Mueller-referred probe into Obama White House Counsel Greg Craig, Clinton-linked Tony Podesta heats up: report
“Prosecutors say employees of both companies “referred to the client in ways that made clear they knew it was Ukraine.” One Mercury employee said the nonprofit was the client “in name only,” likening the situation to “Alice in Wonderland.” A Podesta employee referred to the nonprofit’s certification that it wasn’t related to the Ukrainian political party as a “fig leaf on a fig leaf.”
Mueller’s team also noted that “the head of” the Podesta Group, an apparent reference to Tony Podesta, told his team to think the president of Ukraine is the client.”
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An investigation referred to Justice Department prosecutors by Special Counsel Robert Mueller earlier this year into possible criminal activity by Clinton-linked Washington insider Tony Podesta and former Obama White House Counsel Greg Craig is heating up, according to a new report that underscores federal authorities’ increasing enforcement of laws governing foreign business relationships.
The inquiries center not only on Craig and Podesta — a Democratic lobbyist and co-founder of the onetime lobbying powerhouse known as the Podesta Group — but also on Vin Weber, a former GOP congressman from Minnesota.
The probes had been quiet for months since Mueller referred them to authorities in New York City because they fell outside his mandate of determining whether the Trump campaign coordinated with Russia.
But in a flurry of new activity, Justice Department prosecutors in the last several weeks have begun interviewing witnesses and contacting lawyers to schedule additional questioning related to the Podesta Group and Mercury Public Affairs, people familiar with the inquiry anonymously told the Associated Press.
The apparent ramp-up comes as multiple reports and indications suggest that the Mueller probe into possible collusion in 2016 between the Russian government and President Trump’s campaign is winding down.
The New York work underscores the broad effects of Mueller’s investigation, extending well beyond that collusion question. Mueller has made clear he will not turn away if he discovers alleged crimes outside the scope of his inquiry; instead, he refers them out in investigations that may linger on even after the special counsel’s work concludes. Other Justice Department referrals from Mueller have ended in guilty pleas, including the hush money payment case of Trump’s former lawyer Michael Cohen.
The investigation reflects how Mueller, in latching onto an obscure law, has shined a light on high-dollar lobbying practices that have helped foreign governments find powerful allies and advocates in Washington. It’s a practice that has spanned both parties and enriched countless former government officials, who have leveraged their connections to influence American politics.
In New York, Mueller’s referral prompted a fresh look at the lobbying firms of Podesta and Weber, who have faced scrutiny for their decisions not to register as foreign agents for Ukrainian lobbying work directed by ex-Trump campaign chairman Paul Manafort.
Fox News first reported, and court filings later confirmed, that Podesta was offered “use immunity” by Mueller this summer to testify in the Washington, D.C., trial of Manafort that was planned at the time — separate from the Virginia case in which he was convicted on bank and fraud charges.
Prosecutors typically offer witnesses immunity to legally prevent them from asserting their Fifth Amendment right against self-incrimination to avoid testifying. “Use immunity” means prosecutors agreed not to use any statements Podesta would make on the witness stand against him in court.
“Use immunity” is not as expansive as “transactional immunity” — which would have protected Podesta more broadly from being prosecuted on the subject matter of his testimony, even if prosecutors could independently confirm relevant details and didn’t need to use his statements on the stand.
Manafort averted the D.C. trial by pleading guilty to two federal counts in September and agreeing to cooperate with the Mueller probe, meaning Podesta did not have to testify at all, seemingly rendering the immunity deal moot as to any potential future prosecutorial action involving Podesta.
An attorney for Greg Craig claims his client “was not required to register under the Foreign Agent Registration Act.” (Facebook)
Mueller’s team has since said Manafort violated that agreement, and the Special Counsel’s office is set to file a sentencing memorandum in Manafort’s case on Friday that is expected to include prosecutors’ recommended sentence for him.
Podesta is a longtime Democratic operative whose brother, John Podesta, ran Hillary Clinton’s 2016 presidential campaign; Weber is a former Republican congressman from Minnesota. Neither man has been charged with any crimes. Their firms have defended the decisions by saying they relied on the advice of outside attorneys.
