When “Awfully Close” Is Just Awful: Nadler Raises Invalid Bribery Theory In Call For Barr Investigation

440px-U.S._Rep_Jerry_Nadler_(cropped)250px-Ford_PintoFifty years ago, Ford Motor Company started production on the Pinto, a car that was billed as the be-all, end-all for the automotive industry. The only problem was that the car seemed to burst into flames if it hit a mid- to large-sized squirrel. The Pinto’s combustibility did not stop its advocates from pushing its use until it finally was pulled from the roads.
     The Pinto came to mind this week with the reappearance of a poorly conceived product from the legal world: the Trump bribery theory. Various legal experts have insisted President Trump could be prosecuted or impeached under bribery laws, including for his dealings with Ukraine. I have written repeatedly that this theory was discredited by controlling case law, and I testified against its use as an article in the House impeachment hearing last year.  As Ralph Nader once said about the Chevrolet Corvair, this theory is “unsafe at any speed” on Capitol Hill. The decision to pull out this discredited theory of bribery is just the latest example of choosing combustibility over credibility in legal analysis.  The difference is that when unstable automotive products are exposed, they are taken off the road.  Unstable legal products just keep rolling along.
864px-Geoffrey_S._Berman
      Despite the support of the three other witnesses at the hearing, the House Judiciary Committee wisely declined to impeach on this facially invalid theory. Some of us thought that the bribery theory was discarded to the junkyard of bad ideas. Yet, late this week, it was back with a vengeance: After hearing the testimony of former U.S. Attorney Geoffrey Berman, House Judiciary Chairman Jerrold Nadler (D-N.Y.) declared his committee will investigate whether Attorney General William Barr is guilty of bribery, for offering to move Berman from his post in New York to the Department of Justice’s Civil Division.
      The reappearance of the theory followed the implosion of an alternative criminal theory.
      Just a week ago, Barr was being accused of criminal obstruction in seeking to can Berman as the U.S. Attorney in New York’s Southern District, in order to influence investigations affecting Trump friends ranging from Rudy Giuliani to the late Jeffrey Epstein. It did not matter that these investigations have been aggressively pursued under Barr’s tenure.
     The problem is that, when Berman released his written statement to Congress, he did not allege this change was an effort to hamper any investigation. (Notably, on a committee known for leaking information from closed hearing, no such allegation was leaked and no member said that it was made). Instead, Berman said he told Barr that he not want to leave the Southern District of New York because he wanted to see “important investigations … through to completion” and “to help lead the Office through the COVID crisis and get the Office back to normal functioning.”
      Berman said Barr wanted to shift Securities and Exchange Commission Chairman Jay Clayton into the Southern District position to accommodate Clayton’s desire to move back to New York. As Barr stated, he offered other positions to Berman that would have been effective promotions.
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      There still is no evidence of any effort to hamper Southern District investigations. To the contrary, the Epstein investigation has continued full bore with the extraordinary arrest of Epstein’s close associate, Ghislaine Maxwell, and Barr has pushed for Britain’s Prince Andrew to give evidence in that case. Barr’s DOJ has pushed to incarcerate Trump’s close friend, Roger Stone, and Barr reportedly opposed Trump’s decision to give presidential clemency to Stonein the form of a commutation. And Barr specifically asked the DOJ’s inspector general to monitor the Southern District office to prevent any interference in its investigations.
      That is when the bribery theory came sputtering back on to the road. Nader announced: “We don’t know yet if the attorney general’s conduct is criminal, but that kind of quid pro quo is awfully close to bribery.” It is not awfully close. Just awful.
      The suggestion is so wildly absurd that it defies belief — unless you have been following the legal analysis of the last three years. A leading proponent has been former prosecutor and Washington Post columnist Randall D. Eliason, who insisted that “allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe … it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” Eliason further endorsed the House report and assured that “The legal and factual analysis of bribery and honest services fraud in the House report is exactly right” and “outlines compelling evidence of federal criminal violations.”
      The theory was never “exactly” or even remotely right, as evidenced by the decision not to use it as a basis for impeachment. And yet, it’s back. Indeed, the greatest danger of the theory was not that it would ever pass muster in the federal court system but that it would be used (as here) in the political system to criminalize policy and legal disagreements.

