My prior posts have described some constitutional challenges facing any criminal prosecution of President Trump for an official act, such as the firing of FBI Director James Comey. A legislature’s attempt to criminalize a President’s official acts would raise separation of powers problems and would seem inconsistent with the great legal protection otherwise afforded to those acts. Thus, even if a sitting President could be indicted or prosecuted by the United States–an open question–I remain skeptical that President Trump will face any indictment or prosecution for the Comey firing itself.
Nonetheless, public discussion on Trump’s potential criminal liability for the Comey firing continues, and some commentators believe Trump’s recent assertion of immunity for official acts (via his lawyer) leads to absurd results. These commentators argue that if a President were immune from criminal prosecution for official acts, he could easily accept a bribe in exchange for the performance of one of those acts, without ever facing jail time.* This can’t be true, they argue. The President must be susceptible to criminal prosecution for his official acts, at least when those acts are performed with corrupt intent.**
But that line of analysis relies on a fundamental misunderstanding of official acts. Saying that a President enjoys criminal immunity for his official acts does not mean he can freely accept bribes (even putting aside the impeachment remedy), because bribery necessarily involves acts other than official acts. And those other acts can form the actus reus, or “bad act,” under a criminal statute and can, along with the necessary mens rea, establish a President’s guilt.
The federal bribery statute, 18 U.S.C. 201, demonstrates this. That statute criminalizes various arrangements between public officials and others relating to official acts. However, the statute does not criminalize any official act itself. Instead, a crime occurs when, for example, a public official “demands, seeks, receives, accepts, or agrees to receive or accept anything of value” for his official act, not when he actually performs that act. 18 U.S.C. 201(c)(1)(B). Thus, if the federal bribery statute applies to the President (a point of some debate),*** President Trump would have committed a crime if he entered into an agreement to fire James Comey in exchange for a payment. But the agreement itself, not the Comey firing, would constitute the bad act described in the statute.
This may seem like hair-splitting. That is, one might believe that the distinction between an official act and an agreement to take a payment in exchange for an official act may be illusory. However, the case law properly recognizes this important distinction.
In United States v. Brewster, 408 U.S. 501 (1972), for example, the Supreme Court held that a former U.S. Senator did not enjoy criminal immunity when he accepted a bribe designed to influence his official (legislative) acts. Though the Speech & Debate Clause ensures that a Senator cannot be prosecuted for a legislative act, the Court concluded that “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act.” Id. at 526. That the alleged bribe was paid for the Senator’s vote on postal rate legislation made no difference: “[I]t does not matter whether the promise for which the bribe was given was for the performance of a legislative act.” Id. The Court thus held that the Senator could be prosecuted under the federal bribery statute.
No President has ever been prosecuted for anything, so no Supreme Court case addresses the distinction between an executive’s official act and an agreement to accept a bribe in exchange for that act. However, the state court in Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016), recognized the Brewster distinction when it examined the prosecution of the state’s chief executive, Governor Rick Perry, for an official act (the allegedly corrupt vetoing of a bill). There, the court emphasized that Perry’s official act could not form the actus reus of a crime. That is, no law could “make the mere act of vetoing legislation a crime.” Id. at 901. A statute could criminalize an agreement to take a bribe in exchange for promise to make a veto, but in those circumstances, “the illegal conduct is not the veto; it is the agreement to take money in exchange for the promise.” Id. at 901 n.96. Ex party Perry thus adopts the same approach as Brewster.
Were Congress to draft a statute that made the performance of an official act an element of a crime, strange consequences would follow. For example, suppose the federal bribery statute criminalized the President’s conduct when he 1) with corrupt intent, accepted a payment in exchange for a promise to perform an official act; and 2) subsequently performed that act. Suppose further that the President corruptly accepts a payment in exchange for his promise to sign a particular bill. On these facts, the President would establish his guilt (or, at the very least, establish a serious risk of prosecution) if he went on to sign the bill, even if he thought that doing so was in the best interests of the country. The statute would thus seriously pervert the President’s decision-making, and, quite wisely, the actual federal bribery statute leaves the performance of official acts alone. See Brewster, 408 U.S. at 526 (“[A]cceptance of the bribe is the violation of the statute, not performance of the illegal promise.”).
Though a President’s performance of an official act cannot properly constitute an element of a crime, that does not necessarily mean that it must be ignored in any potential prosecution. For example, if the President had allegedly accepted a payment from a foreign country in exchange for his promise to veto a bill that severely sanctioned that country, one could point to his veto as a possible indication that he had entered into a bribery arrangement. Note, however, that this type of inquiry would be impermissible for a legislator’s official acts, no matter how corrupt, given the special protections granted by the Speech & Debate Clause. See United States v. Helstoski, 442 U.S. 477, 487 (1979) (“The Court’s holdings . . . leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution.”).
Reasonable persons may disagree over whether Congress could criminalize an official act of the President via a bribery statute, an obstruction of justice statute, or otherwise. This writer believes that any such statute would violate the separation of powers and would be unconstitutional. However, those who reject this view should not do so because they believe it would provide the President with criminal immunity for bribery. The acceptance or solicitation of a bribe does not constitute an official act, and the separation of powers would not prohibit its criminalization.
Comments welcome. This post will be updated.
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* Under the conventional understanding, an improper official act could provide the basis for impeachment and conviction, even if it could not form the basis for a criminal prosecution.
***See Application of 28 U.S.C. § 458 to Presidential Appointments of Fed. Judges, 19 Op. O.L.C. 350, 357 n.11 (1995); 5 C.F.R. § 2635.204(j) (2017) (implying that the federal bribery statute applies to the President).