Pardons, Bribery, and President Trump

President Trump’s personal lawyer John Dowd resigned two weeks ago. Shortly after he left the president’s legal team, there were reports in the New York Times and Washington Post  that last year Dowd allegedly told lawyers for Trump’s former campaign manager Paul Manafort and former national security advisor Michael Flynn that Trump would consider pardoning their clients. The implication was that the offer of a pardon was made to encourage Manafort and Flynn to stand firm and not cooperate in the Mueller investigation.

In the wake of those reports, there was a lot of debate about whether Trump offering pardons to potential witnesses could constitute obstruction of justice. But last week I wrote this column in the Washington Post suggesting an alternative legal theory: conspiracy to commit bribery. The bribery charge offers prosecutors some important legal advantages over obstruction of justice.

There’s a lot more to say about bribery, pardons, and president Trump, so I’m taking a deeper dive in this post. For the record, let me offer my standard disclaimer: I’m not accusing anyone of committing these crimes. This is an academic discussion of potential legal theories that could apply, and their implications. Whether there is evidence that such crimes actually occurred is up to Bob Mueller, and I don’t claim any special insight into what he has (or has not) discovered.

President Trump could solicit bribes in exchange for pardons

Bribery Theory A: Bribing President Trump

The federal bribery statute, 18 U.S.C. 201, requires the government to prove that a public official agreed to be influenced in the performance of an official act in exchange for something of value. As I explained in the Post, under one pardon bribery theory the government could charge that the president solicited bribes from Manafort and Flynn. In exchange for their agreement not to testify, Trump would promise the official act of granting them a pardon.

Although it’s never been tested, there’s little doubt that the president is a “public official” under section 201. That term is defined to include “any officer or employee or person acting for or on behalf of the United States or any department, agency, or branch thereof.” The president acts for the executive branch and fits this definition. And although Congress specifically exempted the president from other corruption and conflict of interest statutes that appear in the same chapter of the criminal code — see 18 U.S.C. 202(c) – it did not include the bribery statute, section 201, in that exemption. That is perhaps the clearest evidence that Congress intended the bribery statute to apply to the president.

The president’s attorney, however, is not a public official. If the theory was that Dowd conveyed offers of pardons on Trump’s behalf, then the charge would be conspiracy to solicit bribes. You can conspire with someone to help them commit a crime even if the underlying statute doesn’t apply to you; for example, a staffer to a Senator could act as an intermediary to arrange bribes on the Senator’s behalf. Proof of such a conspiracy would require evidence that the president and Dowd agreed on this course of action and Dowd then carried it out.

If there was a conspiracy to solicit bribes, it doesn’t matter whether the solicitation was accepted. The crime would be the agreement between Dowd and the president to offer the pardons in exchange for silence, followed by some effort to try to carry out the agreement. In a conspiracy charge, success of the underlying scheme is not required.

The official act would be the president granting a pardon. Although the Supreme Court’s recent decision in the Bob McDonnell case restricted the definition of “official act,” that would not be an issue here. The Court said an official act must involve some exercise of government power, a “decision or action” on a “question, matter, cause, suit, proceeding, or controversy.” I don’t think there’s any doubt that the presidential act of granting a pardon would be an “action” on a “matter” that would meet the McDonnell standard.

The thing of value in this bribery scenario would be the agreement not to cooperate against the president. “Thing of value” is defined very broadly and can include intangibles as well as money or property. A promise not to testify against the president or otherwise cooperate in Mueller’s investigation would be of subjective value to Trump and therefore could serve as the thing of value in a bribery charge.

To sum up: under bribery theory A, the president offers to accept an agreement not to cooperate (thing of value) in exchange for being influenced in the performance of an official act (granting a pardon).

Bribery Theory B: Bribery of a Witness

There is an alternative bribery theory that could be charged under the same statute, 18 U.S.C. 201. Under section 201(b)(3), if a witness was offered a pardon in exchange for refusing to cooperate in the Mueller investigation or for changing his testimony, that could constitute bribery of a witness.