      In my testimony, I went into historical and legal detail to explain why this theory was never credible.  While it was gleefully presented by papers like the Washington Post, it ignored case law that rejected precisely this type of limitless definition of the offense.  As I told the House Judiciary Committee, the Supreme Court has repeatedly narrowed the scope of the statutory definition of bribery, including distinctions with direct relevance to the current controversy in cases like McDonnell v. United States, where the Court overturned the conviction of former Virginia governor Robert McDonnell. Chief Justice John Roberts eviscerated what he called the “boundless interpretation of the federal bribery statute.” The Court explained the such “boundless interpretations” are inimical to constitutional rights because they deny citizens the notice of what acts are presumptively criminal: “[U]nder the Government’s interpretation, the term ‘official act’ is not defined ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited,’ or ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’”  That is precisely what is being threatened if offering an alternative job to a subordinate in government would constituted bribery.

      I will not repeat the litany of cases rejecting this type of broad interpretation. However, the case law did not matter then and it does not matter now to those who believe that the criminal code is endless flexible to meet political agenda.
      It doesn’t even matter that the Supreme Court reaffirmed prior rejections of such broad interpretations in a recent unanimous ruling written by Justice Elena Kagan. In Kelly v. United States, the Supreme Court threw out the convictions in the “Bridgegate” case involving the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who refused to endorse then-Gov. Chris Christie.
      Yet, Nadler is suggesting that, by simply offering Berman alternative positions, Barr was offering a criminal bribe. Keep in mind that Barr’s offer also included the promise to fire Berman if he refused to vacate the position. Barr did not have to bribe Berman to remove him. Barr wanted Berman to remain in the administration but, in the end, the only certainty was that Berman would not be in his current position. Again, imagine if such a choice could be deemed criminal bribery because an offer of an alternative job can be construed as a quid pro quo. That is what the Court meant by the “boundless interpretation” of bribery.
      I have disagreed with Clayton’s nomination to the Southern District, and I also disagreed with the suggested substitution of an acting U.S. Attorney rather than the obviously qualified choice of Audrey Strauss from within the SDNY. However, none of that suggests a crime, let alone bribery. While Berman insisted he could have litigated his removal, he would have lost. While it is true that he was appointed by a court, he — like all U.S. Attorneys — serves at the pleasure of the president. Barr gave him various options, but remaining in his position was not one of those — which is why Barr would say confidently that Berman was stepping down … one way or the other.
      That is why the latest road-test of the bribery theory is a Pinto-like hazard given even the smallest collision with actual law.

 

135 thoughts on “When “Awfully Close” Is Just Awful: Nadler Raises Invalid Bribery Theory In Call For Barr Investigation”

    1. How to Burn Fiat Currency 101 by the Federal Reserve System & their major banking agents:

      1st you have to have a hole to throw bad currency into, that currency is now gone from the eco but it created some nice big tax write off’s for years to come.

      Come up in the future:

      Benson, do you know who your pension plan has been sleeping with lately?

  1. Lindsey Graham Wants Mueller Questioned By Judiciary Committee

    Senator Lindsey Graham, Republican of South Carolina and the chairman of the Judiciary Committee, said on Sunday that he would call the former special counsel Robert S. Mueller III to testify before his panel about the investigation of Russian interference in the 2016 presidential election and ties to the Trump campaign.

    The announcement, part of an election-year bid by Senate Republicans to discredit the inquiry, came after Mr. Mueller broke a nearly yearlong silence on Saturday in an op-ed for The Washington Post in which he defended his office’s prosecution of Roger J. Stone Jr. and its broader investigation. President Trump had brought the investigation, which consumed much of his early presidency, to the fore again when he commuted Mr. Stone’s sentence on Friday, and the White House issued a lengthy statement denouncing Mr. Mueller’s investigation and the “overzealous prosecutors” who convicted Mr. Stone.

    “Apparently Mr. Mueller is willing — and also capable — of defending the Mueller investigation through an oped in the Washington Post,” Mr. Graham wrote on Twitter. “Democrats on the Senate Judiciary Committee have previously requested Mr. Mueller appear before the Senate Judiciary Committee to testify about his investigation. That request will be granted.”

