Lawfare Daily: Bribery and the Second Trump Administration with John Keller

[Introduction]

John Keller: And so, the assumption I think has been by some that this must be part of a corrupt deal, essentially, a bribe. President Trump we’ll settle your frivolous lawsuit for $16 million, you approve our merger with Skydance Media.

James Pearce: It's the Lawfare Podcast. I'm James Pearce, Lawfare Legal Fellow with John Keller, formerly of the Public Integrity Section at the Justice Department, and now a partner at Walden, Macht, Haran, & Williams.

John Keller: Agreeing to cooperate in some sense, just in a very non-traditional sense of supporting the, the administration's immigration agenda in New York City is, you know, part of the regular, ordinary course of functioning of government enforcement. And so it's, it, it's beyond the scope of the bribery laws.

James Pearce: Today we're discussing whether three episodes from the first six months of the Trump administration could plausibly be characterized as bribery: Paramount's settlement with Trump while awaiting federal approval of a merger, the law firm deals, and the dismissal of New York City Mayor Eric Adams’s prosecution.

[Main Podcast]

So today I think we, we want to really take advantage of your, your expertise on, on public corruption law. And we wanna talk about bribery and, and specifically about three kind of scenarios or, or call them case studies in this first six months of the Trump administration.

But before we do that, I think gotta put on the table just some basic legal principles. So we, we have those kind of on hand as we talk about it. A, a couple of, of, of questions. Really, the first one is what is bribery? But let me ask you a kind of a preliminary question to that. So, so we all know that at a very basic level, bribery is somebody paying a bribe and somebody receiving a bribe. We're gonna be talking about this a lot.

So what are your preferred terms? Is it a briber, or a bribe payer? A bribee and a bribe recipient. What, what, what, what do you think, this is a stylistic, not so much legal, but what is your preferred terminology as we talk through this?

John Keller: I think briber and public official or briber. And if we have to use bribee, we can, we can use that too. But those are good shorthands for me.

James Pearce: Okay. Excellent. So what's bribery, at a high level, but with enough kind of legal content so that it's helpful in talking through these situations? What is criminal bribery?

John Keller: The basic elements, and there are several different statutes that can apply and, and we can run through those if it would be helpful at some point.

But the basic elements underlying the bribery conduct as prohibited by the various different federal statutes that, that address this topic is something of value, is kind of the first element. You gotta have, you know, the, the most obvious example is a briefcase full of cash, you know, something of value, money or something else. And it's defined very broadly, so it's not limited to, to something that's, you know, financially quantifiable necessarily, but something of value to a public official.

So generally that is anyone who is elected or appointed anyone who is an employee of a local, state, or federal government. And there are different jurisdictional issues with different statutes. But again, broadly looking at all of the different statutes that could apply, the public official is, is any employee of a state, federal, or local government. So something of value to a government employee, the stand in for the public official, and then the, the kind of critical piece is in exchange for an official act.

So those are the three core elements. You, you hear people refer to it as a quid pro quo. The quid is the something of value. The pro is the for. And the quo is the official act. I, I say bribery is, is those three elements plus. And the, and the plus is that the government has to prove that the briber, or the public official, depending about, depending on whether you're talking about an offer side bribery case or a solicitation side bribery case, the government has to prove that the defendant was acting with corrupt intent.

And that means, although we don't have a, a precise definition from the Supreme Court. You know, synthesizing lower court decisions and Supreme Court decisions in other areas, I think the, the best definition that we should use for corrupt intent is specific intent to engage in a quid pro quo with the added layer of showing some kind of wrongful purpose, which I think most people think is inherent in intending to engage in a quid pro quo. But it may be that the government has to prove in addition to the specific intent to engage in the quid pro quo, that this, this level of wrongful purpose.

James Pearce: Yeah. And, and certainly corrupt intent or corruptly is, is something that has been a term that has bedeviled courts, not only in the bribery context, but also in, with respect to obstruction.

And, and it's not obvious that it, that, that term corruptly or, or the idea of corrupt intent takes on quite the same meaning in a sort of across these different statutes. But I, yeah, I think the idea of just that, that that exchange for, for a wrongful purpose is, is a, is a helpful rubric to, to move through here, sort of move through the analysis here.

You mentioned official act or official action. I know the Supreme Court in the McDonnell case sort of gave a bit more content to that term. Talk through what, what, what that generally means. And that will, you know, we can hit, hit on that a bit more as we talk through the three case studies.

John Keller: Yeah. Let's, I, I mean, for people that are interested in diving in more there are several recent Supreme Court cases that deal with these issues. So we just talked about the definition of corruptly. James, you mentioned the, the obstruction context. So in Fischer v. United States, in a recent Supreme Court term, the, the Supreme Court addressed, although they didn't really answer the question of what corruptly meant for purposes of obstruction.

In Snyder v. United States, the Supreme Court addressed the definition, again without answering the question definitively of what corruptly meant for purposes of this statute, 18 U.S.C. 666, which is a state and local bribery statute.

And then to your, to your question, in McDonnell v. United States, the Supreme Court a a little bit further back maybe 2017, 2020, yeah, 2017 or so, addressed the, the issue of the third element of bribery, which is official action. So just retreading, we have anything of value to a public official for official action. So what is official action? There is a statutory definition in the, the lead federal bribery statute, which is 18 U.S.C Section 201.

