Professor Eliason, your discussion of the federal bribery law calls to mind the Big Law "settlements" from earlier this year. What's your take on the legality of those? The President received a thing of value (hundreds of millions of dollars in legal services), and in return was influenced in the performance of an official act (declined to revoke security clearances, left in place government contracts, etc.). Is official inaction distinct from official action?
It's a great point. The law firm settlements definitely have bribery vibes, and this was noted by some of the firms that resisted rather than capitulate. I think it would come down to a defense of a lack of corrupt intent; the administration would claim these were settlements of legitimate disputes. For example, if a company is being sued by DOJ and agrees to pay a civil settlement in exchange for dismissal of the case, we don't call that bribery because although there is a quid pro quo, there is no corrupt intent. I'm not saying that would be convincing here, but I think that would be the argument.
I appreciate the response. I think there is a decent argument that the settlements themselves undermine the supposed national security concerns underlying the executive orders, which is circumstantially probative of at least one side's mental state.
Professor Eliason, your discussion of the federal bribery law calls to mind the Big Law "settlements" from earlier this year. What's your take on the legality of those? The President received a thing of value (hundreds of millions of dollars in legal services), and in return was influenced in the performance of an official act (declined to revoke security clearances, left in place government contracts, etc.). Is official inaction distinct from official action?
It's a great point. The law firm settlements definitely have bribery vibes, and this was noted by some of the firms that resisted rather than capitulate. I think it would come down to a defense of a lack of corrupt intent; the administration would claim these were settlements of legitimate disputes. For example, if a company is being sued by DOJ and agrees to pay a civil settlement in exchange for dismissal of the case, we don't call that bribery because although there is a quid pro quo, there is no corrupt intent. I'm not saying that would be convincing here, but I think that would be the argument.
I appreciate the response. I think there is a decent argument that the settlements themselves undermine the supposed national security concerns underlying the executive orders, which is circumstantially probative of at least one side's mental state.