The Emoluments Clause Cases Against Donald Trump: A Post Mortem

Of the many credible corruption and conflict-of-interest allegations against former President Donald Trump, some of the most prominent concerned the income that the Trump Organization earned from parties with interests in influencing U.S. government policy. While the general conflict-of-interest rules that cover most federal officials do not apply to the President, a subset of the Trump Organization’s business dealings—in particular, those involving foreign governments and state governments—at least arguably violated the U.S. Constitution’s two so-called “Emoluments Clauses. (The Foreign Emoluments Clause prohibits any U.S. official from receiving gifts, titles, or “emoluments” from foreign governments, while the Domestic Emoluments Clause prohibits the President in particular from receiving any benefits other than his official salary from federal, state, or local governments.) President Trump’s alleged violations of the Emoluments Clauses triggered three separate lawsuits, filed by different parties in different federal courts, within Trump’s first six months in office. Those cases gradually wound their way through the legal system, with some defeats and some victories, mainly on threshold legal questions.

Last week, the U.S. Supreme Court brought that whole process to a halt, dismissing petitions for review in two of those pending cases as moot. (The third case had been dismissed by an appeals court, and the Supreme Court declined to review that case last fall.) Thought the Court’s terse, unsigned order included no explanation, the obvious inference is that the Court determined that the Emoluments Clause suits were moot because Donald Trump is no longer President. Importantly, the Court’s mootness order means not only that these suits won’t proceed, but also that the previous legal rulings in the cases under review are vacated, and thus have no precedential value. Legally speaking, it’s as if the cases never happened.

This did not sit well with everyone. Former head of the Office on Government Ethics Walter Shaub described the Court’s dismissal of the cases as “insane,” arguing that the cases are “not moot” because Trump “still has the money.” “When any other federal employee violates the emoluments clause,” Shaub observed, “they have to forfeit the money.” Others involved in the litigation against Trump tried to look on the bright side. The Citizens for Responsibility and Ethics in Washington (CREW), for example, issued a statement noting that the Emoluments Clause litigation “made the American people aware for four years of the pervasive corruption that came from a president … taking benefits and payments from foreign and domestic governments.”

I’ve been trying to figure out what I think about all this. I don’t have a clear, clean bottom line, but I do have a few scattered thoughts about what we might take away from the denouement of the Emoluments Clause controversy. Continue reading

Guest Post: Trump’s Pardons and Putin’s Palace Show Why Biden Must Tackle Corruption at Home and Abroad

Today’s guest post is from Joe Powell, the Deputy Chief Executive Officer for the Open Government Partnership.

The corruption continued to the end. A cast of convicted fraudsters, tax dodgers, and money launderers littered President Trump’s final pardon list. One clemency went to Elliott Broidy, a former top fundraiser for Mr. Trump who had been implicated in illegal lobbying in connection with Malaysia’s multi-billion dollar 1MDB embezzlement scandal. Trump’s final official act as President, taken minutes before the official transfer of power, was to pardon the tax evading ex-husband of one his favorite Fox News hosts, Jeanine Pirro.

None of this was remotely surprising after four years in which ethics, conflict of interest, and the rule of law did not seem to apply to the executive branch of the U.S. government. Contrast this with the extraordinary act of bravery from Russian opposition leader Alexey Navalny, who despite being jailed on his return to Moscow after his near-fatal poisoning, released a viral documentary last week about the construction of President Putin’s palace on the Black Sea. The film, which within days had racked up nearly 100 million views, details the corruption, bribery, and opaque corporate structures used to fund what Navalny claims is the world’s most expensive real estate project, with an estimated price tag of at least $1.4 billion. The funds come from Putin’s oligarch friends who dominate the top positions in many of Russia’s biggest companies, and drain state resources that could improve the lives of ordinary Russians. A single gold toilet brush and toilet paper holder, purchased for one of Putin’s wineries near the palace, cost more than the average annual state pension in Russia. No wonder Putin is so desperate to silence Navalny.