    A spokeswoman for the committee confirmed on Sunday that it was preparing a formal invitation to Mr. Mueller.

    While the special counsel’s investigation did not establish a criminal conspiracy between Mr. Trump’s campaign and Russia, it did outline numerous contacts between them and documented several instances when Mr. Trump took actions to impede the inquiry. Since the release of the special counsel’s report last year, Republicans have sought to cast doubt on its conclusions by tarnishing Mr. Mueller and his investigators and painting the Trump campaign as victims of malicious overreach by law enforcement officials.

    “We need to look long and hard at how the Mueller investigation got off the rails,” Mr. Graham said before the vote. “This committee is not going to sit on the sidelines and move on.”

    The effort mirrors one by Mr. Trump himself to rewrite the narrative of the Russia investigation. Late last week, he publicly vented that neither his administration nor Republicans were adequately investigating unsubstantiated accusations that former President Barack Obama masterminded a plot to spy on his campaign.

    Edited From: “Graham To Call Mueller To Testify Before Senate Judiciary Committee”

    The New York Times, 7/12/20

    1. REGARDING ABOVE:

      Robert Mueller On Stone In Today’s Op Ed

      We now have a detailed picture of Russia’s interference in the 2016 presidential election. The special counsel’s office identified two principal operations directed at our election: hacking and dumping Clinton campaign emails, and an online social media campaign to disparage the Democratic candidate. We also identified numerous links between the Russian government and Trump campaign personnel — Stone among them. We did not establish that members of the Trump campaign conspired with the Russian government in its activities. The investigation did, however, establish that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome. It also established that the campaign expected it would benefit electorally from information stolen and released through Russian efforts.

      Uncovering and tracing Russian outreach and interference activities was a complex task. The investigation to understand these activities took two years and substantial effort. Based on our work, eight individuals pleaded guilty or were convicted at trial, and more than two dozen Russian individuals and entities, including senior Russian intelligence officers, were charged with federal crimes.

      Congress also investigated and sought information from Stone. A jury later determined he lied repeatedly to members of Congress. He lied about the identity of his intermediary to WikiLeaks. He lied about the existence of written communications with his intermediary. He lied by denying he had communicated with the Trump campaign about the timing of WikiLeaks’ releases. He in fact updated senior campaign officials repeatedly about WikiLeaks. And he tampered with a witness, imploring him to stonewall Congress.

      The jury ultimately convicted Stone of obstruction of a congressional investigation, five counts of making false statements to Congress and tampering with a witness. Because his sentence has been commuted, he will not go to prison. But his conviction stands.

      Edited From: “Robert Mueller: Roger Stone Remains A Convicted Felon, And Rightly So”

      The Washington Post, 7/11/20

      1. REGARDING ABOVE:

        Lindsey Graham and Senate Republicans have aspirations of humiliating Robert Mueller with incessant, pointed questions.

        But a possibility exists that Mueller might just state, under oath, revelations Republicans may not want to hear. If that should happen, all the efforts Trump’s allies have devoted to ‘discrediting’ The Mueller Probe could be lost. Republicans could find themselves, back at Square One, screaming ‘Hoax’ again. Trump is far weaker now than he was when Mueller wrapped his probe.

        1. Of Mueller does as badly in the senate as in the house – he is in serious trouble.

          Regardless the most serious question that the Senate will have – is the same one it had of Rosenstein.
          When is it that you learned that the legitimacy of XFH had come to an end ?

          Because that is the moment at which Mueller was required to close shop and go home.

          The conclusion that Mueller reached in his report – that there was no criminal interaction between the trump campaign and Russia was established by the FBI in mid Jan 2017. That is when the ability to further investigate ended.

          That was 5 months BEFORE Mueller was appointed. The entire Mueller investigation was illegitimate from the start, and Mueller either new that or should have known that.

        2. More leftist wishfull Thinking.

          I have repeatedly attacked Mueller. He was special counsel. His investigation bears his name.
          But it was self evident from Mueller’s House testimony that Mueller is in mental decline.

