I know what you’re thinking. How can I, a 98-pound weakling, DEREGULATE my industry or win fat GOVERNMENT CONTRACTS? But after last week’s election, there’s NEVER been a better time to BRIBE THE PRESIDENT! As a candidate, Donald Trump said that, if elected, he would put his second term UP FOR SALE! Contribute to my campaign, he told oil and gas industry representatives, and REGULATORY RELIEF IS YOURS!
But wait, you say. Aren’t there emoluments clauses in the Constitution that FORBID this? Isn’t BRIBERY of public officials AGAINST THE LAW? Not really, thanks to EXCITING NEW OPPORTUNITIES opened up by Supreme Court rulings and the Trump team’s own thrilling CULTURE OF IMPUNITY!
The Pre-Election Presidential Transition Act requires major-party nominees for president to submit, before the election, a Memo of Understanding to the General Services Administration articulating an ethics policy to avoid conflicts of interest. Trump signed the MOU last time. He hasn’t submitted one this time, even though the deadline was October 1. Until he does, Trump is barred from carrying out certain transition functions. Probably he’ll sign eventually, but once he does the GSA will impose a $5,000 limit on private contributions to his transition and a disclosure requirement, neither of which is really the Trump way. Presumably Trump will tap many of the same donors who gave to him last time, including AT&T, General Electric, Microsoft, Exxon Mobil, and JPMorgan Chase. Meanwhile, no dollar limits inhibit contributions to Trump’s inaugural committee, which last time included $5 million from the late Sheldon Adelson. Adelson’s finances are now in the hands of his widow, Miriam, whom Trump will likely tap again.
Am I saying any of these corporations or individuals extracted promises back in 2016 in exchange for their contributions? I am not. Back then they were deterred by fear of prosecution. But they have much less to fear now, because last June, in the latest of its rulings to render the federal bribery statute completely unenforceable, the Supreme Court ruled that a politician who gets paid off by the beneficiary of some past action is accepting a legal gratuity and not an illegal bribe. Less than one month after this decision (Snyder v. United States) came Trump v. United States, where the court ruled that a president couldn’t be prosecuted for any act performed as part of his official duties. The combined effect is that the highest court in the land is practically inviting you to bribe your president. You might risk offending it if you turn this fabulous offer down! The Supreme Court’s lassitude about bribery, however, bumps up against its lassitude about presidential immunity in an interesting way that I’ll discuss in a bit.
As for the emoluments clauses (two of which apply to the president; a third is for members of Congress), the Supreme Court long ago made clear it had no intention of enforcing those. In 2020 the high court declined to hear an emoluments case (Blumenthal v. Trump) brought by members of Congress, thereby upholding a lower court ruling that Congress lacked standing. In 2021 the court dispensed with two other emoluments cases (Citizens for Responsibility and Ethics (CREW) v. Donald J. Trump and the District of Columbia v. Trump), both filed way back in 2017, by delaying action until five days after Joe Biden was inaugurated president and then declaring the lawsuits moot.
The high court resorted to this evasion because any ruling on the cases’ merits would have had to acknowledge that Trump, serially and flagrantly, violated the emoluments clauses both foreign (“no Person holding any Office of Profit or Trust … 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”) and domestic (“The President shall … not receive … any other Emolument from the United States, or any of them”).
There’s a rich literature on the many and varied ways Trump made mincemeat of the emoluments clauses during his first term, including two reports by the Democratic staff of the House Committee on Oversight and Accountability, one on foreign emoluments and one on domestic, and an update to the foreign emoluments report by CREW. According to CREW, Trump’s businesses received $13.6 million in payments from foreign governments during his presidency, including $5.7 million from China (mostly stays at Trump hotels), nearly $4 million from the United Kingdom (tax bailouts for two money-losing Trump golf resorts in Scotland), $1.1 million from Qatar (purchase of four units in Trump World Tower in New York City plus hotel stays at the now-defunct Trump International in Washington), and $885,000 from Saudi Arabia (which since 2001 has owned the forty-fifth floor of Trump World Tower; the Saudis also logged many stays at the Trump International). This tally excludes a reported $10 million campaign contribution that Trump’s 2016 campaign accepted from Egyptian President Abdel Fatah El Sisi. Such a contribution, if it was given, would be illegal. A Justice Department investigation of the alleged contribution was shut down by Trump Attorney General William Barr.
