About Jacques Singer-Emery

Jacques Singer-Emery is a student at Harvard Law School and previously spent four years in the New York Police Department (NYPD), first as a policy advisor to Police Commissioner Bratton and then as a Case Analyst for the NYPD Intelligence Bureau. He is the Editor-in-Chief of the National Security Law Journal and a researcher for Professor Philip Heymann and Professor Blum. Jacques graduated Magna Cum Laude from Princeton University in 2013.

Despite Predictions of Doom, McDonnell v. United States Has Not Derailed U.S. Anticorruption Prosecutions

In 2016, the U.S. Supreme Court decided a case called McDonnell v. United States, which unanimously vacated the corruption conviction of former Virginia governor Bob McDonnell. McDonnell, according to prosecutors, had accepted a variety of gifts and other benefits from a businessman in exchange for using his influence as governor to help that businessman obtain assistance from various state agencies. The federal statute at issue made it a crime for a public official to perform (or offer to perform) an “official act” in exchange for something of value. But the problem, as the Supreme Court saw it, was that the jury in McDonnell’s case was told an “official” act could include something like setting up a meeting, making an introduction, or speaking favorably about a project to the government official responsible for making the relevant decision. This understanding of “official act,” the Supreme Court said, was too broad. An “official act,” the Court held, involves “a formal exercise of governmental power,” and while this could include ordering or pressuring another official to take or refrain from some action, other activities, like “[s]etting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of ‘official act.’”

How big a deal was the McDonnell decision? In the immediate aftermath of the decision, many anticorruption activists decried the holding as permitting “[a]ctions by U.S. politicians that look wrong, smell wrong and raise profound ethical issues.” Indeed, many critics characterized the McDonnell decision as having effectively “legalized” all but the most egregious and clumsy forms of bribery (see, for example, here, here, here, and here.) However, as Professor Stephenson observed on this blog at the time, the McDonnell holding could be read more narrowly. The opinion did make prosecutors’ job somewhat more difficult in holding that merely setting up a meeting or speaking with subordinates would not, without more, count as “official acts,” but the opinion did not appear to rule out the possibility that an official act might include, for example, ordering or pressuring a subordinate to take some specific action on behalf of the bribe-payer. The jury instruction in McDonnell had been (in the Supreme Court’s view) overly broad, but most corruption prosecutions would probably still be able to proceed, so long as the jury was properly instructed. Professor Stephenson acknowledged at the time, though, that this “glass-half-full” view of McDonnell was only one possible reading, and that the decision might end up sweeping much more broadly in practice.

Now, over three years since McDonnell, what can we say about the decision’s impact? In the initial aftermath of the decision, it did indeed seem that McDonnell would prove a major impediment to corruption prosecutions. In the McDonnell case itself, the government decided not to retry McDonnell. This might be read as a tacit admission that under the Supreme Court’s newly-announced understanding of “official act,” the government probably wouldn’t be able to get a conviction. Furthermore, the decision was seen as triggering a string of significant defeats for public integrity prosecutors. For example: The government failed to obtain a guilty verdict against New Jersey Senator Robert Menendez on federal corruption charges (the trial ended in a hung jury, and the government subsequently dropped the case); a federal appeals court, citing McDonnell, vacated two hard-won guilty verdicts for corruption against the prominent New York politicians Sheldon Silver and Dean Skelos; and federal prosecutors in New York decided not to pursue charges after a long public corruption investigation into New York City Mayor Bill De Blasio, because of “the high burden of proof, the clarity of existing law” and the challenge of proving corruption without “evidence of personal profit.” The De Blasio case is especially pertinent given that two men, Harendra Singh and Jona S. Rechnitz, pled guilty to giving De Blasio’s campaign and Political Action Committee tens of thousands of dollars in return for the mayor helping them negotiate favorable settlements for businesses that owed the city millions in rent and property charges. Even with these two witnesses, prosecutors dropped the case because they appeared unsure Mayor De Blasio took an “official action” as defined in McDonnell.

But these initial indicators did not develop into a larger trend, and McDonnell has not turned out to be as much of an impediment to federal corruption prosecutions as some critics feared. Subsequent government prosecutions and court decisions have made this clear. Consider the following examples: Continue reading

Trump’s Attempted Violation of the Emoluments Clause, and the Inadequacy of the “Services at Cost” Rationale

In a press briefing on October 17, 2019, acting White House Chief of Staff Mick Mulvaney announced that the United States would host the 46th G-7 summit at the Trump National Doral Miami, a golf resort in Doral Florida owned by the Trump Organization. The announcement provoked widespread concern (see here and here) that this choice would violate the U.S. Constitution’s Foreign Emoluments Clause, which bars any person “holding any Office of Profit or Trust under [the United States]” from “accepting any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state,” as well as the Domestic Emoluments Clause, which bars the President from receiving any emolument, other than his salary, from the United States or any of the individual states. Following two days of complaints—not only from the ethics watchdogs and the President’s Democratic opponents, but also from some of his Republican allies—the White House abandoned the plan. So, the situation appears to have resolved itself. Nonetheless, the particular argument that Mulvaney advanced to defend against the anticipated Emoluments Clause complaints is worth considering—and debunking—lest this argument arise again in another context.

To be clear, the White House’s attempt to host the G-7 at a Trump Organization venue appears to be part of the same pattern of self-dealing that has already prompted multiple lawsuits against Trump for alleged violations of the Emoluments Clauses. As Mulvaney said on Fox News this past Sunday, “[President Trump] still considers himself to be in the hospitality business, and he saw an opportunity to take the biggest leaders from around the world and he wanted to put on the absolute best show.” Although the proposal to host the G-7 summit at the Doral resort was dropped, Mulvaney’s admission is worrying because there are reasons to suspect Trump chose the Doral property to benefit himself financially. (Consider the fact that in 2004, when the United States hosted the summit on Sea Island the organizers served 45,000 meals and paid the resort owners $3 million to reserve the entire property for 10 days.)

When Mulvaney detailed the White House’s decision-making process for the G-7 venue on October 17, he claimed the administration used neutral criteria when it made this choice (which is a bit hard to swallow given that Mulvaney stated the President suggested Doral), and that Doral was actually the best location (an assertion that is hard to assess without knowing the other venues the White House was considering). Furthermore, Mulvaney also argued that there was no Emoluments Clause violation because Doral would host the event “at cost”—that is, that Doral would only charge the government for the cost of the goods and services provided, and would not make a profit. On its face, this sounds plausible. After all, if Doral—and hence the Trump Organization—does not earn any profits on the G-7 meeting, but merely breaks even, then how can Trump have received an “emolument” from the U.S. government? If anything, the Trump Organization would have provided the U.S. government with a venue and associated amenities at a discounted rate.

Despite its superficial plausibility, there are three flaws with the argument that running the event “at cost” would eliminate any Emoluments Clause problem:

Continue reading