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AT&T and Novartis paid Michael Cohen. Why it’s not considered a bribe — yet

May 11, 2018

Cohen is alleged to have received large sums of money from pharmaceutical giant Novartis, AT&T, the state-run Korea Aerospace Industries, and a company controlled by a Russian oligarch. The lawyer has disputed some of the claims, but had not offered details.

According to Novartis, Cohen contacted the Swiss company after the 2016 election “promising access” to the new administration, which resulted in Novartis signing a one-year, $1.2 million contract with Cohen.

AT&T has since admitted that, after the 2016 election, it entered into a consulting agreement with Cohen “to help [AT&T] understand” how Trump might approach policy issues of concern to the telecommunications industry.

AT&T and Novartis paid Michael Cohen. Why it’s not considered a bribe — yetAT&T and Novartis paid Michael Cohen. Why it’s not considered a bribe — yet

It sounds like influence peddling. It sounds like rogue lobbying. It’s not clearly a federal crime. But with every new revelation about the corporate payments, the reported conduct gets closer to the kind prohibited by federal anti-corruption statutes.

U.S. Attorneys have a vast array of options in their anti-corruption arsenal: the federal bribery statute, gratuities, extortion under the Hobbs Act, federal programs bribery under Section 666, the mail-fraud statute, and even the Racketeer Influenced and Corrupt Organizations Act (RICO). The federal bribery and extortion statutes are just two of the favorites of U.S. Attorneys.

The federal official bribery statute, 18 U.S.C. § 201, requires that the defendants corruptly intended to engage in a “quid pro quo,” giving or receiving something of value in exchange for an official act. The statute applies to all federal public officials, which means that Cohen’s arrangements or promises must involve a federal official. However, the law may also reach bribes given to third parties if a public official sought them with the intent to be influenced.

Ultimately, though, the bribery statute requires proof of an “official act.” The Supreme Court in the 2016 case McDonnell v. United States restricted this formerly expansive concept to two elements: First, there must be a specific, focused matter before the official that involves the exercise of government power. Second, there must be some decision to be made on that matter.

Setting up a meeting, calling up a senator friend, or hosting a meet-and-greet does not, by itself, qualify as an “official act.” But it’s still dangerously close. The issue is: What exactly did Cohen claim he could provide to these companies?

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