Court of Appeals noted, this was completely correct at the time. The trial court and prosecutors could not be faulted for the instruction. But the McDonnell decision, which came down just a few weeks after Silver was sentenced, changed the rules.

In light of McDonnell, Silver was convicted based on a broader definition of “official act” that is no longer the law. The Court of Appeals noted that some of the things Silver did, such as obtaining state grants or introducing official resolutions in the House, could still quality as official acts after McDonnell. But other things included in the indictment, such as writing letters or attending meetings on behalf of his benefactors, would not.

It was impossible for the Court of Appeals to be certain which of Silver’s actions the jury actually relied upon, or how they would have viewed those actions if they had been instructed consistent with the McDonnell holding. That meant it was possible Silver was convicted for political favors that would not meet McDonnell’s definition of official acts and so would not be a crime. Accordingly, the Court of Appeals vacated the convictions and ordered a new trial to allow a properly instructed jury to consider the evidence.

The Post-McDonnell World

The Silver case provides a good case study of the state of public corruption law in the post-McDonnell world. Silver received about $4 million in secret benefits from individuals and companies that were seeking his help in his official capacity. Whether these corrupt deals were actually criminal has now been cast into doubt by the McDonnell case.

McDonnell and his supporters argued that his convictions risked criminalizing routine political courtesies and constituent services for those who support a politician. Such interactions are indeed an integral part of politics. And as long as we have a system of privately funded campaigns, politicians inevitably will respond to their supporters.

But Silver was not simply acting on behalf of routine political supporters — individuals who gave him campaign contributions or helped him raise legal contributions from others. Like Governor McDonnell, Silver was receiving personal benefits that went into his own pocket. Those gifts were secret, not publicly disclosed for the voters to see.

The essence of corruption is politicians acting not for the good of those they are elected to represent but in order to enrich themselves. Corrupt politicians abuse the trust of their public office by acting not on behalf of all their constituents but on behalf of those who are secretly paying them off. And access to the corridors of power becomes simply another commodity available to those willing and able to pay.

By its obsessive focus on a narrow and overly legalistic definition of “official acts,” the McDonnell Court missed the corruption forest for the trees. The key to corruption is not the precise nature of what the politician does. It’s the overall corrupt relationship, including whether support is public or secret, whether it is within any applicable legal limits, and whether it goes to the politician’s campaign or into his or her personal bank account. McDonnell imposes precise limitations on the quo side of a bribery transaction, while ignoring the overall corrupt relationship that allows a public official to secretly profit from his or her position.

The original jury instructions in Silver’s case embodied this concept: corruption may be found when there are secret payoffs to a politician in exchange for any actions done “under the color of official authority.” There are many things done under the color of official authority that do not meet the McDonnell definition of “official act.” But regardless of how large the personal benefit or how corrupt and secret the relationship, sale of those political favors is now outside the reach of federal corruption law.

This is the unfortunate result of the McDonnell case. The wealthy and connected are free to keep politicians in their back pockets through secret, personal gifts. In return, those politicians may provide political favors, grease the wheels of government, and provide access to government power. They are free to skate right up the “official act” line, personally enriching themselves through their public office, while the general public is kept in the dark.

It’s Not Over for Silver

It’s important to recognize that the Second Circuit did not find the evidence against Silver was insufficient, just that the jury was not properly instructed. The United States Attorney’s Office promptly announced that it intends to re-try the case. Former U.S. Attorney Bharara Tweeted that the evidence was strong and he expects Silver to be convicted again after a new trial.

The case on retrial will certainly be more challenging for the government. The universe of actions that may qualify as “official acts” has been substantially narrowed. Some of Silver’s actions fall outside of the statute of limitations, and that may be an issue in the new trial as well. The Court of Appeals also suggested that some of Silver’s actions, even if they did amount to official acts, might have been so insubstantial that a jury would not find they satisfied the quo requirement for a corrupt relationship. That defense argument will likely be a focus of the new trial as well.

Silver clearly won the battle in the Second Circuit. It remains to be seen whether he ultimately will win the war. But there’s no doubt the McDonnell decision has made rooting out and prosecuting public corruption significantly more challenging.

That’s the true legacy of Bob McDonnell: making life easier for corrupt politicians everywhere.

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You can read more of my commentary on the McDonnell case here:

Supreme Court Narrows Federal Bribery Law in a Win for Bob McDonnell

The Bob McDonnell Case May Have Been Won Months Before Trial

Bob McDonnell’s New Trial Motion and the Definition of “Official Act”

Bob McDonnell, Bribery, and “Official Acts” – Part II

Yes, Colluding With Russians to Interfere with the Election Is a Crime

The Special Counsel and several Congressional committees are investigating Russian interference with the 2016 election and the possible involvement of Trump campaign officials. The investigations are in their early stages, and it’s not yet clear whether any collusion took place. But some have suggested that even if it did, it would not be criminal.

Fox News commentator Brit Hume recently made this claim on Fox News Sunday. When one of the panelists noted that a grand jury in Alexandria, Virginia was conducting a criminal investigation, Hume interrupted:

But what crime? Can anybody identify the crime? Collusion, while it would be obviously alarming and highly inappropriate for the Trump campaign, of which there is no evidence by the way, of colluding with the Russians — it’s not a crime.

Hume was echoing a claim made by other Fox News pundits and supporters of the president. They imply the investigations must be politically motivated because collusion with Russians to interfere with our election, even if it did take place, would not be criminal.

No one knows yet what the various investigations will reveal. It’s certainly possible that no criminal misconduct will be found. But it’s wrong to suggest that criminal law is not even implicated here. If Trump campaign officials actively worked with Russians seeking to influence the outcome of the election, there are a number of potential criminal violations.

