The Kavanaugh Nomination and the “Bribery” of Susan Collins

A crowdfunding campaign in Maine is seeking to pressure U.S. Senator Susan Collins to oppose the nomination of Brett Kavanaugh to the Supreme Court. Collins, a moderate pro-choice Republican, is considered one of the few Republican Senators who might oppose the president’s nominee. Two progressive groups have raised about $1.4 million from nearly 50,000 individual donors, promising to donate the money to Collins’s (as yet unknown) 2020 Democratic opponent if Collins votes to confirm Kavanaugh. If she votes against the confirmation, the groups say they will return the money to the donors.

Collins says the campaign is illegal. She claims two attorneys have told her it constitutes bribery and one told her it is extortion. Other Republicans also have expressed outrage. The Wall Street Journal weighed in with an editorial headlined, “You Can’t Bribe Susan Collins.” A watchdog group referred the matter to the Department of Justice and asked for a criminal investigation, claiming that it’s “pretty clear . . . that this is absolutely an act of bribery and corruption.”

Actually, the opposite is pretty clear: the crowdfunding effort is neither bribery nor extortion. That doesn’t mean it’s laudable, and to many the effort does seem a bit shady somehow. But like it or not, it’s simply a slightly more explicit example of what goes on every day in our politics. What the spat really highlights is the thin and often blurry line between political corruption and our current campaign finance system.

Senator Susan Collins of Maine

Senator Susan Collins (R – Maine)

It’s Not Bribery

The relevant section of the federal bribery statute, 18 U.S.C. 201(b)(1)(A), prohibits corruptly giving or offering a “thing of value” to a public official to influence that official in the performance of an official act. As a United States Senator, Collins is a public official as defined in the statute. And although the Supreme Court in the recent Bob McDonnell case dramatically limited the scope of the term “official act,” there’s no question that voting on a Supreme Court nominee would qualify. There’s also no question that the crowdfunding effort is an attempt to influence Collins in her performance of that official act.

So far, so good, right? But the first hitch in the bribery theory is that it appears nothing is being given or offered to Collins at all. The $1.4 million is certainly a “thing of value,” but it’s being promised to some future, unknown opponent of Collins, not to Collins herself.

However, the term “thing of value” has been interpreted very broadly. It includes intangibles such as promises of future contracts, job offers, and even the companionship of a significant other. I think you could make a decent argument that the promise to withhold $1.4 million from a future opponent is a “thing of value” to Collins for purposes of the federal bribery statute. It might be a bit of a stretch, particularly since her opponent is not even known yet (and I’m not sure we know for certain that she intends to run for re-election). But it doesn’t seem crazy to me. The “thing of value” in a bribery case should be something that might influence the official to act a certain way. The promise to give to — or withhold from — her future opponent’s campaign a substantial sum of money seems like it would have the ability to influence Collins’s actions. Indeed, that’s precisely the point.

The real problem with the bribery theory is the requirement of “corrupt” intent. Proving a defendant acted corruptly – knowingly and with a bad purpose to do something improper – is easier when bribes consists of secret gifts or briefcases full of cash. But campaign contributions carry almost a presumption of legitimacy. They are publicly disclosed and legal (as long as they are within proper limits). They’re also considered an essential component of the right of citizens to express their views and support candidates of their choice.

It’s not impossible to base a corruption case on a campaign contribution, but the bar is very high. It’s not enough simply to show that the politician acted in a way desired by someone who made a large donation. Prosecutors must demonstrate an explicit agreement that the candidate will act a certain way in exchange for the contribution. Corrupt intent typically is highlighted by the fact that such deals are struck in secret – and such evidence is very hard to come by.

For example, in the recent trial of New Jersey Senator Bob Menendez, after the jury deadlocked the judge dismissed all the bribery counts where the thing of value alleged was a political contribution. The judge found that prosecutors had failed to prove the required explicit link between those contributions and any actions by Menendez. The judge did not dismiss the bribery counts involving other things of value, such as undisclosed gifts of vacations and private jet trips. But he ruled that the bribery charges based on political donations – and linked to the same alleged official acts by Menendez – had to be dismissed for lack of evidence. (After the case was gutted by the dismissal of those counts, prosecutors decided to drop the remaining counts and not re-try Menendez.)