Mueller’s referral also involved Craig, a former White House counsel for President Barack Obama. Craig supervised a report authored on behalf of the Ukrainian government, and Mueller’s team has said Manafort helped Ukraine hide that it paid more than $4 million for the work. CNN reported in September that prosecutors were weighing charges against Craig.
It’s unclear if the renewed interest will produce charges or if prosecutors are merely following up on Mueller’s referral.
Lawyers for Weber and Craig and a spokeswoman for Podesta declined to comment. The U.S. attorney’s office in Manhattan didn’t return an email seeking comment.
Mercury spokesman Michael McKeon said the firm has “always welcomed any inquiry since we acted appropriately at every step of the process, including hiring a top lawyer in Washington and following his advice. We’ll continue to cooperate as we have previously.”
Foreign lobbying work was central to Mueller’s case against Manafort and his longtime associate Rick Gates, two high-profile Trump campaign officials who pleaded guilty earlier this year and have been interviewed extensively by prosecutors.
The Podestas have been frequent targets of Trump and his associates, who have repeatedly demanded to know why Tony Podesta has not been arrested and charged. Trump confidant Roger Stone, for instance, has insisted a 2016 tweet of his that appeared to presage the release by WikiLeaks of John Podesta’s emails — “Trust me, it will soon the Podesta’s time in the barrel” — was instead a reference to the brothers’ foreign connections getting them into the hot seat.
Stone’s legal team announced in a letter Tuesday that Stone would assert his Fifth Amendment right not to testify or provide documents to a Senate committee investigating potential collusion between the president’s team and Russia.
“Mr. Stone’s invocation of his Fifth Amendment privilege must be understood by all to be the assertion of a Constitutional right by an innocent citizen who denounces secrecy,” Stone’s attorney, Grant Smith, said in the statement. He also called the Senate Judiciary Committee’s requests a “fishing expedition” that is “far too overboard, far too overreaching, far too wide-ranging.”
In September, Manafort admitted to directing Mercury and the Podesta Group to lobby in the U.S. on behalf of a Ukrainian political party and Ukraine’s government, then led by President Viktor Yanukovych, Manafort’s longtime political patron.
Tony Podesta’s firm is facing scrutiny from the Robert Mueller probe. (Facebook)
While doing the lobbying, neither the Podesta Group nor Mercury registered as foreign agents under a U.S. law known as the Foreign Agents Registration Act, or FARA, which requires lobbyists to declare publicly if they represent foreign leaders, governments or their political parties.
The Justice Department has rarely prosecuted such cases, which carry up to five years in prison, but has taken a more aggressive tack lately.
To secretly fund the lobbying and to avoid registration with the Justice Department, Manafort said he along with unidentified “others” arranged for the firms to be hired by a Brussels-based nonprofit, the European Centre for a Modern Ukraine, rather than the Ukrainian political interests directly.
Mercury and Podesta, which were paid a combined $2 million on the project, then registered under a less stringent lobbying law that doesn’t require as much public disclosure as FARA.
Both firms have said they registered under the Lobbying Disclosure Act, rather than FARA, on the advice of lawyers at Skadden, Arps, Slate, Meagher & Flom, Craig’s former firm.
Gates admitted in his plea deal that he lied to Mercury’s attorneys about the project, a fact the lobbying firm has publicly highlighted. The Podesta Group has said it was misled by the European Centre for a Modern Ukraine, citing a written certification from the nonprofit stating it wasn’t directed or controlled by the Ukrainian Party of Regions, one of Manafort’s clients.
Both firms have since registered under FARA. But in court papers filed alongside Manafort’s plea agreement, Mueller’s prosecutors suggested the firms were aware they were working on Ukraine’s behalf.
Prosecutors say employees of both companies “referred to the client in ways that made clear they knew it was Ukraine.” One Mercury employee said the nonprofit was the client “in name only,” likening the situation to “Alice in Wonderland.” A Podesta employee referred to the nonprofit’s certification that it wasn’t related to the Ukrainian political party as a “fig leaf on a fig leaf.”
Mueller’s team also noted that “the head of” the Podesta Group, an apparent reference to Tony Podesta, told his team to think the president of Ukraine is the client.
Fox News’ Bill Mears and the Associated Press contributed to this report.
