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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Did President Trump Obstruct Justice? A Prosecution Analysis

Did President Trump obstruct justice? On May 9, 2017, the President fired FBI Director James Comey. This unexpected move immediately raised questions about the President’s motives. Critics charged that Trump was seeking to derail the FBI investigation into possible Russian ties to the Trump campaign.

Then, a week after Comey was sacked, substantial fuel was added to the obstruction fire. The New York Times reported that in a private meeting in February President Trump asked Comey to drop the investigation of former National Security Advisor Michael Flynn. Comey apparently prepared a memo memorializing this meeting. Comey wrote that Trump told him Flynn was a “good guy” who didn’t do anything wrong, and said , “I hope you can see your way clear to letting this go, to letting Flynn go.”

Additional news continues to trickle out. On May 19 the New York Times reported that in a meeting in the Oval Office with Russian officials the President told them, “I just fired the head of the F.B.I. He was crazy, a real nut job.” Trump also reportedly told the Russian officials, “I faced great pressure because of Russia. That’s taken off.”

Then on May 22, the Washington Post reported that Trump had asked the director of national intelligence and the director of the National Security Agency to publicly deny there was any evidence of collusion between Russian officials and the Trump campaign. Both refused to do so because they felt the request was inappropriate. Later in the same story, the Post reported that senior White House officials also had approached top intelligence officials to ask whether it was possible to ask Comey to shut down the FBI investigation.

“Obstruction of justice” is a term that gets tossed around fairly loosely. The op-ed pages and Twitter have been pronouncing Trump guilty for days. But the crime of obstruction of justice has specific requirements that can be difficult to prove. A federal prosecutor analyzing this as a criminal case would face some hurdles, although the case grows stronger with each new revelation. But in the end, political remedies — including potential impeachment — are more likely than criminal ones.

The Criminal Obstruction Statutes

Several different criminal statutes prohibit obstruction of justice. There are other options, but if I were considering this case I would focus on 18 U.S.C. § 1512(c)(2). This catch-all provision applies to anyone who “corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so.” The maximum penalty is twenty years in prison.

Obstruction is a crime independent of the merits of any underlying case. Even if an investigation doesn’t result in criminal charges, you can get in trouble for obstructing that investigation – just ask Scooter Libby or Martha Stewart. As the old saying goes, sometimes the cover-up is worse than the crime.

The statute applies to attempts to obstruct a proceeding even if they are unsuccessful. If the investigation into Russian ties continued unimpeded, that would not be a defense to any attempted obstruction.

What Is the Relevant Proceeding?

In any obstruction case, the first task is to identify the proceeding the defendant was allegedly trying to obstruct. There is no such thing as “obstruction in the air.” The government must prove the defendant had a particular proceeding in mind, even if that proceeding had not yet begun. (The prosecution’s failure to prove the link to a specific proceeding is what led the judge in the Bob and Maureen McDonnell case to throw out her obstruction conviction.)

Under § 1512 a proceeding may be a matter before any of the three branches of the federal government. A trial or other court proceeding, a Congressional investigation, or a proceeding before a federal agency all may qualify.

You generally can’t be charged with obstructing an FBI investigation itself, because an investigation is not a “proceeding.” A different obstruction statute, 18 U.S.C. § 1519, could apply if Trump destroyed documents or records (or Oval Office tape recordings?) to impede the FBI investigation. But firing Comey or urging him to drop the case would not fall within that prohibition.

Removing the FBI director might have some tangential effect on the ongoing Congressional investigations, which qualify as proceedings. But the most likely theory would be that Trump, by urging Comey to drop the investigation and then firing him when that didn’t happen, was attempting to impede the pending grand jury investigation into possible Russian connections to his campaign.

There were recent news reports that a federal grand jury has issued subpoenas for records related to Michael Flynn. There appears to be an active grand jury investigation, and there is probably little doubt the President is aware of it. A grand jury investigation is a “proceeding” for purposes of 1512.