And the Supreme Court kind of added some gloss to that statutory definition in McDonnell v. United States and essentially said, an official act boils down to two elements, two things that the government has to prove. First, there has to be a pending question or matter which is relatively well-defined. So you could think of it as an example of, you know, whether to award a contract or whether to vote yes or no on a particular piece of legislation or whether to enact a specific zoning ordinance. Those are the, those are, those are examples of a pending question or matter. So that's part one of official action.

And then part two is that a public official actually make a decision, take some action with respect to that pending question or matter. It doesn't have to be the ultimate decision. It doesn't have to be the final action on the, on the pending question or matter. It can be preliminary. It can be for example, in the contract example, it can be narrowing down a list of bidders from the initial universal list of everyone who submitted a bid to a, a smaller selected list of bidders from which the final company will be chosen for the, for the contract.

So it doesn't have to be the, the ultimate decision, but it does have to be some meaningful and relatively circumscribed decision or action on the pending question matter. So that's a, a, a high level kind of description of what an official act is.

James Pearce: That's great, thank you. And, and I think in, in passing in, in answering that question, you also addressed the sort of the difference, the different statutory schemes, one that applies to federal and, and local officials, 18, United States six, code 666. And then in, in talking about the actual statutory definition of an official act, referred to the, I think what we think of as the federal bribery statute 18 United States Code 201.

I'm curious within those two statutes, and I don't wanna take us on the detour 'cause we wanna get to the main event of these three different case scenarios. What is a, a gratuity as opposed to a bribe? And you mentioned the case Snyder that dealt with 666, Section 666. And there's a longstanding question, which I don't want you to talk about, but you know, whether a gratuity is even a, a sort of a, a permissible way of or, or something that can be prosecuted under section 666. That is not a debate with res, with res respect to question Section 201, the federal bribery statute, which I think we'll be focusing on here.

So bracketing that debate that we won't have here, what is a gratuity under the federal bribery statute, Section 201?

John Keller: So gratuity is what most people who practice in this area think of as as bribery light. You still have to have the first element of bribery, something of value. And you have to have the second element, you have to have a public official that the something of value is given to. But you don't really need the third element, or you need a watered down version of the third element.

So for bribery, you need anything of value to a public official for an official action. For gratuity, you need anything of value to a public official for or because of is the language that the Supreme Court has used and, and that 18 U.S.C. 201 uses, I believe, and the, that operative language kind of again, dilutes the quid pro quo.

It doesn't have to be a direct exchange. It doesn't have to be conditional. The courts in talking about bribery, really talk about bribery is you're not getting the thing of value. You're not getting the briefcase of cash unless you do the official action. So it's, it's conditional in that way.

For a gratuity, it's thought of as more, I'm giving you this to express gratitude for the fact that you've taken some official action or that I think you are going to take some official action. I'm not conditioning it on you taking the official action, Mr. Public Official. I'm not, I'm not even necessarily telling you that I wouldn't do it. I wouldn't give you this unless you take the the official action.

I'm just saying here is, here's an expression of my gratitude. That thing you did last month, last week, last year. It really helped out my company. We have, we have grown exponentially as a result. And, and I want to express my gratitude, hence the, the term gratuity. It, it, it is thought of as kind of a thank you payment.

The only, the only reason why, why I haven't focused exclusively on that kind of post hoc, after the fact payment is because a gratuity is not necessarily limited to payments that come after an official act. You can have a gratuity before an official act. Again, the the critical distinction between a gratuity and bribe is that there is no corrupt agreement. There's no conditionality on an official action taking place.

James Pearce: Excellent. So I imagine, we'll, we'll probably get into some other principles that come up in discussing bribery as we move through the, the case studies. One last kind of throat clearing or initial piece to take care of, which is I think in, in focusing on these, these three different scenarios, one question that would naturally arise to the extent the public official, the relevant public official, is the President of the United States, President Trump. One might, might ask, could he even face prosecution?

I, I think there are two different answers to that question, depending on, you're talking about whether he is in office or out of office. What's the answer to that question? Could, could he face prosecution either in office? Short answer, I think no, right? But I think out of office is slightly more complicated. How, how would you, how would you tackle those, those questions?

John Keller: Yeah, I mean, we, I don't think we have really a categorical answer. The, the, the Department of Justice has largely foreclosed the, the possibility of prosecuting him while he's in office because there's this longstanding binding–at, at least it has been, it has been interpreted as binding thus far–OLC opinion that says the department cannot charge a sitting president. But we don't have a decision from the Supreme Court that says that. But yes, I agree with you, probably unlikely that he would be charged while he's in office.

Could he be charged after leaving office? You know, again, there, we saw the Supreme Court weighed into this in, in the last term in addressing the special counsel prosecutions. And clearly based on, on that decision there, the Supreme Court has some skepticism about whether you, you know, the, what conduct the president could be charged for, and whether the president could ever be charged in office or out of office for official conduct. Conduct that's undertaken as part of the official duties of the office of the presidency.

And so, you know, with these three examples, I think they all touch on, the first one probably least, so the first one being the Paramount example. But all three examples, Paramount example, the law firm example, and the Adams prosecution, they all at least touch on core executive branch function. Now, the, the Paramount example is maybe the one where you would have the most room to argue that it falls outside the bounds of, of official duties because the lawsuit was filed before President Trump was in office, and it was filed really unrelated to any official duties of the presidency, it was related to his campaign.

