Loading...
BYH to the families who have to go to their child's graduation with all the screaming and hollering going on so you can...

Sleazy, swampy — but legal?

eliason.jpg

Randall Eliason

Loading…

Thursday, May 17, 2018

To understand the sorry state of federal public corruption law and its present inability to punish even the most egregious influencepeddling, consider a hypothetical scenario involving President Trump's personal attorney Michael Cohen.

Cohen was reportedly paid several million dollars over the past year by companies seeking an in with the Trump administration. For an administration that promised to "drain the swamp," Cohen's brazen behavior sounds decidedly swampy — Washington business as usual, only more so. But based on the publicly available evidence, Cohen's behavior is slimy but likely not criminal.

In fact, it would take a great deal for Cohen's activities to cross the line into criminal corruption. And that is the remarkable, and disturbing, aspect of the Cohen story: just how freely access to government power may be bought and sold these days without running afoul of criminal law.

Thus, a disturbing hypothetical: Even if Cohen explicitly sold access in the form of meetings with Trump administration officials — indeed, even if those officials themselves received a portion of Cohen's fees in exchange for attending the meetings — it would be difficult, if not impossible, to mount a successful public-corruption prosecution.

For that, influence peddlers and politicians can thank former Virginia governor Robert McDonnell — or, more precisely, the Supreme Court justices who unanimously overturned McDonnell's convictions.

McDonnell was found guilty of corruption after accepting more than $170,000 in secret gifts. But in June 2016, the court found that McDonnell's favors for his benefactor —including sending emails, making phone calls and arranging introductions to other government officials — did not amount to "official acts" under federal corruption law. The court ruled that bribery requires a more substantial exercise of government power as part of a corrupt deal. Merely providing introductions or access to public officials is not enough.

The court in McDonnell v. United States endorsed an extremely cramped view of public corruption. A public official's time and attention are finite resources, and access is valuable. For proof, we need look no further than the fact that major corporations were willing to shell out hundreds of thousands of dollars to Cohen, who offered little apparent relevant experience but was "promising access" to the new administration.

McDonnell allows such access to be sold to the highest bidder — not just by lobbyists but also by government officials themselves. After McDonnell, public officials are free to enrich themselves by offering access only to those willing to pay, because taking a meeting or a phone call is not an "official act." And, of course, the everyday citizen or "little guy" who can't pay gets left out in the cold.

In Cohen's case, a bribery prosecution would require proof that, in exchange for the payments, he secured agreements from Trump or other administration officials to perform specific official acts, such as lifting sanctions against Russia or pursuing a particular health-care or telecommunications policy. But proving such a clear quid pro quo is not easy. Personal connections may result in influence and tacit understandings that are simultaneously very real and nearly impossible to prove beyond a reasonable doubt. 

Investigators for special counsel Robert Mueller III reportedly spoke months ago with companies that paid Cohen hundreds of thousands of dollars for "consulting services." Prosecutors will no doubt follow the money in search of potential criminal violations. But those may be hard to find. In the current legal environment, politicians and those close to them are generally free to buy and sell access to government power with little fear of prosecution.

McDonnell was simply the latest in a series of Supreme Court decisions over the past two decades narrowing federal corruption laws. Cumulatively, those decisions have created multiple safe harbors for behavior that most would consider clearly corrupt. Congress could step in and reform those laws but has shown little interest in doing so.

Swamp, drain thyself? I don't plan to hold my breath.

Randall Eliason teaches white-collar criminal law at George Washington University Law School.

Loading…

Humans of Greenville

@HumansofGville

Local photographer Joe Pellegrino explores Greenville to create a photographic census of its people.

Op Ed

May 25, 2018

Stop waiting for the constitutional crisis that President Trump is sure to provoke. It's here.

On Sunday, via Twitter, Trump demanded that the Justice Department concoct a transparently political investigation, with the aim of smearing veteran professionals at Justice and the FBI and also throwing…

Eugene Robinson

May 25, 2018

I am a gun owner. I grew up hunting and target shooting and am now an officer in the U.S. Army. I am comfortable with responsible gun ownership.

But I am also a father, and my heart aches at the sight of white crosses memorializing dead children.

Gun owners have a responsibility to help develop and…

JDSwinney

May 24, 2018

In a recent interview with NPR, Trump's chief of staff John Kelly described the illegal aliens pouring across our border in the most gentle manner imaginable.

He said that illegal aliens aren't "bad people," but also "not people that would easily assimilate into the United States into our modern…

AnnCoulter

May 24, 2018

Since the "Russiagate" probe began, U.S. president Donald Trump and his supporters have used lots of bandwidth raging against what they refer to as the "deep state." Does the deep state exist? If so, what is it, and are its forces arrayed specifically against Donald Trump and his administration?…

Knapp

May 23, 2018

John Kelly, the White House chief of staff, recently told NPR that undocumented immigrants are "not people that would easily assimilate into the United States, into our modern society. They're overwhelmingly rural people. In the countries they come from, fourth-, fifth-, sixth-grade educations are…

Steve and Cokie Roberts

May 23, 2018

Robert Mueller's investigation into whether President Donald Trump and the Russians colluded to rig the 2016 presidential election so far has borne little fruit. The Democrats and their media allies would love to find some Russian collusion and interference. I can help them discover some, but I…

walter williams

May 23, 2018

Last week Turkey recalled its ambassadors to America and Israel. That decision came in response to Israeli forces killing 60 Palestinian protestors attempting to cross the Gaza border. Turkish President Recep Tayyip Erdogan called Israeli actions a "genocide" on Turkish TV; Israeli Prime Minister…

zev190.jpg

May 22, 2018

Legalizing marijuana makes sense for a lot of reasons, but there's one valuable thing we'll lose when police stop arresting people for smoking pot: A sense of just how misleading our crime data are.

Data on arrests and reported crime play a big role in public policy and law enforcement. Politicians…

Cathy O'Neil

May 22, 2018

The Charleston, South Carolina, Gazette

When a young Canadian committed a massacre recently by driving a rental truck into Toronto pedestrians, many people at first assumed it was another jihadist terror attack. But it actually was an entirely different type of menace.

Alek Minassian, 25, was…

May 22, 2018

Last week's massive teacher march and rally was the best example of democracy in action that the state legislature has seen in years.

I'd been skeptical that the turnout would meet the ever-increasing predictions offered by organizers. Raleigh's weather that day felt like a tropical rainforest…

Colin Campbell
279 stories in Op Ed. Viewing 1 through 10.
«First Page   «Previous Page        
Page 1 of 28
        Next Page»   Last Page»