This is a link made in many obstruction cases. The FBI investigates, but it can’t file charges and prosecute on its own. In a criminal case the FBI typically is working with federal prosecutors conducting a grand jury investigation. Often when people speak of obstructing an FBI investigation, what they really mean is obstructing the underlying grand jury proceeding in which the FBI is involved.

Prosecutors could charge that Trump sought to impede the grand jury investigation by persuading Comey to drop the case and, when that failed, by firing him. The government would bear the burden of proving Trump  had the grand jury investigation in mind when he took those actions.

Did President Trump obstruct justice by firing Comey?

Former FBI Director James Comey

Did President Trump Obstruct Justice?

As in so many white collar cases, the critical issue would be proving intent. Corrupt intent is the key to obstruction of justice. It means the defendant acted with the deliberate and dishonest purpose of interfering with the proceeding. In other words, wrongfully obstructing the proceeding is what he set out to do. It isn’t enough if the proceeding is affected as a collateral or unintended consequence of the defendant’s actions.

How would a prosecutor prove the President’s intent? One remarkable aspect of this case is the significance of the President’s own statements. During his recent interview with Lester Holt of NBC news, the President admitted he was thinking about the “Russia thing,” which he called a “made up story,” when he decided to fire Comey. This admission could get prosecutors over what is sometimes a significant hurdle: proving the defendant at least had the relevant proceeding in mind.

The day after firing Comey, the President reportedly told Russian officials that he had faced “pressure” over Russia and that firing Comey had removed that pressure. The defense would dispute exactly what the President meant by this, but at a minimum it is further evidence that Comey’s firing was linked in the President’s mind to the Russia investigation.

Building a Circumstantial Case

Prosecutors often prove corrupt intent by circumstantial evidence. In this case, there is no shortage of it. First, the timing of Comey’s firing is suspicious. Most of the misdeeds for which he allegedly was fired have been known for months. But the President chose to remove him only when the Russia investigation was reportedly heating up.

Reasons for the firing also seem suspect. The White House claims Comey was fired over his handling of  the Hillary Clinton email scandal. But as many have noted, the President previously praised Comey for those same actions, often while his crowds chanted, “Lock her up!” The claim the President fired Comey now for actions he took six months ago is perhaps implausible. But the notion that this President fired Comey because Comey was unfair to Hillary Clinton is laughable.

The White House also claimed the firing was necessary because Comey had lost the support and confidence of the rank and file members of the FBI. This was flatly contradicted by the now-acting director and Comey’s former chief deputy, Andrew McCabe, in testimony before the Senate Intelligence committee.

Then there is the shifting narrative about how the decision was made. The White House originally claimed the President acted based on a recommendation from newly-appointed Deputy Attorney General Rod Rosenstein. When Rosenstein apparently objected (and perhaps threatened to resign), the President began saying he had decided to fire Comey on his own, prior to any recommendation.

Conflicting, shifting, and apparently untrue explanations for the President’s actions could provide compelling circumstantial evidence of corrupt intent. Often such evidence suggests the truth is something more sinister that the defendant wants to conceal.

The news that Trump asked Comey to drop the investigation provides significant additional circumstantial evidence of corrupt intent. The narrative then becomes that Trump first urged Comey to back off, and when that failed, he fired him. Reports that Trump asked others to leave the meeting before he spoke to Comey further suggest he knew he was doing something improper.

This theory is bolstered by the reports that senior White House officials had asked intelligence officials about intervening with Comey to see if they could ask him to shut down the Russia investigation. If those reports could be substantiated they would provide further evidence that the purpose of firing Comey was not to remove an ineffective leader or help the FBI but to thwart the Russia investigation.

The Defense: Lack of Corrupt Intent

Despite all of the above, this would not be a slam-dunk prosecution. When I first wrote this post after Comey was fired, I thought a potential criminal case would be very challenging. The news that has come out since then — including the Holt interview, the Oval Office meeting with the Russians, and the White House inquiries about possibly asking Comey to shut down the investigation — has made the case considerably stronger.