But on the back end, the, the quo that would be at issue in that Paramount example is FCC approval of a, of a proposed merger, and that's core executive branch function. And so my read of the, of the most recent Supreme Court decision on this is that it would be a, a real uphill battle for the government to be able to charge President Trump, even assuming they could satisfy the elements of bribery, which we're gonna talk about, given the fact that all three of these scenarios involve kind of official executive branch conduct.

James Pearce: That sounds right to me. I'll add one kind of additional gloss, at least from where I sit, and then let's turn to the, the case studies themselves, which is, there's an interesting exchange in the Trump United States Supreme Court opinion from last year, just about almost a year ago, in which it's, it's sort of the footnote three in the, in the Chief Justice Justice's majority opinion which is responding to a concurring opinion by Justice Amy Coney Barrett.

And the question at issue there is, is the extent to which evidence could be admitted in, in a, in a prosecution. And although it is nearly indecipherable to me and to, to ,to many others who've tried to unpack it. But the, the footnote seems to suggest that a bribery prosecution against a former president would be something that is, is in bounds, or at least is contemplated by the, by the court's decision. It's hard to square sort of the logic or, or the assumption of that footnote with the logic of the decision itself.

And so I would agree with you that it would be an uphill battle. But there's something like, well, of course a prosecutor in a case of bribery in this footnote could, could point to the public record. And, and maybe there's a reference, and I don't wanna go too in the weeds here, but to the way that Speech or Debate works–sort of classically in Speech or Debate, you, you can, there's some, some Supreme Court case law, you can prosecute bribery even when the official act seems to be, or excuse me, the, the, the act by the legislator seems to be a, a, a legislative act.

So, long story short, I think there's, there's a, a good bit of uncertainty, but let's talk about the case studies themselves. So, so the three that we wanna talk about, as you said: Paramount, law firms, and Eric Adams. Let's start with Paramount. Lay out for us the, kind of the facts as, as we understand them, and then maybe after doing that, you know, slip on your, your old prosecutor hat and, and you don't have to channel the senators calling for an investigation, but you know, what might be the best case argument or the best arguments for at least opening a bribery investigation.

John Keller: Yeah, so the operative facts as I understand them, are that Paramount, Paramount Global, which is this kind of giant media conglomerate which owns CBS News, along with a number of other companies, was running CBS News, owned CBS News at the time of an interview, a 60 Minutes interview with then presidential candidate, and then Vice President Kamala Harris.

And this was in the weeks leading up to the presidential election last year in 2024. And like most interviews, that interview was edited. So, Vice President Harris's responses were not, you know, broadcast in full. The, the interview was edited down for consumption and production purposes.

And then-candidate Trump filed a lawsuit after that 60 Minutes interview arguing that the interview had been so selectively edited that it was news distortion. It amounted to distortion of the truth, distortion of facts, and that it was done for the purpose of making Vice President Harris appear more competent, more intelligent, and to try to improve her prospects of winning the presidential election. So that's kind of set one of the facts for Paramount that that's, that's part one.

And I should say legal scholars have kind of universally in, in my estimation although I'm sure there, there are some voices of dissent out there, but have largely dismissed this lawsuit as being facially and, and patently frivolous. In other words, there's a long history in this country of kind of broad discretion for media companies to exercise their own, their own judgment and to produce the news as you know, as they see fit with, with their own kind of journalistic input and judgment.

And the idea that, you know, perhaps if, if a news company was using deep fakes and broadcasting fake videos of, of a public official speaking when the public official never actually said those words, and the, and the company knowingly broadcast something like that as truth as fact maybe you, you would have a claim.

But the idea that an actual interview that was just edited down for production purposes could ever amount to news distortion has been kind of dismissed I, I would say, across the board. So, so there's this lawsuit out there that's, that appears to be on, on shaky legal ground. So, so that's part one.

Part two is Paramount, also, at the same time that they're being sued, by candidate Trump and then President Trump for this news distortion allegation regarding the interview of Vice President Harris. They also have a merger proposed with another large media company, Skydance Media. And that merger that, that, it's a sale of Paramount to Skydance, it has to be approved by the Federal Communications Commission, the FCC, part, an executive branch agency. And so while this, while this lawsuit is pending against Paramount, Paramount also has this proposed merger pending in front of the FCC.

And so now we get to the recent history. Last week, Paramount announced that they were agreeing to settle the lawsuit, the news distortion lawsuit with President Trump for $16 million. And there was kind of immediate backlash in, in the media and among legal, legal scholars lamenting the fact that this settlement would legitimize what many saw as just a, an effort to sensor and chill journalistic activity that President Trump saw as adverse to him.

And so there was a strong kind of First Amendment backlash and criticism of the decision to settle this lawsuit, on top of the fact that people felt like, you know, $16 million was so far in excess of what it would take to actually settle this claim. Most people thought it, you know, it, it, it shouldn't be settled and that it would be dismissed fairly quickly by the courts. And if you were gonna settle it, you could settle it for far less than $16 million.

So that begs the question, why in the world would paramount settle and pay $16 million to President Trump to settle a frivolous lawsuit? And the answer is, is why we're here today and why we're talking. The, the theory is that Paramount settled for $16 million because they wanted to influence President Trump to get the FCC to approve Paramount's proposed merger with Skydance.