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Editor’s Note: This is an excerpt from “Policy Roundtable: The Future of Progressive Foreign Policy” from our sister publication, the Texas National Security Review. Be sure to check out the full roundtable.
Progressives are in search of a collective voice on foreign policy and national security. As one senior Democratic Senate staffer confided to me over the summer, “I keep asking, ‘What is a progressive national security policy? Are we a bunch of progressives on education, healthcare, etc. who happen to do foreign policy and it should look the same no matter who’s in charge? Or do we have a distinctly progressive outlook on the world that we’re trying to implement as practitioners?’” Until recently, the left has been unable to reliably answer these questions and it’s understandable why.
For one thing, the progressive movement is intellectually diverse. Self-identified progressives range from committed socialists to left-leaning neoliberals and — at the extreme edges of the movement — both hardcore pacifists and anti-fascist militants. Progressives have considerable differences of opinion about capitalism, using force to achieve political ends, and America’s role in the world.
In general, the progressive voice has also historically been muted when it comes to foreign policy, which has partly to do with its modest resourcing and representation. Since the Cold War, the Democratic Party has been captured by the politics of “third way” liberalism. At home, it vacillated between Roosevelt-era, New Deal-style social welfare politics and an alliance with unfettered capitalism, increasingly favoring the latter over time. Abroad, the “third way” amounted to sustaining the once taken-for-granted and now much-contested “liberal international order” — essentially a foreign policy premised on U.S. military superiority underwriting a series of global institutional, economic, and human rights commitments. At most, these “third way” positions only ever partly reflected the priorities of political progressives.
The left’s chronic under-representation within the Democratic Party extends to its presence in the “ideas industry” as well. Authentically progressive ideas are scarce in the Washington think tank landscape, and progressive mega-donors tend to finance domestic policies and projects, not foreign policy.
Constrained in all these ways, progressives have failed to articulate their own “theory of security” — a term of art referring to how their preferred pattern of foreign policy decisions defines and realizes U.S. interests. The lack of one, as Vox reporter Zach Beauchamp concluded, has meant that “foreign policy debate tends to be conducted between the center and the right.” Indeed, the inadequacies of U.S. foreign policy traditions may exist because progressives have a history of rarely showing up analytically to foreign policy fights.
But while these limitations have prevented the left from cohering around a clear theory of progressive national security, it’s possible to tease one out of the progressive worldview all the same, and that progressive vision partially accommodates America’s default position of liberal internationalism: Regional balances of power and alliances still matter, and there is a role for both the U.S. military and international institutions. But the progressive theory of security also makes its own analytical wagers, requiring alterations in key areas of the national security agenda — namely re-scoping the size and shape of the U.S. military, emphasizing political and democratic alliances, rebalancing how international institutions work, and pursuing mutual threat reduction where circumstances allow.
Saving Liberal Internationalism from Itself
America’s traditional theory of security consists in a mix of realist and neoliberal beliefs: military superiority, alliances, economic interdependence through global capitalism, and international institutions to legitimate and sustain the entire enterprise. By pursuing all of the above — it’s typically conceived of as a package deal — the United States is able to keep open a stable international trading system, maintain balances of power in key regions of the world, and minimize the prospect of arms races and interstate wars. Democrats and Republicans have assigned greater or lesser weight to different elements within this formula, but both parties have upheld the basic meta strategy over time.
Progressive principles are not entirely hostile to this theory of security. Despite its intellectual diversity, the progressive movement has a common core emphasizing the pursuit of a more just world through democracy, greater economic equality, and human rights protections, as well as opposition to imperialism and authoritarianism. Progressives are also conditional advocates for the rule of law and international institutions. As leftist author Michael Walzer has argued, “We still need global regulation by social-democratic versions of the International Monetary Fund and World Trade Organization…” More controversially, there are strongly ingrained biases against the military in some quarters of the left. “Anti-militarism” is an emotionally loaded and imprecise term, but it translates into inherent skepticism about the value of both military spending and the use of force abroad. Taken together, these principled positions and attitudes logically require alterations to America’s longstanding theory of security, but not a wholesale rejection of it.