          It is probably unwise for Republicans to question Mueller – because Mueller with near certainty – did not run the SC investigation, did not write the Mueller Report, and did not write this Op Ed.

          His testimony will merely embarrass him which serves no purpose. Mueller lied to the house in his testimony. No one prosecuted him, because we do not prosecute demented old men for false testimony.

          If we are smart – we do not subject them to testifying again.

          Whoever wrote the Mueller OpEd NEVER should have sent it it is abuse.

      2. The Testimony of Crowdstrike – the only people who actually examined the DNC servers was that they were unable to attribute the hack to Russia, and they were unable to confirm that the Wikileaks emails came from that hack.

        The fact that Mueller and the left and the IC were EVER selling this is evidence of political corruption.
        Crowdstrike is incredibly Democrat friendly. But UNDER OATH they were unable to confirm the bunk that the media, the left, Mueller or the IC were saying about their own investigation.

        To be clear the ONLY investigation done was by crowstrike. No one else had access to the DNC net or servers.

        If Mueller or anyone else is trying to make a stronger case than that Crowdstrike did under oath – they are engaged in astrology, not investigation.

        1. John, you misstated the Crowdstrike testimony. It was not that they could not attribute “the hack” to Russia. It was that they could not determine whether there was a hack at all.

          1. William_JD

            I beleive that is incorrect. I think the fact that the DNC was hacked twice is fairly well established,

            I am guessing that what you are refering to is that Crowstrike was unable to say that the DNC emails were transfered as a consequence of the hacks.

            There is no certainty here. But at this time it is more likely than not that the DNC emails reached Wikileaks as a consequence of a LEAK not a hack.

            Stone wished to put on expect testimony to that effect in his trial and Jackson improperly refused.

            The distinction between a leak and a hack is critical to the entire collusion delusion.

            If the DNC emails were the consequence of a leak – there is no crime of any kind. There is no possibility of Stone or anyone else colluding – because they would be legally free to conspire to broadly diseminate legaly aquired emails.

      3. The IRA – not technically the Russian government – though usually considered to act on behalf of Putin,
        As confirmed by Mueller – spent a miniscule amount of money on Social media during the 2016 campaign.
        Mist of that money was spent AFTER the election. It was all on poorly done social media add that are unlikely to have persuaded anyone, and those adds were divided nearly equally between Sanders, Trump and Clinton – despite the fact that Sanders was no longer in the race.

        I would further note that nothing that the IRA did was any different from what VOA or the US government have been doing accross the globe forever.

        Further unless you are going to decided that it is an act of war for foreigners to speak in US elections – which will result in other govenrments deciding that the US government or US citizens speaking in Foreign elections are also crimes and acts of war, then there is absolutely nothing you can do about this.

        Foreigners and foreign countries are immune to the efforts of US cancel culture.

        While Russian social media efforts are totally ineffective in influencing US elections. You will not succeed in stopping them.

        In fact Mueller fixating on this has put americans at risk.

        There is nothing that totalitarian regimes like Russia or China would like more than to silence americans voicing oppinions on Russia or China. Mueller has legitimized criminalizing political speech of foreigners. Id the US going to honor Russian or Chinese extradition requests for americans commenting pllitically on Russia or China ?

        Leftists do not think about the consequences of their actions.

        Muellers nonsense about Russian social media has made it possible for foreign nations to criminalize the conduct of americans.

      4. There are no actual links between Stone and Russians. This is BUNK. Mueller is lying.

        Mueller could not even establish actual contact between Stone and Wikileaks.

      5. Mueller can pretend that the Trump presidency has been beneficial to Russia.

        But the FACTS are that is both false, and US analysts had for the most part concluded that Trump would be more of a problem for Russia – which he has proven to be, and that Clinton would be easier to work with.

        But ultimately this is NOT the business of Mueller to examine or comment on. In any election every foreign nation in the world is going to have its own views as to which candidate it would like to see elected. American voters are free to make decisons based on that – if they so choose. But the american government can not involve itself in that.

        What the left as backwards is that while foreign governments can have opinions on the outcome of US elections – the US government absolutely may not.

        By even making such a statement as Special Prosecutor Mueller is out of line.