The statute makes it a crime to corruptly give, offer, or promise anything of value, directly or indirectly, to a witness in any kind of proceeding “with the intent to influence the testimony under oath or affirmation” of that person, or “with intent to influence such person to absent himself” from the proceeding.

This theory simply flips the bribery transaction around. Instead of the witness bribing the president in order to obtain the official act of a pardon, the president (or someone acting on his behalf) would bribe the witness. In this scenario, the pardon is the thing of value offered as a bribe, rather than the official act done in exchange for the bribe. The pardon would be offered to the witness in exchange for influencing his testimony in Mueller’s grand jury investigation. Unlike theory A, this doesn’t require the government to prove that a public official was involved – anyone can bribe a witness. Nor would the government have to prove an “official act” under McDonnell.

One potential benefit of this theory is that it could apply even if the president was not involved in the bribe. For example, supposed Dowd or someone else close to the president told a witness, “Look, just don’t say anything in the grand jury, or lie about what happened, and I’ll get the president to grant you a pardon.” If I made such an offer it would not be credible and likely would not influence anyone to agree. But if the president’s personal lawyer or someone else actually in a position to persuade the president made such an offer, I think that promise could constitute a thing of value – even if the president was not aware of the offer. The statute provides the thing of value may be promised “directly or indirectly” – offering to persuade the president to grant a pardon could be considered an indirect offer or promise.

Advantages of a Bribery Charge

Most discussion in the wake of the news about Dowd offering pardons has concerned whether it could amount to obstruction of justice. But the obstruction argument faces at least one potential legal hurdle. Ever since the president fired James Comey, some have argued that a constitutionally authorized act by the president, such as firing the FBI director or granting a pardon, can never be the basis of an obstruction charge. The most prominent advocate of this view has been Professor Alan Dershowitz, who claims it would be unconstitutional to prosecute a president for a constitutionally-authorized act simply because it was done with corrupt intent. Dowd himself echoed this view at one point.

I think this is wrong, and I’ve explained why I disagree with Dershowitz in earlier posts  (see here and here). But the beauty of the bribery theory is that it avoids this argument altogether. If a pardon was offered in exchange for silence or influencing testimony, the crime is that bribe agreement, not the pardon. It would not matter whether the offer was accepted or the pardon was actually granted. In a bribery case the crime is the corrupt deal (or offer of a deal) – the deal need not be carried out.

Even critics like Dershowitz agree that if a president engaged in other criminal conduct, such as accepting a bribe in exchange for a pardon, he would be subject to prosecution for bribery. He reiterated that point just this past weekend, on Meet the Press. If the facts were there to support a bribery charge, it would offer prosecutors a way to avoid all the debate over the obstruction of justice theory. (Whether a sitting president can or should be indicted or whether the only proper remedy is impeachment is a separate question.)

Paul Manafort

Paul Manafort

Manafort and the Effect of a Pardon

Manafort and Flynn obviously have not been pardoned, at least not yet. Flynn did take a plea deal and has agreed to cooperate with investigators, suggesting that if there was an offer of a pardon in exchange for refusing to cooperate he turned it down. Manafort’s co-defendant Richard Gates also pleaded guilty and agreed to cooperate. But so far Manafort has refused to plead. He is likely facing the rest of his life in prison, with no readily apparent defense to the charges against him. So why doesn’t he cut a deal?

A popular theory is that Manafort is holding out and counting on a pardon. That could lend credence to the story that the offer of a pardon was dangled in front of him if he would only stand fast and not cooperate. But that is an uncertain and risky strategy. First, it requires him to trust the famously volatile president to keep his word. It’s easy to imagine Manafort holding up his end of the bargain only to have the president, perhaps on the advice of his new attorney, decide that pardoning Manafort would be a bad idea.