And the, the allegation that has been made, the theory is that this was part of a quid pro quo that Paramount took a look at this and said, look, $16 million is nothing in the, in the face of this massive transaction where we would be sold to Skydance. We'd be happy to pay $16 million to get the FCC to approve our proposed merger.

And so, the assumption I think has been by some that this must be part of a corrupt deal, essentially, a bribe. President Trump, we’ll settle your frivolous lawsuit for $16 million, you approve our merger with Skydance Media. That's the theory.

James Pearce: So lemme just boil, boil it down. So we've, we've got our, our thing of value, right? We've got $16 million, no question about that, right? We've got that exchanged for official action. The official action is the approval of the merger. I don't think there's any question that a, a pending merger before the FCC would, would amount to official action, right? That's, that, that's not gonna be, be a problem.

And so then what is missing, if, if anything, in, in your view? If, if we've got the thing of value, we've got that at least a plausible case that that is exchanged for favorable action on the, on the merger question before the FCC, where if, if at all, does that argument breakdown?

John Keller: I'll present both sides of the argument. You know, where I come down on this, and it'll become clear probably where I come down on this. But as a former prosecutor, the, the government's argument here would be, look, there's circumstantial evidence. The timing is too convenient. You have the settlement of this lawsuit at the same time that the merger is pending.

The, the approval of the merger, the, the facts get even better for the government if, if the, if the FCC does in fact approve the merger in the coming weeks or even months, because then as the government, you point to the fact that, look, you, you, the, the settlement was a precondition for approval. Paramount agreed to pay the $16 million and then lo and behold the FCC approved their merger, which had been pending for months at that point. That's circumstantial evidence right there of a quid pro quo of conditionality of corrupt intent. That would be, that would be the argument.

And then even before we get to proving the case, I think if you were the government, you would say, well, we at least need to investigate. Sure, we may not have all of the facts and all of the evidence right now upfront, but this, this presents facially enough evidence, just the, the, the circumstantial evidence alone, the timing here facially presents enough facts that we have predication, we have a, a, a reasonable basis to justify a federal criminal investigation.

So we should open an investigation, start issuing grand jury subpoenas, interviewing people, and seeing what kind of case we can build. Even if we don't uncover a smoking gun, we have enough here circumstantially to argue that there was a, a corrupt exchange, or at least a corrupt offer, an attempt to influence President Trump by, by Paramount. So that's, that's one side.

James Pearce: Okay. So now, now you know, now you can take that, that former prosecutor hat off and, and as a defense attorney, as maybe you, you now are in your, in your current role. What are the arguments that, that you would make that in fact, there's no, there, there?

John Keller: Yeah, I will, I will do that. I will also say though, that I think this is an exercise that I would've undertaken as a former prosecutor as well. And I should say a, as I was kind of presenting that side of the argument, I don't mean to suggest that every prosecutor would take that view. I think trying to pres, provide what would be kind of the best view of, of a prosecute in support of a, a theory of prosecution.

But I, I will tell you, at Public Integrity, I, and, and my colleagues and in U.S. attorney's offices we would've looked at all different sides of this in, in kind of debating and thinking about whether or not a criminal investigation was even appropriate, let alone proceeding with criminal charges.

But for, for kind of simplification purposes, just now switching to to the defense side. The, the argument I would make is you have zero evidence of the pro. So you have the quid, you have the, the $16 million, the thing of value. And you have the quo, you have potential official action to be influenced the approval by the FCC.

But you have no evidence linking the the quid and the quo together, and that linkage is critical. It's it's dispositive. It's required for any bribery prosecution. One, to show corrupt intent because without the linkage, you can't have an intent to engage in a quid pro quo. You have to have the linkage in order to show intent to engage in a quid pro quo.

And here there's just, there's no evidence of that. Not only is there no evidence that Paramount reached out to communicate either implicitly or explicitly some kind of offer to the, to the administration to say, hey, look, you know, your lawsuit sucks. We're thinking about settling it. We'll settle it for well above fair market value.

But you know, we've still got this thing pending with the FCC. We haven't heard anything. It's been a while. You know, just wanted to remind you of that as we launch into these settlement discussions. I mean, there's, there's no allegation in the public record that, that there was even a hint to linking the settlement to the FCC approval. So that's, that's one problem.

A second problem is that contrary to any kind of linkage, you, you really have evidence that in the public record that weighs against defining corrupt intent already here. One, this is an open and notorious settlement. While everyone knows that the, the merger issue is pending in front of the FCC, so all the facts are out in the open here.

You've got lawyers, presumably armies of lawyers on both sides. On the Paramount side and on the administration side, or on, I'm sorry, on President Trump's side, probably the, the campaign or, or personal attorneys, reviewing this proposed settlement in full awareness of the fact that the FCC merger is still pending approval or the, the Paramount merger is still pending approval with the FCC.

And so, you know, open and notorious conduct that is vetted by lawyers is very rarely conduct undertaken with criminal, corrupt intent. And even if in some hypothetical world, all of this is done in secret. The, the actual negotiation about the deal is done without any lawyers knowing, and it's done through intermediaries, and it's, it's done completely covertly and secretly, that's gonna be a, a nearly impossible case to prove because of the lack of direct evidence of a quid pro quo.

And then evidence that suggests there, there wasn't a quid pro quo because everything was done openly and notoriously and, and with lawyers reviewing it.