From Military Superiority to Military Sufficiency
The traditional realist foundation of U.S. national security has been military superiority — ensuring the U.S. military can “deter or defeat all potential future adversaries.” This theory presumes that the capability to prevail in any plausible conflict is necessary for the United States to make credible threats against adversaries and credible reassurances to allies. Military superiority also sustains regional balances of power, ensuring that no other state in Asia, Europe, or the Middle East can exercise hegemony or control of their region.
Even in a progressive government disinclined to call on the Pentagon to solve problems, the U.S. military will need to be capable of projecting power into key regions, making credible threats, and achieving political objectives with force and minimal casualties if called on to do so. But a force structure sufficient to meet these purposes might be achieved without the endlessly increasing requirements of military superiority. A standard of military sufficiency — as opposed to superiority — is both analytically plausible and more morally congruent with progressive principles for several reasons.
First, the U.S. military is traditionally sized to win in temporally overlapping wars in different regions, but the Pentagon’s force planners have assumed very little help from local allies in those fights — this fact is obvious from the massive size of the U.S. military. Yet, looking across the globe today, there is no plausible conflict that would ensnare only (or even primarily) the United States. And in any case, progressives have a consistent track record of opposing unilateral wars of choice. Second, the idea that it takes military superiority to prevent other states from dominating their regions involves some dubious assumptions about the ability of military power to prevent other countries from exercising international political influence. Stopping others from controlling a region does not mean the United States must be able to exercise regional control itself.
As such, there is a case for making America’s security more entwined — not less — with the security of regions of interest by making U.S. force structure more networked with trusted allies and partners. This could meaningfully reduce the defense budget, and the only real risk it would entail is in the assumption that friends will provide significant contributions to a fight involving U.S. forces. It also potentially makes the dirty business of war a more democratic and less imperious endeavor by wagering that “multilateralizing” force structure to a degree tamps down on the tendency to opt into ill-advised conflicts. Military sufficiency potentially ties the hands of future presidents, making them less able to launch unilateral wars, and simultaneously increases the likelihood that any conflict involving large numbers of U.S. troops will be multilateral and cooperative. It would also befit the analytical claim — which some on the left already make — that the world is less dangerous than the Pentagon supposes, implying that a posture of military sufficiency would not hazard any great geopolitical risks.
Preserving Democratic Alliances
In liberal internationalism, alliances are a means by which the United States deters aggression against its allies. They also make it possible for the United States to reliably project military power into key regions, and serve as a unique means of exerting influence in world politics. Not only do alliances act as mechanisms of risk management by controlling the aggression of allies under threat, they have also been a means of preventing nuclear proliferation. The default theory of security bets that these advantages of alliances far outweigh the calculable downsides.
Progressive principles are not necessarily at odds with the traditional reasons for the United States upholding military alliances. In fact, a wide range of progressive thinkers writing on foreign policy have also endorsed sustaining U.S. alliances, though with some qualifications. Progressives are quick to emphasize political — not just military — commitments at the state and sub-state level, and take a very circumspect view of allying with illiberal actors. The idea that “[w]e should act abroad only with those who share our commitments and then, only in ways consistent with those commitments” implies solidarity with democratic countries who see their alliance with the United States as a source of security. But it is likewise a rejection of “[p]olitical and military support for tyrannical, predatory, and corrupt regimes.”
Because one of the principal threats to U.S. security in the progressive view is the spread of authoritarianism and fascism, the United States must keep faith with democratically elected governments that rely on an alliance with the United States for their security. That includes NATO as an institution, Australia, Japan, and South Korea. But where allies turn autocratic or become incubators for fascism — such as Turkey or Hungary (both NATO members) — a commitment to the individual country will have to be tenuous, as a matter of principle. An illiberal state’s membership in an alliance institution will not prevent U.S. policy from promoting solidarity with anti-authoritarian forces within that country. NATO will not be a shield that implicitly permits the growth of illiberal, reactionary politics in Europe.
