In Pressuring Ukraine To Open Criminal Investigations, Trump’s Associates May Have Committed Many Crimes. But Violating the Foreign Corrupt Practices Act Probably Wasn’t One of Them.

Right now, the biggest corruption story in the U.S., and probably the world, concerns efforts by President Trump and his associates, both inside and outside the U.S. government, threaten to withhold U.S. military aid from Ukraine in order to pressure the Ukrainian government into opening investigations that would help Trump politically. It’s clear at this point, except perhaps to the most rabid partisans, that there was indeed a “quid pro quo,” and the discussion has now turned to the question whether, with respect to President Trump specifically, he should be impeached for his conduct related to this episode (the issue that Rick focused on in yesterday’s post), and, with respect to whether Trump, his private lawyer Rudy Giuliani, or anyone else committed any crimes.

On that second question, commentators have suggested a whole range of criminal laws that some or all of the parties involved might have broken, including:

  • The section of the campaign finance laws that prohibits the “solicit[ation” from a foreign national of a “contribution or donation” to an election campaign of any “thing of value”;
  • The federal anti-bribery statute’s prohibition on any federal public official “directly or indirectly, corruptly demand[ing or] seek[ing] … anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act”;
  • The anti-extortion provision of the Hobbs Act, which prohibits “the obtaining of property for another … under color of official right” (as well as the attempt or conspiracy to do so);
  • The wire fraud statute, which prohibits the devising of any “scheme or artifice to defraud” that involves use of any interstate (or international) wire communication (such as a phone call), where the term “scheme or artifice to defraud” is specifically defined elsewhere in the statute as including a scheme “to deprive another of the intangible right of honest services.” (This may seem a bit opaque to readers unfamiliar with this corner of U.S. law, but in a nutshell, so-called “honest services fraud” is a theory that when a public official, or some other person in a position of trust, engages in a corrupt scheme to, say, solicit bribes, that individual defrauds her principals by depriving them of her honest services. For an explanation of how this could apply to Trump in the Ukraine case, see here.)
  • In the case of Mr. Giuliani and other parties who do not work for the U.S. government, the Logan Act, which prohibits private citizens from corresponding with any foreign government or foreign government official “with the intent to influence the measures or conduct of any foreign government …. in relation to any disputes or controversies with the United States.”
  • Various provisions of Ukrainian law.

In addition to all of these possibilities, which strike me as at least facially plausible given the evidence that has come to light so far, some commentators have suggested that President Trump’s associates, such as Mr. Giuliani, may have violated the Foreign Corrupt Practices Act (FCPA) (see here and here). This argument hasn’t gotten much traction, in my view for good reason. Even for someone like me, who generally has a more expansive view of the FCPA than do some other commentators, it’s hard to see how the evidence we have so far would suggest a plausible FCPA violation. There are two main reasons for this: Continue reading

In Their Push for Investigations, Did Trump’s Associates Break Ukrainian Law?

The U.S. political news for the last month has been dominated by the explosive and fast-developing scandal involving reports that President Trump and his associates—including not only U.S. government officials but also Trump’s personal lawyer Rudy Giuliani and other private citizens—have been engaged in an ongoing behind-the-scenes campaign to pressure the Ukrainian government to pursue criminal investigations that would benefit President Trump politically. In particular, President Trump, Mr. Giuliani, and others pushed Ukraine to investigate supposed wrongdoing by Vice President Joe Biden and his son Hunter, as well as alleged Ukraine-based interference in the 2016 election on behalf of Democrats. (There is no credible evidence to support either allegation, and experts in President Trump’s administration repeatedly warned him against these unfounded conspiracy theories, to no avail.) The pressure brought to bear by President Trump and his associates on Ukrainian officials appears to have included not only general statements of interest in these allegations—allegations that the Ukrainian authorities viewed as baseless—but also included implicit or explicit threats that failure to comply would lead to various forms of retaliation, both symbolic (the refusal to invite newly-elected President Zelensky to the White House) and tangible (the withholding of desperately needed military aid).

