Experts say premature appointments could violate obscure federal statute.
In their search for splashy ways to put on a show at this summer’s Republican National Convention, Donald Trump and his team have discussed an unprecedented maneuver: Rolling out a roster of high-profile cabinet appointees to give voters a sneak preview of the Trump administration.
The objective, according to multiple Republican sources briefed on what they described as preliminary and informal conversations, would be to maximize the drama and entertainment value of the convention itself while providing additional assurances to conservatives who remain suspicious of Trump’s ideology. (To the latter end, the Trump campaign released a list of potential Supreme Court appointments just last week.)
Trump, who is currently vetting vice-presidential candidates, has already said he will announce his running mate at the convention in mid-July. But sources say the presumptive GOP nominee has also quietly begun reaching out to potential cabinet secretaries, with the possible aim of introducing his future appointments to key administration posts — including Attorney General, Secretary of Defense, Secretary of State, and Treasury Secretary — at the convention.
There’s just one problem: It might be illegal.
Republican election-law experts have long been torn over the question of whether it is permissible for a presidential candidate to publicly name individuals he intends to appoint to government positions before winning the election. Announcing a selection for the role of vice president is protected, they agree, by Article II of the Constitution. But anything beyond that could run afoul of Title 18, Chapter 29, Section 599 of the U.S. Code, which under the sub-heading “Promise of appointment by candidate” says the following:
Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.
It’s the phrase, “for the purpose of procuring support in his candidacy,” that has triggered uncertainty among election-law attorneys. Is it illegal to announce an appointment to gain support from the appointee? Is it illegal to do so to gain support from the public? Both? Neither?
Experts have varying interpretations of the language. Yet they agree that it is sufficiently vague to make any prosecution extremely difficult, save for specific and overwhelming evidence.
“My view is the statute is clearly intended at, essentially, bribery,” says Brad Smith, a former chairman of the Federal Election Commission. “It cannot be read to make it impossible for someone to talk about who they might appoint to office, or even to potentially promise to appoint people to office.”
The issue has never been thoroughly examined, since no candidate — or nominee — has ever dared to put the cart so far ahead of the horse.
The issue has never been thoroughly examined, since no candidate — or nominee — has ever dared to put the cart so far ahead of the horse. Naming a cabinet member before winning the White House “would be totally unprecedented,” says Aaron Crawford, a fellow at Southern Methodist University’s Center for Presidential History. “Vetting a vice president is seen as the first act of governance, and a lot can go wrong. You start layering more people onto that and you have a process that grows exponentially. And then, not only do you have to deal with the potential negatives of the V.P., but the potential negatives of cabinet members.”
Crawford says the closest thing he can remember to a major-party nominee promising an appointment is George W. Bush “strongly implying” during the 2000 campaign that Colin Powell would be his choice for secretary of state. Newt Gingrich was even more direct during the 2012 GOP primary, and played with fire by repeatedly stating that, if elected, he would appoint former U.N. Ambassador John Bolton as his secretary of state. Gingrich’s campaign at the time dismissed questions about violating federal law. But Randy Evans, Gingrich’s longtime lawyer, who served as a senior advisor and legal counsel to the campaign, says his team harbored deep concerns over whether the former House speaker had done exactly that.
“I remember when Newt was running, whenever the conversation even came up about naming pre-presidential cabinet appointees, all of our white-collar lawyers got squeamish,” says Evans, who is now chairman of the Republican National Lawyers Association. “We knew he could name a V.P. But we just didn’t know if he could name a cabinet member.”
It was Gingrich’s big primary win in South Carolina, Evans says, that prompted closer examination of the question. Gingrich needed to capitalize on his bump heading into Florida, and seriously considered naming some future administration officials. Ultimately, Evans says, it was “the quid-pro-quo rules” in Section 599 that scared them off.
Trump might not be so easily deterred. For one thing, he has consistently pushed the envelope in his legal dealings as a businessman, and would be unlikely to flinch in a game of chicken with the Justice Department. He also has some breathing room given that a prosecution would come across as purely political, especially because his opponent, Hillary Clinton, is unlikely to face charges after a lengthy DoJ investigation into her handling of classified information as secretary of state. (Trump press secretary Hope Hicks and campaign attorney Don McGahn did not respond to requests for comment. A DoJ spokesman was similarly unresponsive.)
Furthermore, experts say recent cases — including those against former Illinois governor Rod Blagojevich and former Virginia governor Bob McDonnell — have established political “horse-trading” as commonplace and essentially protected from a legal perspective. Because of that, it would be nearly impossible to prosecute Trump for offering a cabinet post in exchange for something as vague as “the purpose of procuring support in his candidacy.”
Even so, Trump could play it extra safe by limiting his early-cabinet selections to known allies. The quid-pro-quo cited in Section 599, experts say, would likely be rendered irrelevant if he appoints individuals who were already publicly recognized supporters. Introducing Chris Christie as his future attorney general, for instance, would be safe, because Christie endorsed Trump long before any announcement was made.
“The prosecution would depend on facts and circumstances. The federal statute would have a problem if you’re going to give someone a federal job and you’re conditioning it on their support for you,” says Hans von Spakovsky, a former Department of Justice official and Federal Elections Commission member who now manages the Heritage Foundation’s Election Law Reform Initiative. “The prosecutor would have a tough time unless he could show the person was not a supporter of [Trump], and the only reason they became one was to get a federal job.”
“Any kind of case like this would be extremely difficult to prove,” he adds. “I would hate to prosecute a case like this. And I’m not aware of any like this being prosecuted.”
— Tim Alberta is the chief political correspondent for National Review.