Corruption Is the New Collusion

If we were creating one of those New Year’s “In and Out” lists, collusion would be “Out” and corruption would be “In.” Allegations of corruption are central to the Articles of Impeachment of president Trump, which charge that the president acted for “corrupt purposes” and with “corrupt motives” in his dealings with Ukraine. Trump supporters claim, however implausibly, that his actions were justified by his concerns about corruption in Ukraine. But “corruption” is not a criminal offense, so general claims of corruption don’t tell us much about the seriousness or criminality of the underlying behavior.

This reminds me of the debates about “collusion” over the past couple of years. During the Mueller investigation, allegations of collusion and whether it was a crime served primarily to muddy the waters. The term collusion can refer to a wide variety of actions that are not at all criminal. Trump and his supporters were thus able to argue that “collusion is not a crime” while ignoring that conduct that could be described as collusion could also, in some cases, violate criminal statutes.

Just as arguing about collusion was not illuminating, claims about corruption are similarly unhelpful. They allow supporters of the president to argue that everyone is corrupt and so what the president did was not unusual. Certainly, they claim, you can’t impeach a president for engaging in the kind of conduct that goes on every day in the Washington D.C. swamp. But general allegations of corruption obscure the critical differences between conduct that may be merely unseemly or “politics as usual” and conduct that is truly criminal and an abuse of office. As the impeachment proceedings move forward, that’s a distinction that should not be lost.

Special Counsel Robert Mueller
Special Counsel Robert S. Mueller III

The Special Counsel and Collusion

During the investigation by special counsel Robert Mueller, there were repeated allegations of possible collusion with Russians by members of the Trump campaign. As I’ve noted here before, there is no crime called collusion. Collusion refers to working with someone, usually in secret and toward some improper end. In criminal law, we call that a conspiracy. When Mueller issued his final report, he also noted that collusion is not a criminal concept. He examined the various contacts between Russians and the Trump campaign under the law of criminal conspiracy, and determined that none of them rose to that level.

Some found it difficult to accept that the campaign’s contacts with and willing acceptance of help from various Russian sources might not be unlawful. But there’s a great deal of conduct that may be reckless, bumbling, or dishonorable and still not be a crime. In other words, there’s a lot of collusion that isn’t criminal.

In the public debates during the Mueller investigation, the constant references to all Russian contacts as collusion mostly resulted in confusion. It allowed the president’s supporters to argue that because collusion is not a crime, if Mueller was looking at collusion the investigation must be a political witch hunt. Using the catch-all of collusion obscured the distinctions between acts that were simply deplorable and those that might have been truly criminal.

There’s No Crime Called “Corruption”

As with collusion, there is no crime called “corruption.” That term covers a multitude of sins, most of which are not criminal. Much of what goes on in the D.C. “swamp” every day involving the confluence of money, power, and politics may look inappropriate or sleazy and may be considered corrupt by many. But most of it does not run afoul of the criminal law.

The heartland of criminal corruption is crimes such as bribery, improperly using the power of a public office for personal benefit. As I’ve argued elsewhere (here and here, for example) president Trump’s dealings with Ukraine meet all the elements of federal bribery law: the president demanded a thing of value (announcing the investigation of a political rival) in exchange for his official acts of releasing the military aid to Ukraine and agreeing to a state visit at the White House with Ukraine’s president. This kind of quid pro quo deal by a public official is textbook criminal corruption. This is actual criminal conduct, and an abuse of the power of the presidency.

But consider a politician who takes hundreds of thousands of dollars in campaign contributions from the oil and gas industry and later supports legislation benefitting that industry. Or a cabinet official who resigns and becomes a highly-paid lobbyist, working on behalf of the industry she used to be in charge of regulating. Many might consider such actions corrupt, but they are common occurrences. Without much more, they don’t amount to a crime. We can deplore such actions and argue they suggest a need for better ethics laws or campaign finance reform. But for better or worse, with the system that we have, such actions are not criminal.

The Zephyr Teachout Article

A great example of the problem with allegations of corruption is an article published this week in The Guardian by Zephyr Teachout, a law professor who has written a book about corruption in America and who has endorsed Bernie Sanders for president. The title is: “‘Middle Class’ Joe Biden has a Corruption Problem – It Makes Him a Weak Candidate.” Teachout argues that Biden “has a big corruption problem” that would make him a poor choice to take on president Trump. In support of her claim, she points to three areas — finance, health care, and energy — where she claims Biden has worked to benefit corporate interests that have funded his campaigns. She argues that Biden’s “record represents the transactional, grossly corrupt culture in Washington that long precedes Trump.” Teachout claims this “corruption” of Biden’s will enable Trump to “muddy the water, to once again pretend he is the one ‘draining the swamp’, running against Washington culture.”