Many have suggested Trump may not want to grant pardons because a pardoned witness no longer has a Fifth Amendment right to remain silent and Mueller could then force them to testify. But that risk to the president seems minimal to me. Presumably the corrupt agreement would be that in exchange for the pardon the witness, if called to testify, would play ball and cover up for the president. If that resulted in additional charges of perjury or obstruction, the president presumably could pardon the witness again. In addition, if a witness still faced potential prosecution for state charges, they could continue to take the Fifth and refuse to testify even afer being pardoned.

It’s potential state charges that pose the real risk to Manafort in holding out for a pardon. The president can only issue pardons for federal crimes, not state ones. Manafort in particular faces a number of potential New York state charges, and there have been reports that New York Attorney General Eric Schneiderman has been cooperating with Mueller. It seems likely that Schneiderman is ready to step into the breach and prosecute Manafort on state charges if Trump issues a pardon.

Could Manafort be afraid to cooperate? After all, the Russians recently poisoned a former Russian double agent and his daughter, and have carried out similar attacks in the past. Depending on the types of Russians Manafort is entangled with, I suppose it’s not out of the question that he is afraid to cooperate out of fear for his own safety or that of his family.

We will have to wait and see how the Manafort prosecution plays out. He may still cut a deal and agree to cooperate. And as the Mueller investigation proceeds, perhaps we will someday learn whether there is any truth to the reports about pardons being dangled in front of potential cooperating witnesses.

Like this post? Click here to join the Sidebars mailing list

The Menendez Trial and the Future of Bribery

The prosecution has finished presenting its case in the trial of New Jersey Senator Bob Menendez. Menendez and his co-defendant, Dr. Salomon Melgen, are facing multiple counts of bribery and related charges. The government alleges that in exchange for gifts from Melgen including private jet trips, luxury vacations, and large political donations, Menendez interceded on Melgen’s behalf in various disputes he was having with the federal government. (A more detailed analysis of the indictment is available here.)

Senator Menendez faces corruption charges

Senator Robert Menendez

When the government rested last week, the judge made some comments that appeared to question whether the bribery case could survive the Supreme Court’s 2016 decision in McDonnell v. United States. This led to widespread speculation that the judge might dismiss many of the charges. But on Monday the judge ruled there was enough evidence to go to the jury. The defense is now putting on its case.

Menendez makes two primary types of claims concerning the bribery charges. The first is that the things he agreed to do for Melgen did not qualify as “official acts” under McDonnell and thus could not support a bribery conviction. The second is that, even if Menendez did perform official acts, they were not in response to any gifts from Melgen but were simply done out of friendship or as part of Menendez’s routine Senate responsibilities.

The McDonnell case has been looming over the Menendez prosecution from the beginning. If the Senator is convicted, I think there is a good chance that at least some of the bribery charges will indeed be overturned on appeal. But I believe it will be based primarily not on McDonnell but on a different Supreme Court case decided almost two decades ago.

McDonnell and “Official Acts”

The Supreme Court in McDonnell held that in any federal bribery case the prosecution must prove the public official agreed to be influenced in the performance of an “official act” as defined in 18 U.S.C. 201, the federal bribery statute. The Court concluded that Governor McDonnell’s actions —  making phone calls, arranging meetings, and holding an event at the Governor’s mansion — did not rise to the level of “official acts” and could not support a bribery conviction. (For a critique of McDonnell and its “official act” holding, you can see my posts here and here.)

The “official act” argument says, in effect, that even if there were a deal or quid pro quo, what the public official did – the quo – was not substantial enough to justify a bribery charge. The official can admit there was a link between his actions and the gifts he received, but argue that those actions were trivial or were simply routine political courtesies.

The McDonnell opinion has already resulted in some high-profile convictions being thrown out, including that of former New York State Assembly Speaker Sheldon Silver. Senator Menendez has argued from the beginning of his case that the things he did for Dr. Melgen did not amount to official acts, and the judge has repeatedly rejected his arguments. As I wrote here, I think the judge is correct. If Menendez is convicted and those convictions are later overturned, I don’t expect it to be on the McDonnell “official act” ground.

