Randall D. Eliason teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com. Follow @rdeliason.
President Trump’s now-former attorney John Dowd allegedly told lawyers representing Paul J. Manafort and Michael Flynn last year that the president would consider pardoning the two men if they got into legal trouble. (Dowd has denied the reports.) Much of the news coverage has focused on whether offering pardons to induce a witness not to cooperate in the special counsel’s investigation could constitute obstruction of justice. But there is another potential charge that could apply more directly and that prosecutors might have reason to favor: conspiracy to commit bribery.
Federal bribery requires that a public official agree to receive and accept something of value in exchange for being influenced in the performance of an official act. In this scenario, the official act would be granting a pardon. While the Supreme Court’s 2016 decision in the case of former Virginia governor Robert F. McDonnell dramatically narrowed the definition of “official act,” there’s no question that a president granting a pardon would be an exercise of government power under the McDonnell v. United States standard.
“Thing of value” is also fairly easily met: It would be the agreement not to cooperate against the president. The thing of value in bribery law is not limited to envelopes stuffed with cash. It can include anything of subjective value to the public official, whether tangible or intangible. Such intangibles as offers of future employment and personal companionship have been found to be things of value for purposes of bribery. A promise not to cooperate in special counsel Robert S. Mueller III’s probe could readily serve as the quid in this quid pro quo.
The public official, of course, is the president. Dowd is not a public official and cannot be bribed himself, but he could conspire with a public official to arrange bribes on the official’s behalf. The theory would be that Dowd and the president engaged in a conspiracy to accept bribes by agreeing that Dowd would make the offer. This, of course, would require proof that Dowd was acting with the president’s approval and not merely freelancing.
Neither bribery nor conspiracy requires that the underlying scheme be successful. The crime is the agreement itself, coupled with at least some steps to carry it out. If Dowd and the president agreed Dowd would offer an exchange of pardons for silence and he did so, that is a conspiracy to commit bribery. Whether the offer was accepted would not matter.
Thanks to the unusual circumstances in this case, bribery has a significant legal advantage over obstruction of justice. There has been considerable academic debate regarding whether a president can be charged with obstruction for a constitutionally authorized act, such as firing the FBI director or granting a pardon. Some argue that such an act, standing alone, can never be charged as obstruction regardless of the president’s intent because that would unconstitutionally impinge on the president’s executive authority. (I disagree with this view.)
But even those who make that argument agree that if the president engaged in independently criminal conduct, such as accepting a bribe or instructing witnesses to lie, he would not be shielded from criminal prosecution — even if those actions were related to a constitutionally authorized act such as granting a pardon.
In other words, even scholars who think that merely granting a pardon could never amount to obstruction agree that a president who took a bribe in exchange for granting a pardon could be charged with bribery. Of course no pardons have actually been granted — at least not yet. But regardless, the bribery theory avoids all of the legal uncertainty swirling around obstruction-of-justice charges and pardons. Nobody argues that bribery is constitutionally authorized.
I’m certainly not saying that we know any of this happened. Nor am I discounting the evidentiary hurdles prosecutors would face in proving a conspiracy and that a corrupt deal was offered; bribery is notoriously difficult to prove. But as a legal theory, I think it’s sound. If Mueller is examining these alleged events, I’d be surprised if a possible conspiracy to commit bribery were not in the mix.
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