Alliances are also crucial to a progressive theory of security to the extent the United States seeks to divest itself of the military superiority imperative. As argued above, moving to a concept of military sufficiency without simply becoming isolationist (which itself would be anti-progressive) requires maintaining allies. It would be logically untenable to seek international solidarity with likeminded countries and peoples abroad while destroying alliance architectures around the world — one action would undermine the other. And where the abdication of an alliance is likely to lead to nuclear proliferation, conflict, or the spread of fascism, the alliance may have to stay in place as a short-term exception to the rule. But even then, the principle of supporting only democratic actors remains. In sum, then, the progressive theory of security requires fidelity only to democratic alliances, and any expansion of the U.S. alliance network is likely to emphasize political support first and military support last, if at all.
Reforming International Institutions
U.S. foreign policy debates routinely center on the merits of sustaining the mélange of international institutions that constitute the “post-war” or “liberal international” order: the United Nations, World Bank, International Monetary Fund, and World Trade Organization, among many others. These institutions play an essential role in how U.S. liberal internationalism conceives of keeping America secure. Collectively, they preserve a stable international trading system that facilitates conflict-deterring economic interdependence. The existence of international institutions also allows many (not all) nations around the world to escape the predations of international anarchy. The belief in reliable institutions lets many liberal-democratic states be liberal and democratic in their foreign policies — by focusing on trading relations and taking for granted the appearance of international stability. In the liberal internationalist theory of security, this partly explains why neither Europe nor Asia has experienced interstate wars in more than a generation — an architecture that combines U.S. military superiority and alliances with international institutions. It’s a package deal. The institutions part of that deal preserves a “capitalist peace” through economic interdependence, and at the same time encourages many states to opt out of militaristic foreign policies.
The left embraces international institutions in principle because they promote multilateralism, the rule of law, and can help attenuate conflict — all of which favor justice and egalitarianism. But some international institutions must be repurposed or reformed to serve a more democratic, and less corrupting, imperative. This is not just about justice for its own sake, but rather that justice, in the form of equality, lessens the likelihood of war. Progressives believe that yawning gaps in economic inequality are a structural cause of conflict. As Bernie Sanders remarked in 2017: “Foreign policy must take into account the outrageous income and wealth inequality that exists globally and in our own country. This planet will not be secure or peaceful when so few have so much, and so many have so little…”
A progressive security policy would therefore bet significantly on international institutions, but in qualified ways that differ from default liberal internationalism. It would seek to essentially save capitalism from itself by regulating it. At the international level, this might translate into a more democratic distribution of voting rights or agenda setting powers in international financial bodies — especially the World Bank and IMF — and a more relaxed attitude toward economic protectionism in instances where fairness or just labor practices are called into question. Although anathema to the traditional liberal bargain, these steps would serve as a means of attenuating giant wealth transfers across borders, as well as the political corruption that often accompanies those transfers, as dictators around the world have learned to “play” globalization processes to enrich themselves. Such regulations of capitalism might also dramatically elevate the importance of the International Labor Organization, a moribund body that for decades has promoted not labor but rather pro-market deregulation trends. But the larger point is best summarized by Bernie Sanders: “[W]e have got to help lead the struggle to defend and expand a rules-based international order in which law, not might, makes right.” The progressive theory of security wagers on the same institutional arrangements that make up liberal internationalism, but argues for their reform, in order to address the inequality gap, transnational corruption, and authoritarianism, thus prioritizing long-term systemic causes of conflict, even if it might risk the “capitalist peace” in the near term.
Mutual Threat Reduction
The final, and most distinct, element in the progressive theory of national security — one that’s absent from America’s default posture toward the world — is what might be called mutual threat reduction. If the progressive sensibility leads to the military being treated as a policy tool of last resort, progressives would have to prioritize the use of diplomacy to attenuate the threat landscape as a compensatory move. There is a defensible logic in this wager, because deterrence — managing threats by making threats — is not an end in itself but rather a means of buying time. The ultimate success of deterrence derives from whether the time bought was used to ameliorate the conditions that gave rise to the need for deterrence in the first place. In the progressive view, diplomacy in the name of mutual threat reduction takes on concrete meaning: arms control, Nunn-Lugar Cooperative Threat Reduction programs, and international regimes that regulate technology development, transfers, and use. These kinds of initiatives are not new to U.S. foreign policy, but the progressive theory elevates their importance, and justifies taking a certain amount of risk in pursuing them with greater gusto.