Melgen is accused of bribing Senator Menendez

Dr. Salomon Melgen

Quid Pro Quo and the “Stream of Benefits” Theory 

Assuming Menendez did perform official acts, to be bribery those acts still needed to be done in exchange for the gifts he received from Melgen. This is the requirement of a quid pro quo, or corrupt intent. This is Menendez’s other main line of defense: he says that anything he did for Melgen was either out of friendship or was part of his general oversight and policy duties as a Senator, not in response to the gifts he received.

Some counts of the indictment related to Melgen’s hefty political contributions to Menendez allege a direct quid pro quo (Counts 9-14). They charge that in exchange for a particular donation, Menendez took a particular identified official act, such as advocating on Melgen’s behalf before the State Department or Department of Health and Human Services.

But a number of the charges (Counts 2-8) rely on a different bribery theory, known as “stream of benefits.” These counts charge that Menendez accepted gifts such as trips on Melgen’s private jet in exchange for “being influenced in the performance of official acts, as opportunities arose.” The specific official acts are not identified in the individual bribery counts, although a large number of official acts are described in the indictment as a whole.

Prosecutors use this “steam of benefits” theory in cases where the bribe payer essentially has the public official on retainer. In exchange for a series of gifts over time, the public official agrees do things to benefit the bribe payer when opportunities arise. It might not be possible to prove a direct link between any particular gift and any particular official act; what is charged is the continuing corrupt relationship, a sort of ongoing “you scratch my back and I’ll scratch yours” theory.

The Supreme Court has never weighed in on this stream of benefits theory. It has been widely accepted in the lower courts, including those in the Third Circuit where Menendez is on trial. But Menendez’s attorneys claim that McDonnell has changed the legal landscape here as well.

The trial judge made some comments last week suggesting he might find that the stream of benefits theory did not survive McDonnell. In the end, though, he agreed with the government that McDonnell’s requirement that an official act be specific and focused does not mean the act has to be identified at the time of the corrupt agreement. In other words, the deal may be, “I’ll give you a stream of benefits over time, and in exchange you agree to do things for me, as the opportunities arise, that qualify as official acts.” The parties have to agree that the public official will perform official acts, but they don’t have to agree up front what the precise official acts might be.

As far as the impact of McDonnell itself is concerned, that seems like the right answer. McDonnell did not discuss the stream of benefits theory and there’s no particular reason to believe that the “official act” requirement, standing alone, would invalidate that theory.

But I think the Supreme Court’s overall approach in McDonnell does suggest the Court might well reject the stream of benefits bribery theory if given the opportunity. That rejection would primarily be based not on the holding of McDonnell, but on the language of the federal bribery statute itself and the reasoning of a 1999 Supreme Court case, United States v. Sun-Diamond Growers of California.

The Sun-Diamond Decision

In Sun-Diamond the defendant, a large agricultural cooperative, was charged with giving illegal gratuities to the Secretary of Agriculture, Mike Espy. The crime of gratuities, 18 U.S.C. 201(c), appears in the same statute as federal bribery, 18 U.S.C. 201(b). It prohibits giving a public official a thing of value “for or because of any official act.” It differs from bribery in that no corrupt intent to influence the official is required; a gratuity can be a mere “thank you” for an official act that has already been performed.

Sun-Diamond was prosecuted on what was sometimes called a “status gratuity” theory. The government didn’t identify any particular official acts by Espy to which the gifts were linked. Instead, it argued it was enough that the gifts were based on Espy’s official position and were made with the hope of building up a reservoir of goodwill with Espy, perhaps to influence or reward some unspecified official act in the future.

The Supreme Court rejected this theory. It was not enough, the Court held, to charge Sun-Diamond with paying gratuities to Espy based on his status or for official acts not named in the indictment. The Court found that section 201(c)’s requirement that a gratuity be “for or because of any official act” means a specific official act must be identified. The Court particularly focused on the phrase “any official act,” holding that this language “seems pregnant with the requirement that some particular official act be identified and proved.” It specifically rejected the alternative, broader interpretation that “any official act” meant any one of the universe of potential official acts “without specification as to which one.”

