Did Trump ask for ‘loyalty’ or ‘patronage?’ One could be a crime

Despite the focus on obstruction and leaking, former FBI Director James Comey alluded to a third crime in his testimony before the Senate Intelligence Committee that has not received much attention. It can be found in the subtext of Comey’s testimony that he “got the sense that [his] job would be contingent upon . . . whether [he] demonstrated loyalty.” He went so far as to state that President Trump was trying to “create some sort of patronage relationship” with him.

Many observers have noted that this conversation, if true, would be improper. But by using the term “patronage” and by saying that his job was “contingent” on “loyalty,” Comey went further — he hinted that the conversation he alleged about “loyalty” was possibly an attempt to commit a crime.

{mosads}Patronage is illegal when a public official agrees to exchange an official act for something of value. The president has denied that the conversation took place, but if it did, it at least suggests that Trump may have committed ‘honest services fraud,’ which makes it a crime for a public official to exchange an official act for something of value.

Think about it — Comey testified that he understood the president to mean that his job as FBI director was contingent upon whether he demonstrated loyalty. A job as FBI director is certainly something of value under the law. Illinois Gov. Rod Blagojevich is currently in federal prison for attempting to exchange an appointment to the U.S. Senate for something of value. Being FBI director, like being a U.S. Senator, is worth something.

Comey’s allegation falls short of meeting the elements of honest services fraud, which is what Blagojevich was convicted of, because even Comey doesn’t allege that the president asked for something specific in return for his continued employment. Hypothetically, if the president asked a subordinate for something specific — like giving a job to a friend — in exchange for the subordinate’s continued employment, that would be a crime.

As Comey undoubtedly knows, “something of value” is defined very broadly by courts, and one issue courts haven’t considered is whether dropping a criminal case for a friend is a thing of value. If it is, and there was evidence that the president indicated to Comey that dropping the criminal case involving his former national security adviser Michael Flynn’s was the “loyalty” he expected in exchange for continued employment — that would be a crime. That is likely why Comey alluded to this crime as a flag for the Senate as it continues its investigation.

Still, none of this may have happened, and all of it would be a challenge for Special Counsel Robert Mueller to prove. So why is this worth paying attention to?  Because Comey is only the tip of the iceberg. Attorney General Jeff Sessions testifies Tuesday. Expect senators to ask him whether the president asked for his loyalty, what he understood that to mean and how he responded.

In the upcoming months, dozens of witnesses may be interviewed by Mueller and his team. In addition to collusion, false statements and obstruction of justice, Mueller’s team may also explore whether the president engaged in unlawful patronage with federal employees.

There’s no question that Comey understood the potential legal significance of his testimony about “patronage.” Mueller and his team are equally aware of this statute. What remains to be seen is whether there is evidence sufficient to support a charge. In the meantime, be on the lookout for more questions and more testimony regarding potential illegal patronage.

Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney’s Office in Chicago and he has prosecuted federal obstruction of justice cases. Follow him on Twitter @renato_mariotti.

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