Three publications in the last two weeks have highlighted the issue of whether President Trump has violated criminal laws while in office. They also raise the question of whether, if he has, a prosecutor should or should not bring charges against him.
In Thursday’s Boston Globe, Professor Alan Dershowitz argues that, while many of his (excellent) former students have written op-ed pieces and other publications about possible criminal charges that could be brought against President Trump, determining if criminal charges are possible is the “easy” part of the role of a prosecutor. The hard part, he says, is exercising discretion in deciding whether the blunt and wide-ranging instrument of the criminal law should be applied, and concludes that, as with the calls for prosecution of Hillary Clinton, it should not. Professor Dershowitz believes, noting the breadth of some of the statutes raised by these writers, and the disuse into which some have fallen, that the truly exceptional student would conclude that, as a hypothetical prosecutor, he or she would pass on bringing a prosecution. He argues that the partisan nature of the calls in and of itself is grounds for exercising discretion against prosecution.
The second publication is a decision from the Second Circuit Court of Appeals, reversing the conviction of Sheldon Silver, once the Speaker of the New York State Assembly, for so-called “honest services fraud,” a federal crime where a public official performs or promises to perform an official act in return for a bribe. In that decision, the Second Circuit dismissed Silver’s arguments that the evidence was insufficient for conviction, but agreed that the instructions to the jury as to what constituted an “official act” taken in return for or in anticipation of being paid a bribe or kickback, were too broad in light of the Supreme Court’s decision in McDonnell v. United States, 136 S.Ct. 2355 (2016), decided shortly after Silver’s conviction. McDonnell had narrowed the statutory requirement of what an “official act” could be. Silver was convicted on an instruction that an official act was “any act taken under color of official authority,” while the McDonnell decision required the act taken to be “a decision or action on a question, matter, cause, suit, proceeding or controversy” and further that it must “involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee” and must be “something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.” McDonnell was the second narrowing of the “honest services” fraud statutes, 18 U.S.C. §§ 1341 & 1346, after the Court first narrowed the statutes to require proof of actual payment of a bribe or kickback in return for the official act in Skilling v. United States, 561 U.S. 358 (2010). The Second Circuit, reviewing Silver’s conviction, concluded that the jury might have convicted Silver based actions he took that were not narrowly “official,” such as writing letters on behalf of the payors or recommending their children for a job.
The third publication is a July 19 article by Jeremy Venook in Atlantic Monthly, titled Trump’s Interests vs. America’s, Pension’s Edition, which enumerates and discusses over fifty business transactions or relationships involving Trump entities and their potential for creating incentives for President Trump to favor the parties to those transactions or relationships in his role as president. The author focuses on the ethical and possibly constitutional problems these matters raise (in terms of the emoluments clause), and discusses criminal implications only in one case, a relationship with foreign partners in Azerbaijan whose allegedly corrupt actions might cause dealings with them to violate the Foreign Corrupt Practices Act. Every one of the transactions discussed raises the serious ethical – and political – issue whether public policy is being swayed by private gain. But many are “self-dealing” issues. For instance, President Trump has reversed an Obama administration regulation promulgated by the EPA, expanding the reach of anti-pollution statutes to smaller waterways that had been previously unregulated. The regulation was fiercely opposed by a lobby of golf course owners, who would be covered by the expanded regulations. President Trump owns 12 golf courses, and the decision was a substantial financial benefit to him. But one can’t point to anyone making a payment to him or his company that would constitute a “quid pro quo” that would make it honest services fraud. He is effectively creating a financial benefit directly for himself.
But others involve payments by third parties with interest in swaying official policy. Multiple deals involve development in foreign countries that have an interest in U.S. policies. If the foreign country facilitates the development, does it get some advantage in its dealings with the United States? Saudi Arabia, as part of a lobbying campaign against a law allowing U.S. citizens to sue foreign governments that sponsor terrorism, spent some $270,000 on catering and rooms at the Trump Hotel in Washington. Has that, or will that, affect President Trump’s actions regarding that law? A founder and owner of a consulting firm that “facilitates the right strategic relationships with the most prominent public and private decision makers in China” and is affiliated with other companies doing the same with the U.S. government recently purchased a penthouse in Trump Tower for $15.8 Million, enriching President Trump. Could her private financial transaction sway the President in one or more official acts? Could she, in seeking “access” for one or more of her clients, make a pitch that her large purchase facilitates? All of these situations are complicated, and to make out a crime there has to be a connection between the financial gain and one or more specific official acts. That may not be provable, but should they not even be examined for fear that the examination is “partisan”?
These three publications put the question front and center: aside from “partisan” calls for investigations into treason or obstruction or campaign finance laws, is there reason for concern that President Trump’s multitudinous private dealings could trip over into criminal fraud, and does the rancorous partisan nature of our politics put the question beyond investigation?
As I note above, twice in the last several years the Supreme Court has felt it necessary to reign in the use of the honest services fraud statute, which is widely used to prosecute public officials. That statute is a paradigm of the extraordinarily broad criminal statutes that is highlighted by our of counsel colleague, Harvey Silverglate, in his book, Three Felonies a Day (which Professor Dershowitz cites in support of his call for standing down on partisan calls for prosecution). But the scope of this president’s business dealings and how they could affect his official actions, as narrowly defined, is breathtaking, and it raises the serious question whether – as a nonpartisan matter – the warning needs to be given that criminal liability is not out of the question, and that there is real possibility that official acts of the President of the United States could be exchanged for personal gain. There is no question that official acts are resulting in personal gain, as the Atlantic article amply illustrates. For now, that is a political issue and one, perhaps, for the voters. It certainly gives added urgency to the calls for the President to divest himself of his businesses. But, as with the question of Russian interference in U.S. elections and whether there was collusion by the Trump campaign, there is a very real danger that it could become more. What is missing from what is publicly known is whether President Trump has, in his business dealings, made a connection between the financial rewards he or his companies receive and any official action he has taken or intends to take. McDonnell teaches, and Silver illustrates, that advocacy or exhortation unconnected to specific official actions is not sufficient to constitute honest services fraud. There is no reason to shield the President, any more than any other public official, from close scrutiny on this front.