Proving to a unanimous jury beyond a reasonable doubt that the President acted with corrupt intent would still be challenging. If the information in all the press reports could be verified and translated into admissible evidence, I think a prosecutor could build a pretty decent case. But the defense would have a lot to work with as well.

First there’s the fact that the President clearly has the right to fire the FBI director. Comey himself, in his letter to FBI personnel following his dismissal, noted his belief that the President could fire him at any time and for any reason. That’s not an ironclad defense, of course. If something you have the right to do is done for a corrupt purpose it can still be obstruction. But prosecutors could not raise an inference of corrupt intent based solely on the nature of the President’s actions.

In addition, as the President has already pointed out, many people, both Democrats and Republicans, believed there were good grounds to fire Comey based on his actions over the past year. This would help raise a reasonable doubt about corrupt intent.

The President’s defense also would claim that his actions were too remote from the Russia investigation to constitute obstruction. The Supreme Court has held that acts are not obstruction unless they would have the “natural and probable effect” of influencing the proceeding if successful. In an institution as large as the FBI, removing the director may be unlikely to derail any one investigation. Indeed, acting director McCabe assured Congress this was the case and that the investigation will proceed unimpeded.

The Significance of Trump’s Own Statements

Some commentators have claimed the President basically admitted to obstruction by telling Lester Holt the “Russia thing”  was on his mind when he fired Comey. This is an overreach. Saying the President was thinking in part about the Russia investigation is not at all the same as saying he acted with the corrupt intent to obstruct that investigation.

This is a fine distinction, but a critical one. The President could fire Comey because he was mad about Comey’s handling of the Russia investigation and still not intend to obstruct that investigation. If the President believed (probably correctly) the investigation would continue unimpeded without Comey, he would lack the requisite intent to obstruct. Even if he was just mad at Comey and didn’t think at all about the effect on the investigation, that too would mean he lacked corrupt intent.

Later in the same NBC interview Trump also said he wanted the investigation to be done properly. Trump could argue that because Comey had become ineffective as a leader, firing him actually made it more likely the investigation would be successful.

Trump’s statements to the Russian officials about relieving “pressure” by firing Comey are also open to more than one interpretation. Based on the White House statements following the story, it appears Trump would argue that Comey’s mishandling of the investigation was disrupting the President’s attempts to forge better diplomatic relations with the Russians. When he referred to relieving pressure, the defense would argue, the President was referring to this interference with his diplomacy, not to the criminal investigation.

Some of these alternative explanations may seem implausible. I can see eyes rolling from here. But remember the President would not need to prove he acted without corrupt intent. The burden of proof always rests with the government. The defense would only need to raise a reasonable doubt about the President’s intent.

Every prosecutor has had the experience of having what seemed like a stone cold admission by a defendant be completely undermined by a plausible alternative explanation. I’m not trying to bend over backwards to provide excuses for the President’s statements. I’m simply acknowledging the difficulties that prosecutors can face when trying to prove guilt based on statements and circumstances that may be open to different interpretations.

Trump’s Alleged Request to Drop the Investigation

The new reports that President Trump asked Comey to drop the Flynn investigation provide significant additional evidence of possible obstruction of justice. But there are still some unresolved questions. First, the White House has denied Comey’s claims. Unless the rumored Oval Office tapes show up, the details of the meeting would be contested. Comey’s contemporaneous notes would carry significant weight, but disputes about the details and precisely what Trump said and how he said it could be important.

The President is the head of the Executive Branch and was Comey’s boss. How does that affect the question of corrupt intent? On some level the President does have the right to tell the FBI director what to do, just as he has the right to fire him.

There are long-standing norms and traditions about Justice Department independence and the White House not interfering in DOJ investigations. Trump’s alleged conversation with Comey seems to have trampled all over those norms. But whether breaching those norms amounts to a crime is a different question.