In the Collins case, the pledged contributions are within legal limit and have been publicly disclosed. There is certainly no secret deal with Collins to influence her – just the opposite. And there could be no agreement with her opponent, who isn’t even named yet.

The Supreme Court’s decision in Citizens United made it clear that even if huge amounts of money are sloshing around within the political system seeking to influence candidates and elections, that alone does not demonstrate corruption. The crowdfunding effort is indeed intended to influence Collins, but that’s not enough. Lobbyists and donors seek to influence politicians all the time. Bribery requires not just an intent to influence but a corrupt intent. I don’t see how that could be shown here.

It’s Not Extortion, Either

Collins has also suggested the crowdfunding effort might amount to extortion. The primary federal extortion statute, the Hobbs Act, 18 U.S.C. 1951,  prohibits extortion by force, violence or fear, or under color of official right (a popular public corruption theory). Extortion by fear includes using fear of economic harm, such as threatening to ruin someone’s business. One could argue that the threat to donate to Collins’s opponent amounts to using fear of economic or professional harm to influence her actions.

But extortion requires that the defendant obtain property from the victim. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. 1951(b)(2). The Supreme Court made clear in Scheidler v. National Organization of Women that this statute requires both that the victim was deprived of actual property (not the broader “thing of value” used in the bribery statute) and that the defendant obtained that property. In a more recent case, Sekhar v. United Statesthe Court noted that the Hobbs act prohibits common law extortion, which  historically “required the obtaining of items of value, typically cash, from the victim. It did not cover mere coercion to act, or to refrain from acting.”

Here the crowdfunding groups are not obtaining any property from Collins. They are obtaining money from their donors, but those donations are given willingly and not due to force, violence or fear. Because Collins is not being forced to give up any property, extortion simply does not apply.

So if it’s not a crime, why does the effort to pressure Collins feel sort of – icky?

Crowdfunding, Bribery, and Campaign Finance

Public officials occupy a position of public trust. They are supposed to act in the best interests of the public as a whole, to do their best to further the interests of those they have sworn to serve and who pay their salaries. Bribery is a crime because a bribe causes the official to act not for the benefit of all but for the benefit of the bribe payor. The political system is corrupted because the bribe recipient acts not for the public good but for some private benefit.

To prevent this type of corruption, we have laws against bribery. But at the same time, we have a system of privately-financed campaigns. Politicians have a need to raise money for their elections. They routinely campaign and seek donations by promising to vote or act a certain way if elected. Citizens have a fundamental right to express their views to elected officials and to support them financially.

The tension here is obvious. Political donations, particularly very large donations from super-PACs and similar groups, are things of great value. They certainly have the potential to influence a politician who seeks those donations. If a politician votes a certain way not because she truly believes it is in the best interests of the public but because that is the wish of a major donor to her campaign, it becomes pretty hard to distinguish that from bribery. The underlying concerns are exactly the same. Indeed, one could argue that our system of privately financed campaigns is fundamentally a system of legalized, organized bribery.

Politicians, of course, deny they are influenced by large donations. They say things like “my vote is not for sale,” and that their donors generally support their policies but the donations will not induce them to act in any particular way. The donors say pretty much the same thing. And the rest of us are expected just to sit back and gaze admiringly at the emperor’s new clothes.

The Maine crowdfunding effort seems a bit jarring because it is so open and explicit – but it really is just politics as usual within our current system. Individuals and organizations on both ends of the political spectrum routinely promise to grant or withhold support based on particular actions they want politicians to take. Many such promises are made behind closed doors, in the proverbial smoke-filled rooms, although these days politicians are increasingly up front about such attempts to influence them. It wasn’t long ago that Republicans on Capitol Hill were saying they had to pass president Trump’s tax cuts because their big donors were telling them that if they didn’t get this done they shouldn’t ever bother calling for donations again. “Vote this way or you won’t get our money” – that’s really no different from the Maine crowdfunding plan.

The professed outrage of Senator Collins and her Republican colleagues displays all the sincerity of Captain Renault in  Casablanca “discovering” there is gambling going on in Rick’s café:  “I’m shocked, SHOCKED to learn there are people who might try to influence politicians through large contributions!” The crowdfunding effort is just politics as usual — albeit not by the usual suspects — within the campaign finance system Congress and the Supreme Court have given us. If Collins and her colleagues don’t like it, maybe they could join with some Democrats to enact meaningful campaign finance reform.

Who knows, it could be the beginning of a beautiful friendship.