Collusion is like criminal conspiracy, a partnership in crime

The Most Likely Charge: Criminal Conspiracy 

Collusion is defined as a secret agreement to cooperate in some dishonest endeavor. This sounds a lot like criminal conspiracy, which prohibits agreements to pursue a criminal end. And indeed, the potential charge that most clearly applies to the Russian collusion allegations is the federal conspiracy statute, 18 U.S.C. § 371.

Section 371 prohibits two kinds of conspiracies: conspiracy to commit any offense against the United States and conspiracy to defraud the United States. Both theories potentially apply to any Russian collusion. The nature of a conspiracy charge makes it particularly appropriate for these allegations.

In a conspiracy case the offense is the agreement itself – the partnership in crime. A defendant must join the agreement with the intent to further its criminal objectives. But a defendant need not personally commit the crime that is the object of the conspiracy. In other words, it’s a crime to conspire to help another person commit an offense even if you don’t commit it yourself.

You also can conspire to help someone else commit a crime that you couldn’t possibly commit yourself – for example, because the statute doesn’t apply to you. The Supreme Court recently affirmed this principle in Ocasio v. United States, a case I wrote about here.

Finally, a conspiracy does not have to be successful. Conspiracy is a separate offense independent of the underlying object of the conspiracy. If the crime you conspire to commit is never carried out, for whatever reason, you can still be prosecuted for the conspiracy itself.

These features of conspiracy law have some obvious implications for any investigation of Russian collusion. For example, if Trump officials conspired to help Russians interfere with the election, they could be liable for conspiracy even if only the Russians did the actual interfering.

Similarly, if Trump officials conspired to help Russians violate bans on foreign involvement in U.S. campaigns, they could be liable for that conspiracy even though they were not foreign nationals and could not have committed the crime themselves.

Finally, because a conspiracy charge does not require proof that the conspiracy was successful, it would not require prosecutors to prove that any attempted interference actually impeded the election or affected the outcome.

Conspiracy to Defraud the United States

Section 371 prohibits conspiracies to defraud the United States “in any manner or for any purpose.” Typically, to defraud means to use dishonest methods to deprive someone of money or property. Using traditional mail or wire fraud to charge that the public was defrauded of its right to a fair election therefore would be problematic, because the intangible right to a fair election is not “property.”

But for purposes of Section 371 conspiracies to defraud the U.S.,  fraud has a different and broader meaning. In 1924 in Hammerschmidt v. United States  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.” A conspiracy to defraud the U.S. under 371 does not need to result in a loss of money or property by the federal government.

This theory is often used to charge schemes that involve disguising transactions to evade some government regulatory program, or hiding assets to thwart the IRS. Individuals can be guilty of conspiracy to defraud the U.S. even if their underlying conduct, standing alone, would not be illegal. They can also be found guilty even if prosecutors can’t prove that the government lost money as a result.

Running a free and fair Presidential election is a core lawful function of the federal government. Any agreement to secretly and dishonestly attempt to interfere with a federal election would fall squarely within section 371’s prohibition on conspiracies to defraud the United States.

This theory has been used in election fraud cases in the past. For example, in the 1990’s there was a scandal involving China’s attempts to promote its interests within the U.S. government and potentially influence the 1996 presidential election. Charlie Trie, a Chinese-American with ties to the Clintons, was convicted for violating various campaign finance rules by exceeding legal contribution amounts and concealing the true identity of donors. Among the charges in his indictment: conspiracy to defraud the U.S. under Section 371 by impairing and impeding the legitimate functions of the Federal Election Commission.

Conspiracy to Commit an Offense Against the United States 

Section 371 also prohibits conspiracies to commit any offense against the United States. This applies to conspiracies to violate any criminal statute. The United States government does not need to be the victim of the intended crime.

Russian interference with the election reportedly involved hacking the Democratic National Committee computers and possibly other computer systems (including those run by state election officials). Breaking into computer systems without authorization violates 18 U.S.C. § 1030, the Computer Fraud and Abuse Act. The CFAA criminalizes a wide range of activities involving hacking or other unauthorized access to and theft of information from private and government computers. Any conspiracy to engage in such hacking could be charged as a conspiracy to commit an offense against the United States.

Suppose, for example, Trump campaign officials agreed to somehow assist Russian hackers who were gaining unauthorized access to the DNC and other computers. That agreement could constitute a conspiracy to violate the CFAA, and could be prosecuted under Section 371. Because the crime is the conspiracy, Trump campaign officials could be charged even if the Russians did all of the actual hacking. The Russians also could be charged with violating the CFAA itself, but both the Russians and the Trump campaign officials who assisted them could be charged with conspiracy.

Conspiracy to impede the FEC could violate 18 USC 371

Conspiracy to Violate Election Laws

Another possible conspiracy to commit an offense against the United States would be conspiracy to violate federal election laws. I’m no authority on election law so I’m not going to venture very far here. But if there is a potential criminal violation of election laws, then campaign officials could conspire with Russian individuals to violate that law.

Election law experts have suggested these facts could violate prohibitions on foreign contributions to our elections. For example,  52 U.S.C.§ 30121 outlaws election contributions and donations by foreign nationals. It may be that activities by Russian individuals, such as stealing and then releasing emails damaging to the Clinton campaign, could be characterized as contributing something of value to the Trump campaign.

If Russians violated the law against foreign contributions and Trump campaign officials conspired to help them do so, the campaign officials could be guilty of a conspiracy to violate that election law. Again, this is true even though they were not foreign nationals and so could not violate that law directly.

