There is such a thing as straight up bribery

Much of the news coverage has focused on whether offering pardons to induce a witness not to cooperate in the special counsel’s investigation could constitute obstruction of justice. But there is another potential charge that could apply more directly and that prosecutors might have reason to favor: conspiracy to commit bribery.

Federal bribery requires that a public official agree to receive and accept something of value in exchange for being influenced in the performance of an official act. In this scenario, the official act would be granting a pardon. While the Supreme Court’s 2016 decision in the case of former Virginia governor Robert F. McDonnell dramatically narrowed the definition of “official act,” there’s no question that a president granting a pardon would be an exercise of government power under the McDonnell v. United States standard.

“Thing of value” is also fairly easily met: It would be the agreement not to cooperate against the president. The thing of value in bribery law is not limited to envelopes stuffed with cash. It can include anything of subjective value to the public official, whether tangible or intangible. Such intangibles as offers of future employment and personal companionship have been found to be things of value for purposes of bribery. A promise not to cooperate in special counsel Robert S. Mueller III’s probe could readily serve as the quid in this quid pro quo.

The public official, of course, is the president. Dowd is not a public official and cannot be bribed himself, but he could conspire with a public official to arrange bribes on the official’s behalf. The theory would be that Dowd and the president engaged in a conspiracy to accept bribes by agreeing that Dowd would make the offer. This, of course, would require proof that Dowd was acting with the president’s approval and not merely freelancing.