Yesterday, as the news cycles were dying down, the Trump Justice Department (DOJ) dropped a bombshell brief which Bloomberg reported. Citing George Washington as precedent, the DOJ is saying that it is AOK for President Trump to take foreign governments’ and state-controlled banks’ money for goods and services without congressional approval, that it is not a violation of the Emoluments Clause of the United States Constitution.
The Citizens United decision opened the floodgates of money from America’s wealthiest, and potentially anyone else funding SuperPacs to buy an election.
This Trump DOJ Brief, if accepted by Judge Ronnie Abrams, hearing the case brought by Citizens for Responsibility and Ethics in Washington (CREW) at the U.S. District Court for the Southern District of New York, will open the floodgates of influence peddling for any president who can do business with entities attached to a foreign power.
The brief states:
Neither the text nor the history of the clauses shows that they were intended to reach benefits arising from a president’s private business pursuits having nothing to do with his office or personal service to a foreign power... Were plaintiffs’ interpretation correct, presidents from the very beginning of the Republic, including George Washington, would have received prohibited ‘emoluments.’
The ploy seems to be a graft of an op-ed by Northwestern University Law professor Eugene Kontorovich that appeared in the Wall Street Journal, which he then expounded upon in an article in The Washington Post.
Kontorovich observed that our first president was a landlord who had huge agricultural holdings. Washington wrote to Arthur Young, a friend, to see if he could drum up any potential renters of Washington’s agricultural lands.
Kontorovich assumes that, because Young had become a member of the the first British Board of Agriculture, his communications with Washington about recruiting farmers was a crossing of the Emoluments line. So, if George can do it, so can Trump.
The Norwestern law professor then adds that Washington directly supervised his land holdings, even though his nephew, George Augustine Washington, was put in charge of Washington’s business affairs. Likewise Thomas Jefferson had a hand in his large agricultural estate’s affairs.
The argument is a really weak bit of sophistry that manipulates history without context.
First, the President-managing-a-business ruse: The young United States government was very much a work-in-progress when George Washington and Thomas Jefferson were presidents. The workings of government were far less complex than they are today. Messages took weeks to move, and crises around the globe were not dealt with in real-time. Even domestic events, because of communications, and distance, were slow to evolve. In that, Presidents had more time for things that does not exist in the instant world of the 21st century.
Further, the operation of a large single land holding, or basic agricultural operations, in no way approximates Donald Trump’s complex and secretive global branding and land-ownership, or its opaque funding, deals, or possible ties to foreign governments.
The real weakness, though, in both Kontorovich and the DOJ’s position is a huge cherry-picking of the Emoluments Clause, which states:
“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Jefferson, and no subsequent president, tried to make any sort of business arrangement of the kind which Washington did, which is why Kontorovich and DOJ have to reach that far back, to POTUS 1, to make a weak case for Trump.
As for Washington, the Kontorovich’s suppositions are weak. The DOJ brief would have to prove that Young was functioning as a government agent, rather than a personal friend when he was assisting Washington’s request. There would have to be evidence in the historical record that Young had been directed by William Pitt, or the Parliament, to assist President Washington to develop a relationship that would offer a quid-pro-quo.
That level of political cunning was totally absent from that century of politics. There is no indication that Mr. Young was acting in any capacity beyond that of a friend with agricultural connections, outside of the scope of his government employment. That is NOT an emoluments issue.
President Washington would never ask Young to engage the government of Britain to assist him. Had our first president had counsel of the kind available to a modern president, that would have prescreened his actions to the degree that is done now, he most certainly would have had a memo advising against it, and would not have done anything that would imperil the ink drying on the new Constitution.
Trump has directly benefitted economically from foreign powers, and continues to do so. Foreign government employees book stays at Trump’s D.C. hotel and other hotels and golf courses, by the admission of many, to curry favor. He was granted dozens of trademarks by the Chinese. His organization receives payments from Abu Dhabi Tourism and Culture Authority. Eric Trump bragged, years before Trump took office, that his dad’s golf courses were backstopped by $100M from Russian banks during the Great Recession. Those banks not like ones in the U.S. and are heavily state-controlled.
No other president in history, including Washington, has had the hubris, gaul, chutzpah, to demolish the emoluments clause.
If this memo is given any standing by Judge Abrams in the CREW case, any future presidential candidate could set up investments that would allow foreign governments to funnel money to a then president through their personal business dealings.
It is bad enough that Citizens United allows for so many slush funds of dark money that state actors from other countries could contribute to the myriad fly-by-night legal entities used to the influence of an American election without detection.
If the Judge allows this, the taint of the Trump Compromise of Emoluments would forever question who ”owns” the White House. The office of the President will lose stature and power, both here and abroad, and another pillar of the U.S. Constitution will be ground into the dust of history by greedy men long on ambition, and short on patriotism and honor.