Aiding and Abetting

Title 18, § 2 of the U.S. Code provides that anyone who “aids, abets, counsels, command, induces or procures” the commission of a crime can be found guilty of committing the crime themselves. This criminal law theory of aiding and abetting is also potentially relevant to the Russian collusion allegations.

The theory would be quite similar to the conspiracy charge, but with less focus on proving the criminal agreement. If the evidence revealed that Trump or his campaign officials asked or encouraged the Russians to interfere with the election or assisted them in any way, they potentially could be charged as aiders and abettors. Potential charges could include aiding and abetting a violation of the CFAA or of federal election law.

Accessory After the Fact and Misprision

Suppose Trump campaign officials got involved with Russian hackers only after the hacking was already completed, and worked with them on things like timing the release of certain emails. Conspiracy to violate the CFAA might not be a viable charge, because you can’t conspire to commit a crime that is already completed.

At that point a couple of other options would come into play. Accessory after the Fact, 18 U.S.C. § 3, punishes anyone who knows a crime against the U.S. has been committed and then “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.” Anyone who worked with Russian hackers to help them conceal their activities and avoid detection or apprehension could be considered an accessory.

A related charge, Misprision of a Felony, 18 U.S.C. § 4, punishes anyone who has actual knowledge of a felony that has been committed against the U.S. and “does not as soon as possible make known the same to some judge or other person in civil or military authority.” Again, if Trump campaign officials got involved with Russian hackers after the hacking was completed and cooperated with them rather than reporting the hacking, misprision would be a potential charge.

Yes, Collusion Can Be Criminal

Once again, for the record: I’m not saying any of these crimes took place. I’m not suggesting that anyone will be charged, or should be charged. As with any criminal case, everything is going to depend on the facts and what evidence the government can present. But it’s simply nonsense to claim there is no basis here for a criminal investigation.

Some have suggested this idea is being floated as a trial balloon by the Trump administration to gauge the public reaction. It’s akin to the argument that the president couldn’t obstruct justice because, well, he’s the president. The apparent implication is that no matter what went on with the Russians or any attempts to thwart the FBI investigation, the investigations are just a political “witch hunt.” Nothing criminal to see here, folks, move along now.

We don’t know what the investigation will ultimately reveal. But we should dispense with the idea that colluding with Russian individuals to influence the outcome of our Presidential election would not be a crime. If the evidence is there, federal prosecutors have plenty of tools with which to build a case.

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Trump and Obstruction: What Alan Dershowitz Gets Wrong

Special Counsel Robert Mueller reportedly is investigating President Trump for possible obstruction of justice. The investigation is in its early stages, but one prominent legal voice has already decided obstruction charges would be improper. Harvard Law professor Alan Dershowitz has been all over cable news, Twitter, and elsewhere, claiming a president cannot be charged with obstruction for firing the FBI director or trying to shut down an investigation. But Dershowitz’s arguments don’t hold up.

Trump's firing of James Comey may have been obstruction of justice

Former FBI Director James Comey

The Allegations of Possible Obstruction

The facts are familiar by now. Former FBI director James Comey provided more details in his recent testimony before the Senate Intelligence Committee. Among other things, Comey testified about the meeting where President Trump cleared the room and then told Comey he hoped he could drop the investigation of former national security advisor Michael Flynn.

When Comey didn’t drop the Flynn investigation, Trump fired him. Trump later admitted he acted at least in part because of Comey’s handing of the “Russia thing.” He also told Russian officials that firing Comey had relieved pressure Trump was feeling from the Russia matter. Comey himself testified he believes he was fired because of the Russia investigation.

Obstruction of justice occurs when someone corruptly impairs, obstructs or impedes the due administration of justice in an official proceeding, or endeavors to do so. Many observers, including the former U.S. Attorney for the Southern District of New York, believe Trump’s actions could potentially amount to obstruction. (For a deeper dive into the crime of obstruction and how a federal prosecutor would approach the case, see my earlier post here.)

Professor Dershowitz’s Argument

Professor Dershowitz disagrees. He argues that regardless of the reasons for Trump’s actions, they could not legally constitute obstruction of justice. He notes that the president, as head of the executive branch, has the constitutional authority to fire the FBI director. He also has the power, as the FBI director’s boss, to tell the director to halt a particular investigation. In fact, Dershowitz notes, Trump could have called in Comey and said, “I’m pardoning Flynn, you are to stop this investigation right now.”

Because the president has these powers, Dershowitz says, Trump’s actions could not be obstruction. Unlike committing perjury or threatening a witness, firing the FBI director or telling him to stop an investigation is something a president may lawfully do. Dershowitz claims obstruction of justice can never be based solely on a president exercising this constitutional authority as head of the executive branch.

Because the president’s actions were otherwise lawful, Dershowitz says, criminal charges necessarily would be based solely on what was on the president’s mind. And that, he claims, would be improper. In one article he argues, “Even assuming that Trump was improperly motivated in firing Comey, motive alone should never constitute a crime. There should have to be an unlawful act.” Elsewhere he argues that charging Trump would amount to prosecuting the president  “based on what he was thinking rather than what he was doing.”

Dershowitz agrees Trump’s actions may have been unwise and may have political consequences. But absent evidence of some other crime, he says, they could not legally constitute obstruction of justice.

The Issue of Corrupt Intent

Dershowitz’s argument rests on his claim that it’s improper to make something a crime “based on what was in the President’s mind.” But a great deal of criminal law hinges on just that: what was in the defendant’s mind, or what was his intent. Dershowitz is correct that motive alone cannot be a crime. But often it is precisely the defendant’s motive, or intent, that makes an otherwise lawful act potentially criminal.