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Manafort and Cohen: Trump’s Terrible, Horrible, No Good, Very Bad Day

August 21, 2018 was a watershed in the investigations surrounding president Trump. A jury in Virginia found his former campaign chairman, Paul Manafort, guilty on eight felony counts. Almost simultaneously, in New York, Trump’s former personal attorney Michael Cohen pleaded guilty to eight felony counts of tax evasion, bank fraud, and orchestrating illegal campaign contributions for Trump’s 2016 campaign.

It was a remarkable day for a president who campaigned promising to surround himself with “only the best people.” Although both cases are linked to Trump, they have different implications for the president, the Mueller investigation, and for what might be coming next from federal prosecutors.

Paul Manafort was convicted on eight felony charges.

Paul Manafort

The Manafort Conviction 

Paul Manafort was the first defendant to be convicted at trial by the special counsel’s office. After about a three-week trial and four days of deliberations, a jury in the Eastern District of Virginia found him guilty on eight counts of tax evasion, bank fraud, and failure to report a foreign bank account. The jury could not reach a verdict on ten more counts, and the judge declared a mistrial as to those.

There was a lot of drama during the trial concerning whether the judge was being too hard on the prosecutors and whether the jury should have been sequestered to avoid hearing publicity about the case or learning about Trump’s Tweets. These were mostly distractions; it’s not that unusual for a judge to be tough on prosecutors (although Judge Ellis may have taken it to an extreme at times) and juries are very rarely sequestered these days. In the end it appears the jury was able to look past the noise and do its job carefully, sorting through the different issues involved in the different counts — even though they were ultimately unable to agree on about half of them.

It’s hard to know why the jury was hung on some of the charges – and we don’t know whether there was a single holdout or whether they were more evenly divided.(Update: Shortly after this post was published, one juror went public and said there was a single holdout on the ten counts where the jury hung – the other eleven jurors wanted to convict on all counts.) They found Manafort guilty on all the tax charges, clearly finding that whatever other financial shenanigans were going on, he wasn’t reporting his income to the IRS. They rejected all but one of the counts based on failure to report ownership of a foreign bank account; that may have had something to do with doubt about the details of the legal requirements for establishing when a defendant has sufficient control over such an account. And they convicted on some bank fraud theories and not on others, which may have been based on disputes over whether particular representations to some banks were actually material.

But in the end, none of that really matters. Manafort’s defense team was dealt a pretty tough hand and did a good job raising a reasonable doubt as to at least some issues in the minds of some of the jurors. But conviction on eight felony counts still exposes Manafort, who is nearly seventy years old, to essentially life in prison. There’s no way to spin this as anything other than a big win for the prosecutors and a huge blow to Manafort – although some will undoubtedly try:

Prosecutors have the option to re-try Manafort on the counts on which the jury could not agree, but it seems very unlikely they will do so. The eight felony convictions encompass all areas of Manafort’s misconduct and are more than sufficient to hold him accountable at sentencing. In addition, Manafort is still facing a second major trial in the District of Columbia next month on charges of money laundering and bank fraud. Re-trying the counts on which this jury hung seems completely unnecessary.

Manafort also has the right to appeal the convictions. That appeal would be heard by the U.S.. Court of Appeals for the Fourth Circuit, and the process would probably take six months to a year to complete.

The really interesting question now is whether Manafort will finally decide to cooperate in the Mueller investigation. It’s been hard to understand why he hasn’t cut a deal already. Maybe he really is counting on a pardon — although if Trump granted a pardon in exchange for Manafort’s silence, that could be a separate crime of bribery. Or maybe Manafort is afraid what might happen to him if he testifies against certain Russian individuals, who have been known to assassinate their rivals.

There seems little doubt Manafort knows a great deal that would be valuable to Robert Mueller’s investigation. He was at the center of key events, including the frequent contacts between the campaign and various Russians and the change of the Republican party platform at the convention to make it less favorable to Ukraine. And Manafort was also part of the infamous June 2016 meeting at Trump Tower between campaign officials and Russians offering dirt on Hillary Clinton.

We should know soon whether Manafort will join others who have “flipped” and cooperated, or whether he will continue to remain silent. If he does decide to come on board with the prosecution, that has the potential to be a real turning point in the special counsel investigation.

Michael Cohen pleaded guilty to eight felonies.

