Rudy and Barr, Back in the News

One hundred days into the Biden administration, two leading characters from the Trump years are making headlines again. Federal authorities executed search warrants at the home and office of Trump’s former attorney Rudy Giuliani, dramatically escalating the criminal investigation into his activities in Ukraine. And a federal judge harshly criticized former Attorney General William Barr and his Department of Justice for engaging in a cover-up concerning Barr’s handling of the Mueller report. The stories were an unwelcome reminder of the abuses that routinely took place during the Trump years, and highlighted that we still have a lot to learn about those abuses.

Rudy Giuliani

The Giuliani Investigation

We’ve known for some time that Rudy Giuliani is the subject of a criminal investigation by the U.S. Attorney’s Office for the Southern District of New York related to his dealings with Ukraine. Those activities are closely related to the events that led to Trump’s first impeachment, when Trump asked the president of Ukraine to “do us a favor” by providing dirt on Joe Biden’s son in exchange for U.S. assistance. In 2019 Giuliani was actively working in Ukraine to to dig up potentially damaging information concerning Biden, who was considered to be Trump’s most likely rival in the 2020 election.

Giuliani also was actively involved in the successful efforts to have Trump oust the U.S. ambassador to Ukraine, Marie Yovanovitch, who was notoriously tough on government corruption. Giuliani apparently saw Yovanovitch as an obstacle to his efforts. Her ouster was also a focus of Trump’s first impeachment, and Yovanovitch testified during the House impeachment hearings about Giuliani’s smear campaign against her that ultimately led to her removal.

Prosecutors apparently are exploring whether Giuliani was working not only for Trump but also on behalf of Ukrainian government officials or other Ukrainian individuals. Those Ukrainians may have been seeking favors from the Trump administration or may have wanted the ambassador removed for their own reasons.

The Search Warrants

On April 28th, federal agents executed search warrants at Giuliani’s home and office in New York City. They reportedly seized a number of phones and electronic devices looking for communications, perhaps on encrypted apps.

According to news reports, prosecutors in the Southern District sought to execute the search warrants as early as last summer. Top DOJ officials would have needed to sign off, given the sensitivity involved in searching the office of an attorney for the president. The Barr Justice Department refused to allow it. After Merrick Garland was sworn in as Attorney General, the Justice Department gave the go-ahead.

The most charitable explanation for the Barr DOJ’s refusal to approve the warrants would be DOJ’s unwritten policy to avoid investigative steps within sixty days of an election if they might influence the vote. But if approval was sought last summer, the election was much more than sixty days away. And that policy would not explain why the searches could not have been approved after the election and before Biden’s inauguration.

Last summer was also when Barr sought to remove the U.S. Attorney for the Southern District and replace him with a Trump loyalist. All of this raises suspicions that president Trump’s Justice Department sought to protect Giuliani by stifling the investigation into his Ukraine activities as long as possible – which also, of course, protected Trump himself.

Michael Cohen

Searching an Attorney’s Office

Giuliani and his lawyers responded with predictable outrage over the search warrants. Searching an attorney’s office does raise special concerns, due to the possibility that materials covered by the attorney-client privilege might be seized. But of course a law degree does not confer immunity from the criminal law, and in appropriate circumstances attorneys may be the subject of a search warrant just like anyone else. As with any search warrant, it requires a neutral judge or magistrate to find probable cause that a crime has been committed and that evidence may be located during the search. And the Justice Department has special procedures in place to review requests for such warrants and handle the screening of potentially privileged material.

The Trump years featured another prominent example of such a search: in April 2018 investigators executed search warrants at the home and office of Michael Cohen, president Trump’s former private attorney and “fixer.” Cohen ultimately was indicted on multiple charges, pleaded guilty, and was sent to prison.

As many criminals have learned the hard way, having an attorney involved in your activities does not necessarily mean that everything the attorney touches is privileged. The attorney-client privilege applies only to communications that involve providing legal advice. If an attorney is working as a business person or in some other non-legal capacity, their activities and communications will not be shielded by the privilege. The privilege also contains an exception for communications that are made in the furtherance of a crime or fraud.

After the Cohen search, a judge appointed a special master to review all of the seized materials and screen them for anything privileged before turning them over to investigators. Ultimately only a small amount of material was withheld. Recognizing the sensitivity of these searches and hoping to speed the process along, prosecutors have already asked the court to do the same for the Giuliani materials.