Progressive principles commit the United States to doing the spade work necessary to discover whether real and potential adversaries are willing to restrain arms competitions or increase transparency into their military thinking, and to reciprocate when they do. Such a probe may require limited unilateral gestures from the United States. Advocates of realpolitik may see no reason to ever trust the intentions of an enemy or shrink U.S. advantages in military matters. But progressives should be willing to accept some amount of geopolitical risk — while stopping short of naiveté — in the name of, not only probing, but nudging the intentions of a threatening adversary toward the goal of mutual accommodation. In 2012, the Obama administration made a fleeting attempt at getting beyond mutually assured destruction with key competitors like Russia and China to reach a place of “mutually assured stability.” The premise of that forgotten project — that recognized that probing and stimulating opportunities for threat reduction is an essential part of avoiding unnecessary future wars — would be renewed in a progressive security vision. More importantly, it would become a preferred starting point for evaluating all strategic issues, from North Korea to arms races in emerging technologies.
Playing the Long Game
There are significant continuities between the liberal internationalist theory of security and that of progressive internationalism. Nevertheless, the divergences are not trivial. The table below summarizes these distinctions.
|Comparing Progressive and Liberal Internationalist Theories of Security|
|Default Liberal Internationalism||Progressive Internationalism|
|Military Superiority||Military Sufficiency|
|International Institutions||Reformed International Institutions|
|Economic Interdependence||Mutual Threat Reduction|
The progressive wager is not without risks. The process of changing American foreign policy in this way may jeopardize certain sources of stability that the progressive worldview takes for granted. But it also addresses long-term sources of recurring conflict that liberal internationalism ignores. Every theory of security amounts to a bet with distinct tradeoffs and risks. The progressive bet is that the American interest is best served by having a more peaceful world, and that’s only possible by pursuing greater justice and equity, and opposing tyranny wherever it arises.
Van Jackson is an associate editor at the Texas National Security Review, a senior lecturer in international relations at Victoria University of Wellington, and a global fellow at the Woodrow Wilson International Center for Scholars in Washington. He is the author of On the Brink: Trump, Kim, and the Threat of Nuclear War (Cambridge University Press, 2018). The views expressed are solely those of the author.
Image: Carlos Fernandez
Norman Eisen and Barry Berke, Opinion contributors Published 8:00 a.m. ET Dec. 2, 2018 | Updated 3:41 p.m. ET Dec. 2, 2018
‘Avengers’ director Joe Russo launched LA restaurant Simone, all while directing the famous Marvel flicks because ‘he loves food.’ (Dec. 4)AP
MAGA hat cartoon, Nov. 30, 2018(Photo: Pat Bagley, The Salt Lake Tribune, UT)
One aspect of Michael Cohen’s blockbuster plea deal hasn’t received as much attention as it deserves. It is the possibility that the Trump Organization and others, perhaps even including the president himself, might have violated the Foreign Corrupt Practices Act (FCPA). These new facts and reports are yet more evidence that Donald Trump’s business activities represent a clear-and-present threat to his presidency.
The revelations last week in connection with Cohen’s plea included the news that during his presidential campaign, Trump pursued a significant project in Russia and a report that Cohen, representing the Trump Organization, discussed with an assistant to Russian President Vladimir Putin’s spokesman the idea that the developers would be interested in giving Putin the $50 million penthouse in Trump Tower Moscow. That is, of course, assuming they were allowed to build it.
If this report is true, this type of offer is not, as the president tweeted of the project as a whole, “very legal & very cool.” It is, instead, a possible FCPA violation.
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US law says foreign officials can’t be bribed
Trump has brazenly argued that this long-standing law is not fair because it prevents American business people from paying bribes in jurisdictions where others might. But the FCPA has been on the books for more than 40 years, and it has been aggressively enforced through Democratic and Republican administrations alike.
That is because, as Deputy Attorney General Rod Rosenstein said in a speech last year on FCPA enforcement, “paying bribes may still be common in some places — but that does not make it right.”
The FCPA makes it a crime to corruptly offer anything of value to a government official for the purpose of “obtaining or retaining business.” The courts have defined “obtaining or retaining” broadly to include nearly any action that would serve a business purpose. The facts, if true, leave little room to question whether the Trump Organization was seeking to retain or obtain business given its efforts to receive government assistance to go forward with the project, and Cohen’s communications with a Putin aide to discuss that very issue.
