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.

bribery

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.

donald_trump_27484786540

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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