- If NFL owners who donated to President Donald Trump's 2017 inaugural committee are found to have paid for favors, they could find themselves vulnerable to criminal charges for corruption.
NFL owners who donated to President Donald Trump’s 2017 inaugural committee are potentially linked to a federal investigation into suspicions of bribery and misappropriated funds. The Wall Street Journal reported on Thursday that the U.S. Attorney’s Office for the Southern District of New York is investigating whether donors to Trump’s inaugural committee believed they were buying favors from, and influence within, the incoming administration.
The federal investigation stems in part from analysis of written documents, computer files and other evidence obtained in raids of properties connected to Michael Cohen, Trump’s former attorney. In August, Cohen pleaded guilty to eight counts of tax fraud, bank fraud and campaign finance violations. On Wednesday, U.S. District Judge William Pauley III sentenced Cohen to three years in prison.
According to a 2017 story by USA Today’s Steve Berkowitz, the following nine NFL owners contributed directly, or indirectly through controlled entities, to Trump’s inaugural committee:
Cleveland Browns: Jimmy Haslam, $100,000. Pilot Travel Centers LLC, of which Haslam is CEO, $300,000
Dallas Cowboys: Jerry Jones (contribution made by Glenstone Limited Partnership, of which Jones is president), $1 million
Houston Texans: Robert McNair, $1 million
Jacksonville Jaguars: Shahid Khan, $1 million
Los Angeles Rams: Stan Kroenke, $1 million
New England Patriots: Robert Kraft (contribution made by Kraft Group LLC, of which Kraft is chairman and CEO), $1 million
New York Jets: Woody Johnson, $1 million
Tampa Bay Buccaneers: Edward Glazer, $250,000
Washington Redskins: Daniel Snyder, $1 million
The Journal notes that Trump’s inaugural committee—a 501(c) 3 not-for-profit—raised $107 million, a record amount. Tax filings reviewed by The Journal find that $61 million of the $107 million is associated with vendors. However, the committee has not detailed transactions related to those vendors. The inaugural committee insists that it is unaware of any federal investigation. Further, the committee stresses that it has been audited and, it says, found compliant with federal election and tax laws.
To be clear, there is no indication that any inaugural committee donor—be they an NFL owner or some other high net-worth person—will be charged with crimes, subpoenaed or otherwise pressured into cooperating with federal authorities. The Journal, in fact, cautions that it has not uncovered information suggesting that donors themselves are under investigation. As of now, it appears the investigation is focused on conduct by inaugural committee leadership and staff.
That said, government investigations into institutions often grow rather than recede. Also, to the extent federal authorities or private sector attorneys aware of the investigation leaked its existence to The Journal, it may have been a strategic leak where only part of an investigation’s universe is revealed. Such a leak might have served to warn persons who may be implicated that pressure is mounting and that they ought to cooperate before their names surface in print. Further, the Journal highlights that federal prosecutors have asked to review documents related to a $1 million inaugural committee donation made by Tennessee developer Franklin Haney. Haney was of particular interest to prosecutors given that he hired Cohen to help secure a $5 billion loan from the U.S. Department of Energy.
Possible charges for donors—and likely defenses
If donors are found to have paid for favors, they would find themselves vulnerable to criminal charges for corruption. Some of the charges could resemble those brought against coaches and sneaker executives who have been implicated in the college basketball corruption cases (one of which, U.S. v. Gatto, has led to multiple convictions).
To that end, one possible charge would be conspiracy to commit bribery under 18 U.S.C. § 371. This charge, which carries a potential five-year prison term, prohibits two or more persons from conspiring to defraud the United States or commit any offense against the country. A conspiracy between a donor and an inaugural committee employee to trade money for the intended purpose of currying favor from the incoming White House leadership would conceivably fit the elements of criminal conspiracy.
Another possible charge would be found under the Travel Act, 18 U.S.C. § 1952. The Travel Act makes it a crime to travel in interstate commerce, or use the mail or any facility in interstate, with the intent to engage in unlawful activities. If donors used the U.S. Postal Service to advance payoffs to the inaugural committee, the Travel Act, which carries up to a five-year prison sentence, would become relevant.
Wire fraud, as found under 18 U.S.C. § 1343, is another relevant criminal statute. At its core, wire fraud refers to using wire communication (such as phone communications, texts or emails) in interstate commerce in order to engage in fraudulent acts. Using wire communications to transmit bribes for government favors would likely fall within the ambit of wire fraud, a conviction for which can carry up to 20 years in prison.
Still another potential charge is money laundering under 18 U.S.C. § 1956. Money laundering refers to the use of unlawful means to give ill-gotten gains the appearance of being legitimate. A bribe that is reported as a legitimate political contribution could be construed as money laundering. Money laundering carries a maximum prison sentence of 20 years.
