Bondi And Trump: 'Pay To Play' Or 'Pay To Go Away'?
September 10, 2016

The media have focused recently - belatedly, perhaps - on campaign contributions by Donald Trump or Trump entities to Attorneys General in Florida, Texas, California, New York who were, or are, investigating or suing Trump University. As noted in the current news coverage, the Attorneys General of California and New York have pursued their investigations of Trump U notwithstanding the contributions. The Attorney General of Texas, Greg Abbott (now governor of Texas, more’s the pity), discontinued his investigation after Trump U closed in Texas.

The conduct of Pam Bondi, attorney general of Florida, has drawn continuing attention, doubtless because she personally solicited a campaign contribution from Trump and, within days, her office closed its investigation of Trump U, and because the Trump foundation paid an IRS fine for making this contribution, for making it unlawfully, through the Trump Foundation.

In a recent editorial, the New York Times questioned whether Mr. Trump had, in this Florida transaction, engaged in “Pay to Play” conduct. If the facts are as portrayed, the Bond-Trump transaction is more like “Pay to Go Away.”

Regardless, inquiring minds wonder whether there are grounds to prosecute Ms. Bondi, Mr. Trump, and/or any of his corporate entities for bribery or public corruption or both, under federal or state law, or both.

The short answer to this question is “maybe.” The long answer implicates - among other things - the prosecutorial appetite in D.C. and Florida at this point in the political calendar to launch a federal or state investigation of Ms. Bondi, Mr. Trump, his organizations, or any combination of them; the Supreme Court’s recent decision to overturn the convictions of former Virginia governor Bob McDonnell; and the increasing flooding of Florida coastal areas due to climate change. Okay, the sinking and flooding of Florida is not a factor, but it’s worth noting how dire the environmental situation is growing in America’s Southern Peninsula, if only because Florida’s Borg Governor is still a climate-change denialist.

It's late in Obama’s second term. A new President has the power to nominate new U.S. Attorneys for all of the districts in the country. It seems a bit unlikely that a U.S. Attorney would be gearing up an investigation that could be controversial this late in the cycle, especially because it would look too political even if it wasn’t at all. Also, the IRS has weighed in with a fine, so maybe the federal government has decided that’s enough enforcement action for now. Also, it must be noted that pinning criminal conduct to a particular actor becomes more difficult when you have numerous individuals and corporate entities involved (Bondi, Trump, and their subordinates, and Trump’s Foundation), with potential for deniability at any step along the way:

Of course, it’s possible that an investigation is already underway in a U.S. Attorney’s office in Florida or at DOJ in Washington. If an investigation is in progress, it’s early days because it has no public profile. If a grand jury has been impanelled anywhere, news of it is not public. Even if there is no grand jury on this, however, an Assistant U.S. Attorney, with the assistance of the FBI, might be collecting information and developing a list of potential witnesses to contact. Again, there is no reportage bearing on this possibility.

That said, is there a basis for a federal investigation and prosecution? There’s certainly a timeline that provides a factual foundation for an investigation under federal statutes:

  1. a state Attorney General starts an investigation of Trump U,
  2. considers joining state AG litigation in progress,
  3. personally solicits a contribution from Trump,
  4. gets the contribution, and
  5. closes the investigation within days, notwithstanding a sizable amount of evidence suggesting that Trump U was always a scam.

Even after the McDonnell decision, which narrowed the grounds for federal public-corruption cases to “official acts,” there still appear to be potential criminal issues with Bondi’s and Trump’s conduct under at least three federal statutes and legal theories:

  • The federal “program bribery” statute enacted in 1984, which criminalizes the corrupt offering of anything of value intending to influence an agent of a state government entity that receives more than $10,000 from any kind of federal program. For example, the Florida AG administers a federal grant program under the federal Victims of Crime Act. That might be a sufficient jurisdictional foundation to support prosecution.
  • The “honest services fraud” theory under 18 U.S.C § 1346, which criminalizes “a scheme or artifice to deprive another of the intangible right of honest services.” This has been a tool of federal prosecutors in many recent successful federal prosecutions of corrupt state and local officials who, by their corruption, have deprived state citizens of their right to honest services from their public officials.
  • The Hobbs Act’s criminalizing the obtaining of property under color of official right, if interstate commerce is affected. Trump U certainly acted in interstate commerce. The property obtained is the campaign contribution.

There might be other statutory bases under federal law or Florida law, including mail or wire fraud (18 U.S.C. 1345), depending on how the contribution was delivered to Bondi. Also, fraud charges under state law might be bundled into a federal RICO prosecution, as happens in corruption prosecutions.

Additionally, if a federal investigation begins, targets may be prosecuted for giving false statements to investigators (18 U.S.C. 1001), as happened, for example, in the Scooter Libby prosecution during W’s administration. There might also be a basis for obstruction of justice charges, depending on how the targets or witnesses conduct themselves during an investigation.

The Bondi-Trump transactional facts appear to provide a basis for further investigation. On the other hand, just today we learned that the government will not re-prosecute Bob McDonnell and his wife, no doubt because the Supreme Court made the path to prosecution more difficult by its decision. Whether any investigation relating to the Trump-Bondi connection will happen soon, or even after the election, is as open a question as can be imagined, for at least all the reasons mentioned above.

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