It will take some time for all of the seized materials to be reviewed and we shouldn’t expect anything to happen in the immediate future. But it’s an ominous sign for Giuliani. DOJ is unlikely to take the serious step of searching an attorney’s office without a compelling reason. That’s especially true when that attorney once represented the former president of the United States. Attorney General Garland would be extremely unlikely to sign off on such politically-charged warrants if this were a marginal case.

The Potential Criminal Charges

Much of the news coverage concerning potential criminal charges against Giuliani has focused on his possible violation of the Foreign Agents Registration Act, or FARA. At least one of the search warrants reportedly mentioned FARA as the potential crime under investigation. That law requires those engaged in political activities in the United States on behalf of a foreign principal to register with the Justice Department. Giuliani may have violated FARA by failing to disclose his work on behalf of various Ukrainian nationals.

Historically FARA was rarely enforced criminally. But the law has gained prominence in recent years, and during the Trump administration and Mueller investigation there were a number of high-profile FARA cases. Former National Security Advisor Michael Flynn was charged with violating FARA for failing to disclose that he was working for the government of Turkey (although he pleaded guilty to a different charge – before ultimately being pardoned). Former Trump campaign manager Paul Manafort also pleaded guilty to violating FARA for his undisclosed work on behalf of Ukraine.

But a search warrant does not need to name every crime under investigation, and other charges could be implicated as well. Financial crimes such as tax evasion or money laundering are always a possibility. Manafort, for example, also was convicted of tax evasion and money laundering based on his handling of the money he received from Ukrainians. If you’re keeping your work as a foreign agent a secret, you naturally have an incentive to hide payments for that work from the IRS and other authorities.

Another possibility is public corruption – taking part in a conspiracy to bribe president Trump. The first impeachment was essentially about bribery, although the articles of impeachment did not expressly cite that criminal law. The charge was that Trump offered to release military aid to Ukraine in exchange for that country’s help in digging up damaging information about Biden. This is an allegation of quid pro quo bribery: I will do an official act (release the aid) in exchange for something of value to me (the political dirt on my rival).

Giuliani was at the center of all these activities. He appears to have been working with a number of Ukrainians who were seeking something from president Trump — and may have been willing to offer something in return. Prosecutors could be investigating whether such conduct amounted to a conspiracy to commit bribery. A conspiracy charge would not require that the bribe was ever consummated or successful. Nor would it necessarily require charging Trump himself; Giuliani and others could be charged with simply trying to arrange the quid pro quo transaction.

Whether prosecutors are focusing on charges in addition to FARA is just speculation at this point. But it seems unlikely to me that DOJ would have taken the aggressive and politically explosive step of executing the Giuliani search warrants if they were looking only FARA, a relative technicality. That makes me suspect they are looking at something more substantial.

Would Rudy flip?

One tantalizing prospect that all of this raises is whether Giuliani would cooperate in an investigation of Trump in exchange for leniency. It’s hard to imagine Giuliani turning on the man to whom he has so slavishly linked his own image and reputation. But there are reports that their relationship is strained. Michael Cohen, for one, has opined that Giuliani would flip on Trump to save himself “in a heartbeat.”

There also have been reports that Giuliani is seeking Trump’s help in paying his legal fees and that he has not been paid for much of his legal work on Trump’s behalf. That raises some interesting prospects as well. If Giuliani feels like Trump has stiffed him, he may be more willing to cooperate against the former president. On the other hand, given all that Giuliani knows about Trump’s own potential misconduct, if Trump were to help Giuliani with his legal bills that could look like bribery of a witness, in violation of 18 U.S.C. 201: Trump paying Giuliani to keep his mouth shut.

Before this is over, Giuliani may end up wishing he had persuaded Trump to grant him a pardon before leaving office.

William Barr
Former Attorney General William Barr

The Barr Cover-Up

On March 22, 2019, special counsel Robert Mueller delivered his 400+ page report to Attorney General William Barr. Barr did not release the entire report, or the detailed summaries that Mueller prepared for that purpose. Instead, two days later he wrote a four-page letter to Congress purporting to summarize Mueller’s conclusions, and held a press conference. He noted that Mueller had declined to make a prosecutorial decision concerning whether Trump obstructed justice. Barr then announced his own conclusion that the evidence presented by Mueller did not establish that crime.

This extremely misleading letter and press conference set the public narrative for the still-secret Mueller report. It allowed Trump to claim he had been completely exonerated and that Mueller had concluded there was “no obstruction, no collusion.” Mueller himself objected to Barr’s characterization of the report which did, in fact, contain substantial evidence of obstruction of justice by the president. But by the time the full redacted report was released three weeks later, Barr’s “spin” had firmly taken hold.   