While any of these charges would be very worrisome for donors, it’s worth noting that donations to presidential inaugural committees are nothing new. Such donations also shouldn’t be presumed as unlawful or unethical. Along those lines, although Trump’s inaugural committee received a record amount of funds, committees sponsoring the inaugurations of Barack Obama, George W. Bush and Bill Clinton also raised many millions of dollars. Contributions to inaugural committees are at least ostensibly intended to defray the costs of balls, galas, concerts, firework displays and other typical activities that occur in the days preceding the President-elect being sworn into office. Meanwhile, any inaugural committee surpluses can be saved for the future construction of a presidential library. This system of inaugural committees has long been in place, and Trump’s inaugural committee would not be the first among recent presidents to attract questions about transparency and accountability.
Also, it stands to reason that while bribes are obviously wrong, a person who donates to an inaugural committee may have some expectation of procuring a favorable impression from the incoming administration. There is a gray area between a “bribe” and a desire for more prominence within a political leader’s orbit, and it could prove difficult for prosecutors to convincingly prove that inaugural committee donations were closer to bribes than to expressions of support. That’s not to say Trump’s inaugural committee didn’t mismanage money or engage in other wrongdoing—we’ll eventually find out if that happened—but whether sufficient evidence shows that donors ran afoul of the law is a separate matter.
If NFL owners donated to favorably influence Trump’s view of the NFL, it hasn’t worked
The idea that NFL owners would donate to politicians and to their fundraising apparatuses is hardly a revelation. As The Guardian’s Bryan Armen Graham detailed in 2016, many owners of teams in the NFL, NBA, MLB and NHL donate large sums of money to political candidates and to political action committees.
NFL owners have also experienced a problematic relationship with Trump. This relationship seems at odds with the idea that owners would attempt to bribe Trump or those around him. Indeed, there is a long and at times contentious history between Trump and the NFL. It includes Trump, as owner of the USFL’s New Jersey Generals during the 1980s, litigating against the NFL in a highly-publicized antitrust dispute. Also, at different points, Trump showed interest in buying the New England Patriots and the Buffalo Bills. However, he never joined the exclusive “club” of NFL owners. Some speculate that he might hold a grudge against a league that never brought him into the fold.
Also, since becoming President, Trump hasn’t passed up an opportunity to pan the NFL. Trump has repeatedly denigrated NFL commissioner Roger Goodell, as well as owners, for declining television ratings and for using tax-exempt government bonds to raise money for the construction of new stadiums. Trump’s main target, however, is Colin Kaepernick and other players who kneel during the playing of the national anthem. Trump has insisted that no owner should employ such a player. In fact, during a political rally in September 2017, Trump alternatively mocked and challenged owners who employ kneeling players to say “Get that son of a b---- off the field right now. Out. He’s fired. He’s FIRED!”
Trump’s disparaging remarks about kneeling players have become crucial to Kaepernick’s collusion grievance. Kaepernick and his attorneys, Mark Geragos and Ben Meiselas, contend that owners feel threatened by Trump’s critical remarks about him—an audio recording from a 2017 meeting between owners, players and league officials supports that depiction. Owners, Kaepernick’s legal team argues, are worried that Trump could retaliate or punish the NFL and its owners.
Fear of Trump taking punitive action is not groundless. As alluded above, Trump has flagged how the federal tax code permits interest derived from certain kinds of municipal bonds to be exempt from federal taxes. This feature of the tax code has advantaged some NFL owners in their stadium deals. Should Trump advocate for changes to the code, or changes to how the U.S. Department of Treasury interprets the code, it could prove financially damaging to those owners. Likewise, Trump ridiculing the NFL could guide some of his supporters to tune out the league, which in turn would damage attendance and TV ratings.
Connecting these points to collusion, Kaepernick argues that owners have conspired to exclude him from the league in order to placate Trump. It’s unknown if Kaepernick has the requisite evidence to prove this theory. It’s also unknown if he will prevail in his grievance, which remains in arbitration. However, as I detailed in August, arbitrator Stephen Burbank denied the NFL’s request for summary judgment. This means Kaepernick has shown enough evidence and testimony to raise a genuine issue of material fact.
Even if Trump’s acrimonious interactions with the NFL appear inconsistent with owners trying to sway Trump through donations—or at least suggest the donations didn’t accomplish that sort of goal—owners financially supporting Trump might be motivated by non-NFL reasons. Some owners, for example, are longtime friends of Trump. To that point, New York Jets co-owner Robert “Woody” Johnson, who reportedly attended Trump’s 2005 wedding to Melania Knavs, has spoken glowingly about Trump—going so far as to say he’s raising his two sons to become “just like Donald Trump.” Trump thinks highly of Johnson, too, as he nominated him to become U.S. Ambassador to the United Kingdom. After the Senate confirmed the nomination in 2017, Johnson relinquished control of the team to his brother, Christopher Johnson.
Will Johnson’s donation to Trump’s inaugural committee be scrutinized by federal investigators? Possibly, if not probably, especially in light of Trump’s ambassadorial appointment of Johnson. However, they might land on the view that Johnson donated to the committee not for nefarious reasons but because he supports and likes Trump.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.