WAS THE TRUMP-BORDER PATROL COUNCIL DEAL A BRIBE?
On December 16 the Washington Post revealed Trump intervened in the Border Patrol Council’s collective bargaining negotiations with CBP management to give the union a deal no other union in the federal sector can get from their agency executives. That raises the question of whether the transaction involved an illegal bribe. So, let’s address that.
Trump gave the union about 136,000 hours of official time more than any other union could get in a similar situation. If we assume that the average Border Patrol Agent earns about $40.00 an hour, those extra hours amount to a gift (or potential payoff) of around $5.4 million. Yes, that is more than enough to qualify as an amount that would influence someone’s behavior. (There could be more extra-legal benefits in the new bargaining agreement, but the Border Patrol has chosen not to post the new contract on its web site for the public to review.)
And did the Border Patrol Council give the President anything of value in return? Yes, it gave him its political endorsement, which added weight to his 2016 campaign argument about the need to stop illegal immigration at the Mexican border. Moreover, the union did so against the wishes of its national union and against the tide of virtually every other federal sector union. (The Washington Post did not reveal whether it knows that the Border Patrol promised its endorsement in 2020 in return for the President’s intervention in its collective bargaining.)
That all might look like a quid pro quo, but, and this is a big but, we have the President’s word for it, as explained in connection with his Ukraine impeachment, that his conversations never constitute a quid pro quo. He keeps them perfect.
For anyone who needs more evidence than the President’s word to prove there was no bribe, let’s look at what a bribe is under the law. Cornell’s Legal Information Institute defines a bribe as follows: “Bribery refers to the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty. This type of action results in matters that should be handled objectively being handled in a manner best suiting the private interests of the decision maker. Bribery constitutes a crime and both the offeror and the recipient can be criminally charged.… Another element of proving bribery includes proving intent to influence the discharging of another’s official duties.”
Yes, we have an “item of value” in the Trump-Border Patrol exchange. In fact, there are two of them, i.e., the money and the endorsement. And those items of value could be considered “means of influencing” the actions of each party. And both the parties are “individuals holding a public or legal duty… Another element of proving bribery includes proving intent to influence the discharging of another’s official duties.” Beyond that there is the fact that while bargaining legally occurs between a union and management, the President of the United States got involved in these negotiations according to the Washington Post with the result that the negotiations were not handled “objectively” i.e., consistent with the explicit requirements of the President’s recent executive orders. And the outcome did benefit the private interests of both parties.
But, and this is another very big but, there is no evidence either party intended its interaction to be a crime, not to mention that the President cannot commit a crime while in office because he has the right to do whatever he wants—including shooting people randomly on 5th Avenue. (See numerous statements by President Trump explaining that.)
The Cornell Law School folks go on to point out that, “Proof of bribery requires demonstrating a “quid pro quo” relationship in which the recipient directly alters behavior in exchange for the gift. Because the relationship does not occur directly enough, campaign donations from corporations or individuals to political candidates do not constitute bribery.” For example, when a pharmaceutical company gives a Congressional candidate a fat campaign check and that political official ultimately votes to give that company some special benefit under the law, it is not a direct enough exchange. The Congressional rep is only one of hundreds of people that must vote for the pharmaceutical benefit, as it passes through multiple stages of legislative endorsement to get into law. (It would be direct enough to violate law if the check ledger said it was in payment for a “yes” vote on bill XXXX.) For the Trump- Border Patrol deal to qualify as a bribe it would have to compare to known political payoffs like this one.
Yes, we know. The exchange between the President and Border Patrol Council was much more direct than a company’s arrangement with a Congressional member. The President did not need any colleague’s votes nor did he have to clear any procedural hurdles. In fact, he plowed over the procedural hurdle that the law established, i.e., the right of the agency head to decide what goes into a collective bargaining agreement, not the President. And then he plowed through his own executive order to do for the union what he prohibits being done for any other union.
But, again, is that not overshadowed by the President’s and Border Patrol Council’s president’s lack of intent to violate law. After all, they are both law enforcement officers, and when is the last time you heard of a law enforcement officer breaking the law?
So, don’t call Adam Schiff or pester Nancy Pelosi or write the Public Corruption Unit at the Department of Justice or text the FBI or leave a note for the DHS IG. No one needs the Border Patrol Council leadership, as well as executives, subpoenaed to testify on what brought out this extremely sweet and unique agreement. After all, if it turned out the union was corrupted by this exchange, it would lose its right to be the exclusive representative of the Border Patrol folks. The allegation that there was a bribe here is a hoax and fake news and another Bezos-inspired Washington Post plot to get the President. Everything was perfect, yet again. If you have the spare time to worry about things, spend it focused on all the cancer caused by windmills. It is a national crisis that needs a solution.