What ties Trump’s pardons and Putin’s palace together is the insidious effect of corruption on democracy. Globally, corruption has been one of the main drivers of 14 years of consecutive decline in civil and political liberties around the world. This democratic recession has affected long-standing and emerging democracies alike, and has spurred street protests and civil society campaigns in many countries. Hungary is a textbook example. Prime Minister Orbán has used state funds for patronage, ensuring that only close supporters receive high value government contracts, and threatening to veto the European Union budget over any checks on his power. Throughout the world, dark money has increasingly fueled online disinformation and a decline in press freedom, which has made accountability harder to achieve.

To turn the tide on this democratic backsliding, a major global effort to combat corruption is needed. President Biden is well placed to help lead the charge. Continue reading

The Trump Administration and Corruption: A Preliminary Retrospective

As of yesterday at 12 noon, U.S. East Coast Time, Donald Trump is no longer the President of the United States of America.

First, let’s all breathe a collective sigh of relief.

OK, now we can start thinking about what we’ve learned from this traumatic experience. There is no shortage of political and cultural commentary on the Trump era and its implications, and I have little of substance to add to that general discussion. But, given that this is a blog specifically focused on corruption, let me offer a few reflections on the implications of the last four years for corruption and anticorruption in the United States.

At the risk of self-indulgence, I’ll frame this preliminary discussion in terms of my own guesses, as of four years ago, about how the Trump Administration would affect U.S. corruption and anticorruption policy. Immediately after Trump’s election, I wrote a despondent post about why I thought that Trump’s election would be a disaster for the fight against corruption on many different dimensions. Roughly a year later, I did a follow-up post assessing my own predictions, concluding that on some issues my pessimistic forecasts proved inaccurate (for reasons I did my best to assess), while on other dimensions the Trump administration was as bad or worse than I had feared. Now that Trump is finally out of office, it’s a good time for another retrospective assessment—both to understand where things stand now with respect to U.S. policy and leadership on anticorruption issues, and also to see what lessons we might be able to draw from the experience of the past four years. Continue reading

New Podcast Episode, Featuring Norm Eisen

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Norm Eisen, currently a Senior Fellow at the Brookings Institution. Mr. Eisen previously served as the White House Special Counsel for Ethics and Government during the Obama Administration, as the U.S. Ambassador to the Czech Republic from 2011-2014, and as counsel to the U.S. House Judiciary Committee during the impeachment proceedings against President Donald Trump. Mr. Eisen is also a founder and previous board chair of the Citizens for Responsibility and Ethics in Washington (CREW), which, among other activities, sued President Trump for allegedly receiving unlawful emoluments from foreign and state governments. My conversation with Mr. Eisen–like my conversation with my Jack Goldsmith last month–focuses primarily on what the Trump Administration has taught us about the strengths and weaknesses of the U.S. system for constraining corruption, conflicts of interest, and other forms of wrongdoing by the President and senior members of the executive branch, as well as what kinds of institutional reforms and policy changes would help prevent such wrongdoing going forward. Mr. Eisen emphasizes the resilience of U.S. institutions in the face of the “stress test” provided by the Trump Administration, outlines some of the most important reforms he’d like to see adopted to address the corruption risks that Trump experience has highlighted, and discusses some of the international implications of this issue. You can find this episode here. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

New Podcast Episode, Featuring Jack Goldsmith

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview my Harvard Law School colleague Jack Goldsmith about what the Trump Administration has taught us about the strengths and weaknesses of the U.S. system for constraining corruption, conflicts of interest, and other forms of wrongdoing by the President and senior members of the executive branch, as well as what kinds of institutional reforms and policy changes would help prevent such wrongdoing going forward. The conversation centers on Professor Goldsmith’s new book, After Trump: Reconstructing the Presidency, co-authored with Bob Bauer. Jack and I discuss the importance of norms in constraining wrongdoing and maintaining the independence of law enforcement bodies, various approaches to addressing financial conflict-of-interest risks in the context of the U.S. president, the challenges (but also the necessity) of relying on political checks, and the debates over whether to prosecute a former president, such as President Trump, for crimes allegedly committed while in office. You can find this episode here. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Will Donald Trump Put Vanuatu on the Map?

