The Right’s Selective Enforcement of Criminal Law

Photo by DonkeyHotey | CC BY 2.0

Photo by DonkeyHotey | CC BY 2.0


On March 22, organizations led by Charles and David Koch, who have made tens of billions of dollars from the environmentally toxic business that they inherited from their father (Koch Industries), issued a lucrative offer to Republican congressmen: vote against Rep. Paul Ryan’s healthcare bill in exchange for generous 2018 campaign donations. Naturally, the flip-side of their offer was a threat: vote for the bill and we give you nothing.

The two multi-billionaires opposed Ryan/Trumpcare because of their libertarian, Social Darwinist belief that everybody, no matter how poor, is on his/her own and should not receive even the most minimal help from the government. This is an old American story – white plutocrats, deluded into thinking that they are self-made men rather than fantastically lucky beneficiaries of their parents’ wealth, opting to manipulate politicians into helping them keep as much of it as possible – and then helping them make even more to boot.

Aside from the Koch Brothers’ callousness, insatiable greed, and arrogant sense of entitlement, the real story here is that they just committed a serious white-collar crime: bribery. Bribery, as defined in federal statute 18 U.S.C. § 201, includes “directly or indirectly, corruptly giv[ing], offer[ing] or promis[ing] anything of value to any public official . . . with intent to influence any official act . . .”

For our purposes, the most important words in this statute are “offers” and “promises.” Even if the Koch Brothers were now to retract their offer or fail to follow through for any particular politician, they still issued it. In this sense, it’s like attempt or conspiracy. It does not require actual consummation – that is, an actual exchange of money for legislative action.

Many, if not most, Americans, including politicians and journalists, probably believe that this kind of “quid pro quo” – the exchange of a thing of value for an “official act” – though distasteful, is perfectly legal, especially after the Supreme Court’s Citizens United decision in 2010. But Citizens United did not legalize bribery. On the contrary, it said that bribery – “quid pro quo corruption” or its appearance – is the one thing that corporations may not engage in; pretty much everything else, including spending anonymous and unlimited “independent expenditures” on political advertisements, is constitutionally permitted. Of course, we know that this bribery still goes on all the time between candidates and Super PACs, but we rarely have hard evidence because they are generally smart enough to do all their bribing behind the scenes, not directly in front of the media like the Koch Brothers just did.

Nor did the Supreme Court in McConnell v. U.S. (2016) legalize bribery, contrary to first appearances. While he was serving as Governor of Virginia, Robert McDonnell and his wife Maureen received “$175,000 in loans, gifts, and other benefits” from Jonnie Williams, the CEO of Star Scientific, “a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco.” In exchange, McDonnell hosted events for Star Scientific at the Governor’s Mansion and arranged meetings for Williams with other Virginia officials to discuss the possibility of Virginia’s public universities conducting research on anatabine.

The Court ended up vacating and remanding the Fourth Circuit Court of Appeals’ decision affirming McDonnell’s conviction for bribery on the grounds that none of McDonnell’s various efforts to help Williams, including arranging meetings and hosting events, qualified as “official acts” – that is, as “decision[s] or action[s] on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

The Koch Brothers would not be able to use this very narrow construction of “official acts,” questionable as it is in the first place. They offered something of value, millions in campaign donations, in exchange for Republican politicians performing what is a quintessential official act: voting against a specific piece of legislation. So why haven’t they been arrested yet? There are no two ways about it; again, they committed bribery right out in the open – the one big mistake that campaign donors are still not allowed to make.

As it turns out, the Koch Brothers are hardly alone. Several other powerful Republicans have committed similarly egregious white collar crimes, so far with complete impunity.

Jeff Sessions, Scott Pruitt, Betsy DeVos, Steve Mnuchin, and Tom Price all committed perjury in violation of 18 U.S.C. § 1621 by lying under oath at their confirmation hearings.

In March 2016, then-Representative Price committed another crime – securities fraud under the Stock Act (15 U.S.C. § 78u-1(g)), which Pres. Obama signed in early April 2012 –  when he introduced The Hip Act, legislation that would (and did) significantly benefit Zimmer Biomet, a manufacturer and distributor of prosthetic hip and knee implants, several days after he purchased stock in the company. And this was just one of several instances in which Price promoted legislation favoring medical companies in which he had made significant investments. Indeed, over the previous four years, Price had bought and sold more than $300,000 in health care stocks. Price also made money from inside information that he received from fellow Congressman Chris Collins about Innate Immunotherapeutics, a small Australian biotechnology firm that Collins partially owned. This amounted to insider trading, another form of securities fraud.

I will pass over all of the overwhelming circumstantial evidence casting great suspicion over Trump’s inner circle during the campaign and the transition (especially Mike Flynn, Paul Manafort, Carter Page, Roger Stone, and son-in-law Jared Kushner) because this potential criminal activity – ranging from Flynn’s failure to report as a foreign agent for Turkey in violation of 18 U.S.C. § 219 all the way up to money laundering, Logan Act violations, and treason – are under investigation by the FBI and the House and Senate Intelligence Committees. So as of now, we have reason to be optimistic that at least some of their crimes will be exposed and punished.

