Another arrow in Mueller’s quiver
The collision between President Trump and Robert Mueller appears to be drawing ever closer. The President now openly attacks Mueller on Twitter, calling his staff “hardened” Democrats and sounding the constant “witch hunt” refrain. For his part, Mueller issued the President’s lawyers a list of topic areas for the impending face-to-face confrontation with Trump and subpoenaed the Trump Organization, potentially crossing the President’s “red line” regarding his family’s financial affairs.
Meanwhile, Mueller’s window into 2016 election tampering is opening wider by the day. Three cooperators are now in Mueller’s back pocket: Richard Gates, Michael Flynn and George Papadopoulos. And the pressure on Paul Manafort to join Mueller’s team continues to mount given the new charges recently filed in Virginia, bringing the total maximum prison term he faces to 305 years.
But all this firepower does little good if Mueller cannot bring equally powerful charges, especially when it comes to the President, his son and his son-in-law.
The question is, do the charges discussed thus far measure up? Campaign finance violations? Conspiracies to defraud the United States? Foreign agent registration act failures? Answer to each: A resounding “no.”
Having flipped scores of cooperators during my 13 years as a federal prosecutor in the Clinton, Bush and Obama administrations, I can categorically state that these laws fall woefully short, each carrying relatively low maximum sentences of two to five years in prison.
With credit for good behavior and the standard reduction in sentence for pleading guilty, the President’s senior operatives could be released from minimum-security prison camps in a couple of years, maybe even less — hardly the type of sentence that would cause a person to turn on their father or father-in-law, especially when he is the President of the United States.
But, fear not, for those who seek to hold the President accountable, there is a much more powerful charge that gives Mueller the hammer he needs to flip those closest to the President or go after the President himself.
That charge is grounded on the primary weapon federal prosecutors use to attack public corruption — namely, Title 18 United States Code section 201, which criminalizes public officials who take bribes — broadly defined as “anything of value” — in exchange for official government action.
A bribery charge carries a 15-year maximum term for both the public official and those who assist in the wrongdoing. Evidence of such an exchange reportedly exists as a result of the Trump Tower meeting in June 2016, when Russian delegates allegedly offered “dirt” on Hillary Clinton to Donald Trump Jr., Jared Kushner and Manafort in exchange for future official action such as the elimination or reduction of U.S. sanctions against Russian oligarchs.
How has this core federal charge gone unnoticed? Maybe because of a quirk of the calendar.
It should be no surprise that Trump qualified as a public official once he was sworn into office on Jan. 20, 2017. However, what has not garnered any attention is the fact that the bribery statute’s definition section caused the law to apply six months earlier, beginning on the date he was nominated for President, overlapping with the period of time when the Russians allegedly conspired with the President’s campaign team.
This statutory definition, which is found in section 201(a)(2) of the law, is a gamechanger.
In 1962, when the current bribery statute was enacted, legislators discussed how the prior law failed “to provide against the bribery of persons in anticipation of their assumption of public office.” And, how “those who assume public office under a corrupt commitment . . . may thus be afforded a loophole.” To remedy this loophole, they concluded that the bribery law “should be extended to prospective public officials, in order to cover cases in which the promise, solicitation or illegal consideration passes prior to entry on official status.”
In the President case, that date was July 19, 2016.
Mueller’s arsenal does not stop there. When there is proof of bribery, other harsh federal charges can apply. For example, a charge of honest services fraud, which carries a 20-year maximum prison sentence, criminalizes public officials who provide dishonest services to their constituents by accepting bribes in exchange for official action. Are the American people receiving honest services from their President if he is refusing to take necessary action against the Russians because they tried to help, or actually helped, him win the 2016 election?
Only time will tell whether Mueller plays this Trump card, but I believe if he wants to, he can.