Few Americans could find the Pacific island nation of Vanuatu on a map. Fewer still know anything of its constitutional jurisprudence. Donald Trump could change all that if he exercises the right he claims to have to pardon himself (here). Vanuatu is the only country whose courts have ruled on the validity of a presidential self-pardon, and the merits of their ruling would surely be fodder for editorials, op-eds, and cable television’s blabbers  learned commentators.

Vanuatu’s courts had the unprecedented case thrust upon them thanks to the action of Marcellino Pipite. Speaker of the Vanuatu legislature, in accordance with the country’s constitution he served as acting president whenever the sitting president was abroad. During one period of service a long running trial where he and 13 other parliamentarians were on trial for bribery ended in a guilty verdict against all fourteen.  Pipite then promptly exercised the president’s constitutional pardon power, excusing himself and the other defendants from any criminal wrongdoing. 

The validity of a Trump self-pardon would surely come before the Supreme Court, and it has long looked to decisions of foreign courts when deciding its cases (here). Indeed, one of the most influential justices of the 20th century, whose acolytes include the current Chief Justice, was a firm believer in looking to decisions of foreign courts for guidance when deciding constitutional issues. Nor did then Chief Justice Rehnquist limit what foreign court decisions should be examined. 

“Now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process” (here).

Continue reading

How Grand Corruption Threatens Liberal Democratic Institutions

As regular readers may have noticed, GAB has been inactive for the past week (that is, until Rick’s post yesterday). Apologies for the lack of content – as I’m sure you can imagine, the U.S. presidential election has been consuming my attention and that of most of our regular contributors. But now that the election outcome is clear (notwithstanding President Trump’s baseless claims of election fraud and the craven complicity of his Republican Party enablers), it’s time to get back to blogging. I suspect that much (though not all) of our content over the next couple of weeks will be related to the outcome of the U.S. elections—both backward-looking evaluation of the impact of the Trump Presidency on corruption in the US and beyond, and forward-looking considerations about the anticorruption agenda under the incoming Biden Administration.

Today’s post isn’t about Trump per se, but it’s loosely inspired by both certain aspects of his presidency and his current refusal to acknowledge and accept the outcome of the election. I want to say a few words about the ways in which corruption, particularly grand corruption at the highest levels of the government, can threaten to undermine the institutions of liberal democracy (free and fair elections, formal and informal checks and balances, the rule of law, etc.). To be clear, I don’t have in mind principally the ways in which politicians might engage in corrupt conduct to help win elections (for example, vote-buying, acceptance of illegal campaign donations in exchange for favors, diverting public funds for partisan purposes, etc.), though these are of course serious and important problems. Nor do I have in mind the broader and more diffuse “institutional corruption” associated with the excessive influence of concentrated wealth, though this too is a grave concern. Rather, I want to consider how grand corruption in the highest levels of government may threaten to erode or subvert (explicitly or de facto) the basic institutional structures of liberal constitutional democracy.

Nothing of what I have to say on this topic is original; it’s all drawn from existing literature, and the arguments are likely familiar to many readers. Still, I thought it might be helpful to highlight three ways in which unchecked grand corruption may contribute to democratic backsliding: Continue reading

Trump’s New Executive Order on the Civil Service Poses a Grave Corruption Threat

Last week, President Trump issued a new Executive Order that, if implemented, could dramatically change the U.S. federal civil service—and in so doing threatens to subvert one of the most important bulwarks against corruption in all of U.S. law.