If I shred my business files because I’m cleaning out my office, that’s not a problem. But suppose I shred the same files because they have been subpoenaed and I don’t want to turn them over to the grand jury. The same action now becomes the crime of obstruction of justice, based on what was in my mind. I acted with corrupt intent, and my otherwise lawful act is now criminal.

Or to take an example from the current prosecution of Senator Bob Menendez: If I take a U.S. Senator on my private jet for a vacation at my Dominican villa because we are old friends, that’s perfectly innocent. If I take him on the same trip to influence him to intercede on my behalf in a dispute I have with the government, now I am acting with corrupt intent and the same actions may become bribery.

Dershowitz himself is inconsistent on this point. He agrees a president could be prosecuted if he lied to the FBI during an investigation, a violation of the False Statements statute, 18 U.S.C. 1001. But whether a false statement is a crime also depends on the defendant’s intent.  If the president made a false statement to the FBI because he simply forgot some relevant facts or misunderstood the question, that would not violate the statute. To be criminal a false statement must be a knowing and deliberate lie. And to prove that intent, a prosecutor would have to prove what was in the president’s mind – the very thing Dershowitz claims is prohibited when it comes to obstruction.

Dershowitz argues that, “A president cannot be charged with a crime for properly exercising his constitutional authority.” I agree – but the key word is “properly.” If the president acts with the corrupt intent to save himself from legal jeopardy, he is not properly exercising his authority.

If Trump tried to thwart an investigation because he feared it might lead to him, that could be obstruction of justice. Contrary to Dershowitz’s claim, this would not amount to charging the president based on his motive alone. It would be based on his actions, which become potentially criminal when carried out with corrupt intent.

The Power to Pardon

Dershowitz also argues the president could have pardoned Flynn and ended the investigation that way. That’s true, but it’s beside the point. The issue then just shifts to whether the pardon was granted for a corrupt reason. The power to pardon does not include power to do so for criminal reasons. Nor does the greater power – the ability to grant a pardon – mean that the lesser power of influencing or halting an investigation may be done corruptly.

Dershowitz apparently believes a president never could be charged with obstruction based on granting a pardon. I don’t agree. Suppose prosecutors could prove a president pardoned someone in return for that person’s explicit promise not to testify against the president? Sounds like obstruction to me. The president can do it, and the pardon would be valid, but that doesn’t mean the president is immune from the legal consequences of his corrupt actions.

Dershowitz has argued, “Obviously if a president accepts a bribe in exchange for a pardon that is corrupt act, without regard to motive or intent.” But you can’t have a corrupt act “without regard to motive or intent.”  It’s the defendant’s intent that makes an act corrupt in the first place. Without corrupt intent, there is no bribe. Granting a pardon in exchange for a bribe could indeed be the corrupt act of bribery — and granting a pardon to head off an investigation that was pointing toward the president could be the corrupt act of obstruction of justice.

Caspar Weinberger was pardoned by President George H.W. Bush

Former Secretary of Defense Caspar Weinberger

The Iran-Contra “Precedent”

Dershowitz has repeatedly claimed (see here and here, for example) there is “precedent” supporting his view, and has challenged his critics to “distinguish that precedent.” He notes that President George H.W. Bush pardoned Caspar Weinberger, his secretary of defense, and five other individuals who were implicated in the Iran-Contra affair. Independent Counsel Lawrence Walsh was furious and suspected Bush may have acted to prevent those individuals from implicating Bush himself.

Dershowitz notes that Walsh did not charge Bush with obstruction of justice for those pardons. He claims this supports his argument that a President can never be charged with obstruction for exercising his constitutional powers, “regardless of his mental state.”

But a failure to bring a case is not “precedent,” at least not in the way lawyers usually talk about it. Lawyers refer to precedent in terms of authoritative court decisions or other formal legal opinions that analyze a particular legal question. A decision not to bring charges is not a precedent that can guide future cases.

For example, suppose I represented a police officer charged with shooting and killing an unarmed civilian. I could not cite as precedent other cases of deadly force where officers were not indicted and argue that means my client cannot be charged. The Independent Counsel chose not to indict Bill Clinton for perjury or obstruction after he survived impeachment. That does not establish a precedent that a president cannot commit those crimes.

Criminal cases are extremely fact-specific. There may be any number of reasons charges are not filed. In the Bush example, maybe Walsh decided, despite his personal anger and disappointment, that the evidence of Bush’s corrupt intent wasn’t there. Maybe Walsh exercised his discretion not to pursue criminal charges because Bush had already lost the election and was leaving office anyway. Or maybe Walsh just blew it and made a bad decision.

In the end, the only thing the Walsh example tells us is that Walsh chose not to file charges on the facts of that case. That decision tells us nothing about whether charges against Trump would be appropriate or legally sound. It certainly doesn’t amount to a precedent that needs to be distinguished.

The Comey Letter to the FBI

Dershowitz has also argued that Comey’s letter to his former colleagues at the FBI after he was fired supports Dershowitz’s arguments. In the letter Comey said, “I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.” Dershowitz claims this proves Comey agrees with him that the president had the absolute right to act as he did. But trying to turn a farewell letter to colleagues into a legal analysis is a stretch. Comey obviously was not opining on the finer points of obstruction of justice law.

During his Senate testimony, when asked whether he thought President Trump had tried to obstruct the Russia investigation, Comey replied that was a matter for the Special Counsel to consider. If he agreed with Dershowitz, one might have expected Comey to reply, “No, Senator, I believe the president had the absolute right to do what he did and that it could never legally amount to obstruction of justice.”

But not even Dershowitz believes Comey’s letter is literally correct. Dershowitz has conceded that if the president took a bribe to fire Comey, that would be a crime. So he doesn’t really believe the president could fire Comey “for any reason.”

