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Is floating a $50 million Trump Tower penthouse for Vladimir Putin illegal?

Two stunning developments in the special counsel's investigation shed light on investigators' focus on President Trump as a main subject of interest. (Video: Jenny Starrs/The Washington Post, Photo: Jabin Botsford/The Washington Post)

We learned a lot of new information Thursday about President Trump’s business dealings in Russia. The big news is that they persisted during the 2016 primaries and caucuses, which Michael Cohen lied about and Trump obscured.

But another story via BuzzFeed, could be the more legally problematic one for Trump. And it could theoretically pit him against a foreign anti-corruption law that he just so happens to have spent years criticizing.

Cohen’s Russian business associate, Felix Sater, told BuzzFeed News that he and Cohen plotted to give Russian President Vladimir Putin a supposed $50 million penthouse in Trump Tower Moscow to help lure oligarchs into the project:

Sater told BuzzFeed News today that he and Cohen thought giving the Trump Tower’s most luxurious apartment, a $50 million penthouse, to Putin would entice other wealthy buyers to purchase their own. “In Russia, the oligarchs would bend over backwards to live in the same building as Vladimir Putin,” Sater told BuzzFeed News. “My idea was to give a $50 million penthouse to Putin and charge $250 million more for the rest of the units. All the oligarchs would line up to live in the same building as Putin.” A second source confirmed the plan.

This provides more evidence that the project was being rather seriously pursued with potential assistance from the Russian government, despite Trump’s presidential candidacy and despite Trump’s regular assurances that he didn’t deal with Russia. But some have argued it could also violate a 1977 law called the Foreign Corrupt Practices Act, which makes it a federal crime for U.S. citizens and businesses (among others) to bribe foreign officials.

Trump has often derided the law. He told CNBC in 2012, “It’s a horrible law, and it should be changed.” He added: “For this country to prosecute because something took place in India is outrageous."

Trump’s disdain for the law persisted after he became president. In February 2017, according to the New Yorker, he derided it to then-Secretary of State Rex Tillerson:

In February, a few weeks after Tillerson was confirmed by the Senate, he visited the Oval Office to introduce the president to a potential deputy, but Trump had something else on his mind. He began fulminating about federal laws that prohibit American businesses from bribing officials overseas; the businesses, he said, were being unfairly penalized.
“Tillerson told Trump that America didn’t need to pay bribes — that we could bring the world up to our own standards,” a source with knowledge of the exchange told me.

Trump has never made a formal effort to get rid of the law. Prosecutions of it underwent a sharp decline in his administration, according to a New York Law Journal article last year by Steven M. Witzel and Arthur Kutoroff. Mike Koehler, an expert on the FCPA at Southern Illinois University, said enforcement was down in the first years of Trump’s administration relative to 2016, but was above historical enforcement averages in those years. It’s also worth noting that then-Attorney General Jeff Sessions was also a critic of the law (while assuring he would enforce it). “You just simply can’t have a situation in which your competitors pay bribes and you don’t,” Sessions said.

But was this a violation?

The short answer is probably not yet — at least based upon the known information.

A key point in both BuzzFeed’s report and Bloomberg’s later report is that there is no direct evidence that Trump had any knowledge of this proposal. We know that Cohen briefed him on the project regularly as it was progressing, but we don’t know in how much detail or whether he would have even floated something like that to Trump. So even if it constituted a violation for Cohen, it may not ensnare Trump.

“The FCPA’s third-party payment provisions state that an individual such as Trump is liable only to the extent he has ‘knowledge’ of the third-party’s conduct,” said Koehler, who has blogged about the report.

As for whether Cohen violated it? The bribe obviously never came to fruition, but it was reportedly floated to Putin’s staff. BuzzFeed’s report says that “two U.S. law enforcement officials told BuzzFeed News that [Cohen] discussed the idea with a representative of Dmitry Peskov, Putin’s press secretary.” So this wasn’t just some idea; it was one that was shared with the Kremlin. And Koehler said the bribe doesn’t need to go through. He said that “unsuccessful attempts to influence foreign officials, assuming all of the other legal elements are met, is a violation. ...”

But in this case, he wrote, those other elements haven’t yet been met:

... For the FCPA’s anti-bribery provisions to be implicated there must be “an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value” to a “foreign official” either directly or indirectly (more on that below).
Brainstorming or thinking about potential marketing plans in connection with a potential real estate project clearly does not fit the above description.
Moreover, even if it did, the “thing of value” offered, paid, promised, or authorized to the “foreign official” must be to:
“influenc[e] any act or decision of such foreign official in his official capacity, (ii) induc[e] such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or induc[e] such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality
“in order to assist [the business organization] in obtaining or retaining business for or with, or directing business to, any person.”

Koehler concludes that there’s nothing at this time “to suggest that the $50 million Moscow penthouse, even if actually offered or promised to Putin, was for such purposes.” In other words, unless this was clearly offered and clearly intended to affect a specific government action — like Russia’s approval of the project — it falls short of a violation. Sater described this as an effort not to win approval but to lure oligarchs to the project.

We may learn more about all this, though. And Trump’s Russia dealing sure seems to be a focal point for Robert S. Mueller III, judging by Thursday’s plea deal with Cohen. It’s probably worth keeping an eye on.

This post has been updated.