Letter to the Editor: The Foreign Corrupt Practices Act and Trump’s Ukraine Venture

The Dec. 16, 2019 Just Security essays about federal criminal offenses and President Donald Trump’s impeachment were excellent and timely, but the one about his exposure under the Foreign Corrupt Practices Act (FCPA) may have been incorrect on one issue. Specifically, it suggested that there might be a problem meeting the seventh element of the offense, which requires some “business nexus,” as opposed to a purely political benefit.

Even though the presidency is a political position, it is hardly an unpaid job, like service on a library board. Current presidential pay is $400,000 per annum, which comes to $1.6 million over a full four-year term. Additionally, unless removed from office through the impeachment process, see Stephanie Smith, Former Presidents: Federal Pension and Retirement Benefits 2 (CRS 2008), former presidents receive a pension (currently over $200,000 per annum) plus various perquisites that typically far exceed that. Surviving presidential spouses also receive a lifetime annual pension of $20,000. By any standard, this is “real money.” However wealthy he may be, therefore, President Trump has a financial interest in reelection. It would make no sense to hold that the business nexus element is met only if some “business” were in the picture, as opposed to taxpayer dollars actually flowing into his own or his surviving spouse’s bank account. It is hard to imagine a stronger “business or commercial motive” than something that goes directly to the individual’s bottom line, especially where the individual’s business operates in large measure as a sole proprietorship.

The fact that President Trump may choose to donate some or all of his salary to charity does not alter this. (The tax aspects were explained in a Nov. 14, 2016 Forbes piece by Kelly Phillips Erb.) But even if that were not the case, his various resort, hotel and golf holdings stand to benefit from his reelection, which gives him an “obtaining or retaining business” interest in continuing to hold office as that adds to their attractiveness to (some) potential patrons. This is so even for money-losing ventures, as his position would serve to reduce losses. The attractiveness that comes with association with a president might even outlast a second Trump administration. Depending on how the next year goes (or, for that matter, how the four years after that go), however, the commercial blessing a Trump resort, hotel or golf club might enjoy could turn into a curse. That it all might end badly for these properties has no effect on whether the business nexus element was satisfied.

Finally, suppose a person who ran for President or some other elective office would have to quit a better-paid private sector position to take the job. Bribing a foreign official for help in getting elected would still violate the law. That the position is elective and winning would actually reduce the candidate’s income makes no difference. That’s the person’s chosen line of work, and the FCPA forbids bribing a foreign official to benefit one’s job.

Bottom line: I believe President Trump has real exposure under the FCPA. 

About the Author(s)

Eugene R. Fidell

Senior Research Scholar at Yale Law School; of counsel at the Washington firm Feldesman Tucker Leifer Fidell LLP. Co-author, Military Justice: Cases and Materials (3d ed. 2020). Follow him on Twitter (@globalmjreform)