To the extent we want to consider Comey’s letter at all, it’s reasonable to conclude Comey simply meant the president can fire the FBI director for any lawful reason. It’s probably a good bet that Comey does not believe it’s OK for the president to fire the FBI director to save himself from being prosecuted.

Nixon told Frost, "If the President does it, that means it's not illegal."

David Frost interviews Richard Nixon

If the President Does It, It’s Not Illegal?

Richard Nixon famously told David Frost that if the president does something, that means it’s not illegal. Dershowitz does not go that far. He agrees the president could not grant a pardon or cancel an investigation in exchange for a bribe, because that would be an independent criminal act. He also agrees a president could be charged with obstruction for committing perjury or telling others to lie. But absent some other criminal act, he argues, the president cannot be charged with obstruction.

If proof of bribery or another criminal act would justify an obstruction charge, it must be because, in Dershowitz’s view, the criminal act establishes corrupt intent. So Dershowitz is not really saying the president could never be charged with obstruction for exercising his executive authority. He’s just arguing about what constitutes adequate proof of corrupt intent. At least where the president is concerned, he apparently believes corrupt intent can only be established by an independently criminal act.

The basis for this claim is unclear. Again, otherwise lawful acts, such as shredding my files, may become criminal if carried out with the intent to obstruct justice. I know of no legal authority for the proposition that obstruction of justice requires proof the obstructive acts also violated another criminal statute. Dershowitz certainly doesn’t point to any such authority. It seems to be some special rule he has created only for the office of the presidency.

Concerns about Vagueness

Dershowitz’s real concern actually appears to be over the breadth and language of the obstruction of justice statute itself. He argues civil libertarians should be worried about prosecutors charging criminal misconduct based on potentially vague terms such as “corrupt intent.”

These are legitimate issues often raised in white collar cases. White collar law deals with broad terms like fraud and corruption that are not well defined. In particular cases there may be valid concerns about vagueness and whether a defendant was truly on notice that his conduct might be criminal.

But Dershowitz isn’t simply saying that because of the breadth of the statute and the president’s position, prosecutors should consider charges only if the evidence of corrupt intent is overwhelming. That would be a legitimate argument. Rather, Dershowitz is claiming that unless the President commits another crime as well, he could never be charged with using the power of his office to obstruct justice, even if he stood on a soapbox on 5th Avenue and confessed that was his purpose.

If Dershowitz wants to argue for reform of obstruction of justice law, that’s perfectly valid. But he shouldn’t use concerns about that law to attempt to carve out some kind of special exemption for the president. It’s not new or unique to have criminal charges hinge on the defendant’s state of mind — it happens all the time. The president is no exception.

Should Trump Be Charged With Obstruction?

I have no idea whether Trump is likely to be charged. And I’m not arguing he clearly obstructed justice. A great deal of investigation remains to be done before the experienced prosecutors in the Special Counsel’s office could make that decision. Any obstruction case would face some significant legal and evidentiary hurdles. It’s not even clear a sitting president can be indicted at all.

Even if an indictment is legally possible, the Special Counsel could exercise his discretion not to bring charges. As I’ve argued before, the appropriate remedies may be political rather than criminal.

But as long as we still believe no one is above the law, it can’t be the rule that the president, and the president alone, is free to wield his otherwise lawful powers in a corrupt way.

At bottom, that’s the argument Dershowitz is making — and that’s why he’s wrong.

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Lying on a Security Clearance Form: The Crime of False Statements

A number of Trump administration figures are under investigation for having contacts with Russian officials. Former National Security Advisor Michael Flynn allegedly had repeated contacts with the Russians during the Trump campaign and transition. Flynn was forced to resign and has asserted his Fifth Amendment right to remain silent in response to the ongoing inquiries.

At his confirmation hearing Attorney General Jeff Sessions denied having any contact with Russian officials, but he later admitted to having several meetings with the Russian ambassador. This led to allegations that Sessions may have committed perjury during his hearing testimony.

Most recently there were reports that Trump’s senior advisor and son-in-law Jared Kushner allegedly met with Russian officials about setting up some back channel communications through the Russian embassy. Kushner also is alleged to have had multiple contacts with other Russians, including a Russian banker closely tied to Russian intelligence.

The FBI, Special Counsel, and several Congressional committees are now investigating these various contacts. Some may turn out to be criminal, others may turn out to be simply unwise, and others may be perfectly innocent. But most have one thing in common: the administration officials who had the Russian contacts apparently failed to disclose them when they applied for a security clearance.

Even innocent contacts could result in criminal prosecution if people lied about them or failed to disclose them when required. The charge would be false statements, a key workhorse in the white collar crime stables.

False statements on a security clearance form may be a crime

SF-86: Questionnaire for National Security Positions

The Disclosure Requirement: Form SF-86

All those seeking a security clearance and access to classified information are required to complete a Standard Form 86, or SF-86. This lengthy (over 100 pages) questionnaire is painfully familiar to many government employees. The federal government uses the information in the SF-86 to conduct a background investigation and determine whether access to classified information is appropriate.

The SF-86 requires you to report detailed information about your personal background, employment history, education, marital status, family members, places you have lived, travel, and much more. It also asks about foreign contacts and foreign activities.

In particular, question 20B.6 asks whether the applicant has had any contact at all with any foreign governments or their representatives in the past seven years. If the answer is “yes,” the applicant must provide detailed information about those contacts.

All high-level members of the new administration would have filled out an SF-86. The allegation concerning Kushner, Flynn, Sessions, and others is that when completing the form they failed to report their various meetings with Russian officials.

The Relevant Statute: False Statements

The instructions for the SF-86 include the following warning:

The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to five (5) years imprisonment.

