Archive for the 'Public Corruption Law' Category

Law and Opinion in the de Blasio Investigation

March 17, 2017
posted by Bob Bauer

The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict.   He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.

The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.

Presidents and Conflicts of Interest

November 28, 2016
posted by Bob Bauer

The questions about the President-Elect’s business interests have so far revolved around those benefits he might enjoy from foreign holdings and transactions, and still more specifically those provided in part by foreign governments. It is argued that a constitutional issue arises under the Emoluments Clause barring any “person holding any office of profit or trust”, without the consent of the Congress, from accepting any gift from a foreign government. Some scholars contend that the Clause likely applies to presidents; others disagree.

But the attention paid to foreign source business income has left mostly to one side the larger question of the leeway presidents have to operate outside the conflict of interest rules all senior executive branch officials (other than the Vice President) have to follow. For example, presidents and vice presidents are not subject to gift restrictions. 5 C.F.R. §2635.204(j). They may accept any and all gifts from any and all sources (except, on the Emoluments theory, from foreign governments). The exception rests on the belief that considerations of etiquette and protocol require allowing a president to accept personal gifts.

Most presidents, most of the time, accept such gifts but only in trust for the United States. But the rule gives them the choice. And that choice in turn is governed by little other than a concern for appearances or, if the gift is proffered by a favor-seeker, by the wish to avoid liability for bribery. The only requirement is public disclosure: presidents must report once a year the gifts they are free to receive.

In other words, this is a rule buttressed by a norm: the rule allows for the acceptance of the gift, but the norm operates to limit the circumstances in which the president would normally accept a gift for himself.   The norm does all the work. Another example of a norm addressed to conflicts of interest, but in this instance operating through transparency, is the traditional release of tax returns. Mr. Trump declined to release them during the campaign, or any time prior to the conclusion of the audit now in progress. There is no rule; the choice is his.

So while the President-Elect overstates his view that Presidents are free of all conflict of interest rules--a president can be prosecuted, not just impeached, for bribery--he is not wrong that the rules don’t apply to the Chief Executive as they do to all other senior government employees.

David Rivkin and Lee Casey offer up a range of justifications for this presidential freedom from more extensive conflict of interest rules. They say that to attempt to regulate these conflicts will discourage wealthy people from running for office; they don’t seem to accept the proposition that someone seeking extraordinary political power might give something up for it and, if unwilling to do so, might be revealing something troubling about motivation or suitability. Or as Peggy Noon put the point in the Wall Street Journal: his job now is different and “it requires sacrifice.”

A theme appearing in a number of post-McDonnell commentaries and editorials is that the Court has made more difficult the prosecution of bribery-based public corruption. It is certainly true that the Court has pared down the reading that could be given to bribery, and especially of the pay to play sort: paying for access alone, in the “typical form, such as arranging a meeting or phone call for someone to make a case for government action. As a practical matter, however, there remains considerable peril in access-buying. How much of a problem prosecutors will now face in bringing these cases is an open question.

In many corruption cases, some person’s (P’s) wish to have official A contact official B, to open up the channels of communication and advocacy, does not arise because B is somehow unavailable. B is or has been available, just not on the terms that the private party finds advantageous. B might rarely takes private meetings, requiring more formal submissions, or delegates much of the responsibility for face-to face encounters to staff. Or B has had the meeting with others present, and P would like a more private discussion. Or B has had the meeting, and P wants another, not confident that the first did the trick.

So P is looking for something he could not otherwise get, or so he believes, by having A ask B to provide the opportunity. Because B might not otherwise grant the audience, B is getting a message from A in many such cases—that A has a special interest in P, if not in P’s cause.

Depending on the facts, these circumstances, usually together with other facts, can constitute a trial question of exerted “pressure” from A on B, which the Court in McDonnell retained within its narrowed definition of “official act.” Neither P nor A are in the clear if P provided benefits to A in return for help with B.

The Supreme Court and “Access-Buying” in McDonnell

June 28, 2016
posted by Bob Bauer
This is the text of my piece published this morning on McDonnell in the Washington Post:

A unanimous Supreme Court held Monday that it is not - certainly not under any and all circumstances - a crime for someone to pay for "access" to government decision-makers. Careful not to say so too explicitly, the court is signaling that political favor-seeking fueled by cash and gifts may well be repellent, but there is only so much the legal system can - or should - do about it.

Amid all the election-year talk about a "rigged" political system, the room left by this opinion for pay-to-play politics strikes a somewhat discordant note. Two years ago, in a case involving overall contribution limits, Chief Justice John G. Roberts Jr. wrote that contributors can reasonably expect some measure of "ingratiation and access." Now, Roberts has taken another, aggressive step in that same direction, this time involving personal gifts rather than political contributions. He has brought the court along with the view that the bribery laws don't necessarily reach purely personal benefits provided to a government official in return for help arranging meetings or scheduling calls.

The McDonnell Case: the “Messages” to Citizens

May 2, 2016
posted by Bob Bauer

On two occasions, during the Supreme Court argument in the McDonnell case, the Deputy Solicitor General warned the court against narrowing prosecutable public corruption standards.  It would send a "terrible message" to citizens.  After the second time, Justice Breyer said he is “not in the business” of sending messages "in a case like this."  He meant a case that raised fundamental separation of powers principles.  To what extent would vague criminal standards empower prosecutors with their considerable authority to prescribe the boundaries of acceptable political conduct?

Chief Roberts went further and said that the Court’s experience with the argument that very day might prompt doubts that the Justices were wise in Skilling have let the honest services statute pass constitutional muster.

It was in that way an extraordinary argument, highlighting through dead-end hypotheticals and confusing exchanges the ambiguity of the law--an argument that defied the best efforts at clarification of everybody involved.