Why Donald Trump and Pam Bondi probably won’t face a corruption investigation.

Donald Trump and Pam Bondi Probably Won’t Face a Corruption Investigation. Thanks, Supreme Court.

Donald Trump and Pam Bondi Probably Won’t Face a Corruption Investigation. Thanks, Supreme Court.

The law, lawyers, and the court.
Sept. 8 2016 6:16 PM

Why Donald Trump and Pam Bondi Probably Won’t Face a Corruption Investigation

The Supreme Court’s McDonnell decision seems to have put a chill on prosecutors.

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Donald Trump, left, and Pam Bondi.

Photo illustration by Slate. Photos by Scott Olson/Getty Images and Mark Wilson/Getty Images.

It has not gone unobserved this week that Donald Trump may have accidentally told the truth one time in 2015. I’m referring to his boast to the Wall Street Journal that “as a businessman and a very substantial donor to very important people, when you give, they do whatever the hell you want them to do.”

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Trump’s burgeoning pay-to-not-be-played scandal features the substantial donation he made to Florida’s attorney general, Pam Bondi, just days before she decided not to join a multistate lawsuit over alleged fraud at Trump University. It certainly looks as if Trump was paying Bondi to “do whatever the hell” he wanted her to do. But despite the many levels of gross surrounding the donation, the lackluster investigation of fraud, and the lavish fundraiser Trump then provided Bondi at bargain-basement prices, any attempt to prove in a court that he, or she, did anything illegal will be an uphill climb. This is in no small part thanks to the U.S. Supreme Court. Its unanimous decision last spring in McDonnell v. United States made it vastly easier to purchase politicians and far harder to prosecute corruption. Today, post-McDonnell, prosecutors are too freaked out to bring anti-corruption cases, and nobody is happier about that than Trump and Bondi.

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You may remember former Virginia Gov. Bob McDonnell. This week, prosecutors in the Department of Justice announced they would not retry him on federal public corruption charges. McDonnell had accepted more than $177,000 in loans and lavish gifts from a wealthy local businessman who wanted McDonnell to push through scientific studies confirming the health benefits of a tobacco-based nutritional supplement he produced. In 2014, McDonnell was convicted on honest services fraud and Hobbs Act extortion charges. A federal appeals court affirmed the conviction. The U.S. Supreme Court vacated his conviction, finding that McDonnell’s efforts on wealthy businessman Jonnie Williams’ behalf (arranging meetings, hosting receptions at the governor’s mansion, telling state officials how much he loved Williams’ product) did not constitute “official acts” under the statute and that the jury instructions were too broad. According to the unanimous court, the governor’s conduct didn’t fall properly under the definition of a decision or action on a “question, matter, cause, suit, proceeding or controversy.”

After McDonnell, public officials who simply meet with constituents, or host swanky events for them, or even hook them up with academic researchers, are just doing their jobs. As the court established—showing great solicitude for the beleaguered politician who just wants to go fishing with contributors or drink a good bottle of wine—“pay for access” is now permissible, whereas pay for stuff in exchange is not. This is why Fox News’ talk of going after Hillary Clinton for the Clinton Foundation’s activities is largely farcical; there is simply no evidence that she committed any official act in exchange for gifts. But this is where Bondi and Trump start to look a little closer to the line.

The timeline for the Trump donation looks pretty grody to the naked eye. As Slate’s Josh Voorhees has shown, it sure looks as though Trump’s donation to Bondi was intended to achieve instant results, and it did just that. Scott Maxwell at the Orlando Sentinel lays out the story here: “One day, Bondi’s office told this newspaper it was reviewing complaints from Floridians who said they felt swindled by the Trump Institute affiliate of Trump University. Four days later, Trump’s foundation cut a $25,000 check to Bondi’s campaign committee. Then, after the check came in, her office decided not to take any action against Trump.”

The longer version goes this way: On Aug. 25, 2013, New York Attorney General Eric Schneiderman filed a lawsuit on behalf of a class of plaintiffs alleging that Trump University and its affiliates were “sham for-profit colleges” that misled consumers about what they would get for their money.

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Right around that time, as Bondi has admitted, she personally solicited a donation from Trump. In September 2013, Bondi “publicly announced she was considering joining a New York state probe of Trump University's activities.” Three days later, the Donald J. Trump Foundation, based in New York, made a $25,000 contribution to And Justice for All, a political group that backs Bondi. A few days later, Bondi announced that her office had declined to join the multistate suit or to bring suit in Florida. Six months later, in March 2014, Trump hosted a $150,000 fundraiser for Bondi at his Mar-a-Lago resort at cut-rate prices.

So that’s nice.

There are other problems. Like, last week, Trump paid a $2,500 fine because his foundation donated that $25,000 to Bondi’s PAC in violation of elections law. (He claims it was a “clerical error” and they accidentally reported sending the check to a Kansas charity with a similar name.) Trump was never able to explain when asked why he gave such a significant contribution to an obscure Florida AG, except to proclaim Bondi “a fabulous representative of the people.”

