Professor Randall Eliason of George Washington University Law School discusses an angle on the whole Presidential pardon idea that hadn’t occurred to me – if dangled in front of someone as a possibility, it might actually be a bribe. Eliason explains in WaPo:
Federal bribery requires that a public official agree to receive and accept something of value in exchange for being influenced in the performance of an official act. In this scenario, the official act would be granting a pardon. While the Supreme Court’s 2016 decision in the case of former Virginia governor Robert F. McDonnell dramatically narrowed the definition of “official act,” there’s no question that a president granting a pardon would be an exercise of government power under the McDonnell v. United States standard.
“Thing of value” is also fairly easily met: It would be the agreement not to cooperate against the president. The thing of value in bribery law is not limited to envelopes stuffed with cash. It can include anything of subjective value to the public official, whether tangible or intangible. Such intangibles as offers of future employment and personal companionship have been found to be things of value for purposes of bribery. A promise not to cooperate in special counsel Robert S. Mueller III’s probe could readily serve as the quid in this quid pro quo.
The public official, of course, is the president. Dowd is not a public official and cannot be bribed himself, but he could conspire with a public official to arrange bribes on the official’s behalf. The theory would be that Dowd and the president engaged in a conspiracy to accept bribes by agreeing that Dowd would make the offer. This, of course, would require proof that Dowd was acting with the president’s approval and not merely freelancing.
My oh my, the footing is getting slippery for the President, isn’t it? I think the informal English rendering would be If you refuse to cooperate with the law and are therefore convicted and jailed, I will pardon you, and my public pronouncements are my signal to you of this deal.
I wonder if Fox News has considered reading Eliason’s article on the air when they know the President is watching, just so he’s informed about how that could end badly for him. Not sure what I’m talking about? Here’s Steve Benen to explain:
It’s an amazing dynamic without precedent. When White House officials wanted Trump to understand his own agenda, they’d brief television pundits in the hopes that they’d convey the lessons to the president through his preferred medium.
After all, Trump is more likely to buy into an idea if he sees it repeated by pundits he likes on television. The alternative, I suppose, would be presidential aides handing Trump a “document,” but everyone involved seems to understand that doesn’t work. …
Some officials close to the president have spoken about this on the record. Kellyanne Conway conceded during the campaign that if she wanted to deliver a message to Trump, she wouldn’t just tell him what’s on her mind. “A way you can communicate with him is you go on TV to communicate,” she explained.
The level of dysfunction in this White House is almost certainly under-appreciated by the public.
A sentiment I am forced to share. Here’s the latest Gallup Presidential Approval Poll, showing him just off of 40% approval, with 55% disapproval. I’m saddened, although unsurprised, at the relatively high level of approval. I think it does take study by the likes of Benen to really understand how badly this White House is adrift and blown about by the winds, if you take my meaning.
In the meantime, this is a slow-motion car accident, involving multiple injuries and death. I don’t want to watch, I don’t want to even admit it’s happening to our Nation, yet for both noble and morbid reasons, I can’t stop watching.