Trump’s meeting with Comey is the incident that so far sounds the most like true obstruction. But it may depend on further information about Trump’s own involvement in any underlying misconduct. If it turns out Trump wanted the Flynn case dropped because he feared it would lead to him, that sounds like corrupt intent. But if Trump was not implicated and was simply genuinely concerned that his friend was being treated unfairly, that could suggest the conversation was perhaps improper and unwise but not criminal.

In response to reports about the meeting with Comey, the White House responded by saying essentially “this is just the way the President talks.” In other words, it was an offhand remark expressing his concern about Flynn, not a calculated effort to influence Comey. This is a version of a defense of lack of corrupt intent, and it may be perfectly plausible. The President simply may not have appreciated the impact such an offhand statement could have when it comes from the leader of the free world and the FBI director’s boss.

In situations such as the Comey meeting a great deal also depends on things like nuance, tone, and body language. Was the statement made in a menacing way or in an offhand way? How did Comey interpret it? Information like that does not come across in a memo to the file and would depend on Comey’s testimony about the meeting.

There’s Obstruction, and then There’s Obstruction

In a criminal investigation of possible obstruction a grand jury could subpoena additional witnesses and documents. Perhaps prosecutors could develop stronger evidence of corrupt intent. The case would depend not on any one incident in isolation but on the pattern of the President’s actions. The circumstantial evidence is mounting, but a lot would need to be done to shore up that evidence. Prosecutors would need to establish that some of the things reported in the press actually took place and could be proven at trial.

The reality is that a criminal prosecution of President Trump is unlikely. Although it’s never been officially settled, most authorities – including the DOJ — believe the Constitution prohibits the prosecution of a sitting President. The scene where Trump is handcuffed and perp-walked out of the Oval Office is not going to happen.

But I think when most people accuse Trump of “obstructing justice,” they are not focused on the elements of a specific criminal statute. Through a series of actions (including the events discussed above, a request that Comey pledge his loyalty, asking Comey whether he was under investigation, and his subsequent Tweet about Comey that many interpreted as a threat) Trump appears to have violated fundamental constitutional and political norms concerning the rule of law and limitations on executive power. Trump’s actions may obstruct justice in this broader, structural sense even if not in a strictly legal one.

As with violations of the Constitution’s Emoluments Clause, the primary remedy for this obstruction would be political. Political remedies include elections, where the voters have a chance to register their disapproval. They also include impeachment, which is available for “high crimes and misdemeanors.” This is generally interpreted to mean misconduct related to public office, not necessarily precise criminal violations. Charges of obstruction of justice were central to the articles of impeachment of both Richard Nixon and Bill Clinton.

Impeachment is primarily a political proceeding rather than a legal one. Congress does not need to establish proof beyond a reasonable doubt of all elements of a crime the way a prosecutor does. Disregard of basic constitutional and political norms could fall short of a criminal offense and still justify impeachment. It’s up to the Members of Congress to decide whether misconduct rises to a level that would justify removing the President. For now, a great deal of additional investigation is needed before Congress could make those decisions.

As was true with alleged perjury by Attorney General Jeff Sessions, critics have been quick to accuse the President of a crime. But as I’m always telling my students, there is a lot of sleazy, unethical, and improper conduct that isn’t criminal. Trump’s potential interference with an ongoing investigation raises grave concerns. But the likely remedy lies with the political process, not a criminal prosecution.

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Why Bob McDonnell Won’t Save Bob Menendez

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

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

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

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

Senator Robert Menendez

Senator Robert Menendez

The Charges Against Senator Menendez

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

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

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

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

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

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

(As I write this, Dr. Melgen is currently on trial in Florida on a separate indictment charging him with Medicare fraud based in part on this scheme. Update: On April 28, 2017, Melgen was convicted on dozens of counts of fraud in the Florida case.)

