While legal experts scramble to decipher what might be going on in the shady minds of former Trump campaign chairman Paul Manafort and conspiracy theorist Jerome Corsi — and the even more shadowy Roger Stone, a Trump confidant — too little attention has been paid to the more basic question of what President Trump and his team have been doing as part of an increasingly obvious conspiracy to obstruct the investigation into the Trump campaign’s collusion with Russia during the 2016 presidential election.
It seems clear that President Trump has been dangling tantalizing hints, if not outright offers, of future pardons from federal prosecution to Manafort, Corsi, former national security adviser Michael Flynn, Manafort associate Rick Gates, and anyone else who might incriminate him. Reporting by The New York Times suggests that these characters might harbor damaging information about Trump’s involvement with Russia in the treacherous, if not literally treasonous, effort to attack computer systems in the United States, weaponize information stolen by WikiLeaks and Julian Assange, and deliver Trump the 2016 election.
The Times story shows how Manafort’s offer to cooperate with Mueller was a complete ruse, concocted in coordination with Team Trump to enable the president to plant Manafort inside Mueller’s office as a mole. With Manafort agreeing to this scheme in likely exchange for the prospect of a full pardon, many observers are discussing the respects in which the coordinated effort of the two supposedly adverse defense teams to influence one another’s testimony in Mueller’s investigation, even after Manafort abandoned his defense, might amount to witness tampering or other forms of criminal obstruction of justice atop the Russia inquiry.
Fair enough. There’s plenty there for legal eagles to chew on, and more than enough for the House to investigate when Representative Jerry Nadler assumes the chair of the Judiciary Committee and Representative Adam Schiff the chair of the Intelligence Committee. But all of this misses something even simpler and more basic, something that deserves more emphasis in the national conversation sparked by the latest revelations of skullduggery by the Trump team. The word I have in mind is bribery.
In our recent book, “To End a Presidency: The Power of Impeachment,” my coauthor Joshua Matz and I concluded that the “corrupt exercise of power in exchange for a personal benefit defines impeachable bribery.” Apart from treason, bribery is the only abuse of power expressly singled out in Article II, Section 4 of the Constitution as a basis to impeach, convict, and remove a president. Whatever else may count as a “high crime and misdemeanor,” bribery is specifically designated as one of the two paradigm offenses for which a president is removable through the impeachment process. That’s why, in what might now appear to be an understatement, we observed that using “the pardon power as part of a plan to prevent witnesses from testifying, or to discourage them from telling the truth, might well be impeachable.” Dangling the pardon is the quid; getting help in obstructing justice to shield the president is the quo. Quid pro quo: bribery.
Notably, when the Supreme Court, in McDonnell v. United States, in 2016, narrowed the definition of what counts as an “official act,” for purposes of federal bribery statutes, to “formal exercises of governmental power” — which would surely include issuing a pardon — it did not similarly narrow what counts as “an exchange for a thing of value.” On the contrary, the court made clear that receiving “a thing of value knowing that it was given with the expectation” of a future “official act” like a pardon would constitute criminal bribery. When it was revealed that John Dowd, Trump’s personal lawyer, had dangled such pardons in front of Manafort and Flynn earlier this year, scholars noticed the relevance of the federal bribery statute and rightly questioned whether Dowd and Trump had engaged in a conspiracy to solicit bribes. Given these further revelations, the time is ripe to argue that Trump’s receipt of valuable criminal assistance in return for his dangling of pardons already constituted his acceptance of illegal bribes, even if he never issues the pardons he has tantalizingly kept on the table.
The indisputable fact is that, just as accepting money or other tangible benefits in exchange for a future pardon would amount to impeachable bribery on the part of the president, so too is accepting the even more valuable (if intangible) benefit of a back-channel source of manifestly sensitive and closely guarded information on an investigation into the president himself. Ever since Manafort pretended to flip in order to worm his way into the otherwise air-tight Mueller operation, from which he has leaked to Giuliani valuable information the president and his lawyers have employed in fighting the Mueller effort, Trump has enjoyed the quid. And Manafort has received the quo: a basis to hope that his only exposure, after another couple years in prison, will be to state prosecutions.
Over 90 years ago, in Ex parte Grossman, the Supreme Court defended a broad reading of the pardon power but reminded the nation that abuses of the power would “suggest a resort to impeachment.” Whether impeachment makes sense to pursue in a particular political context — a topic our book explores in depth — is a matter separate from whether the impeachment remedy is properly available. That it is available for cases like the one that is now emerging, subject to pursuing the evidence to see exactly where it leads, is plain.
But it makes no sense to wait until such a corrupt use of the pardon power has actually been undertaken — if it ever will be. The president’s transparent suggestion that such a pardon might well await his former campaign chair as a reward for serving as his mole — a mole in addition to the one Trump more recently planted when installing Matt Whitaker to oversee the Mueller operation — constituted bribery on the part of the president.
Moreover, while the investigation has been moving forward with all deliberate speed and care, its fate remains subject to the distressing prospect that Whitaker, as Trump’s designated henchman, might be doing a lot behind the scenes to suppress indictments and squeeze inquiries, and the frustrating reality that the Senate majority leader continually refuses to protect the investigation from such unlawful interference.
All this in turn poses the urgent question: Which Republicans in Congress will stand up to this lawless occupant of the Oval Office to protect constitutional democracy under the rule of law? Or will all members of Trump’s party remain spineless in the face of the mounting threat of authoritarianism if not downright dictatorship?Laurence H. Tribe, university professor and professor of constitutional law at Harvard Law School, is coauthor, most recently, of “To End a Presidency: The Power of Impeachment” with Joshua Matz. Follow him on Twitter @tribelaw.