James Pearce: All right, so let me, let me, let me stop you with a, with a couple of of, of questions here. First on this, this open and notorious point, does that mean that if if I were prosecuted for, for some offense and I were worried that in fact, you know, the prosecution were, was gonna be successful, and so I decide that, that I, that I wanna, you know, engage in some public corruption to, to get it to stop. And so I think, you know what, I'm gonna bribe the judge.

That so long as I, you know, I say I, you know, I go out on social media or something and I announce the world, I'm gonna pay this judge to to stop this prosecution. And the judge, you know, says, ah, well, let's just say it's a, it's a, a judge who's, who's open to this type of arrangement says, oh yeah, okay, I'll accept that. It's all out, it's all out in the, in the public. That can't possibly mean I'm off the hook, right?

John Keller: No, no, no, no. Clearly not. It's not a legal defense. And so it doesn't make the crime impossible. It doesn't make the crime a legal impossibility, but it is a strong factual rebuttal to the idea of corrupt intent because as you were describing your hypothetical, I think most people probably perceive that as, you know, vanishingly unlikely to occur in the real world.

Because when people are engaged in wrongdoing, they generally try to cover it up. And so, you know, whether it's a whether it's a mischaracterization of a relationship, of a financial relationship that's actually bribery and the, the parties draft some documents to make it appear as if it were a legitimate consulting agreement for services or something like that.

Or whether it's just all done in secret. There is almost always an effort to conceal or mischaracterize what's actually happening. And you could make the argument here that, well, yeah, they did mischaracterize what were happening, what was happening, they wanted to pay Trump $16 million to get the FCC approval. And so they wrapped it up in, in a and, and tied a bow on this settlement agreement. And mischaracterized that as an, as an actual legitimate settlement of a lawsuit, when in reality it was just a way to funnel $16 million to the president. You could make that argument.

I just think that given the level of sophistication of paramount and lawyers working for the Trump campaign and the fact that there's already been comments in, in the public record, that lawyers vetted this, at least on the Paramount side, out of concerns about potential allegations of a quid pro quo. I think the open and notorious point is difficult, would be difficult for the prosecution.

And then the advice of counsel piece would be nearly insurmountable if in fact, Paramount lawyers would be able to come into court and say, yes we looked at this, we told, we told our client, as long as this is not linked to the pending merger, pending approval in front of the FCC, as long as this settlement is not linked to that, explicitly or implicitly, when the settlement offer is made to President Trump, then it's not a crime.

Assuming that lawyers kind of gave that advice, which again, there are hints in the public record that they did, I think proven corrupt intent here is all but impossible.

James Pearce: So lemme ask one, one other question on this, and let's flip over and talk about the, the, the other two, which is, I think you made passing reference to this, but were there evidence to suggest either on the Paramount side that there were some communications saying, look, the, the reason that we're, we're settling and what we, what, what we all know as a frivolous lawsuit is that we want your help on, on moving our merger forward.

Or on the other side, if the administration had said, huh, you know, or, or there was some evidence from, from someone at the FCC or the, the executive branch more generally saying, oh, interesting, you got this merger going. You know, one way to move it forward might be you, you went ahead and settled this, this lawsuit that will, that will put money directly into President Trump's pocket or, or entities that he controls.

Fair to say that, that, that a fax along either of those vectors were, were were found or established, this, this starts to look a lot differently than, than the case you've laid out?

John Keller: Yes, especially, and, and regardless of advice from lawyers or the open and notorious nature of the transaction, I think then you have a, a viable bribery case if you're able to uncover communications like that, especially if they were made in the face of legal advice, specifically directing the client not to tie the settlement in any way implicitly or explicitly to the pending, you know, merger before the FCC.

And it wouldn't, it wouldn't take much. You know, people don't have to say the quiet part out loud. They don't have to say, President Trump, we’ll agree to this $16 million settlement if you get the FCC to approve our merger. All they have to do is hint enough that a reasonable observer would understand, or that you could get someone who was involved in the, in the communications to testify that they understood as a party to the conversation that what was happening was an offer of a quid pro quo.

And that's true for the Paramount side if they were the ones to who wanted to kind of slip this in to a settlement discussion, kind of oblique reference to the FCC approval of their merger. Or if it were done on the administration side. If someone, you know, Trump or one of his representatives, you know, subtly mentions alludes to the fact that this FCC approval process, you know, it's a very complicated fact dependent process. But it would certainly be helpful to know that FCC has resolved this kind of outstanding claim with the president before we move forward.

You know, it doesn't, it doesn't take a complete kind of explicit discussion. But you do need some facts to suggest that there was linkage because otherwise you don't have an offer. And, and, you know, we've been focusing on corrupt intent, and I do think that's, that's probably the appropriate piece of the analysis to focus on.

But at even a more kind of gatekeeping basic level. What, what bribery criminalizes is an offer or a solicitation. So the offer to exchange something of value for an official act or a solicitation by a public official of something of value for an official act.

And if you don't have an offer of a, or a solicitation, all of the circumstantial evidence in the world showing that. Look, the only reason anyone in their right mind would've ever agreed to pay $16 million to settle this lawsuit is if they thought they were gonna be able to get some other benefit. And here the other benefit was clear. It was FCC approval.

All the circumstantial evidence of the world isn't going to satisfy the elements of bribery without some actual expression of an offer or some actual expression of a solicitation. It doesn't ha it can be implicit, it can be carefully worded, but there has to be some evidence of an offer or a solicitation. And I just, we don't have that here at least based on the, on the public record so far. And I think it's unlikely that the government would be able to develop evidence of that based on what I know about the case so far.