Whether or not Trump was directly involved in Russia-gate, he committed several crimes both before and after he was elected. In September 2013, both he and Florida State Attorney General Pam Bondi committed bribery when he paid $25,000 from the Trump Foundation (itself a tax violation for which he later paid a $2500 penalty) to Bondi’s campaign in exchange for her agreeing to terminate an investigation into fraud allegations against Trump University. He had also “stiffed” many independent contractors, which amounts to theft of services; engaged in self-dealing with the Trump Foundation, which amounts to embezzlement and fraud; sexually assaulted several women (by his own admission to Billy Bush), thirteen of whom ended up suing him; engaged in voyeurism backstage at his Miss Universe pageants, a sex crime that he proudly admitted to on the Howard Stern Show in 2005; and probably violated the Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1, et seq.), which prohibits bribery of foreign officials, by collaborating with a notoriously corrupt ex-transportation minister, Ziya Mammadov, to build a Trump Tower in the notoriously corrupt country of Azerbaijan.

After he was elected, Pres. Trump committed several more crimes. On March 4, when he falsely accused Pres. Obama of “tapp[ing]” his “phones” on Twitter, he committed false statements in violation of 18 U.S.C. § 1001, which prohibits “knowingly and willingly falsif[ying] . . . by any trick, scheme, or device a material fact . . . mak[ing] any materially false, fictitious, or fraudulent statement or representation; or mak[ing] . . . any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” (Incidentally, Pres. Obama would be fully within his rights to sue Trump for defamation; falsely accusing another person of a crime in a public forum easily meets the standard for libel.)

Pres. Trump’s use of public office to help enrich the Trump Organization, which consists of hundreds of business entities solely or principally owned by Trump, violates 18 U.S.C. § 208, which prohibits “an officer or employee of the executive branch of the United States Government” from “participat[ing] personally and substantially . . . through decision, approval .  . . or otherwise, in a . . . application, request for a ruling or other determination, contract, claim . . . or other particular matter in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest[.]”

The same acts of unjust enrichment arguably violate one of the three Emoluments clauses: Article II, Section 7 (“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”) A subset of this unjust enrichment – all the profits that Trump and the Trump Organization acquire from foreign officials staying at his hotels – arguably violates the other relevant Emoluments Clause: Article I, Section 9 (“[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument . . . of any kind whatever, from any King, Prince, or foreign State.”)

Finally, White House Counsel Kellyanne Conway violated the statute cited just above, 18 U.S.C. § 208, when, on the Feb. 9 episode of Fox & Friends, she publicly advertised Ivanka Trump’s line of fashion merchandise, a business that Ms. Conway admitted to partially owning.

The right tends to respond to all the crimes listed above with different deflections – for example, this is just how Washington works, nobody got hurt, the media is making mountains out of molehills, or Democrats are just bitter that they lost the election. Of course, none of these defenses would work in court. More importantly, where was this level of understanding in response to Hillary’s email and private-server snafus, even after FBI Director James Comey cleared her of any criminal wrongdoing?

We also fail to see the same level of understanding toward much poorer, non-white people. For example, when it comes to undocumented immigrants, the right suddenly insists on “the rule of law.” Indeed, throughout the campaign, Trump touted himself as the “law and order candidate.” And on February 21, Trump fulfilled this Nixonian promise by, as the New York Times reported, “direct[ing] his administration to enforce the nation’s immigration laws more aggressively, unleashing the full force of the federal government to find, arrest and deport those in the country illegally, regardless of whether they have committed serious crimes.” A month later, Attorney General Jeff Sessions followed suit by threatening to withdraw federal grant money from “sanctuary cities” – that is, locales which prefer not to waste their scarce police resources on harassing, imprisoning, and deporting undocumented but otherwise law-abiding immigrants and their families.

So while the Trump administration has been busy committing white collar crimes, they are strangely intent on punishing the most minor violations of immigration law, both illegal entry (which is a misdemeanor) and remaining in the country past visa expiration (which is not even a misdemeanor but rather a mere civil violation). All of this selective emphasis on immigration-related misdemeanors and civil violations over much more serious felonies gets everything completely backwards. By definition, felonies trump misdemeanors and civil violations in terms of gravity and dangerousness.

The ball is in the Department of Justice’s court. But because its current leader, Jeff Sessions, can’t be trusted to pursue justice and fairness – given his terrible record on civil rights, the perjury he committed at his confirmation hearing, and the strong possibility that he himself is a target of the FBI’s ever-expanding investigation into Russia-gate – it falls on other U.S. Attorneys across the country to make up for Sessions’ ethical and professional deficiencies. If they haven’t already, they need to follow the lead of former U.S. Attorney for the Southern District of New York, Preet Bharara, and start investigating the obvious corruption that has taken place at the highest levels of our government. After all, it’s not like they don’t already have all the evidence they need. Most of it was recorded by the media and is floating freely all over the internet.

Ken Levy is the Holt B. Harrison Professor of Law at the Paul M. Hebert Law Center, Louisiana State University.