Many of us have seen similar warnings on other government forms. But what exactly is title 18, section § 1001, and what does it require the government to prove?

False statements, 18 U.S.C. § 1001, makes it a crime to knowingly and willfully –

1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;

2) make any materially false, fictitious, or fraudulent statement or representation; or

3) make or use any false writing or document knowing that it contains any materially false, fictitious or fraudulent entry,

in any matter within the jurisdiction of one of the three branches of the federal government.

The false statements statute is extremely broad. It potentially applies to virtually any lie to the federal government. Unlike perjury, you don’t have to be under oath. The government does not need to be harmed or to have relied on your statement in any way. The lies may be written (as on an SF-86) or verbal.  (Martha Stewart and Scooter Libby were both convicted under 1001 for lying during FBI interviews.)

Sometimes the false statement itself is part of the central misconduct in a case. If I lie on an application for a government grant or contract, the lie is an integral part of my criminal scheme to cheat the government out of something. False statements may be one of the statutes used to prosecute such a scheme, along with mail or wire fraud or other appropriate charges.

But sometimes a violation of section 1001 falls into the category of a cover-up crime, similar to perjury or obstruction of justice. In such a case the false statement is a secondary offense that conceals some other underlying misconduct. That’s the allegation in the investigations involving Trump officials. The claim is they lied on the SF-86 in order to conceal underlying contacts with the Russians that may have been improper — or at the very least embarrassing.

False Statements on a Security Clearance Form

To convict under section 1001, the government must prove the following elements beyond a reasonable doubt:

1) The defendant made a false statement, used a false document or writing, or concealed facts through a trick, scheme, or device;

2) The false statements or concealed facts were material;

3) The statement or concealment took place in a matter within the jurisdiction of one of the three branches of the federal government; and

4) The defendant acted knowingly and willfully.

Let’s consider how these elements would be met in a hypothetical case involving failure to disclose foreign contacts on an SF-86.

1) False Statement, Writing, or Concealment

The first requirement is that the statement be false. That may seem a bit obvious. But as it is with the related crime of perjury, the requirement of actual falsity is important. It means there is no room for ambiguity or uncertainty. If a question or answer is open to different interpretations, a statement that initially appears false may not be.

The statute prohibits making false statements and using false documents. The SF-86 asks whether the applicant has had any contact with foreign representatives in the past seven years and asks the applicant to check “yes” or “no.” Checking “no” could be a false statement under section 1001(a)(2) if in fact such contacts had occurred.

Section 1001(a)(1) also prohibits concealing material facts through a “trick, scheme, or device,” even in the absence of outright lies. This portion of the statute likely would also come into play in a case involving failure to disclose meetings with foreign officials. The SF-86 requires the applicant to list the details about any foreign contacts. Failing to list those meetings could qualify as concealment of material facts.

Because there is no general duty to speak to the government, the concealing material facts theory may be used only when the defendant is under a duty to disclose the facts in question. In this case the obligation to disclose is readily found in the requirements of the SF-86 itself. Those who choose to complete the application are required to provide all relevant information.

2) Materiality 

As with the related crime of perjury, the false statements or concealed facts must be material. The law does not punish lies that are trivial or irrelevant.

Materiality is defined very broadly. The statement need only have the potential to affect the decision of the agency to which it is made. There is no requirement that the statement actually affected any outcome, that it was believed, or that the government relied on it in any way. In other words, materiality is judged based on the nature of the statement, not on any actual impact that it had.

In this case materiality would be clear. A primary purpose of the SF-86 is to reveal any potential foreign entanglements that might pose a security risk. Information about contacts with Russian officials, especially so close to the election, would undoubtedly have the potential to affect the decisions of those doing the background investigation. Lying about or concealing that information could therefore violate the statute.

3) Within the Jurisdiction of the Federal Government  

The statement or concealment also must be in a matter within the jurisdiction of one of the three branches of the federal government. “Jurisdiction” is broadly defined. It simply means the agency or office to which the statement is made has some authority to act on the matter in question.

This requirement serves to establish a basis for federal criminal jurisdiction. The lies must be in connection with business of the federal government. Lying to your boss, or your neighbor, or even to a state agency is generally not going to fall within the statute.

In this case the jurisdiction requirement would be easily satisfied. The SF-86 is submitted to the Executive branch, which has the authority to act on the information and investigate whether to grant a security clearance. Any statements or concealment on the SF-86 are plainly in a matter within the jurisdiction of the Executive branch.

4) Knowing and Willful 

As with so many white collar offenses, the intent requirement is where the rubber meets the road. In any case involving an allegedly false SF-86, the key issue would be proving the defendant’s state of mind.

The knowing and willful requirement means the lies or concealment must be intentional and done with a bad purpose. The statute does not apply to mistakes or inadvertent failures to disclose. It doesn’t apply if a person was simply confused or misunderstood the question. It doesn’t apply if he failed to disclose the relevant information because he forgot it.

Courts generally interpret the “willful” requirement to mean the defendant knew not only that the statement was false but also that making the false statement was unlawful. That would not be much of a hurdle in an SF-86 case. The form itself warns that false statements or concealment can be a criminal offense. Any applicant would certainly know that foreign contacts are critical information when it comes to granting a security clearance.

The Defense: Lack of Criminal Intent

Attorney General Jeff Sessions

At this point it may be undisputed that SF-86 forms filed by various Trump officials are inaccurate. But filing a false form is not automatically a crime. The issue will be why the information was missing. The government would bear the burden of proving beyond a reasonable doubt that a defendant deliberately sought to lie about or conceal the foreign contacts.

