RFK Jr. is out. Did Trump commit a(nother) crime in exchange for his endorsement?
Early this month, I saw an electronic billboard in Times Square with a picture of Robert F. Kennedy, Jr. and the slogan "Only Kennedy Can Beat Trump." The billboard was: (a) a waste of resources by the pro RFK Jr. Super PAC that purchased it; (b) a lie; and (c) also misleading.
(a) The billboard was a waste of money because the super PAC ran it only in NYC and the District of Columbia. Even when President Biden was the presumptive Democratic nominee and running behind Trump in national and swing-state polls, Biden had enough of a lead in New York State and D.C. as not to put their electoral votes in play.
(b) The billboard space and accompanying truck ads were apparently purchased before President Biden had dropped out of the race. At that time, it did indeed look very likely that Biden would lose to Trump. The claim that "only Kennedy can beat Trump" was nonetheless a lie because the statement "only X can beat Y" is false if X cannot in fact beat Y, regardless of whether anyone else can beat Y, and there was never any possibility that RFK Jr. could win even a single electoral vote.
(c) The billboard was also misleading in its suggestion that RFK Jr. wanted to beat Trump. When Biden was the likely Democratic nominee, polls showed that Trump did better against Biden when voters were given the option of voting for RFK Jr. Once VP Harris became the presumptive and then the actual Democratic nominee, it appeared that Kennedy drew more votes from Trump than from Harris. Kennedy's behavior last week--"suspending" his campaign, seeking to have his name withdrawn from the ballot in swing states, and endorsing Trump--reinforces the impression that, despite repeatedly saying he was hoping to play spoiler to both parties, he really only wanted to play spoiler against the Democrats in order to aid Trump.
Why RFK Jr. supports Trump is anybody's guess. True, anti-vaxxers and conspiracy theorists more broadly are more at home in the Trumpified Republican Party than in the Democratic Party. But the two percent of RFK Jr.'s claim to fame that is not attributable to his name, his father, and his uncle owes to his work on behalf of environmental causes. Nobody who actually cares about avoiding climate catastrophe and otherwise limiting industrial pollution could possibly support Trump--whose record in office reveals him to be not merely indifferent to the environment but actively hostile to it.
Perhaps the worm ate the part of RFK Jr.'s brain that cared about the environment. Or perhaps--whether worm-induced or otherwise--RFK Jr.'s third-party Presidential run was only ever a vanity project. Like the fictional Connor Roy of Succession, once he finally acknowledged reality, RFK Jr. sought to use whatever leverage he had to secure the promise of a Cabinet or other high-ranking position in the administration of his soon-to-be-erstwhile political rivals.
In this view, RFK Jr. is a self-serving opportunist but not a committed Trumpist. After all, he reportedly tried to sell his departure from the race and endorsement to the Harris campaign too. That Harris's people wouldn't even meet with RFK Jr. reflects two facts: (a) at the point at which RFK Jr. was inquiring, his departure would benefit Trump, not Harris; and (b) RFK Jr.'s endorsement is worthless. He cut a deal with Trump, not Harris, because Trump's campaign stands to gain a marginal edge from RFK Jr.'s withdrawal. Trump then trotted out RFK Jr. at a rally either because that was part of the price RFK Jr. extracted in exchange for suspending his campaign or because Trump, ever the carnival barker, thought it would make good theater (or both).
But what about the deal? A number of people have suggested that if there was in fact a quid pro quo--the promise of a job in a second Trump administration in exchange for an endorsement--that would be illegal. That does indeed look possible. Consider a provision of the Hatch Act, codified at 18 U.S.C. § 600:
Promise of employment or other benefit for political activity.
Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.
On a very straightforward reading of that text, Trump's promising of any job in a future administration in exchange for RFK Jr.'s campaign suspension ("any political activity") or endorsement ("support") is a violation. Case closed, right?
I'm not sure. To my surprise, the West U.S. Code Annotated contains only one reported case of a conviction for violation of 18 U.S.C. § 600, and that case involved the hiring of a secretary for a regional commission in recognition of her political activity. There is also a 1980 Office of Legal Counsel memo involving census enumerators. And that's it. Admittedly, I didn't exhaustively research the matter, but I would be surprised if there were any cases involving promises of Presidential appointments that didn't show up in the West database.
The Hatch Act was adopted in 1939 (and periodically amended) as part of an effort to professionalize the civil service. It is the modern repudiation of the Jacksonian spoils system. Given Trump's admiration for Andrew Jackson and his hostility to the "deep state," flouting the Hatch Act would be on brand. Thus, it would not be at all surprising if it turned out that, despite any protestations to the contrary by Trump and his mouthpieces, there was in fact a deal.
Should 18 U.S.C. § 600 be construed to reach promises of Presidential appointments? There are policy reasons why one might not want to read it that way. Intra-party contests for a nomination frequently result in the eventual winner naming erstwhile rivals to important positions. Barack Obama named Joe Biden his running mate and Hillary Clinton his first Secretary of State. Biden chose Harris as his running mate and Pete Buttigieg as Secretary of Transportation. According to one story (which might well be false), candidate-Dwight Eisenhower promised California Governor Earl Warren a seat on the Supreme Court in exchange for Warren's support for the nomination. It's likely that there were at least conversations, even if not express promises, in some or all of these cases. Given that an express promise would be unenforceable anyway--you can't sue a President for a judicial order that they nominate you to their cabinet or a Justiceship--the statute, construed to forbid only an express quid pro quo but not anything less, is a bit of an empty formality.
It's also possible to argue that, as applied to Presidential appointments, 18 U.S.C. § 600 would be unconstitutional. To be clear, I'm persuaded by such an argument. The appointment would be valid--because the Appointments Clause can't be overridden by a statute--but the promise to make it could still be a crime.
Whether it would be possible to prosecute an ex-President for having promised a high-ranking position in the administration in exchange for political activity or support is a nice question after Trump v. United States. The promise would occur before the promisor is President, and thus would not be an official act, but the actual appointment in fulfillment of the promise (which might be used to show that there was a promise in the first place) is an official act and thus could not be used as evidence--except that the majority's extremely confusing footnote 3 suggests that a prosecutor could "point to the public record to show the fact that the President performed the official act." That footnote dealt with a hypothetical prosecution for bribery, but presumably the same principle applies to the Hatch Act.
Bottom Line: If Trump wins the election or otherwise manages to get himself installed back in the White House, and if he names RFK Jr. to a position in his administration, and if evidence emerges that he did so to fulfill a promise in exchange for RFK Jr.'s campaign suspension and/or endorsement, and if Trump actually leaves office while he's still alive, and if, before doing so, Trump neither pardons himself successfully nor obtains a pardon from his VP (say, while Trump is getting a colonoscopy and Vance is temporarily acting as President under the 25th Amendment), and if there is no immediate Republican successor who pardons Trump, and if the DOJ under the ensuing Democratic administration indicts Trump for the alleged promise to RFK, Jr., then we might find out whether 18 U.S.C. § 600 covers promises by Presidential candidates and, if so, whether it is constitutional. But in that scenario, I assume we'll have other, more pressing, worries.
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Postscript/Update: A reader called to my attention 18 U.S.C. § 599, which covers essentially the same ground as section 600 but is limited in its application to promises made by candidates for office and carries a maximum prison sentence of two years (for a willful violation) rather than one. I had focused on § 600 because that was the Code Section to which people suggesting Trump may have committed a crime to secure RFK Jr.'s support had pointed. The analysis of § 600 above applies equally to § 599, except that I found not a single reported case involving § 599.