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

Former Virginia Governor Bob McDonnell

The McDonnell Decision

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

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

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

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

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

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

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

Did Senator Menendez Perform “Official Acts?”

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

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

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

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

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

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

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

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

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

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

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

Heads I Win, Tails You Lose

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

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

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

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

Effect of the McDonnell case on the Bob Menendez trial

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

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

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

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

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

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Emoluments Clause Violations as a Conspiracy to Defraud the United States

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

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

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

The Difficult Question of Standing to Sue

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

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

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

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

Quo Warranto: A Possible Solution to the Standing Issue

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

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

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

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

What Constitutes Illegal Behavior for a Quo Warranto Proceeding?

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

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

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

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

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

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

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

The Emoluments Clause and Conspiracy to Defraud the United States

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

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

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

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

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

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

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

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

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

Details of a Potential Conspiracy

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

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

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

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

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

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

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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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The Emoluments Clause, Bribery, and President Trump

Like a previously unknown contestant on “The Apprentice,” the Emoluments Clause has been catapulted to stardom by Donald Trump. There has probably been more written about this obscure section of the Constitution in the past few weeks than in its entire previous 229-year history. Debate is raging about the meaning of the Emoluments Clause. Many people are saying that president-elect Trump’s foreign business holdings and relationships create a risk — or even a virtual certainty– that he will be embroiled in a constitutional crisis from day one of his presidency.

Some recent commentary has suggested the Emoluments Clause is basically an anti-bribery provision, but this is only partially correct. As a ban on public officials accepting gifts, the clause is indeed related to laws against bribery and conflicts of interest. But the Emoluments Clause differs from bribery in important ways, and those differences have significant implications for President Trump and his new administration.

I should note up front that everyone is sort of flying blind when it comes to the Emoluments Clause. There is basically no precedent concerning the clause and the Supreme Court has never interpreted it. We’ve also never had a president-elect with such extensive foreign business entanglements. For many questions about how the clause would apply to Trump, the most honest answer is, “we’re not entirely sure.” So with that caveat . . . .

What is the meaning of the emoluments clause in the constitution?

What Does the Emoluments Clause Prohibit?

The Emoluments Clause arose out of the framers’ fears about potential foreign influences on their fledgling country. Contained in Article I, Section 9, Clause 8 of the Constitution, it provides:

No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.

No one is concerned about Trump being granted an office or title from a foreign government, and no one is particularly worried about him receiving presents from Kings or Princes. The most relevant prohibitions are on the receipt of any “present” or “emolument” from a “foreign state.” An emolument is generally defined as a profit, fee, or compensation arising from an office or employment. “Present” presumably has its ordinary meaning of a gift, or something freely given without any strings attached.

Simply put, then, the clause prohibits government officials from accepting gifts or payments from a foreign government.

How Is the Emoluments Clause Related to Bribery?

The crime of bribery requires a quid pro quo. In exchange for something of value, a public official agrees to be influenced in the exercise of the powers of his or her office. Bribery is the quintessential corruption offense; the political process is corrupted because the public official acts not for the good of all but to benefit the person who is paying off the official.

In an op-ed in the New York Times, Professor Zephyr Teachout recently wrote that the Emoluments Clause is “essentially an anti-bribery rule.” Commentators at NPR and The New Republic have said the same thing. But this is not entirely accurate. When it comes to gifts from foreign states, the Emoluments Clause actually is far more sweeping than bribery because it does not require a quid pro quo. Even if the term “emolument” is read to imply compensation in exchange for a particular service (which is far from clear), the term “present” is far broader and contains no such implication.

Unlike bribery, the Emoluments Clause does not require that the public official agree to do anything in exchange for the gift. It doesn’t even require that the gift be linked to some particular official act, as does the federal gratuities statute. In this sense the Emoluments Clause is more akin to a simple gift ban, similar to those contained in most codes of ethics for government employees. It appears to guard against not only actual influence of public officials, as would occur with a bribe, but also the mere appearance of potential influence or divided loyalties that could be created by even a gift.