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James Pearce: Alright, excellent. Reassuring also to know that the parties themselves don't need to know Latin and say quid pro quo so as to, to, to potentially become, you know, get, get on the hook for, for bribery. Let's talk about the law firms. I don't think we need a factual setup. I think there's been a lot of discussion. Lawfare’s done coverage of it. There's been a lot elsewhere.

And in fact, I don't even think we need the, the, the pro argument. I think we, we in, in the piece that Natalie and I set, set that out. You know, I, I don't think we were saying yes, this is a case, but I think we said, look, there's the basic quid pro quo argument. You've got the provision of pro bono legal services valued up to $40 million in Paul, Weiss's case. A hundred million in, in some other law firms, maybe even a bit more than that. In exchange for that, you've got the administration rescinding an executive order in Paul Weiss's case or agreeing just not to issue one in the case of the other law firms.

Tell me what concerns you might have either in your old capacity in, in analyzing such a prosecution at PIN or in your, in your new capacity looking at this from, from a, as a, as a white collar public corruption defense attorney, potentially. What, what concerns you might have with trying to move forward on, on that as a prosecution theory?

John Keller: Yeah, for, for, for purpose of the analysis, a a, a completely different fact pattern in terms of here we have an abundance of evidence of a quid pro quo. There is no doubt that there was intent to exchange pro bono services for official action. Official action being withdrawal of the executive order in for some of the law firms, for Paul, Weiss, for other law firms foregoing an executive order that would target them altogether. So undoubtedly a quid pro quo.

But I wanna pause there and just jump back to Paramount very briefly because we left one prosecution theory on the table and I think it's a little bit of a glaring omission and I meant to touch on it, which is you, you wouldn't necessarily have to have this offer or solicitation if you had parties internally at Paramount discussing making the offer and agreeing to make the offer, even if it was never actually made, even if cooler heads ultimately prevailed. If you had some people at Paramount who reached an agreement to make a corrupt offer to President Trump, that would be enough for conspiracy liability.

And similarly on the administration side, if you had representatives of Trump or, or, or Trump and others talking about using the FCC approval as leverage to extract a better settlement and agreeing to do so. You could have, again, potential conspiracy liability, even if that solicitation was never actually made. Alright? So that, that, that finishes that.

And then so now we move back to the law firms where we do have a clear offer of, of a quid pro quo, something of value, pro bono services, tens of millions of dollars for Paul, Weiss. But some of these other law firms more recently, hundreds of millions of dollars in pro bono services to causes supported by the administration in exchange for withdrawal of an executive order targeting the law firm or, or foregoing the executive order, a contemplated executive order that would target the law firm.

So, so we don't have the problem that we had in the Paramount example of there being no corrupt offer. Or maybe we have the problem, which we'll, we'll talk about in just a second maybe, maybe we have a problem with corrupt intent, but we certainly have an offer. And, and the offer was agreed to and accepted. So potentially liability on, on all sides.

The, the problem that I see, and I think it's a fatal flaw, I don't, I don't, I think this is a legal prohibition to charging this fact pattern. Is that the thing of value here, the pro bono services are given to the administration institutionally, or they're given to the office of the president institutionally. They're not given to President Trump or some other public official in a private capacity in a, in a personal capacity.

And it doesn't have to be, the money doesn't have to go to President Trump, it can go to any kind of third party of his choosing. But it has to be a benefit to him personally. It can't be an, an institutional benefit because otherwise you run headlong into kind of commonplace examples of negotiations between private parties and the government or companies and the government where private parties agree to give something of value. They agree to pay a fine, they agree to provide valuable information, they agree to provide services, whatever it might be in order to resolve an ongoing enforcement action, be it civil, criminal, either way.

It could be a, a defense contractor agreeing to pay a fine so that, that they're not barred from participating from bidding on DOD contracts. It could be a healthcare provider paying a fine so that they're not banned from participating in Medicare. It could be an individual defendant agreeing to provide information to the government about other criminal activity so that they, the individual doesn't have to, isn't charged criminally or, or, or pleads to reduced charges.

These are kind of commonplace examples of, of a quid pro quo for sure. And intent on the, on the bribers part to exchange something of value in exchange for official action. But it's something of value to the institution, to the government generally, not a private benefit to a specific public official.

James Pearce: Let, let me stop and just ask you about, about mi a mixed motive question, right? So I think everything you've said, said, said, makes a, a good deal of sense to me. But, but what happens–and, and not clear that the facts here would, would establish this–but if the, the deals between the, the law firms and the administration involve both the kind of institutional benefit that you're talking about, but also there's, there's some carve out that said, you know, 5 million of this will, will be for President Trump specifically should he ever in the future face, criminal or civil investigation in connection with, with anything while he was president.

Now for immunity reasons, probably not even gonna exist anyway. But let's just say there was some, some piece like that. And so there was, there's clearly both the kind of institutional benefit you're describing and arguably at least some, some direct personal benefit to the president. Does that change the analysis? Would that change the analysis?

John Keller: Well, I think your hypothetical is a, is an interesting one in that it, it, it kind of bifurcates the something of value. So it, it says, okay, you get the pro bono services for the causes that you like, but then there are also gonna be pro bono services that would only, that would only be provided if you developed a personal need for them, essentially.