Barr testified before Congress that he had reached the conclusions in his letter after consultations with the DOJ Office of Legal Counsel and other Department attorneys. The public interest group CREW promptly filed a request under the Freedom of Information Act for documents related to those consultations. Barr’s DOJ withheld a number of documents, claiming attorney-client and deliberative process privileges. One withheld document in particular, a memo to Barr dated March 24, 2019 from Steven Engel in the Office of Legal Counsel and Ed O’Callaghan in the Deputy Attorney General’s Office, was the subject of a federal court ruling last week.

Federal Judge Amy Berman Jackson ruled on May 3 that the memo must be turned over. Much of her opinion deals with the somewhat dry procedural requirements of FOIA. But her conclusions about DOJ’s behavior are damning.

DOJ had claimed the memo was privileged because it involved DOJ attorneys giving legal advice to Barr concerning whether Trump had obstructed justice. Their story was that these attorneys had reviewed Mueller’s lengthy and detailed report on obstruction, formulated their advice to Barr, and written him a memo, which Barr then used to prepare his letter to Congress – all in the space of a couple of days.

Judge Jackson concluded that these claims were false. The memo itself and Barr’s infamous letter to Congress, she found, were all being drafted at the same time and by the same people. And all of those Trump DOJ officials agreed from the outset that Trump should not be charged with obstruction. The memo was not true legal advice to help Barr decide, but apparently was designed to provide legal cover for a decision that had already been made: “the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”

Judge Jackson’s conclusion that the fix was in when it came to obstruction of justice doesn’t really come as a surprise to those who followed the Mueller investigation. Before he was named attorney general, Barr – then a lawyer in private practice – wrote a nineteen page memo to the DOJ about why he believed the president could not be charged with obstruction for anything done in his official capacity. Many considered this memo a sort of job application for the attorney general position. When Trump appointed Barr, he was putting in place a final backstop against any potential obstruction of justice charges. And that’s exactly what he got.

“Disingenuous” = “You’re Lying”

Judge Jackson repeatedly accused Barr’s DOJ of being “disingenuous” before the court in its description of the OLC memo. She held that the affidavits submitted by DOJ officials were “so inconsistent with evidence in the record, they are not worthy of credence.” This is essentially a polite way of accusing the department of lying to the court and engaging in a cover-up about the true reasons for Barr’s actions. 

As Judge Jackson noted in her opinion, she is not the first judge to question Barr’s handling of the Mueller report and the credibility of his statements in court. In an earlier case involving the redactions to the Mueller report, Judge Reggie Walton also expressed his “grave concerns” about Barr’s characterizations of the report, which he found were at odds with Mueller’s actual conclusions. He questioned whether Barr had tried to create a “one-sided narrative” about the report in order to benefit Trump.

Barr and the Trump DOJ desperately sought to prevent the truth about Barr’s shielding of the president from coming to light – so much so that they were willing to lie to more than one federal judge about it. It will be interesting to see now whether the Biden DOJ chooses to appeal Judge Jackson’s order that the memo be turned over. They presumably would like the truth about Barr’s actions to be revealed. But depending on their internal review concerning the merits of Judge Jackson’s conclusions, they may feel they need to appeal to try to protect the institutional privileges potentially at stake. Hopefully the full memo will soon see the light of day.

Barr’s effort to use the Department of Justice to protect the president and his cronies was one of the most disturbing aspects of the Trump years. We saw it with Roger Stone and Michael Flynn. And this episode also ties right back in to the Giuliani story, where the Barr DOJ refused to approve the search warrants that could have unearthed evidence implicating Trump.

It’s apparent that we have still more to learn about the corruption within Barr’s DOJ.

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Trump and Ukraine: Call it Bribery, Not Extortion

There is now overwhelming evidence that president Trump withheld Congressionally-approved aid to Ukraine to pressure that country to conduct investigations that would benefit Trump politically. As Congress begins public impeachment hearings, there is widespread disagreement over whether this conduct is best described as bribery or extortion. Based on this evidence you could say the president extorted Ukraine or you could say the president demanded a bribe from Ukraine — both would be accurate. But for purposes of impeachment, it’s better to call it bribery.