There’s no allegation that Biden did anything illegal in any of the examples cited by Teachout. If he’s guilty of anything, it’s of simply playing the Washington swamp game as it currently exists. Many, including Teachout, might think that’s a problem and might decry the influence of money in politics. They might argue persuasively for the need for campaign finance reform. But politics as usual is not a crime. And although the behavior may be unseemly and undesirable, I wouldn’t label lawful political behavior as corrupt. It’s possible to argue for reforming the system without accusing those who are acting lawfully within that current system of corruption.

By calling Biden corrupt, Teachout obscures the differences between true criminally corrupt behavior and behavior that is legal, if swampy. She lumps Biden’s conduct together with Trump’s and labels it all “corruption,” although she agrees that Trump is worse. But any differences between them, apparently, are simply a matter of degree, not of substance. She’s helping Trump make the exact argument that she claims to fear: that everyone is corrupt and so Trump’s behavior is no different from any other politician’s. I think this is wildly misguided and plays directly into Trump’s hands.

(And as a political aside, I think Teachout is kidding herself if she believes that Bernie Sanders, who has spent his entire career in the Washington swamp, will somehow be inoculated against Trump’s attacks if he’s the nominee. For his part, Sanders has disavowed the Teachout article and apologized to Biden for it.)

Hunter and Joe Biden

The Burisma Allegations

Now consider the Ukrainian energy company Burisma, which put Joe Biden’s son Hunter on its board at a hefty salary despite his lack of obvious qualifications. The president and his supporters have urged that Hunter Biden’s appointment to the Burisma board should be investigated as “corruption.” Trump’s demand that Ukraine conduct such an investigation is part of the basis for the Article of Impeachment charging him with abuse of power.

Burisma no doubt hoped that adding such a high-profile American name to its board would provide some political or economic benefit or burnish its image. It may seem unfair or inappropriate that Biden was able to cash in on his family name like this. We may decry the existence of this American aristocracy (although it is richly ironic for Trump and his children to do so). Given the appearances it created, it was poor judgment for Hunter to accept the position. But hope, unfairness, bad judgment, and having a prominent family name are not crimes.

There is no allegation that Hunter actually did anything illegal, just a vague implication that there must have been something fishy going on. Hunter was a private citizen, so there can be no allegation of criminal public corruption directly related to his own actions. He was legally free to accept the job, even if he believed he was unqualified and that Burisma was a sucker to pay him so much money. In hindsight I suspect he would agree that it was dumb for him to take the board seat, given the problems he created for himself and his father. But creating a mere appearance of impropriety is likewise not a crime.

Because Hunter was not a public official, any allegations of criminal corruption would have to link back somehow to his father, who was vice-president at the time. Trump allies have tried to suggest a link between Hunter Biden’s position and then-vice president Joe Biden’s work to convince Ukraine to oust its top prosecutor Viktor Shokin. The allegation is that Shokin was forced out because he was threatening to investigate Burisma, but the facts don’t support that allegation. Just the opposite, in fact: numerous reports have noted that Shokin was ousted because he was too soft on corruption.

In addition, the vice president’s efforts to pressure Ukraine to get rid of Shokin took place in public. Corrupt acts usually take place in secret. Biden’s actions were in furtherance of official American policy and were supported by the entire European community. There’s no credible evidence that Joe Biden acted as part of a quid pro quo or to benefit his son. Such theories live on only in the fevered conspiracy dreams of the likes of Rudy Giuliani.   

Trump’s demands to Ukraine, on the other hand, took place on a private phone call that the White House promptly took steps to conceal by placing the transcript on a classified server. We only know about it now because of the whistleblower. And there seems to be universal agreement even among people in Trump’s own administration that his withholding of the military aid was contrary to U.S. national interests.

But none of this has stopped those who claim that Hunter Biden’s mere presence on the Burisma board is proof of “corruption” that may have somehow justified Trump’s actions. For example, George Washington University law professor Jonathan Turley recently wrote that Hunter Biden’s contract with Burisma “was so openly corrupt it would have made Jack Abramoff blush.” But Abramoff was actually convicted of federal crimes, as were more than two dozen people in his orbit including a U.S. Congressman. He went to prison as part of perhaps the biggest criminal corruption scandal in the last twenty years. Equating Hunter Biden’s legal (if unseemly) board seat with Abramoff’s criminal misdeeds is the kind of facile argument made possible only by ignoring the malleability of term “corruption.” It’s the same kind of error made by Teachout.