While the main ramifications of this scandal are political rather than strictly legal, the U.S. media extensively discussed whether President Trump and his associates may have violated any U.S. laws, and commentators have suggested a number of potential legal violations. For example, asking a foreign entity for dirt on a domestic political rival might violate the provision of U.S. campaign finance law that makes it illegal to “solicit … a contribution or donation [to an election campaign] … from a foreign national,” where “contribution or donation” includes not only money but any other “thing of value.” President Trump and his associates may also have violated domestic anti-corruption law (the federal anti-bribery statute and/or the anti-extortion provision of the Hobbs Act) in conditioning the performance of an official act (such as the transfer of military aid) on the receipt of something of value from Ukrainian government officials (investigations into political rivals). Private citizens like Mr. Giuliani may have violated the Logan Act, which makes it illegal for private citizens, without the authority of the United States, to correspond with any foreign government or foreign official “with the intent to influence the measures or conduct of any foreign government …. in relation to any disputes or controversies with the United States.” And of course, the attempts to conceal all of these interactions may have amounted to obstruction of justice.

The focus in the U.S. media on whether President Trump and his associates may have violated U.S. law is entirely understandable, but seems incomplete. Strangely absent from the conversation is any mention, let alone sustained exploration, of the question whether any of President Trump’s associates may have violated Ukrainian law. At least this seems strange to me. Imagine that the situation were reversed. Suppose, for example, that a Chinese businessman, nominally a private citizen but known to have close ties to President Xi, approached the U.S. Attorney General and said something like, “We know your administration is anxious to cut a trade deal and would also like China’s assistance in addressing the North Korea situation. I’m sure President Xi could be persuaded to help you out. But you should help China out too. There’s a dissident, now an American citizen, who’s been writing a lot of damaging lies about President Xi, and he’s gaining a following in China and stirring unrest. Why don’t you publicly announce that the U.S. government is investigating him for running a ring of child prostitutes? That would really help us out.” If a story like this came out, I’m quite sure the U.S. media would be abuzz with discussions about which U.S. laws this businessman might have broken, and whether he might be prosecuted in U.S. courts if U.S. authorities managed to arrest him. But in the Ukraine case, we may have something similar—a private citizen (Giuliani) with close ties to a foreign political leader (Trump) apparently told senior political and law enforcement officials (the Ukrainian President and Prosecutor General) to pursue a bogus criminal investigation in exchange for that foreign government’s cooperation on important issues—and nobody seems to be even raising the possibility that this might violate Ukrainian law.

By the way, when I say nobody is talking about this, that apparently includes Ukrainian media and civil society. I don’t read Ukrainian and I’m by no means a Ukraine expert, but I have some friends and other contacts there, and they tell me that while the story is big news in their country, there hasn’t been any discussion about whether Trump’s associates may have violated Ukrainian law. That gives me pause, and makes me think that perhaps I’m totally off base in thinking there’s even an interesting question here. Nonetheless, at the risk of looking foolish (something that’s happened plenty of times before, I admit), I want to use this post to float this topic and see what others think. Continue reading

The US Can (Probably) Charge Bribe-Taking Foreign Officials as Conspirators or Accomplices in FCPA Cases

Given everything else that’s happening related to corruption right now (much of it awful), perhaps it’s a mistake for me to be spending so much time thinking about fairly narrow doctrinal issues related to applications of the U.S. Foreign Corrupt Practices Act (FCPA). But my reflections on the recent court of appeals decision in US v. Hoskins (which held that a foreign national could not be charged as an accomplice or co-conspirator in an FCPA violation based on conduct occurring abroad) have gotten me thinking about—and questioning—what I had assumed was a well-settled and straightforward conclusion that the foreign official who takes a bribe from a person or entity covered by the FCPA cannot be charged with aiding and abetting, or conspiring to commit, that FCPA violation.

That conclusion—that bribe-taking foreign officials may not be charged as accomplices or co-conspirators in FCPA cases—was announced by a US court of appeals in 1991 in a case called United States v. Castle. In Castle, according to the allegations (which for present purposes I’ll assume to be true), two private US businessmen paid a $50,000 bribe to two Canadian government officials in order to win a contract to provide public buses to the provincial government. The US government charged the American citizens with violating the FCPA—which, if the facts are as alleged, they clearly did. The Canadian officials cannot directly violate the FCPA, which by its terms prohibits only covered entities from giving (or promising or offering) bribes to foreign public officials; the FCPA does not criminalize the act of taking a bribe. But in the Castle case, the US government tried to get around this problem by charging the Canadian officials with conspiracy to violate the FCPA, pursuant to the federal conspiracy statute, codified at 18 U.S.C. § 371. That section makes it a separate crime (“conspiracy”) for “two or more persons [to] conspire … to commit any [federal] offense,” as long as “one or more of such persons do any act to effect the object of the conspiracy.” According to the U.S. government’s theory of the case, once the Canadian officials agreed with the US businessmen to accept money in exchange for a public contract, they had all conspired to commit a federal crime, and once the US businessmen took action in furtherance of this conspiracy (by paying the money), all the parties, including the Canadian officials, were liable as co-conspirators. The US district judge rejected that theory, and the court of appeals affirmed, simply endorsing and reprinting (with one minor correction) the district judge’s ruling.