In fact, special counsel Robert Mueller indicated as much in Cohen’s plea agreement. Cohen, speaking with the woman in Putin’s press office, “requested assistance in moving the project forward” both in financing the project and in “securing land.” She reportedly asked detailed questions and explained that she would follow up “with others in Russia.”
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Similarly, it seems clear that the offer was made “corruptly” — that is, as Congress explained when it passed the FCPA in 1977, to “wrongfully influence the recipient.” It is difficult to imagine how suggesting that the president of the country may receive a $50 million benefit if the development goes forward could be anything other than corrupt.
The repeated and continuous lies about the project by Cohen and likely others, including to Congress, are further evidence of the shadiness of the deal — in other words, of corrupt intent. The false testimony is made even more troubling if individuals in our government knew of its falsity and were therefore aware that they could be subject to blackmail by Russia, whose leaders obviously knew the truth.
If it was actually suggested that should the project be approved and built, those responsible for the development were prepared to potentially offer a $50 million penthouse apartment to Putin, this would certainly appear to satisfy the “offer something of value” prong. While detractors might claim that the $50 million penthouse was not formally “offered,” experienced FCPA practitioners know this is not a defense.
It is important to note that under the FCPA, there does not have to be a transfer, or even a formal offer, of something of value. It is sufficient if there is an attempt to corruptly influence a government decision by holding out the promise of something of value, or even just the possibility it might be available, in order to obtain or retain business. Essentially, the law contemplates and prohibits the wink-and-a-nod agreements that still dominate the business landscape in many markets where public corruption is commonplace.
The $50 million question: Did Trump know?
Still unknown is how much President Trump or his family actually knew about the Putin luxury apartment offer. Cohen says he frequently communicated about the project with Trump, including keeping Trump apprised of his discussions with representatives of Putin. It would be surprising if that did not include information about an inducement of this magnitude.
Under the law of conspiracy and aiding and abetting, even if a person is not otherwise involved in offering an illegal bribe, that individual can still be guilty if he was aware of it and was otherwise part of the transaction that would benefit from it.
While the past week has added significantly to the list of potential crimes that Trump and those close to him might have committed, the potential FCPA criminal violation could be the most straightforward to prove — if the president was aware of the offer.
We know that Trump is well aware of the FCPA; he has called it “a horrible law” and “ridiculous.” We know that Michael Cohen swore in court on Thursday that he “discussed the status and progress” of the negotiations with then-candidate Trump on numerous occasions, and that he gave Trump’s adult children regular briefings.
What we don’t know yet is whether Trump or his children were made aware of this critical $50 million detail. The presidency could hang on that question.
Norman Eisen, chairman of Citizens for Responsibility and Ethics in Washington and a senior fellow at the Brookings Institution, is author of “The Last Palace: Europe’s Turbulent Century in Five Lives and One Legendary House.” Follow him on Twitter: @NormEisen. Barry Berke is a nationally recognized trial lawyer specializing in all aspects of white-collar crime.
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Sen. Chuck Grassley is calling for more information about the FBI’s raid on a former agency contractor who had given a watchdog documents claiming that federal officials failed to investigate possible criminal activity related to former Secretary of State Hillary Clinton, the Clinton Foundation, and the sale of Canadian mining company Uranium One to a Russian company’s subsidiary.
Grassley, R-Iowa, has sent a letter to FBI Director Christopher Wray and to the Department of Justice’s internal watchdog, seeking more details on the raid of Dennis Nathan Cain in Maryland on Nov. 16, giving them until Dec. 12 to respond, reports Fox News.
Cain’s attorney, Michael Socarras, told The Daily Caller after 16 FBI agents raided the home on Nov. 19 that the agent who led the raid accused Cain of being in possession of stolen federal property.
Cain claims he that he has been recognized as a protected whistleblower under federal law by DOJ watchdog Michael Horowitz. Socarras also said Horowitz sent Cain’s information to the House and Senate intelligence committees.
Grassley, in his letter to Wray, asked why Cain’s house was raided, if the FBI knew of his disclosures to Horowitz, and if the disclosures were considered protected. Further, he asked if agents seized any classified information.