Focus on the Criminal Conduct

Characterizing all swamp-like behavior as corruption enables the kind of “whataboutism” so common in today’s political battles. It allows the president and his defenders to suggest that everyone is corrupt and that his behavior is not really unusual. But just as most collusion is not criminal, most behavior that is labeled corrupt is not a crime. Trump’s conduct, on the other hand, was in fact criminal and involved abusing the power of the presidency for his own personal benefit. It is different in kind, not just in degree, from D.C. swamp politics as usual. As impeachment proceeds, Democrats would be wise to emphasize the criminal – not just corrupt — nature of president Trump’s actions.

Sidebars Five Year Anniversary: The Top Ten Posts

Five years ago today I published my first post on this blog, a piece about a New York Times reporter at risk of being held in contempt for refusing to identify a source. Sidebars has grown a lot since then and has been fortunate enough to gain some accolades along the way (including my favorite shout-out from the D.C. Bar Magazine: “Come for the ongoing smackdown with Alan Dershowitz, stay for the trenchant commentary on the rule of law”) . To mark this anniversary,  I thought it would be fun to take a look back at the Sidebars “Top Ten”: my ten most-read posts over the past five years.

During those five years I’ve written more than 120 posts on Sidebars, an average of about one every two weeks. My pace of posting on the blog has definitely slowed down over the past couple of years as I’ve been writing more as a contributing columnist for the Washington Post and working on an upcoming video lecture course on white collar crime for The Great Courses. But the blog continues to be a great vehicle for deeper dives on selected topics; at about 2500-3000 words, my average post on Sidebars is more than three times the length of a typical op-ed in the Post. Brevity may be the soul of wit, but it’s rarely a lawyer’s strong suit — and some of these subjects really do call for a more in-depth analysis.

As readers know, my focus on Sidebars is on white collar crime. The investigation by special counsel Robert Mueller was the most consequential white collar case in a generation, so it’s probably not surprising that a majority of my top posts related to that investigation. Other major white collar cases, such as the prosecutions of Virginia governor Bob McDonnell and New Jersey Senator Bob Menendez, also have been bountiful sources of material. But whatever else you might think of them, you can’t top the Mueller investigation and the Trump administration when it comes to providing material for commentators on white collar crime. These results definitely reflect that.

And with that – here are the Sidebars Top Ten.

#10: Fake News and the National Review

Andrew McCarthy of the National Review is a former federal prosecutor for the Southern District of New York. As a columnist, he’s been a vociferous critic of the Mueller probe and booster of president Trump. During the Mueller investigation he regularly wrote columns attacking the investigation that were so factually and legally off-base that it’s hard to believe he was once an Assistant U.S. Attorney. Now that Mueller is done, McCarthy is still at it, peddling pro-Trump conspiracy theories about Ukrainian interference with the election and the “Deep State” efforts to take down the president. In what became my tenth most popular post, I collected a number of the arguments from McCarthy’s columns about Mueller and showed how he was misleading his readers. I sent the post to the National Review, and I along with some other law professors on Twitter encouraged McCarthy and the National Review to respond, but they never did.

10) What Andrew McCarthy Gets Wrong about the Mueller Investigation – 3/22/18

 

#9: When is Lying a Federal Crime?

The False Statements statute, 18 U.S.C. 1001, is a workhorse in the white collar prosecutor’s stable. It broadly criminalizes material false statements made to the federal government, even if not under oath. A number of witnesses in the Mueller investigation, including Michael Flynn and George Papadopoulos, pleaded guilty to false statements for lying to the FBI during interviews. The statute applies to written false statements as well, and early in the Mueller investigation there was speculation that individuals including Jared Kushner and Jeff Sessions might be liable for concealing various foreign contacts when they filled out paperwork to apply for a security clearance. In this post I explained the scope and requirements of the false statements statute and how it potentially could apply in such a case.

9) Lying on a Security Clearance Form: The Crime of False Statements – 6/5/17

#8: The Dershowitz “Smackdown”

Harvard Law Professor Alan Dershowitz was a vocal critic of the Mueller investigation. For two years Professor Dershowitz was all over conservative media attacking the investigation and making sweeping arguments about executive power and presidential immunity from prosecution that frankly seemed increasingly unhinged.  I’ve written several different posts and articles rebutting Dershowitz’s claims.  The most popular blog post has been this one from June 2017,  taking on Dersh’s argument that the president can’t be charged with obstruction of justice because, well, he’s the president.