Attorney General Sessions has claimed officials conducting his background investigation told him he did not need to report some of his contacts with foreign officials. If this is true, it could be a defense. It suggests Sessions did not act willfully because he did not believe failing to include that information was unlawful. Even if the advice were incorrect, that would not matter if Sessions believed he was properly filling out the form.

Jared Kushner apparently has claimed he forgot about some of his meetings with Russian officials. If he omitted foreign contacts because he honestly forgot about the meetings, that too would be a defense. Again, it demonstrates a lack of intent. If he did not recall the meetings when he completed the form, then he did not willfully conceal the information.

Michael Flynn may also claim he forgot about various Russian contacts. Or he may claim he did not believe they needed to be disclosed. His position is unclear at this point, because he has declined to speak with investigators unless he is granted immunity.

To prove a crime the government would need to establish that a defendant was not forgetful or acting on outside advice but was deliberately and wrongfully trying to conceal the information. Absent some direct evidence (such as statements by the defendant), the proof may consist of circumstantial evidence that ultimately makes innocent explanations completely implausible.

Whatever the outcome of the investigation into the Russian contacts themselves, the potential false statements are a separate investigative track. Even if the underlying contacts end up being perfectly innocent, lying about those contacts could be criminal.

People in D.C. are familiar with the maxim that sometimes the cover-up is worse than the original misconduct. The Independent Counsel will determine whether that’s the case here.

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Michael Flynn Took the Fifth – So What Happens Now?

Yesterday former National Security Advisor Michael Flynn informed the Senate Intelligence Committee he will not comply with its subpoena. The subpoena sought any documents in Flynn’s possession relating to any communications or dealings with Russian officials. Through his attorneys, Flynn claimed that turning over the documents would violate his Fifth Amendment privilege against self-incrimination.

Now that Flynn has taken the Fifth, what happens next? Basically there are three alternatives: 1) the Senate challenges the claim of privilege; 2) the Senate grants Flynn immunity; or 3) the Senate decides to accept Flynn’s assertion of privilege and move on with its investigation.

But the Chair of the Senate Intelligence Committee has reportedly expressed surprise that Flynn could take the Fifth in connection with a subpoena for documents. So the first question is:

Can He Do That?

No one has a right simply to refuse to comply with a subpoena. Flynn can’t just say, “No, thanks” and refuse to turn over the documents. He has to have a valid legal excuse. In this case, he claims that excuse is his Fifth Amendment right not to incriminate himself.

Flynn had already asserted the Fifth in connection with any possible testimony before Congress. Weeks ago he indicated he would cooperate and testify only if he was granted immunity. So far Congress has not taken him up on that offer.

But when it comes to producing documents, rather than testifying, the rules are more complicated. The Fifth Amendment generally does not protect the contents of documents that were voluntarily created. Suppose I write in my diary, “I shot the Sheriff, but I did not shoot the deputy.” Then I lose the diary and someone turns it in to the authorities, or investigators seize the diary while executing a search warrant.

The contents of the diary certainly incriminate me. But I can’t claim a Fifth Amendment right not to have it used against me. The government did not compel me to write in my diary. The Fifth Amendment limits only government compulsion of testimony and so does not apply.

Act of Production Privilege

When it comes to producing documents, the Fifth Amendment protection is not based on the contents of those documents. It’s based on something called “act of production privilege.” Act of production privilege recognizes there may be testimonial aspects involved in producing documents that are subpoenaed.

If I turn over subpoenaed documents I am admitting the documents exist, that I have them, and that I believe they are responsive to the subpoena. Forcing me to respond to the subpoena may be akin to putting me on the stand and requiring me to make those admissions. In that situation I may be able to refuse to comply, because to comply would be to incriminate myself.

Act of production privilege does not automatically apply to any document subpoena. If the government can establish that the existence of the records is a foregone conclusion – in other words, anyone in my position would be expected to have the types of records called for – it can argue there is nothing testimonial about turning them over. In addition, sometimes the government can show with some specificity that it already knows the documents exist and that I have them. In that case, the act of producing them adds nothing to the government’s knowledge and would not be privileged.

But sometimes the government knows little or nothing about the nature of potential documents or whether they even exist and is just fishing to see what’s out there. In such a case, responding to the subpoena by identifying and turning over documents may be a testimonial act.

Congress is investigating Flynn over possible contacts with Russian officials and for allegedly lying about those contacts. Documents reflecting any such contacts are therefore potentially incriminating. His attorneys argue the Senate has failed to demonstrate that the existence of the subpoenaed documents is a foregone conclusion or that the Senate already knows the documents exist. Accordingly, they say, to turn over any such documents would be a privileged testimonial act.

So now that Flynn has taken the Fifth and refused to turn over the documents, where does the investigation go from here?

Michael Flynn has invoked the Fifth Amendment

Former Nat’l Security Advisor Michael Flynn

Option One: Fighting the Privilege Claim

Congress is not required to accept Flynn’s assertion of privilege at face value. If the Senate believes the privilege claim is unfounded, if can seek to enforce the subpoena. The Senate Committee leaders have reportedly said they will “vigorously pursue” the production of the documents. There are different ways the Senate could do this.

One alternative is for the Senate to file a civil lawsuit against Flynn seeking to enforce the subpoena. In the lawsuit Flynn would assert his Fifth Amendment claim as a defense, and a judge would rule on whether that claim was valid. If Flynn lost, he could appeal. If he lost again, he could ask the Supreme Court to hear the case. In the end, if the courts found there was no privilege, a judge would order Flynn to comply with the subpoena. If he still refused, he could be punished for contempt of court.