For a gift from a foreign government to constitute a bribe, President Trump would need to agree to perform some official act or be influenced in the exercise of his powers in exchange. But if a foreign government gave the President a present simply out of admiration, or out of hope that it might curry favor with the President, that would violate the Emoluments Clause even though it would not be a bribe.

In another sense, bribery is broader than the Emoluments Clause because it applies to private parties, not just to foreign states. So if a private foreign corporation or individual gave the President a gift in exchange for some exercise of his official power, that would be a bribe even though it would not violate the Emoluments Clause.

In short, there are many violations of the Emoluments Clause that would not be bribes, and many bribes that would not violate the Emoluments Clause.

Does the Emoluments Clause Apply to the President?

It’s not 100% clear – unlike some provisions of the Constitution, the clause does not specifically name the President and refers only to those holding an “office of profit or trust” under the United States. At least one commentator, Seth Tillman of Maynooth University in Ireland, argues that this and other historical clues suggest the clause was not intended to apply to the President.

But this appears to be a minority view. An “office of profit or trust” under the United States would logically seem to include the presidency. It would be quite strange if the framers did not intend the ban on potential foreign influence to extend to the highest office in the land, where such influences could potentially do the most damage.

Adam Liptak recently wrote in the New York Times about how a newly-elected President Obama sought legal advice from the Department of Justice concerning whether he could accept the Nobel Peace Prize without violating the Emoluments Clause. The DOJ Office of Legal Counsel, in its written opinion, considered it beyond debate that the presidency was “surely” an office of profit or trust under the United States. That seems correct.

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Does Bribery Apply to the President?

Yes. Trump made headlines last week when he told the New York Times that “the President can’t have a conflict of interest.” Federal criminal statutes related to conflicts of interest are contained in the 200-series of Title 18. It’s true that 18 U.S.C. § 202(c)  provides that a number of those laws – including the primary conflict of interest law, 18 U.S.C. § 208, prohibiting acts “affecting a personal financial interest” – do not apply to the President.

But this does not mean it is impossible for a President to have a conflict of interest. Hopefully Trump does not really believe he is free to pursue federal policies designed to benefit his personal financial interests. The universe of concerns about conflicts of interest is not encompassed by the federal criminal code; simply because something may not be a felony does not make it appropriate Presidential behavior. Indeed, the Emoluments Clause itself is plainly animated by a desire to avoid even a perception of potential conflicts of interest.

In any event, unlike the conflict of interest statutes, the President is not exempted from the federal bribery statute, 18 U.S.C. § 201. That law applies to any “officer or employee or person acting for or on behalf of the United States,” which certainly includes the President.

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How Could Trump Violate the Emoluments Clause?

Trump has numerous overseas business ventures and properties, as well as business relationships with many foreign entities. Once he is President, any business transaction with a foreign government that is anything less than completely arms-length could potentially violate the clause. If a foreign government gave him a sweetheart deal on a particular project, or purchased assets or paid rent at above-market rates, or pressured state-owned banks to give Trump favorable loan terms, those could be considered gifts or emoluments. A foreign government could also grant permits or approvals for Trump projects on more favorable terms or cancel investigations related to Trump deals, all of which could be considered financial benefits to Trump.

Some have suggested that even at fair market rates, any foreign government transaction with a Trump business — such as diplomats staying at the new Trump hotel in D.C. — would be payment for a service and therefore a prohibited emolument.

But there are a number of potential qualifications and loopholes. First, the clause only prohibits gifts from a “foreign state,” so gifts from a foreign private corporation would not violate the clause. Presumably a number of Trump’s overseas deals are with private companies and not with governments. (This is why President Obama ultimately was able to accept the Nobel Peace Prize money – the Department of Justice concluded that the prize was coming from a private organization, the Nobel Committee, that was sufficiently independent from the Norwegian government.)