On the domestic front, federal and state officials spent, over just an 11-month period, more than $163,000 on rooms at the Trump International, including eight people Trump appointed ambassador and three people Trump appointed to the federal bench. Meanwhile, the Secret Service paid $1.4 million to various Trump properties in the United States so that it might carry out its duties to protect the president and his family from physical harm, at rates as much as 4.5 times the federal per diem. In some instances the Secret Service paid more than Trump charged members of the Qatari royal family. The Secret Service isn’t trying to bribe Trump, of course, but because its stays were paid from the Treasury they violated the domestic emoluments clause, which is triggered by the expenditure of government money.
Since Trump’s first term, opportunities to fill Trump’s pockets have proliferated. Truth Social is a money-losing social media platform whose stock price is up 180 percent since late September. As I’ve noted before, Trump’s fans are much more interested in buying shares in his social media platform than in using it, not because they can make money off it but because Trump can. Trump owns a $3.5 billion stake in the company even though he’s never invested in it and can sell that stake any time he wishes. Trump insists he isn’t selling, but more than half of Trump’s net worth of $5.9 billion is tied up in Truth Social, and he’s still burdened by hundreds of millions in debt. The presidency may be the only thing standing between Trump and personal bankruptcy. That reality makes Trump even more susceptible to payoffs of various kinds. “How much Truth Social stock do you own?” could easily become a routine question Trump poses to anybody seeking a political appointment or some other favor. If that’s established to be part of his “official duties,” no prosecutor can touch him. Maybe Trump’s new bestie, Elon Musk, will buy Truth Social and merge it with Twitter/X. The two platforms aren’t so different, and maybe Trump would agree to stop criticizing E.V.s in return.
Trump also has a cryptocurrency business, World Liberty Financial, or WLF. He doesn’t own it, and neither he nor any family member works for it or sits on its board of directors. As with Truth Social, Trump has not invested in the company. Yet Trump and his family are poised to receive as much as 75 percent of net revenues from the company. When you pay your bribe, don’t forget to make it in WLF tokens!
The Trump International Hotel opened in Washington’s Old Post Office less than two months before the 2016 election, and with Trump’s victory it established the District of Columbia as a latter-day equivalent of Pottersville in It’s a Wonderful Life. Trump paid too much for his lease on this federal building in 2012, lost a fortune on it—and then sold it at a profit in 2022 under mysterious circumstances that I puzzled over two years ago. Some of the mystery cleared up after Forbes reported that Trump lent the new owner $28 million to take it off his hands. By last summer, though, the new owners—of what was now a Waldorf Astoria hotel—had defaulted, and in August the property quietly sold for $100 million at a foreclosure auction.
Since then, Trump has licensed his name to three developments in Oman, Saudi Arabia, and the United Arab Emirates, including a Trump Tower Dubai and an Intercontinental Hotel, sparing the governments of those countries the inconvenience of traveling to the United States to shovel petrodollars down Trump’s pants. The Saudis’ LIV Golf League has already hosted six tournaments at Trump properties and will doubtless now step up the pace.
At the risk of spoiling the party, I must point out one potential buzzkill. Josh Chafetz, professor of law at Georgetown and author of a forthcoming Yale Journal of Law and the Humanities article about the Supreme Court and political corruption, noted recently to Adam Liptak of The New York Times that the high court’s definitions of what constitute “official acts” lack consistency. In McDonnell v. United States, a 2016 bribery case involving a corrupt wingnut Virginia governor, Chief Justice John Roberts defined an official act narrowly as “a formal exercise of government power,” and on those grounds he vacated the bribery conviction. But in July’s Trump v. the United States, Roberts defined an official act broadly as anything occurring “within the outer perimeter of … official responsibility,” and on those grounds he shielded Trump from prosecution. The only logic these two definitions shared was the chief justice’s motive not to prosecute corrupt Republican politicians.
“They really do seem to go in different directions,” Chafetz told Liptak. “If something is official enough to get you immunity, it should be official enough to be the kind of thing you can’t accept money for doing.” You can shield presidents excessively from prosecution or you can shield bribe-takers excessively from prosecution, but can you really do both? Perhaps someday the Supreme Court will feel obliged to address this question.
In the meantime, the Trump presidency is open for business, and it’s sure to remain so for the next four years. Pay your bribe today! You’ll be glad you did.