A second alternative is for the Senate to refer the matter to the U.S. Attorney for the District of Columbia and ask him to prosecute Flynn for criminal contempt of Congress. After receiving the referral, the U.S. Attorney would decide whether to pursue the contempt case. If the U.S. Attorney chose to indict Flynn for contempt of Congress, Flynn’s defense would be that the Fifth Amendment justified his refusal to comply. Once again, the courts would ultimately rule on that claim.

The U.S. Attorney could also decide that Flynn’s Fifth Amendment claim is valid and prosecution for contempt would not be appropriate. This happened recently in the case of Lois Lerner, a former IRS official. When she took the Fifth and refused to testify before a Congressional committee about claims the IRS had improperly targeted certain political groups, Congress referred the matter to the U.S. Attorney for a contempt prosecution. The U.S. Attorney, however, decided that Lerner’s privilege claim was justified and declined to bring a case. (You can find my post with more detail about contempt of Congress and the Lerner case here.)

A referral to the U.S. Attorney turns control of the contempt decision over to the Executive Branch. But a third option is for Congress to charge Flynn itself, using its own inherent contempt power. Although this inherent contempt power is well established, Congress hasn’t used it since the 1930s.

If the Senate chose to go this route there would be a hearing before Congress, similar to a trial. Flynn would appear, be represented by counsel, and would assert his Fifth Amendment privilege as his justification for not honoring the subpoena.

If Congress rejected Flynn’s privilege claim and found him in contempt, it could have Flynn jailed until he complied with the subpoena. If that happened, of course, Flynn’s lawyers would immediately go to court seeking to have his Fifth Amendment rights vindicated and to have Flynn released. So once again we would ultimately end up with a court ruling on whether the privilege claim is valid.

These three options for enforcing the subpoena have one thing in common: none of them are quick. With court hearings and appeals it could easily take many months to resolve the privilege claims. If the Senate’s primary goal is to get the information quickly, it could instead pursue option two: granting Flynn immunity.

Option Two: Immunizing Flynn

Rather than fighting the privilege claim, the Senate could choose to grant Flynn immunity for his production of the documents. The immunity order would provide that the testimonial aspects of Flynn turning over the documents could not be used against him. In other words, the government could not introduce into evidence the fact that Flynn had possessed the documents or that he turned them over in response to a subpoena.

This more limited type of immunity is called, reasonably enough, act of production immunity. As with immunity generally, Congress has the power to grant act of production immunity even if the Department of Justice objects. Two-thirds of the members of the Senate Intelligence Committee would need to approve.

If granted act of production immunity Flynn would no longer have a basis to withhold the documents. If he continued to refuse to comply with the subpoena he would face contempt charges and could be jailed until he complied.

Immunizing Flynn would mean Congress would get the documents quickly, but there is a risk. The grant of immunity could end up torpedoing a future criminal prosecution of Flynn if a court found that the prosecution relied on information gathered from the documents produced. This happened in a case involving Webb Hubbell, President Bill Clinton’s former Associate Attorney General. Hubbell’s prosecution resulted in the leading Supreme Court decision on act of production immunity.

The Supreme Court ruled on act of production immunity in Webb Hubbell's case.

Former Associate Attorney General Webster Hubbell

United States v. Hubbell

Hubbell was subpoenaed by the Whitewater Independent Counsel to produce a large number of documents to the grand jury. He asserted his Fifth Amendment act of production privilege and refused to produce the requested documents or even admit they existed. The prosecutors granted him immunity for the act of production, and Hubbell turned over more than 13,000 pages of responsive documents.

Based on information contained in the documents, the Independent Counsel later indicted Hubbell for tax crimes and fraud. But the Supreme Court threw out the indictment, saying it violated Hubbell’s Fifth Amendment rights.

The government did not seek to use evidence that Hubbell had possessed or produced the documents – that direct evidence would have violated the immunity order. But the contents of the documents had provided information that led to Hubbell’s indictment.

The Supreme Court held that by compelling Hubbell to assemble and produce documents responsive to the subpoena the government had made use of the “contents of his mind.” The government had only learned of the information in the documents as a result of that compulsion. Therefore using the contents of the documents to prosecute Hubbell was a prohibited “derivative use” of Hubbell’s immunized act of producing them.

The law on act of production immunity is not completely clear. And this case would be different from Hubbell’s in at least one important respect. In Hubbell the documents were subpoenaed by the same grand jury that later indicted him. In Flynn’s case Congress has issued the subpoena. That would make it easier for prosecutors to argue that their own investigation was not influenced by the documents. However, given how easily information spreads through the Internet (and how easily it leaks from Capitol Hill), it might be a challenge for prosecutors to prove their case was not tainted.

Congress could decide it is willing to take that risk in order to get the information quickly. They have done it before, most famously in the case of Oliver North during the Iran-Contra investigation, where Congress’s grant of immunity ultimately resulted in North’s criminal convictions being reversed. But by granting immunity Congress could end up begin accused of sabotaging any potential future criminal case against Flynn. For now, at least, the chair of the Senate Intelligence Committee has reportedly said that immunity is “off the table.”

Option Three: Just Move Along

The third option for Congress at this point is simply to accept Flynn’s assertion of privilege and move on. There is a great deal of investigating still to be done. Congress may be able to get much of the same information from other sources.

In addition to the investigations on Capitol Hill, the Special Counsel investigation will be moving forward. Criminal prosecutors may be able to build a case against Flynn without the subpoenaed documents. If Flynn were to end up facing charges, prosecutors could potentially negotiate a plea deal. As part of that deal Flynn could agree to turn over the documents and otherwise cooperate in the investigation of others.

Although there is public pressure to get to the bottom of what happened, the investigation is still in its infancy. Granting immunity could end up being a mistake if Flynn turns out to be one of the principal bad actors. Congress and the Special Counsel have plenty of time to pursue other avenues.

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