Wednesday, February 7, 2018

Constitutional Crisis

King Salman and President Sisi induct President Trump into the Order of the Orb, May 2017, via Harvard Political Review. Did he give them anything in return for admission to the sacred mysteries? Who knows, but what was that Qatar thing about?

The only Trump bribery case I've really worked on is the way he acquired a legal opinion from the General Services Administration allowing him to keep the lease on the federally-owned Old Post Office building on Pennsylvania Avenue for the Trump International Hotel in DC, although "No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom". During the transition, it was the GSA's view that Trump couldn't be allowed to hold the lease. Then,
Shortly after Trump’s inauguration, an Obama-appointed General Services Administration official named Norman Dong became acting administrator, according to an agency email obtained by POLITICO. Seven and a half hours later, Trump replaced Dong with Tim Horne a Denver-based GSA official who had coordinated the agency’s transition with the Trump team, a second email showed.
Then in late March, the relevant contracting officer, Kevin Terry, found that Trump was legally entitled to keep the lease; the previous GSA opinion, he held, had "reached simplistic 'black and white' conclusions regarding the meaning and implications of the clause"; the lease belonged not to Donald J. Trump but to DJT Holdings LLC, DJT Holdings Managing Member LLC, Don OPO LLC, Donald J. Trump Revocable Trust, Donald J. Trump, Jr. Revocable Trust, Eric OPO LLC, Eric Trump Revocable Trust, Ivanka OPO LLC, Ivanka Trump Revocable Trust, Trump Old Post Office LLC, and Trump Old Post Office Member Corp., and was therefore not violated, even though Trump did own at least some of the companies. And since his share of those companies was in his "revocable trust", he wouldn't be able to take any money out of the hotel until he stopped being president, unless the revocable trust felt like giving it to him, which it can any time it wants.

Horne's job doesn't look like a bribe—he was only made acting administrator, and a permanent head, Emily Murphy, was finally named in September, though it took until December for the Senate to confirm her, and the lease was supposed to turn up as an issue in the confirmation hearing, but I can't find any evidence that it did. Maybe I'm not trying hard enough. But there is clearly something untoward in how this happened. The story stinks so bad I refuse to even consider eating it.

Similarly lame rationalizations papered over Trump's breaking of nepotism laws to give jobs to his unqualified daughter and son-in-law, who don't take a paycheck but whose family businesses seem to have tried to monetize the positions, using them to help sell frocks, to obtain badly needed credit, or attract foreign investors by promising them green cards (which is fraud, the investors don't need Kushner help to do get permanent residence).

In general, in the comments on Monday I had not accused president Trump of taking bribes but of "openly soliciting bribes", which the Trump Organization continually does in its marketing especially of the Mar-a-Lago, the "Winter White House", where membership fees have been doubled since the inauguration and Trump visits almost every weekendn in the season, schmoozing with the guests on the golf course and in the dining room and dropping in on weddings and other functions, as a good hotelkeeper might do, but no president of the United States has ever done; and the Washington hotel, of which

“Of course we hang out there,” says a former Trump campaign adviser. “Everyone hangs out there. Being in the Trump hotel’s lobby is a way to get people to know you.”
The potential conflicts of interest are dizzying. In the soaring atrium, guests kibitz under a massive U.S. flag—a gift on loan from the Heritage Foundation, the conservative think tank that helps shape Administration policy and that thanked top donors by bankrolling a December gala here keynoted by then incoming Vice President Mike Pence. For Trump’s Inauguration, guests willing to fork over the steep fees could mingle with top federal officials. One VIP package, which offered lodging in a 6,300-sq.-ft. townhouse suite—two floors overlooking Pennsylvania Avenue, accessed through a discreet wooden door—was advertised for $500,000. The President invited members of Congress to lunch in the ballroom. “It’s an absolutely stunning hotel,” press secretary Sean Spicer told reporters on Jan. 19. “I encourage you to go there if you haven’t been by.”
Yes, elites in Washington need to socialize, and people with money have more access than people without, but never before have they bought their drinks from the president, and never before has a presidential press secretary advised the gaggle to join in; never before has the money that buys access flowed directly into the president's pockets, or the pockets of his "revocable trust".

Whether the customers are getting what they want out of it I can't say. I'm sure at least some are disappointed. They won't be the first people Trump has sold something he can't provide (remember Trump University, and the investment properties in the Trump Soho). That absence of a verifiable quo for the quid doesn't, to my mind, make it OK. He shouldn't be offering it at all. Nor am I impressed by the argument that Trump's businesses have a low overhead and aren't doing very well, so that he isn't making really serious money out of it. The desperation, in his long con game, to keep any cash flow going and to keep moving forward at all costs, like one of the sharks he's reportedly obsessed with, makes it more likely that he is doing something illegal.