A factual issue could arise concerning whether foreign corporations that are government owned or controlled would be treated as a foreign state for purposes of the clause. The answer should be yes if the clause is not to be completely undermined. (An analogous issue arises under laws such as the Foreign Corrupt Practices Act, where employees of state-controlled private corporations are often deemed to be “foreign officials.”) As Liptak reported, in the opinion for President Obama the Department of Justice noted it believes that corporations owned or controlled by a foreign government are presumptively foreign states for purposes of the Emoluments Clause. Whether this was true in any particular case would likely depend on the degree of state control.

Another issue could arise if a gift was given to the Trump Organization rather than to President Trump personally. Because corporations are generally considered distinct “persons” under the law, a gift to Trump’s corporation might not be considered a gift to the President. But because it is a privately-held corporation, arguably even a gift to the corporation should be deemed a gift to Trump. Some commentators recently argued that gifts to the Clinton Foundation should be considered gifts to Hillary Clinton for purposes of the Emoluments Clause – presumably the same analysis would apply to gifts to the Trump Organization.

A separate question could arise if the present was given to one of the Trump children, or one of their businesses. Assuming they are not holding an office in the new administration, such a gift would appear not to violate the clause. But particularly given the important role Trump’s family seems to play in his administration, the underlying concerns about outside influences and conflicts of interest would certainly still be present. This would seem to violate the spirit of the clause, if not the letter.

Finally, it appears that Congress could simply give Trump a pass on all of this. The Emoluments Clause provides that presents or emoluments may not be accepted “without the consent of Congress.” That suggests Congress could pass some kind of blanket permission for President Trump to pursue his businesses without worrying about the clause. How something like that would play politically would be another matter.

What Is the Remedy for a Violation of the Emoluments Clause?

There’s probably a reason there are no court cases interpreting the Emoluments Clause: most commentators think it is non-justiciable. In other words, no one would have standing to bring a lawsuit and a court would not be able to fashion a workable remedy. As Professor Jonathan Adler noted in the Volokh Conspiracy blog, if the clause is violated “the only remedies will be political.”

Political remedies include elections. If voters are upset by President Trump’s foreign entanglements they could toss him out of office in four years. Political remedies could also include hearings on Capitol Hill. Congress could issue sternly-worded resolutions of disapproval that Trump could dismiss with a Tweet storm. Congress presumably could pass legislation that would impose some restrictions consistent with the clause, although enforcing it would again be problematic.

Or political remedies could include impeachment.

Is Violating the Emoluments Clause an Impeachable Offense?

The Impeachment Clause, Article II, Section 4 of the Constitution, provides:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Although it’s not a crime, a violation of the Emoluments Clause most likely is an impeachable offense. The phrase “high crimes and misdemeanors” is generally understood to refer not to criminal law but to political violations and misconduct related to public office. Impeachment is a political process, not a criminal one. As Hamilton wrote in The Federalist No. 65, impeachable offenses “proceed from the misconduct of public men . . . from the abuse or violation of some public trust.”

That being said, the meaning of the phrase “high crimes and misdemeanors” is not completely settled. There was a lot of debate about it during the impeachment of President Bill Clinton. Clinton’s lawyers argued that “high crimes and misdemeanors” meant misconduct related to the exercise of public office. They maintained that Clinton’s behavior in his personal life did not meet that standard. Congress, of course, ultimately disagreed.

But a violation of the Emoluments Clause would be directly related to the exercise of Trump’s public office and his abuse of that trust. As such it should qualify as a “high crime or misdemeanor.” It would be strange indeed if the framers included the prohibition against emoluments but contemplated no possible remedy for its violation. The most logical remedy is impeachment.

And in the end, as then-Congressman Gerald Ford famously remarked, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” If Congress were to conclude that a violation of the Emoluments Clause was (or was not) an impeachable offense, there would be no real way to challenge that conclusion.

What Would Be the Remedy if Trump Committed Bribery?

