Did Trump break law against foreign bribes?
Fate could turn on a plan to give Putin a penthouse
One aspect of Michael Cohen’s latest blockbuster plea deal hasn’t received as much attention as it deserves. It is the possibility that the Trump Organization and others, perhaps even including the president himself, might have violated the Foreign Corrupt Practices Act (FCPA).
The revelations last week in connection with Cohen’s plea included the news that during his presidential campaign, Trump pursued a significant project in Russia and that Cohen, representing the Trump Organization, discussed with an assistant to Russian President Vladimir Putin’s spokesman the idea that the developers would be interested in giving Putin the $50 million penthouse in Trump Tower Moscow. That is, of course, assuming they were allowed to build it.
If this report is true, this type of offer is not, as Trump tweeted of the project as a whole, “very legal & very cool.” It is, instead, a possible FCPA violation.
Trump has brazenly argued that this long-standing law is not fair because it prevents American business people from paying bribes in jurisdictions where others might. But the FCPA has been on the books for more than 40 years, and it has been aggressively enforced through Democratic and Republican administrations alike.
The FCPA makes it a crime to corruptly offer anything of value to a government official for the purpose of “obtaining or retaining business.” The courts have defined “obtaining or retaining” broadly to include nearly any action that would serve a business purpose. The facts, if true, leave little room to question whether the Trump Organization was seeking to retain or obtain business given its efforts to receive government assistance to go forward with the project, and Cohen’s communications with a Putin aide to discuss that very issue.
Special counsel Robert Mueller indicated as much in Cohen’s plea agreement. Cohen, speaking with a woman in Putin’s press office, “requested assistance in moving the project forward” both in financing the project and in “securing land.” She reportedly asked de- tailed questions and explained that she’d follow up “with others in Russia.”
The repeated and continuous lies about the project by Cohen and likely others, including to Congress, are further evidence of the shadiness of the deal — in other words, of corrupt intent. The false testimony is made even more troubling if individuals in our government knew of its falsity and were therefore aware that they could be subject to blackmail by Russia, whose leaders obviously knew the truth.
While detractors might claim that the $50 million penthouse was not formally “offered,” experienced FCPA practitioners know this is not a defense. Under the FCPA, there does not have to be a transfer, or even a formal offer, of something of value. It is sufficient if there is an attempt to corruptly influence a government decision by holding out the promise of something of value, or even just the possibility it might be available, in order to obtain or retain business.
Still unknown is how much President Trump or his family actually knew about the Putin luxury apartment offer. Under the law of conspiracy and aiding and abetting, even if a person is not involved in offering an illegal bribe, he can still be guilty if he was aware of it and was otherwise part of the transaction that would benefit from it.
While the past week has added significantly to the list of potential crimes that Trump and those close to him might have committed, the potential FCPA criminal violation could be the most straightforward to prove — if the president was aware of the offer.
We know that Trump is well aware of the FCPA; he has called it “a horrible law” and “ridiculous.” We know that Michael Cohen swore in court Thursday that he “discussed the status and progress” of the negotiations with then-candidate Trump on numerous occasions, and that he gave Trump’s adult children regular briefings. What we don't know yet is whether Trump or his children were made aware of this critical $50 million detail. The presidency could hang on this question.