8) Trump and Obstruction: What Alan Dershowitz Gets Wrong – 6/19/17

#7: A RICO Review

The Mueller probe offered me several opportunities to write posts explaining the elements of leading white collar statutes and then illustrating them by discussing their potential application to the Mueller investigation. The False Statements post, number nine above, was one such example. Another one ended up as number seven on the list. It provides a primer on the Racketeer Influenced and Corrupt Organizations act (RICO) and then discusses how it potentially could apply to the matters that Mueller was investigating. Mueller, of course, did not end up pursing RICO charges against anyone, Russian or American. But we may not have heard the last of RICO and president Trump. Prosecutors in the Southern District of New York may be looking at possible RICO charges involving the Trump Organization. The SDNY is notoriously fond of RICO, and regardless of whether the other elements of the crime could be established, the Trump Organization is a classic RICO “enterprise.”

7) RICO and the Mueller Investigation – 1/16/18

#6: Fraud and the Sentencing Guidelines

My sixth most popular post is completely unrelated to Mueller. In 2015 the Federal Sentencing Commission revised the guideline used to calculate the sentence in federal fraud cases. That guideline is key to white collar practice because so many white collar cases involve fraud charges. The old guideline had come under a lot of criticism for the way it calculated white collar sentences, and reform was thought to be long overdue. In this post I discussed the changes made by the new fraud guideline and explained why those amendments really amounted to little more than tinkering around the edges.

6) The New Sentencing Guideline for Fraud Cases – 5/4/2015

#5: What’s This Blog About, Anyway?

I’m particularly pleased this post made it into the Top Ten. It deals with what seems like it should be a fairly simple and foundational question: what is white collar crime? If you look in the federal criminal code you won’t find a definition, or a section titled “white collar offenses.” In fact, there is no universally accepted definition of white collar crime, even though it clearly is recognized as a distinct practice area — not to mention as the subject of my law school class. This post, way back from only the second month of the blog, is my take on the definition and characteristics of white collar crime. One key takeaway?   — the name itself is something of a misnomer.

5) The Definition of White Collar Crime – 11/26/14

 

#4: Who Isn’t Guilty of That?

I wrote this post on Contempt of Congress back during the Obama administration, when the Republican Congress held the IRS Commissioner, Lois Lerner, in contempt. Prosecutors declined to pursue the case and that was the end of it, and the post lay largely dormant for a couple of years. But recently there has been renewed interest in Congress’s contempt power, in light of the apparent stonewalling of Congressional investigations by the Trump administration. And that has led to a lot of renewed interest in this post, catapulting it to number four on the list. Will Congress dust off its inherent contempt power and start locking up recalcitrant witnesses in that  rumored jail cell in the basement of the Capitol? We may soon see.

4) Contempt of Congress – 4/20/15

#3: Bribery and the Emoluments Clause

Since before president Trump even took office, there has been controversy about his extensive business holdings and whether he might profit from the presidency in violation of the Constitution’s emoluments clause. This relatively obscure Constitutional prohibition is now the subject of several ongoing lawsuits. My third most popular post, written after the election but before Trump was inaugurated, explained the foreign emoluments clause, how it relates to federal bribery law, and whether Trump was at risk of violating it.

3) The Emoluments Clause, Bribery, and President Trump – 11/29/16

#2: It’s Conspiracy, Not Collusion

In the early days of the Mueller investigation, a frequent refrain from the president and his supporters was that collusion with the Russians, even if it did take place, would not be a crime. I wrote this post early on in the Mueller investigation. It explained how, for criminal law purposes, the proper term is conspiracy, not collusion. It also described how allegations that the Trump campaign colluded with the Russians to influence the election, if true, could in fact constitute a conspiracy to defraud the United States — even if the conduct did not directly violate another criminal statute.

2) Yes, Colluding with Russians to Interfere with the Election is a Crime – 7/5/17

#1: “Collusion” is a Crime

My most popular post of all time — by quite a large margin — also dealt with the question of “collusion.” In February 2018 Mueller indicted thirteen Russian individuals and three Russian companies for engaging in a social media campaign to influence the 2016 presidential election. The lead charge in that indictment was a conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful government functions of the Federal Election Commission, State Department, and Justice Department. This was the same legal theory I had outlined about six months earlier in my second most popular post, described above. One of the indicted Russian companies appeared in court and challenged that conspiracy charge. In November 2018 the federal judge in the case denied that challenge and upheld the conspiracy theory that effectively can make “collusion” a crime. My post describing that judge’s ruling, and the possible implications for the Trump campaign, because my most popular post of all time.

1) Judge in Mueller Case Upholds Legal Theory that Makes Collusion a Crime – 11/23/18

Thanks for indulging me in this look back.  Whatever the next years bring, I suspect there will continue to be no shortage of material. Thank you for reading!

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