If President Trump were to violate federal bribery law, the issue again would be the proper remedy. Whether or not a sitting President can be indicted is another question that was debated during the Bill Clinton investigation and has never been fully resolved. The Supreme Court did rule in the Paula Jones case, Clinton v. Jonesthat a President is not immune from civil litigation based on events that took place before he took office, but that is a different matter.

Indicting a sitting President raises far thornier issues. How would the President’s own Justice Department and Attorney General prosecute a criminal case against the President? Could the federal courts hear such a case without violating the separation of powers? What if a sitting President were convicted and sent to prison while still in office? And could a convicted President Trump pardon himself?

For all of these reasons, the better view is probably that a sitting President cannot be indicted for a crime. (This is also the official position of the Department of Justice.) The appropriate remedy for a President who commits criminal acts would once again be the impeachment process. In fact the Impeachment Clause (quoted above) specifically lists bribery as one of the grounds for impeachment.

If a President were impeached for bribery and removed from office, then presumably criminal bribery charges could be pursued against him or her as a private citizen. Article I, Section 3, Clause 7 of the Constitution provides that after removal by impeachment an official “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” But again, we are in uncharted waters.

Bottom Line – The Meaning of the Emoluments Clause

The Emoluments Clause is far more sweeping than the laws against bribery, at least when it comes to gifts from foreign governments. Almost any transaction involving Trump businesses and a foreign state or state-controlled entity is going to raise questions about whether any improper emolument was involved, even if Trump did not agree to do anything in return.

For any violation of either bribery law or the Emoluments Clause, the likely remedy is impeachment, not a lawsuit or criminal charges. And for those who believe a Republican Congress would never impeach a Republican President, bear in mind that if Trump were removed from office that would leave us with: President Pence.

That might be an outcome many Republicans would find very desirable.

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Update: Rod Blagojevich’s Original Sentence Unchanged at Resentencing

At a resentencing hearing today, U.S. District Judge James Zagel sentenced former Illinois Governor Rod Blagojevich to the same fourteen-year sentence the judge had originally imposed in 2011. Blagojevich (known as “Blago”) was convicted on eighteen felony counts of corruption based on various “pay to play” schemes involving his powers as governor, including a scheme where he tried to obtain money or a job in exchange for appointing the successor to former U.S. Senator from Illinois Barack Obama.

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Resentencing was necessary because five of Blagojevich’s convictions had been thrown out by the U.S. Court of Appeals for the Seventh Circuit. The court of appeals concluded that the charges based on Blago’s scheme related to filling the Senate seat may have rested on an improper legal theory. Those charges were based in part on evidence that Blago had tried to trade that appointment for a favorable government job for himself; in other words, he would appoint a successor favored by Obama in exchange for a seat in President Obama’s cabinet. (That deal never came to pass because the President and his staff refused to agree.) But the court of appeals concluded that this kind of transaction, trading one political appointment for another, was simply political “log rolling” that takes place all the time and could not form the basis of a corruption conviction. (I wrote in more detail about the Seventh Circuit opinion in this post.)

Blagojevich had also hoped the Supreme Court might hear his case, particularly in light of the Court’s recent decision to accept review of and then reverse the corruption convictions of former Virginia Governor Bob McDonnell. But those hopes were dashed when the high court declined to accept Blago’s appeal.

At the resentencing, Blago’s attorneys argued he should be released much earlier in light of the vacated convictions. But the government pointed out that even without those charges the sentencing guidelines would have called for the same sentence, based on the other corruption schemes for which he was convicted. In addition, although the court of appeals rejected one theory related to the attempted sale of the Senate seat, there had been plenty of evidence at trial concerning efforts by Blago to solicit other things of value in exchange for that appointment. Prosecutors argued that the fundamental picture concerning the nature of Blago’s misconduct had not changed. Judge Zagel apparently agreed.

So after four years of appeals, Blago is right back where he started: in prison until 2024.

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