James Boasberg Likens Trump’s Demands on Pence to a Bribe

“There is no dispute in this case that Pence lacked the authority to reject certified electoral votes, [redacted].”

That’s the foundational principle of the opinion DC Chief Judge James Boasberg wrote on March 27, finding that just a limited number of topics about which DOJ wanted to question Mike Pence were covered by Speech and Debate.

Boasberg unsealed the ruling on Friday.

Trump had no standing in this dispute — his ability to prevent Pence’s testimony was limited to Executive Privilege claims, which had already decided months earlier with Pat Cipollone and others. So on the matter of whether Pence had any authority to reject the certifications, the two parties before Boasberg were always in agreement.

From that agreement, then, Boasberg treated Trump’s pressure on Pence to do so anyway as akin to the bribe at issue in US v. Brewster, a 1972 ruling that held that a conversation in which a Senator accepted a bribe was not protected under Speech and Debate Clause.

Brewster reflects the commonsense proposition that the Clause does not protect conversations whose principal purpose is to convince a Member to do something the Member cannot lawfully do.


The bottom line is that conversations exhorting Pence to reject electors on January 6th are not protected. They fall under Brewster‘s rule that communications urging a legislator to act unlawfully or ultra vires are not preparatory — or at most are only incidentally so — to a legislative function.

That thinking is in no way controversial (unless you adhere to John Eastman’s unmoored theories about the Electoral College Act).

But the means by which Boasberg came to this decision are important for another reason.

That’s because “otherwise unlawful act” is a key part of the debate — currently before the DC Circuit — about the meaning of “corrupt purpose” in 18 USC 1512(c)(2), particularly as it applies to January 6. Conservatives on the court want to adopt a rule saying that an act is only “corrupt” if someone is seeking a personal benefit — a definition that would apply to Trump far more easily than the hundreds of other January 6 suspects charged with obstruction. Liberals want to adopt a rule saying something is corrupt more broadly. But the happy middle, a stance first adopted by Trump appointee Dabney Friedrich in December 2021, would hold that an action to obstruct the vote certification is “corrupt” if it is otherwise illegal, one of two decisions on which Boasberg built his own decision upholding the obstruction statute for January 6.

And Boasberg’s decision builds off the premise that Trump’s demands asked Pence to do something he couldn’t lawfully do.

Akin to bribe.

It’s just a small part of the many pieces that will go into a potential Trump charge. But an important one.

The DC Chief Judge has treated Trump’s demands that Pence reject the vote certifications as an otherwise illegal act.

24 replies
  1. obsessed says:

    To my angry, whinging, IANAL mind, this ruling is as painfully obvious as SCOTUS’s (unanimous) reversal of the conviction of McDonnell (the bribe-taking VA Governor) is painfully incomprehensible, utterly undemocratic, and evil at its core. They sound like the same argument, with opposite results. Can someone explain why the liberal justices overturned McDonnell and/or why the SCOTUS majority won’t overturn Boasberg’s Pence ruling?

  2. wasD4v1d says:

    My nonlawyerly side (there is no other side) is having a hard time equating putting the arm on Pence with a bribe. I now cede the floor to better minds.

    • Eichhörnchen says:

      (Also not a lawyer.)
      My understanding is that it is not the act of bribery itself, but rather its illegality that is the basis for the analogy. It is the illegality of what Trump pressured Pence to do that makes the Speech and Debate clause inapplicable.

      • Savage Librarian says:

        But if I were pressed to articulate what an imaginable bribe might be in this particular case, I would say that Trump offered Pence a way (even though nefarious and illegal) to be Vice President again, even though they really lost the election.

        • Eichhörnchen says:

          Indeed. Your comment makes me wonder whether dangling a second term in front of Pence was more than implicit. It will be interesting to see what comes out. I suspect Pence saw it more in his self-interest – his presidential aspirations trumped his vice-presidential aspirations – to claim the mantel of Defender of the Constitution rather than MAGA Hero. He probably also saw the writing on the wall.

        • wasD4v1d says:

          I think you’re closer with presidential ambitions angle – Pence was not defending the Constitution but his own path to the White House, which would be rendered permanently nonviable by making Trump emperor, a class of ruler that dispatches any and all pretenders, of which Pence is the archetype.

        • Rayne says:

          This line of inquiry you started at 6:39 a.m. went on a tangent clinging too closely to the word “bribe.”

          Akin to a bribe = an act similar in nature to a bribe and a bribe is an unlawful act.

          What Pence was asked to do was an unlawful act outside of the legal scope (ultra vires) of his duties as president of the Senate, or as Vice President.

          Pence taking or making a bribe would likewise be an unlawful act, ultra vires.

          Once the January 6 attack on the Capitol began, thereby ratcheting up the pressure, Pence was being extorted into an unlawful act, ultra vires. Do this criminal deed for me or the mob will take care of you, was the implication. Pence wasn’t worried about his future as POTUS so much as getting himself and his family out of the Capitol alive.

    • EuroTark says:

      Not a lawyer either. In my mind the similarity between a bribe and coercion is that both are the promise of something: The bribe is receiving something positive, while coercing is avoiding something negative.

  3. phred says:

    Thanks EW. You are doing the best reporting anywhere on the legal needles that need to be threaded to successfully prosecute the wide ranging lawlessness of Trump and I am very grateful for it. I’ll send a little love to your tip jar a little later today : )

    • FLwolverine says:

      Thanks for the reminder, phred. It nudged me to finally do what I’ve been thinking about for a long time: donate to show some appreciation for the excellent analysis and commentary here on EW. Good way to start a Sunday morning.

      • phred says:

        Always happy to be a good influence ; )

        Besides, there is so much rubbish commentary floating around, EW’s work really does stand out. And every now and then, I feel compelled to give her a public pat on the back for the excellent work she does : )

  4. ExpatR&RDino-sour says:

    I love these things that I read about only here. Why don’t any of the major news companies report the items that can be found right here?? Gold nuggets they often are.

    3rd paragraph .. already (been?) decided?

  5. SaltinWound says:

    Agreeing with others that this was more of a stick than carrot situation. Are threats and extortion not legal terms?

  6. ApacheTrout says:

    This also seems to be another legal strike against John Yoo’s Unitary Executive theory.

  7. John Paul Jones says:

    So “otherwise unlawful purpose” = corruption by definition; hence, if the mob agreed with Trump’s purpose then they too, acted corruptly. This, I take it, is the gist. But to what extent does Boasberg’s decision bind other judges in the DC court when considering the meaning of “corrupt purpose”? Would it be a controlling decision, or just a sort of recommendation? I guess since it relates to the same set of facts, broadly (the coup attempt), it would be more than a recommendation, but is there a halfway house between that and a binding decision?

    • bmaz says:

      One district court’s decision never binds another judge’s decision. Affects and informs it, yes. Binds, no.

    • earlofhuntingdon says:

      Binding authority comes from a higher court. In the US federal system, Circuit Court decisions bind district courts within that circuit. Sup. Ct. decisions are binding nationally. Decisions by other district courts within that circuit, and district and appellate courts from outside that circuit, are persuasive, not binding. The reach of decisions that purport to impose nationwide injunctions is a separate matter.

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