Impeachment is not a criminal proceeding, and it’s important not to buy into the argument that impeachment requires proof of a criminal offense. On the other hand, both bribery and extortion are in fact crimes, and deciding whether there was serious presidential misconduct justifying impeachment will inevitably be guided by reference to criminal law. In federal law, the elements of extortion by a public official and bribery are very similar. But if this were a criminal prosecution, there would be compelling legal reasons to charge bribery rather than extortion. And those same reasons, coupled with the language of the Constitution, mean that for purposes of impeachment it also is best to refer to the president’s conduct as bribery.

 

Giving bribe into a pocket

The Elements of Bribery

The federal bribery statute, 18 U.S.C. 201, makes it a crime for a public official to corruptly demand, seek, receive, accept, or agree to receive or accept anything of value in exchange for being influenced in the performance of an official act. In this case, the public official is president Trump. The thing of value he demanded was public investigations of his political rival Joe Biden and of a debunked conspiracy theory involving interference in the 2016 election and a computer server supposedly located in Ukraine.  And the official act Trump would perform in return would be releasing the approved military aid to Ukraine. Trump’s behavior toward Ukraine readily meets the elements of the bribery statute.

A key factor in this charge is the breadth of the term “thing of value.” It encompasses anything of subjective value to the official that would have the potential to influence his or her behavior. Offers of future contracts or employment, sexual favors, companionship, and other intangibles all have been held to be things of value for purposes of the bribery statute. Publicly-announced investigations that would benefit Trump politically would certainly qualify. Trump’s actions in seeking the investigations, both personally and through intermediaries such as his lawyer Rudy Giuliani, amply demonstrate how personally valuable he thought Ukraine’s actions could be.

The Elements of Extortion

A person commits the crime of extortion when he induces the victim to part with something of value under some kind of duress. There are different kinds of extortion, including extortion by fear or threats of violence – the more familiar, mob-style, “pay up or we’ll break your kneecaps” scenario. But when it comes to extortion by public officials, the most commonly-charged theory is extortion “under color of official right” under a statute called the Hobbs Act, 18 U.S.C. 1951. That statute prohibits affecting interstate commerce through robbery or extortion, with extortion defined 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.”

In the 1992 case of Evans v. United States the Supreme Court held that Hobbs Act extortion under color of official right does not require any kind of express threat, demand, or shakedown by the public official. At common law, the Court held, this offense was the “rough equivalent of what we would now describe as ‘taking a bribe.’” All that is required is that the public official accept a payment to which he or she is not entitled, knowing it is being given in return for the performance of some official act. That does indeed sound just like bribery, which explains why extortion under color of official right is a common charge in cases where the conduct looks more like bribery than extortion.

The facts of the Ukraine case also suggest another extortion theory under the Hobbs Act: extortion by fear. Such a charge would allege that president Trump extorted Ukraine to begin the investigations through fear of the harm that would result, economically and militarily, if the approved aid continued to be withheld. This is a more classic extortion model (“Nice little country you got here, be a shame if something happened to it”). Trump’s coercive behavior toward a much weaker, vulnerable nation could readily be characterized as extortion by fear.

Map of Ukraine

Was Trump’s Behavior Bribery or Extortion?

As noted above, after Evans there is little difference between charging a public official with bribery or with extortion under color of official right. In many cases, either statute could be applied. Extortion under color of official right is a common charge in cases involving bribery of state and local officials, because the federal bribery statute applies only to federal public officials. For example, Virginia Governor Bob McDonnell was charged with multiple counts of extortion under color of official right, even though the conduct in his case was best described as bribery.

But a key distinction between the two charges is the legal status of the payor. In a bribery case, there generally is a two-sided, consensual transaction. The bribe payor and the bribe recipient enter into a corrupt agreement and both are culpable. The statute prohibits both sides of the transaction, and both may be charged.

In an extortion case, by contrast, the person who pays is generally considered a victim rather than a willing participant. Extortion statutes do not punish the payors, who are paying under duress. That’s certainly true in a case involving extortion by violence or fear. But it’s also true in extortion under color of official right – the Hobbs Act contains no provision for charging those who are, in effect, paying bribes. As a result, the Court’s interpretation in Evans created something of an anomaly: a bribery statute that punishes only one side of the transaction. This has led prosecutors in some cases to develop creative theories to pursue the bribe payors in a Hobbs Act case, such as charging them with Hobbs Act conspiracy.

This factor may suggest that extortion is a better fit for the Ukraine scenario than bribery. Ukraine certainly seems more like a victim than a willing participant. On the other hand, the bribery statute does specify that a public official may “demand” a bribe – which suggests some degree of coercion or duress.