First, a quick synopsis of what the order does: Federal civil service laws are complex, but simplifying a bit, the bulk of U.S. civil service positions fall under something called the “competitive service” (also known as the “merit system”), in which hiring is based on competitive examinations administered by the Office of Personnel Management. Furthermore, those holding competitive service positions can only be removed for good cause (that is, they can’t be fired at will), and removals of such officials are reviewable by an independent commission called the Merit Systems Protection Board. Also importantly, those in the competitive service are entitled to union representation. Not all federal positions have these protections; the most senior civil servants are part of a different system (the “Senior Executive Service”), and there are a number of other relatively narrowly drawn exemptions for particular classes of jobs, typically those for which hiring by competitive examination is not practical (the “excepted service”). President Trump’s new Executive Order would shift from the competitive service to the excepted service any position that has “a confidential, policy-determining, policy-making, or policy-advocating character.” If that sounds very broad, it’s because it is. The Executive Order, if implemented, could shift tens of thousands, or possibly hundreds of thousands, of federal civil service positions out of the competitive service, thus giving the President the authority to fire the holders of those positions at will, as well as the authority to replace them with political appointees.

It’s not entirely clear whether the new order is legal. The relevant statute does contain a provision that allows the President to create “necessary exceptions” from the merit system insofar as “conditions of good government warrant.” Past presidents have exercised this authority, though to the best of my (limited) knowledge, President Trump’s Executive Order is unprecedented in both the breadth of its coverage and the thinness of its proffered justifications. That might matter, because there are a handful of prior court opinions (though none at the Supreme Court level) that suggest that the President’s authority to exempt positions from the merit system is not unlimited. It’s also not certain whether the Executive Order will ever go into effect. If Joe Biden wins next week’s election, he could reverse the order as soon as he’s inaugurated, and it’s unclear whether the Trump Administration will be able effect any actual reclassifications under the order prior to inauguration day. (The order itself calls on all agencies to prepare a preliminary list of affected positions by inauguration day, but it’s possible that agencies might move faster and reclassify some positions before then.)

For purposes of the present post, I want to put those issues aside. I also will put aside, for now, broader questions of whether the Executive Order would worsen the politicization of federal agencies or undermine their overall quality (themes I’ve explored in other work). Instead, my objective here is to elaborate on why this Executive Order, if implemented, poses such a significant corruption threat. To do that, let’s consider three forms of corruption (or corruption-facilitating practices) that the civil service merit system is meant to constrain, and the impact that this Executive Order would have on each: Continue reading

Tracking Corruption and Conflicts of Interest in the Trump Administration–October 2020 Update

Back in May 2017, this blog started the project of tracking and cataloguing credible allegations that President Trump, and his family members and close associates, have been corruptly, and possibly illegally, leveraging the power of the presidency to enrich themselves. The newest update is now available here.

The most significant new additions are primarily due to some very good pieces of investigative reporting.

  • The first, and more widely covered, is the New York Times reporting on several years of President Trump’s federal income tax returns, including the returns from his first two years in office. The returns shed light on many troubling aspects of the President’s finances, including the exceptionally low tax rates he has paid, evidence of multiple instances of possible fraud (still under investigation by the IRS), and his deep personal indebtedness, which plausibly raises security and other risks. The tax returns also provide significant corroborating evidence of the extent to which President Trump and his businesses have continued to earn substantial income from both private firms and foreign governments, giving rise to extraordinary conflict-of-interest concerns, as well as possible (indeed, likely) violations of the Constitution’s Emoluments Clauses.
  • Second, Dan Alexander’s new book White House, Inc.: How Donald Trump Turned the Presidency Into a Business, covers in much greater depth, and with significant original reporting, the same themes that we’ve been trying to keep track of here, namely the ways that President Trump has sought to monetize the presidency for personal financial gain. A terrific and troubling Vanity Fair article summarizes some of the most significant findings, including compelling evidence that the government of Qatar rented office space in a building 30% owned by President Trump for no apparent purpose other than to influence the U.S. government’s Middle East policy.

As previously noted, while we try to include only those allegations that appear credible, many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. (For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)

Tracking Corruption and Conflicts of Interest in the Trump Administration–September 2020 Update

Back in May 2017, this blog started the project of tracking and cataloguing credible allegations that President Trump, and his family members and close associates, have been corruptly, and possibly illegally, leveraging the power of the presidency to enrich themselves. The newest update is now available here.

As previously noted, while we try to include only those allegations that appear credible, many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. (For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)