And so in that hypothetical I think it's a much closer question because certainly if the, if the agreement was we'll give you President Trump pro bono legal services if you are ever prosecuted, once you are out of office, and even if you aren't prosecuted, we'll represent you civilly and file lawsuits on your behalf to, you know, until we've hit the threshold of $40 million or something.

If that was the agreement, then I think you would have a viable bribery prosecution. And, and so your, your hypothetical was, well, what if you have both? I think if you have both, maybe you just don't charge the, the tens of million in pro bono services for the administration, but you do charge the agreement to provide whatever, you know, millions of dollars as pro bono legal representation for President Trump and his personal capacity once he's out of office.

And I think if, if you charged it that way you would have a potentially viable bribery prosecution.

James Pearce: Anything else you wanna add on, on law firms before we turn to our third, third case study here?

John Keller: Just that, although I do think that fact pattern that you raised presents a potentially viable bribery case, I think the, the more difficult bribery case from a prosecution perspective would be this case or another one like it where the law firms agree to provide $40 million of pro bono services to a cause that the administration supports or they agree to do some other kind of service for the administration.

Say, for example, we agree to defend President Trump in any lawsuits concerning the building of the wall on the border. Anybody that challenges the administration, the, the executive branches expenditure of funds to build a border wall, we, Paul, Weiss will step in and defend the administration, assuming that was even logistically possible for a minute.

And, and the argument is, well, that has an enormous personal benefit for President Trump. It furthers his political agenda. Let's, let's again we're, we're getting, you know, we're ignoring a lot of actual facts in favor of the hypothetical here, but let's, let's assume that President Trump isn't term limited. Let's say that he's running for office running for president again.

And the argument is, well, this has tremendous personal benefit to President Trump because the border wall is one of his signature kind of campaign promises. And if he's able to actually successfully build that, then you know, it improves his political prospects exponentially. I still think that runs into the same problem that we're talking about in that every governmental enforcement resolution arguably has some political or professional benefit for the public officials involved, think about career prosecutors who are working on a big case.

And they get a, they get an a significant settlement out of a big company, you know, that's very high profile and that's viewed by many as you know, successfully resolving serious misconduct. Those career prosecutors, their, their, their career prospects potentially are increased based on that kind of official action.

But if you try to, if you try to extend kind of professional benefit to the personal realm, I think you, you run into the problem of a lack of a limiting principle and potential constitutional problems of vagueness and due process violations, and you're not gonna be able to successfully prosecute that case.

James Pearce: Yeah, I, I, I think that's right. Okay. Let's, let's tackle our third scenario, one from, from February of this year, the dismissal of the Eric Adams prosecution. I think at a, at a high level, the allegation there has been suggested that there was the dismissal of the criminal indictment in exchange for Adams agreeing to further the administration's immigration agenda. You know, why isn't that an example of bribery?

I'll, I'll sort of say from the top for, for any of our listeners who know you and your time in the Justice Department touched that case, worked on that case. So all of our discussion here will rely on public information. So no, no reference to nonpublic information, nothing that you learned in the course of your time as a at the Public Integrity Section, as the chief of the Public Integrity Section on that case. So how would you analyze this as a potential bribery prosecution?

John Keller: Yeah, so there, there were similar calls for corruption investigation or characterizations of, of the Adams dismissal as part of a quid pro quo similar to the, to the law firm deals and the Paramount settlement. For me, the, the Adams dismissal is, is analogous to the law firm example in that the, the benefit there, the, the arguable quid, the something of value going to Trump from Adams was, was cooperation with the administration's immigration enforcement agenda in New York City.

And so that clearly could be something of value, but it's something of value to the institution, to the office of the president, to the executive branch. It's not a private benefit to President Trump. And so I, I think that fact pattern runs into the same problem that the law firm fact pattern does in that the quid is, is not legally actionable quid for purposes of a bribery investigation.

And, and, you know, I should say it's not just me spouting this or, or coming up with this. The United States Court of Appeals for the Seventh Circuit addressed very similar concepts in the case of United States v. Blagojevich, which stemmed from the prosecution of then Governor Rod Blagojevich in Illinois seeking to trade the senate seat, that that had been vacated by, by then, President Obama.

Blagojevich was seeking to trade that Senate seat for a Cabinet position in, in President Obama's cabinet. And so he basically called up, as I understand it somebody in the White House or in the incoming administration for President Obama and said, look, you guys can pick whoever you want for the Senate seat. By statute or, or by law in Illinois, I'm the one, the governor gets to fill that seat, but you guys tell me who you want me to pick, and I'll pick 'em. But then you have to put me in, in President Obama's Cabinet. Give me a Cabinet level executive branch agency position.

And he was prosecuted for a bribery for quid pro quo. That certainly seems to check all the boxes. Something of value is the quid, is you get to fill this highly coveted senate position. And the quo is, you name me to a Cabinet position. But the, the Court of Appeals for the Seventh Circuit said, this is commonplace. What they, the term they used was political log rolling. This type of negotiation, kind of official negotiation, as unsavory as it might be, happens all the time.

And they used a historical example of the way that a Supreme Court justice was confirmed, nominated, and confirmed, was based on some political horse trading. And they said, look, if you, if you allow this kind of fact pattern to give rise to a bribery prosecution, you could criminalize some of the most significant kind of personnel decisions in, in the history of this country.