Michael Cohen

The Cohen Guilty Plea 

At almost the same time the jury was returning its verdict in the Manafort trial, former Trump attorney Michael Cohen entered a guilty plea to eight felony counts in federal court in New York. Cohen pleaded guilty to five counts of tax evasion, one count of bank fraud, and two campaign finance violations. The tax crimes stem primarily from his failure to report several million dollars in income from his taxi medallion business, and really have nothing to do with Trump or the campaign.

The campaign finance violations strike closest to the Trump presidency. They involve Cohen’s role in arranging hush-money payoffs to adult film star Stormy Daniels and former Playboy model Karen McDougal – both to keep them quiet about alleged affairs with Trump during the closing weeks of the campaign. The payment to McDougal was made by a corporation — reported to be American Media Inc., which owns the National Enquirer — which bought the rights to her story so it could then kill it. The payoff to Daniels was the widely-reported $130,000 payment made by Cohen himself just days before the election. Cohen admitted that he took part in these payoffs in order to influence and benefit the Trump campaign.

The most startling thing about Cohen’s plea was his direct implication of Trump in a crime. His plea agreement says only that he arranged the hush money payoffs in “cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign.” But during his plea proceeding, Cohen said the payments were made at the direction of the candidate – Trump himself.

The campaign contributions were unreported and exceeded legal limits, and one was paid by a corporation. These are crimes if done knowingly and willfully, which is what Cohen admitted during his plea. But if the president directed him to commit those crimes, the president himself is also criminally responsible. The law of aiding and abetting, 18 U.S.C. 2, provides: “whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”

In other words, if Trump truly did direct Cohen to arrange the illegal contributions, then Trump himself is liable for the same campaign finance violations to which Cohen just pleaded guilty. The same is potentially true for other members of the campaign who were involved, as well as the individuals at American Media. The president and others could also be implicated in a charge of conspiracy to violate the federal campaign finance laws.

Because Trump and others are potentially implicated, the question is where does the case go from here? The Southern District of New York could bring charges against other individuals involved in the campaign finance violations. But the SDNY is not going to charge the president – particularly in light of the longstanding DOJ opinion that a sitting president cannot be indicted. And the SDNY is not set up to investigate presidential misconduct and make a report to the Attorney General as a special counsel would do. The allegations against Trump also seem to fall outside the mandate of special counsel Robert Mueller, who is charged with investigating Russian interference with the election. (That’s why Mueller referred the allegations against Cohen to the Southern District of New York in the first place.)

That may mean the appropriate course is to call for a new special counsel to investigate the potential campaign finance violations by the president and senior members of his campaign – or to expand of Mueller’s mandate to include those allegations. The latter may make more sense, considering the substantial overlap of the allegations and people involved. Because Attorney General Sessions remains recused from any investigations involving the campaign, such a decision presumably would be made once again by Deputy Attorney General Rod Rosenstein.

DOJ may already be considering appointing a new special counsel or expanding Mueller’s mandate – we don’t know what referrals may have already been made. But now that there are direct allegations of criminal misconduct by the president himself, presumably some kind of process must be put in place to investigate those allegations.

What Happens Next?

Developments in the coming days and weeks should be fascinating. Will Manafort finally decide to flip? Will there be a new special counsel to investigate the campaign violations, or will Mueller’s role be expanded? After all the allegations about Russian meddling and collusion, will it be campaign finance violations having nothing to do with Russia that end up bringing down the president? What about Cohen – how much will he be working with prosecutors?  Although his plea agreement did not spell out any cooperation requirements, it seems likely that he would cooperate as required to help himself out in his own case.

President Trump’s own Tweets in the aftermath of these events may provide a clue as to where he thinks he has the most to fear. He was trashing Cohen:

While bucking up Manafort and perhaps encouraging him to stay strong:

Even though it’s Cohen who now has actually implicated Trump in a crime, Trump may believe the information Manafort could provide would be even more damaging and that he needs to try to keep Manafort in the fold. That may turn out to be a miscalculation; Trump may end up regretting his decision to publicly kick Cohen to the curb. Campaign finance violations, for which Cohen could provide the key evidence, may end up being to Trump was tax evasion was to Al Capone. We shall see.

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*Title credit to Judith Viorst, author of “Alexander and the Terrible, Horrible, No Good, Very Bad Day” (1972), a book I read to my kids some twenty-odd years ago.