Since Castle, so far as I can tell, this principle that the US government can’t prosecute bribe-taking foreign officials as conspirators in an FCPA violation (or, similarly, as accomplices to an FCPA violation under another statute, 18 U.S.C. § 2(a)), seems to have become generally accepted, largely unchallenged by the US government, and treated as clearly correct as matter of legal doctrine. And it matters a great deal as a policy matter: If the Castle ruling had gone the other way, than the FCPA—complemented by the general conspiracy and complicity statutes—would give the US government a very powerful tool, for better or worse, to prosecute bribe-taking foreign government officials, at least those with sufficient ties to the US to establish personal jurisdiction (an important qualification I’ll return to later). I’d always assumed, without much reflection, that Castle was rightly decided. But after some digging into the case law, prompted largely by the more recent decision in Hoskins, and re-reading the Castle opinion, I think that Castle’s broad holding is doctrinally incorrect. If certain other conditions hold, a bribe-taking foreign official can be guilty as an accomplice to or co-conspirator in an FCPA violation, even though the foreign official could not directly violate the FCPA. Continue reading

Was U.S. v. Hoskins Correctly Decided? (Probably Not.)

My post last week discussed the recent U.S. Court of Appeals decision in United States v. Hoskins, which held that a foreign national cannot be charged with aiding and abetting a violation of the Foreign Corrupt Practices Act (FCPA), or with conspiracy to violate the FCPA, unless that foreign national either took some action connected to the violation within US territory, or else acted as an agent of a US domestic concern or an issuer of securities in the US. That’s a bit of a mouthful. To put this another way: The FCPA itself says that it applies extraterritorially to US nationals (including US firms), to non-US firms that issue securities on US markets, and to the officers, employees, directors, and to agents of firms in either of the preceding categories. The FCPA also applies to foreign individuals or firms (other than issuers) if but only if they engage in some part of the wrongful conduct while in US territory. The question is whether such foreign individuals (including non-issuer firms), who act outside of US territory, and so cannot be charged directly with violating the FCPA’s anti-bribery provisions, can nevertheless be charged with aiding and abetting, and/or conspiring with, some other actor’s FCPA violation. In Hoskins, the U.S. Court of Appeals for the Second Circuit said no: Not only can a foreign national (other than an issuer or an agent of a US domestic concern or issuer) not be charged with FCPA violations based on conduct abroad, but such a defendant’s conduct abroad also cannot support a charge of aiding, abetting, or conspiring in an FCPA violation.

Perhaps because appellate court decisions on legal issues related to the FCPA are so rare, Hoskins has attracted considerable commentary. Most of this discussion, including my post last week, focuses on summarizing the court’s holding, considering its implications for future cases, and assessing whether Hoskins’ limitation of complicity and conspiracy liability is likely to improve or worsen FCPA enforcement overall. However, I haven’t seen very much commentary on the question whether, as a matter of legal doctrine and legal interpretation, Hoskins was decided correctly—that is, whether it is consistent with precedent, statutory text, and generally-accepted jurisprudential principals. That’s entirely understandable—most of the initial wave of commentary is coming either from law firms that want to explain to their clients what this decision means for them, or from those interested more in the policy issues than in parsing the doctrine. Nevertheless, I do think it’s worth getting a conversation going about whether Hoskins’ reasoning is (legally and doctrinally) sound. I may not be the best person to do this, as I’m not a criminal law specialist, but I figured I might as well take a crack at it, if only in the hopes that doing so might prompt some of the real experts to weigh in.

After reading the case a few times, and delving into some of the earlier case law and other materials, it seems to me that Hoskins is a hard case. Really really hard. And I tentatively think that is was probably decided incorrectly. Or maybe “incorrectly” is too strong—instead, perhaps I should say that the Hoskins result is in tension with existing doctrine, and the result the court reaches, though defensible, requires an aggressive expansion of traditional doctrinal principles, one that the court doesn’t really acknowledge. For those readers out there who care more about the policy bottom-line than about the intricacies of legal doctrine, you may want to stop here. Law nerds, read on! Continue reading