And they just said there's no way that Congress, we're not gonna assume that Congress intended that bribery laws to apply that broadly without some more specific indication in statutory language that that Congress intended to bribery laws, to, to extend that broadly.

And so I think similarly here, getting back to some of the hypotheticals I was throwing out about, you know, a healthcare company paying a fine to resolve liability or a, a defense contractor or an individual similar to Eric Adams agreeing to cooperate in some sense, just in a very non-traditional sense of supporting the, the administration's immigration agenda in New York City is you know, part of the regular, ordinary course of functioning of government enforcement. And so it's, it, it's beyond the scope of the bribery laws.

James Pearce: All right? So, so I think that's, that's extremely helpful and a, a good place to end our account of the three factual scenarios. But I don't wanna end quite there. I wanna pose one final question. Maybe it's unfair me, maybe not because it's, it's gonna ask, gonna push you a little bit beyond your, your typical prosecutor or former prosecutor position.

Which is, if it's right that an experienced public corruption prosecutor, former prosecutor like yourself, you know, comes to the conclusion that, that none of these factual scenarios amounts to, to bribery, and it's something that could be prosecuted. And yet, let's say I'm a public citizen and I'm deeply concerned about all three of these, and I think that this just reflects the, the, the coming apart of, of, of democracy, the, the way in which power and, and influence can kind of get, get you results in ways that just don't reflect what I think should be a more fundamentally fair society.

Just putting this all out, out here as a hypothetical, well what does that mean? Or what steps, you know, are there congressional steps to be taken to address this? Is that, is, is is the only response to that look like the political log rolling in, in Blagojevich, it's all gotta be a matter of politics. Is there a, is there a remedy if criminal prosecution is not an available avenue to address what some may see here as unseemly conduct?

John Keller: Yeah. Actually, I appreciate you flagging this. I, because I, I don't mean to imply through my comments today that I, that I sanction or, or give a clean bill of health to the conduct that has occurred in our three, in our three scenarios that we've discussed. I think there are ethical implications. I think there are prudential implications for sure.

I think there are even aspects of, of these different scenarios. Certainly the law firm example that involve violations of law. They are civil violations of law. They may be constitutional violations where the executive order targeting Paul Weiss was probably illegal and unconstitutional, given federal court decisions regarding other executive orders, targeting other law firms that were actually challenged in court. Now we don't have an appellate decision yet affirming any of those district court decisions.

James Pearce: But just to jump in, but we did have the administration notice an appeal just at the end of June. And so we will presumably have an appellate decision on this at some point. But anyway,.

John Keller: No, no. And it'll be interesting to, to analyze that when it comes out. But so, so just a, a way of saying, look, I think there are real problems with this conduct. I think there are, there are ethical problems, prudential problems and, and even legal problems. Some of this conduct is, is illegal. It's just not criminal. And so, at least not for purposes of the bribery statutes.

And so, you know, yes, there, there is recourse. What is that recourse? Well, when, when you have misconduct, arguably, by the executive branch what's supposed to happen is the legislative branch operates as a check on that misconduct or the judicial branch operates as a check on that misconduct.

Now we've seen the judicial branch fulfill its function and operate as a check in some ways in terms of striking down executive order, orders targeting, targeting some of the law firms. But we really haven't seen much of a check or really any check from the legislative branch. So you have, you have kind of the normal system of checks and balances set up by the constitution that should operate here.

And then you also have, you know, voters when you have a, a political problem when you have kind of inherently political misconduct, the, the most natural solution to that is, is voters vote the person out of office. Here, Trump is term limited, so, you know, maybe there are limits on what the voters can do, but voters, their voice can be heard through the midterm elections.

And if, if the majority changes in, in the House or the Senate, that could certainly have implications and make for a potentially more robust check on executive power here. And then finally you have the legal community. So you need lawyers to file lawsuits. You need lawyers to challenge this conduct. You need lawyers to talk about the different implications of the conduct.

And you need prosecutors to be thinking about whether or not this conduct does satisfy the elements of, of various criminal statutes. But I think criminal law is often ill-fitted to address inherently political problems and we, we wanna be careful not to overextend or misapply criminal laws because of our outrage, our visceral reaction to repugnant political conduct.

Because one, those prosecutions can often run into serious legal challenges. And two, when you make exceptions or you make extensions of, of criminal law to fit certain facts that, that you find that are, that are political nature, as repugnant as they may be, I think you run the risk of furthering the kind of erosion of constitutional protections that we're all concerned by given the conduct of this this administration, instead of combating those, those erosions of constitutional protections. So I just think it's important to be judicious, especially with the application of criminal statutes.

James Pearce: Yeah. I, I, I think that that's extremely well, well, well said. And I think it, it should be resonant coming from someone like yourself who spent so many years as a criminal prosecutor.

And I think there's too often the kind of public perception that for, you know, criminal prosecutors are, are, are the hammer and every problem looks like a nail. And the answer is, is therefore prosecute. And I think you've given a far more sophisticated and, and nuanced account.

You sort of provide an example of, of the category of, of a lawyer coming, coming on, on to, to talk publicly about walking through this in a careful elements and, and a legally focused way while, while acknowledging that there may be broader societal questions that this type of conduct in these factual scenarios presents. So I appreciate doing all that. Great to have you again on, on the podcast. And who knows, maybe we'll have you again soon.

John Keller: Thank you, James. It was, it was great as always. I appreciate it and yeah, look forward to the next time.

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