And then Trump does continually do favors that seem unjustified by anything we know publicly, from
  • giving 23-year-old Trump campaign worker Taylor Weyeneth his first adult job in the Office of National Drug Control Policy, where in a matter of months he became deputy chief (after seven of Trump's own appointees had quit the agency, and former Rep. Tom Marino, R-PA, nominated to head it, had withdrawn when it became known he had favored opioid manufacturers and disfavored the DEA's capacity to stop abuses as a congressman) without any qualifications and having been exposed for lies on his résumé 
  • to his crazy support for the Saudi Arabian blockade of Qatar, issued in June after the royal entertainments Prince Muhammad bin Salman showed him in May (when he chose KSA rather than the traditional Mexico or Canada as the destination for his first official foreign trip as president)—via Twitter, because Secretary of State Tillerson and the rest of the cabinet wouldn't let him do it in the Oval Office.
Why shouldn't we suspect that he has some unnameable motive, such as bribery, for some or any of these terrible decisions he insists on against all advice?

We don't actually know whether he's the most corrupt leader in the developed world since Silvio Berlusconi, we just know that it looks that way, to everybody in the world except his personal fans (some of whom assume he is anyway, and think it's cool because he's on their white nationalist or anti–gun control or anti-abortion side).

The United States has long had a customary way of preventing these appearances of corruption, by expecting all presidential candidates and presidents to open up their tax records to inspection, and after election to divest themselves of all business interests, selling them and putting the proceeds into a blind trust. Walter Shaub, as head of the Office of Government Ethics, ruled in fact that he must divest. But Trump has refused to do it, because he can't. Indeed, there's at least one legitimate reason why he can't divest (though not why he can't show his taxes), because so many of his businesses, especially the most profitable ones, are dependent on the branding associated with his name (for what it's worth, which I assume is now in decline). If they're not "Trump" businesses, they're not particularly valuable, and he couldn't have gotten a fair price—in many cases I'd think they wouldn't have been marketable at all.  But Shaub was right: if he couldn't divest, he shouldn't be president, even if he was a hell of a nice guy and a proponent of universal Medicare. The conflicts of interest are too great, in and of themselves, and even though the Constitution doesn't absolutely say so (although the emoluments language certainly points in that direction).

This is the financial side of the reasons I think we are in what I call a "constitutional crisis" (I also think there's a constitutional aspect to the problem of Trump's personality disorder and cognitive decline, which are clearly incapacitating in a way we should be able to deal with but falls between the Impeachment Clause and the 25th Amendment and escapes). Not because he's a bad president, and not even if he's intolerable; that's a political question (and as was pointed out in the comments, Belgium has had a serious constitutional crisis for years, and yet the situation of people living there is very comfortable).

I'm offended by the idea that I would call it a "constitutional crisis" as a synonym for "really bad crisis". I hoped people would understand I use words more carefully than that.

The Iran-Contra scandal wasn't a constitutional crisis, just garden-variety government criminality on a very startling scale that wasn't adequately punished because that's how things go and the press didn't care enough and the public didn't care at all, and the deception of the Iraq invasion wasn't a constitutional crisis either, though it was probably the worst government crime I've seen in my lifetime in the United States—the illegal spying on the public uncovered in 2006 was a constitutional problem, I think, but not a crisis, because we pretty much knew how to handle it, though it's not obvious we succeeded. The Watergate case was a real constitutional case, with its focus on executive privilege, and was certainly a crisis for a while.

The problem with Trump, by the same token, is that with the scale of his conflicts of interest, he's upended our expectations in a way we thought we had prevented constitutionally, through the language of Article II and the sanctified custom (which isn't as important to lawyers as British constitutional custom, since we have the written Constitution, but is still as much a part of the constitutional environment, so to speak. as our use of British common law), and we haven't. We don't know what to do.

I'm certainly not saying Trump is a worse president than Bush, or that his presidency will have worse consequences. Who knows? I'm saying the special difficulty Trump presents is a constitutional difficulty.

Bush and his confederates should have been punished for their wicked actions and criminal neglect, and weren't, like many governments before them, and that's a very bad thing, but Trump, unable to reveal his financial status or get rid of his conflicts, unable to answer a single question as to whether he is corrupt or not, should never have been inaugurated. I'm still astounded he was inaugurated. It's as if I sent my kid to the store for a pound of butter and he came home with a pet parakeet. If it was rancid butter, or margarine or Crisco, I'd be pissed off, but as it is I'm just mystified. What am I supposed to do with it?

Our mechanisms for preventing such a person from becoming president have failed. It's not the worst problem we've ever had, but it's a new problem, and we're not equipped for it, and we need to think about it in those terms.

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