Factually, I think the Ukraine transaction could be described as either bribery or extortion. And I agree there is some force to the argument that extortion feels like a better fit, given the bullying nature of Trump’s behavior and Ukraine’s coerced participation. But legally – and politically —  there are compelling factors that favor characterizing Trump’s behavior as demanding a bribe.

The Hobbs Act Property Requirement

If this were a criminal case, there would be a significant hurdle to charging Hobbs Act extortion, either by fear or under color of official right. Extortion requires that the public official obtain “property” of the victim. This is narrower than the “thing of value” that will suffice for a bribery case. “Property” usually refers to a bundle of rights in something, tangible or intangible, that can be exclusively held and enjoyed and transferred to others. An investigation of a political rival could easily serve as a “thing of value” in a bribery case, but it’s much harder to argue that such an investigation would constitute property for purposes of the Hobbs Act.

In addition, under the Hobbs Act the property must be something the official “obtained” from the victim (or at least would have obtained if the extortion had been successful). For example, in a case involving anti-abortion protestors who blockaded abortion clinics, the Supreme Court held that Hobbs Act extortion did not apply because, even if a clinic’s medical practice was considered a property right, the defendants did not “obtain” it themselves by blockading the clinic to interfere with the clinics’ use of the property. Similarly, it’s not clear how an investigation by Ukraine could be property that could be obtained by the president.

If I were a prosecutor looking at bringing a criminal indictment in this case, I would be strongly leaning toward bribery charges rather than extortion charges under the Hobbs Act. Bribery fits the case factually and is a better choice legally, due to the breadth of the “thing of value” element.

Donald Trump

Bribery is Better

Once again, impeachment is not a criminal trial. Conduct does not have to meet all the elements of a federal criminal offense to be impeachable. We could call the president’s behavior extortion as it is commonly understood (even if not technically under the terms of the statute) and an abuse of power that justifies impeachment. But calling the behavior extortion creates potential arguments and muddies the waters. Bribery is better.

It’s easy to anticipate the arguments by president Trump’s supporters, some of whom have already claimed there can be no impeachment if there is no provable crime. If the president’s behavior is called extortion by the Democrats, a likely response will be: “But this wouldn’t qualify as extortion under federal criminal law. How can you impeach a president for something that is not a crime? How can that be a ‘high crime and misdemeanor’?” Although this argument has no constitutional force, it would create an easy talking point: Democrats are trying to impeach the president for a “high crime” that under federal law would not be a crime at all.

When it comes to bribery, on the other hand, all the elements of a criminal offense have been completed. As I’ve noted elsewhere, It doesn’t matter that the quid pro quo was never consummated: with bribery the crime is the corrupt demand, even if it was not ultimately successful. So although impeachment does not require an actual crime, in this case we have one. Republicans will still argue, of course, that the elements of bribery have not been satisfied. But legally the Democrats are on much stronger ground if the charge is that the president demanded a bribe.

Talking about extortion also puts the focus more on the president’s bullying and his demands from Ukraine. That in turn invites the response that sometimes in diplomacy you have to play rough to get other countries to do what you want – the Mick Mulvaney “get over it” defense. Many of the president’s supporters have already argued that bargaining and demands are common in diplomacy and so this was no big deal. That ignores, of course, that in this case the president was demanding a country do something because it would personally benefit him, not because it was in the best interest of the United States. But calling it extortion makes this argument easier by focusing more on what the president did and less on why he did it. Framing the conduct as bribery, on the other hand, puts the focus on the personal benefit the president sought to receive. Trump was not just playing hardball diplomacy, he was using the power of his office to personally enrich himself. That is the language of bribery.

But perhaps the best reason to prefer bribery to extortion is that bribery is specifically listed in the Constitution as a basis for impeachment. Article II, Section 4 provides: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Of course Democrats could argue that extortion qualifies as a “high crime,” and they’d be right. But they will face counter-arguments, particularly if some technical elements of the crime of extortion arguably are not present. When it comes to bribery, there is no ambiguity.

This makes the impeachment messaging extremely clear and simple:

1) Trump corruptly demanded something of personal value in exchange for official action.

2) That’s the legal definition of bribery.

3) The Constitution specifies bribery as grounds for impeachment.

You can’t get much cleaner than that. When described as bribery, there’s simply no room to argue this was not an impeachable offense. Republicans who wish to defend the president will have to do so based on the facts of his behavior, not on claims about legal technicalities.

Call it what it was.  Call it bribery.

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