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Dec. 4, 2018 / 11:13 PM GMT
By Mimi Rocah and Harry Litman
After Michael Cohen pleaded guilty on Nov. 29 to lying to Congress about the details of his negotiations to build a Trump Tower in Moscow, Trump reacted with his usual mix of scorn and lies. Trump suggested first, and falsely, that everyone had known about the project during the campaign, and second, that it was perfectly fine for him to pursue the project while simultaneously running for president. In fact, Trump’s pursuit of the project during the campaign was highly problematic and may very well have been part of a bribery scheme involving the president of the United States.
For starters, Trump’s repeated lies about negotiations to build his dream tower could have left him susceptible to Russian blackmail attempts. Every single time Trump lied publicly about those negotiations, people in the know in Russia could have exerted leverage over Trump by threatening to expose his lies. That possibility — that Trump was vulnerable to blackmail by a hostile power —constitutes an intelligence and national security nightmare that should alarm Americans of any political stripe. Just as importantly, however, Trump’s concealment of his efforts to build the Trump Tower may suggest a criminal conspiracy that hasn’t gotten widespread attention yet.
Cohen’s guilty plea indicates that Trump and his representatives were actively negotiating with the Kremlin over the planned Trump Tower in Moscow throughout the campaign, including “as late as June 2016” — in other words after Trump became the presumptive Republican Party nominee in May of 2016. Thus, Trump’s business entanglements with Russia coincided with Russia’s efforts to interfere in the presidential election and to undermine Hilary Clinton. And, of course, at the same time, Trump the candidate was talking about easing economic sanctions on Russia and generally taking a more favorable foreign policy stance toward Russia.
Rachel Maddow has advanced a thoughtful theory linking Trump’s commercial ambitions and the Russian attack on the 2016 election: Trump apparently could get financing for his Xanadu only from a Russian bank that was under sanctions set by President Barack Obama in 2014; the scheme thus depended on the lifting of the sanctions. This suggests a quid pro quo: Putin’s government, which keenly desired the sanctions to be retired would undertake efforts (including dirty tricks against Hillary Clinton) to help Trump become president. Once elected, Trump would lift the sanctions and also get his tower.
If those facts bear out, they could give rise to federal bribery charges involving the president and a number of other co-conspirators.
The federal bribery statute, 18 U.S.C. Section 201 makes it a crime for a public official – including a “person who has been selected to be a public official” — to directly or indirectly corruptly seek or receive anything of value in return for being influenced in the performance (or omission) of any official act.
If Trump’s pro-Russian position on sanctions was motivated by a commitment he received to build a tower in Moscow, and such a bargain was “corrupt,” that could violate the federal bribery statute.
Help securing the Trump Tower in Moscow no doubt qualifies as “something of value” to Trump. Equally clear, changing America’s position on Russia sanctions would be “an official act” and thus “in violation of the official duty” of the president — if done for reasons outside national interest. Therefore, if Trump’s pro-Russian position on sanctions was motivated by a commitment he received to build a tower in Moscow, and such a bargain was “corrupt” (which seems inherent in the exchange), that could violate the federal bribery statute.
There are plenty of questions still be answered. For example, according to Cohen’s version of events, Trump’s plan was already underway in June 2016 — a few weeks before Trump officially became the Republican nominee. Was he therefore, for the purposes of the bribery statute, just a private citizen? Possibly. But that wouldn’t necessarily get him off the hook.
Even if Trump was not yet a “public official” when he made some kind of written or unwritten agreement between his business empire and the Russian government, it would have been based on the idea that he soon would become a public official. In other words, the conduct in this scenario would still have amounted to a conspiracy to commit bribery. The consummation of the criminal scheme required Trump’s securing of the presidency, but there is nothing particularly exotic about that point as a matter of conspiracy law. It is not unusual for conspiracy defendants, for example, to defraud a bank by first securing a job in the bank. The criminal agreement nevertheless has occurred whether or not the defendant is able to follow through.
Finally, even if the plans for the Moscow Trump Tower negotiations were halted in June of 2016 — this timing coincides with the Washington Post’s story revealing Russians had hacked the Democratic National Committee — Trump’s business interests in Russia would not have just gone away, nor would the lies he had repeatedly told during the campaign. This may help explain why Trump continued to work to help Russian interests, for example by repeatedly denying or undermining the American intelligence community’s assessment that Russia had in fact hacked Democratic Party emails. And, it is standard conspiracy law that a conspiracy would not end simply because one of the goals of the conspiracy — in this case the building of Trump Tower Moscow — hadn’t occurred or could never occur. Lying and trying to cover up such a scheme, which happened here well after Trump was actually President, could extend the conspiracy to the present day.
We won’t know the full story until Mueller reveals more facts — which he likely will do in short order — surrounding this complex intertwining of business and politics. But, what already seems clear is that Trump the candidate could not bring himself to part ways from Trump the would-be tycoon. That failure now imperils his presidency.