Fifty years ago, Ford Motor Company started production on the Pinto, a car that was billed as the be-all, end-all for the automotive industry. The only problem was that the car seemed to burst into flames if it hit a mid- to large-sized squirrel. The Pinto’s combustibility did not stop its advocates from pushing its use until it finally was pulled from the roads.
The Pinto came to mind this week with the reappearance of a poorly conceived product from the legal world: the Trump bribery theory. Various legal experts have insisted President Trump could be prosecuted or impeached under bribery laws, including for his dealings with Ukraine. I have written repeatedly that this theory was discredited by controlling case law, and I testified against its use as an article in the House impeachment hearing last year. As Ralph Nader once said about the Chevrolet Corvair, this theory is “unsafe at any speed” on Capitol Hill. The decision to pull out this discredited theory of bribery is just the latest example of choosing combustibility over credibility in legal analysis. The difference is that when unstable automotive products are exposed, they are taken off the road. Unstable legal products just keep rolling along.
Despite the support of the three other witnesses at the hearing, the House Judiciary Committee wisely declined to impeach on this facially invalid theory. Some of us thought that the bribery theory was discarded to the junkyard of bad ideas. Yet, late this week, it was back with a vengeance: After hearing the testimony of former U.S. Attorney Geoffrey Berman, House Judiciary Chairman Jerrold Nadler (D-N.Y.) declared his committee will investigate whether Attorney General William Barr is guilty of bribery, for offering to move Berman from his post in New York to the Department of Justice’s Civil Division.
The reappearance of the theory followed the implosion of an alternative criminal theory.
Just a week ago, Barr was being accused of criminal obstruction in seeking to can Berman as the U.S. Attorney in New York’s Southern District, in order to influence investigations affecting Trump friends ranging from Rudy Giuliani to the late Jeffrey Epstein. It did not matter that these investigations have been aggressively pursued under Barr’s tenure.
The problem is that, when Berman released his written statement to Congress, he did not allege this change was an effort to hamper any investigation. (Notably, on a committee known for leaking information from closed hearing, no such allegation was leaked and no member said that it was made). Instead, Berman said he told Barr that he not want to leave the Southern District of New York because he wanted to see “important investigations … through to completion” and “to help lead the Office through the COVID crisis and get the Office back to normal functioning.”
Berman said Barr wanted to shift Securities and Exchange Commission Chairman Jay Clayton into the Southern District position to accommodate Clayton’s desire to move back to New York. As Barr stated, he offered other positions to Berman that would have been effective promotions.
There still is no evidence of any effort to hamper Southern District investigations. To the contrary, the Epstein investigation has continued full bore with the extraordinary arrest of Epstein’s close associate, Ghislaine Maxwell, and Barr has pushed for Britain’s Prince Andrew to give evidence in that case. Barr’s DOJ has pushed to incarcerate Trump’s close friend, Roger Stone, and Barr reportedly opposed Trump’s decision to give presidential clemency to Stonein the form of a commutation. And Barr specifically asked the DOJ’s inspector general to monitor the Southern District office to prevent any interference in its investigations.
That is when the bribery theory came sputtering back on to the road. Nader announced: “We don’t know yet if the attorney general’s conduct is criminal, but that kind of quid pro quo is awfully close to bribery.” It is not awfully close. Just awful.
The suggestion is so wildly absurd that it defies belief — unless you have been following the legal analysis of the last three years. A leading proponent has been former prosecutor and Washington Post columnist Randall D. Eliason, who insisted that “allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe … it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” Eliason further endorsed the House report and assured that “The legal and factual analysis of bribery and honest services fraud in the House report is exactly right” and “outlines compelling evidence of federal criminal violations.”
The theory was never “exactly” or even remotely right, as evidenced by the decision not to use it as a basis for impeachment. And yet, it’s back. Indeed, the greatest danger of the theory was not that it would ever pass muster in the federal court system but that it would be used (as here) in the political system to criminalize policy and legal disagreements.