Maxwell at the Orlando Sentinel notes that there are Florida citizens named as plaintiffs in the New York suit, and also that a public records request he made to Bondi’s office earlier this year revealed that Bondi’s office did not conduct a meaningful investigation of the Trump University complaints. (One man who lost $26,000 was told by her staff that he might be better off surfing the internet: “I encourage you to visit an Internet search engine such as http://www.yahoo.com or http://www.google.com to search for information on any class action lawsuits you may benefit from.”) In the New Yorker, John Cassidy notes that Bondi claimed her decision to drop the probe came at a time when her office had received only one complaint about Trump U. However, writes Cassidy, “the Associated Press, which obtained thousands of pages of documents relating to the case, reported that “more than 20 people requested help from the Florida attorney general’s office.” A piece in this week’s New York Times suggests Trump has a long history of this kind of conduct.

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Now maybe Trump didn’t talk to Bondi about the investigation. He has insisted that they never discussed it: “She’s a fine person, beyond reproach. I never even spoke to her about it at all. She’s a fine person. Never spoken to her about it, never,” he said Monday. And maybe, as Bondi insists, she never knew a thing about the probe, and her underlings handled all of it. Her staffers say she knew nothing whatsoever about the Trump University suit when she asked Trump for money.

So say we send the facts for a spin through the post-McDonnell Supreme Court public corruption machine, on the limited facts that we have. Was the law broken? Jennifer Rubin in the Washington Post says hella yes:

One cannot miss the giant red flag. Why is a charity giving money to aid a pol with whom the foundation’s head has pending legal business? Recall that after the gift was received an official act occurred, the very act Trump had been seeking, namely the decision not to proceed with the case against Trump University. Right there you have a prima facie case of bribery—a payment (an illegal one at that) and a quid pro quo.

I am less certain. (Thanks, justices!) Reading through the court’s language in McDonnell, the easier hurdle is “official acts.” The justices were not certain that McDonnell’s various phone calls and luncheons represented official acts—i.e., he wasn’t making a decision on a “question, matter, cause, suit, proceeding or controversy.” But it certainly looks as if Bondi’s decision not to pursue or join a “suit” is closer to an official act than McDonnell’s free-range schmoozing.

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I asked professor Henry Chambers, who teaches law at the University of Richmond and specializes in anti-corruption law, if that was correct. Via email he suggested that it was: “Shutting down an investigation has to be an ‘official act,’ even under the new standard. If Bondi decided to shut down the investigation because Trump gave her a campaign donation, it looks like a clear Hobbs Act violation of which both Bondi and Trump would be guilty.” Chambers adds that Bondi’s claim that her subordinates made all the decisions is similarly dubious: “The knock on the McDonnell prosecution is that he did not do much for Williams (though I think he did enough). Surely declining to prosecute is an official act that qualifies as doing plenty for Trump. Indeed, I could be convinced that it is an official act even if Bondi merely rubber-stamped a decision by a subordinate.”

What the court was really worried about in McDonnell was criminalizing routine acts of governance. As Chief Justice John Roberts explained, the former governor was just doing what politicians do: “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.” Shorter version: Governors gonna govern. But of course, Trump was not Bondi’s constituent, and pulling out of a massive lawsuit isn’t the same as golfing with a rich donor.

The court’s other overriding concern in McDonnell was the prospect of overzealous prosecutors going after federal officials for vaguely defined offenses. The court wanted nothing to do with involving “the Federal Government in setting standards of good government for local and state officials.” In that it may have succeeded. Although there has been a complaint filed with the Internal Revenue Service by watchdog Citizens for Responsibility and Ethics in Washington, and Massachusetts lawyer Whitfield Larrabee filed state ethics complaints against Bondi in connection with the donation, the point of McDonnell was to chill prosecution of officials for simple acts of taking big gifts in exchange for ambiguous favors. The court may have logged a win here. Not only did it scuttle the old corruption test in favor of a new, unnamed corruption test, but it chilled prosecutors from prosecuting. The court moved the goal posts and then hobbled the prosecutors. Bondi is the real winner.

Of course the difference here is not just that Bondi took money from Trump days before she decided that Floridians would have to seek recourse elsewhere. The difference between McDonnell and Bondi, as the Miami Herald editorial board points out, is that “there were actual victims here—people who paid good money to Trump University and feel they were duped.”

Does Bondi’s conduct pass the sniff test the court constructed in McDonnell? Probably not. But then again, after this week, even McDonnell can’t be run through the Supreme Court’s McDonnell machine. As the statement issued by CREW on Thursday afternoon explains, “We are now seeing that the Supreme Court’s decision will in fact result in corrupt conduct going unpunished, just as we feared it would.”

Thanks to McDonnell, we may never find out whether Bondi and Trump crossed the line into pay for play. We don’t even know where that line is or if there’s a line at all. Go ahead and blame the media for ignoring real corruption as it chases the fake kind. But send a backup prayer to the high court, which has turned even the most obvious examples of politician-for-hire grotesquerie into close calls.