Did the Stream of Benefits Bribery Theory Survive Sun-Diamond?

Sun-Diamond rejected a gratuity prosecution based on a stream of gifts not linked to any particular official acts. But in the wake of Sun-Diamond, lower courts have continued to uphold the stream of benefits theory in bribery prosecutions. Courts have held that the reasoning of Sun-Diamond does not apply to bribery cases because bribery requires proof of a higher level of intent, a corrupt quid pro quo. That’s true, but as one of my old law professors liked to say, is that a difference that makes a difference?

The language of the gratuities and bribery statutes is strikingly similar. The bribery statute in section 201(b)(2)(A) prohibits a public official from accepting anything of value in exchange for agreeing to be “influenced in the performance of any official act.” That phrase – “any official act” – is precisely the language that the Court in Sun-Diamond said required a particular official act to be identified and proved. It’s not clear to me how the different levels of intent required for the two crimes makes any difference at all when it comes to interpreting this statutory language. For either a gratuity or a bribe, the statute and reasoning of Sun-Diamond appear to require a link to a particular, identifiable official act.

There is another reason to be suspicious of lower court decisions upholding the stream of benefits theory after Sun-Diamond: most of those cases involved prosecutions for honest services fraud or Hobbs Act extortion, not section 201 bribery. Courts in those cases typically were applying general bribery law principles, not parsing the precise statutory language of 18 U.S.C. 201. One of the leading “stream of benefits” decisions, a 2007 case from the U.S. Court of Appeals for the Second Circuit called United States v. Ganim (authored by now-Justice Sotomayor when she was on the appeals court) made precisely that point. Judge Sotomayor noted that Sun-Diamond hinged on the precise wording of section 201 and that the same reasoning did not necessarily apply to other corruption statutes, including the Hobbs Act charges at issue in Ganim.

Menendez is also charged with honest services fraud, but the bulk of the bribery charges in his indictment are under 18 U.S.C. 201. McDonnell and Sun-Diamond make it clear that when interpreting section 201 the Supreme Court will not look to common-law bribery principles but will strictly interpret the precise statutory language. As a result, lower court cases upholding the “stream of benefits” theory in honest services fraud or Hobbs Act cases are of limited value when considering how the Supreme Court would rule in Menendez’s case. And McDonnell suggests that however the Court ends up defining bribery for purposes of section 201, it will apply that same bribery definition to honest services fraud and the Hobbs Act as well.

The Menendez defense argues that the stream of benefits theory does not survive McDonnell. I think the better argument is that it actually did not survive Sun-Diamond and the Supreme Court just has not yet had a chance to say so. The Court’s approach to statutory interpretation in McDonnell simply further highlights why it is unlikely to buy the stream of benefits theory for bribery.

The Defense: Playing the Long Game

The trial judge is likely to let the jury decide the Menendez charges. Even if the judge thinks some of the bribery theories may be invalid, he will likely feel constrained by Third Circuit precedent to let the case go to the jury.

Senator Menendez is in part playing a long game, hoping that even if he is convicted he ultimately will prevail on appeal. Don’t forget that Governor McDonnell was convicted at trial and his conviction was affirmed by a unanimous Court of Appeals before the Supreme Court ultimately took the case and unanimously reversed.

If the Menendez case ever were to reach the Supreme Court, I think there’s a good chance the Court would reject the stream of benefits bribery theory. A number of counts against Menendez and Melgen would remain, so that alone would not mean they would walk free. But it would represent yet another step by the Court to further narrow the scope of federal public corruption law – a process that began nearly twenty years ago in Sun-Diamond.

Update: On November 16, 2017, the Menendez trial ended in a hung jury.

Update 2: On January 19, 2018, prosecutors announced they would re-try Menendez and Melgen.

Update 3: On January 31, 2018, after the judge acquitted the defendants on seven counts, prosecutors announced they would not re-try the case and dismissed all charges.

Like this post? Click here to join the Sidebars mailing list.