      6. Mueller is also well aware that his prosecutors were forced to resign from the Stone case and that atleast one clearly biased jurror was allowed on the stone jury. That Jurror – the foreman publicly expressed oppinions – not merely on the election and politics but specifically on Stone’s guilt prior to the trial. She failed to disclose that and the judge precluded sufficient voirdoir to uncover it. Further the judge displayed bias by failing to grant Stone a new trial.

        The conclusions of a biased jury are meaningless.

      7. It is irrelevant what Stone purportedly lied about – though Mueller’s claims about Stone lying are dubious, Further the REAL evidence is that Stone HAD no actual connections to Wikileaks. Stone THOUGHT Credico was an intermediary but as Credico testified and has publicly stated he did not serve as an intermediary. He did not forward anything from Stone to Wikileaks, and in fact actively thwarted Stone’s contact with Wikileaks. Credico wanted Assange all to himself. Credico was trying to interview Assange on his own radio show and had no intentions of sharing him with Stone.

        It is not possible for Stone to have “lied” about wikileaks – because Stone did not know the truth.

      8. Mueller thoroughly investigated the Wikileaks mess and his oped is obscuring the fact that no only did he discover that Stone had no actual intermediaries or contact with Wikileaks – but that Stone had no foreknowledge of anything that wikileaks did.

        The real question is WHY was stone investigating a non-crime.

        Had Wikileaks actually coordinated with the Trump campaign – with Mueller provide they did not, that still would not have been a crime.
        Had Mueller established that Stone had foreknowledge of Wikipedia’s release of DNC emails – that still would not have been a crime.
        Had Mueller established that Stone knew that the emails were illegally hacked – again a claim that has not been established – there would be no crime.

        If someone at the DNC leaked the emails to stone personally and Stone provided them to wikileaks – that would not have been a crime.

        There is only one way in which Stones could have committed a crime associated with the DNC emails – that would require Stone to be aware of the effort to hack the DNC to get those emails BEFORE THE FACT, and to have in some way provided assistance in doing so.
        That indisputably did not occur.

        So what we have is Mueller investigating what he KNOWS by law is a non-crime and trying to prosecute people for allegedly false statements in an improper investigations – that is textbook prosecutorial misconduct.

        The prosecution should have been of Mueller and his team. Unfortunately I am not aware ever of a federal prosecutor being charged for porsecutorial misconduct – no matter how egregious. In fact there have been incredibly few consequences ever to even state and local prosecutors for misconduct dispute myriads of examples.

      9. The recent oppinion of Justice Thomas regarding the House subpeona of Trump’s taxes is especially relevant here.

        Thomas point blankly stated there is no authority within the constitution for congress to investigate private individuals.

        Muellers claim that Stone obstructed such an investigation is bogus. Congress may not investigate Stone.

          1. They have almost no power to enforce their own subpeonas.
            Though SCOTUS did not adopt Thomas’s excellent constitutional reasoning that would have severely constrained congresses power to harrass private individuals – they did reign in congress.

            It will prove harder in the future for congress to go on fishing expeditions.

      10. The witness tampering conviction is proof of the bias of the jury and the judge.

        Credico testified that it was a joke not a threat.
        Stone testified that it was a joke not a threat.
        The actual emails are available and obviously a joke.

        The Supreme court has already ruled on a closely related issue and Stone’s email to credico does not come close to meeting the True threat’s doctrine – that means it falls under free speech and can not be treated as a threat.

        Another bogus claim that should not have been prosiectured that obviously is a constitutionally barred claim that will lose on appeal.

        Mueller was wasting the courts time charging it.

        Again more evidence of Muellers bias.

      11. Ultimately everyone knows why Mueller prosecuted Stone.

        Mueller went after Stone because Stone taunted Mueller, because he repeatedly publicly criticised him.

        WE later saw this with the Judge – When Stone publicly criticised her – she issued an unconstitutional gag order.

        A judge has control over the lawyers in a proceding, but no control over the speech of the defendents or the witnesses.
        But like Mueller Judge Jackson was thin skinned and offended by Stones digs and violated his rights.

        But then the left does not recognize that people have rights.

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