George Washington and the Pretender of Mar o Lago

Having just celebrated Independence Day, the birthday of our country, it’s worth looking at a letter from GEORGE WASHINGTON, long celebrated as the Father of Our Country, to the Marquis de LA FAYETTE who had crossed the ocean to help the Revolutionary cause. Washington wrote him from his home in Mount Vernon, on April 28^th, 1788, a few months after the Constitutional Convention, over which Washington presided. Here is what Washington wrote:

“Guarded so effectually as the proposed Constitution is, in respect to the prevention of bribery and undue influence in the choice of President …. There cannot, in my judgment, be the least danger that the President will by any practicable intrigue ever be able to continue himself one moment in office, much less perpetuate himself in it – but in the last stage of corrupted morals and political depravity: and even then there is as much danger that any other species of domination would prevail.  Though, when a people shall have become incapable of governing themselves and fit for a master, it is of little consequence from what quarter he comes.”

George must be turning over in his grave. The emoluments clauses were among those measures designed to “prevent[] bribery and undue influence.” Some of this country’s most eminent constitutional scholars challenged Trump’s violations of the emoluments clause in order to prevent him from taking bribes. The courts threw their challenges out. Mr. Trump did indeed “intrigue … to continue himself … in office.” We have been seeing what Washington described as “corrupted morals and political depravity” – a substantial portion of the Republican Party trying to undo the election, deny the results and re-install Trump in office.

Though a clear majority of the public voted against Trump and denies any validity to his claims, a significant portion of the public still supports the pretender of Mar o Lago. And the mathematics of the caucus system in the Senate and the primary election system in the states magnifies the power of the minority that would overturn the election. So we are not only seeing what Washington described as “corrupted morals and political depravity,” but a significant minority of the American public “have become incapable of governing themselves and fit for a master.” In size, it is not greatly different from the minority of the German population that supported Hitler. The difference has been the disloyalty of Chancellor Hindenburg in Germany versus the principled defense of democratic government by those in control in this country.

I don’t make that comparison lightly; the numbers are too close for comfort. And what is even more upsetting, is that a significant portion of the minority, who would overturn American majority rule and the rules of American democratic self-government, relishes that comparison – white supremacists on both sides of the Atlantic who will stop at nothing to retain power. Apparently they have nothing more to be proud of than the color of their skin, and no better arguments than violence, intimidation and murder. They are a disgrace to our ancestors and a threat to our country.

Ultimately a constitution is only as good as the people who make it work. Real Americans must fend off this disgrace and bring our country back to its senses.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 6, 2021.

Trump’s Disloyalty

I’ve been chomping at the bit to get back to the studio to record but the surgeon said “Sit down, sit down, sit down, you’re splitting my stitches.” Well, I’m here at last.

Trump and a number of Washington Republicans think the FBI investigation of the connection between Russia and the Trump Administration was biased against Trump because FBI agent Peter Strzok believed that the American people should have rejected Donald Trump for president. Since a large share of FBI agents are Republican, one could have credited Strzok as keeping them honest with regard to Trump. But the problem with the Trumpians’ automatic conclusion of bias goes much deeper.

As Rehnquist and Scalia have written, it is almost impossible for otherwise qualified and intelligent people not to have opinions about important public matters. Certainly, if agents are automatically disqualied from investigations of those they oppose politically, there’d be few other than Trump supporters qualified to investigate. But the same logic would make them biased in his favor. Hence no one could be fair to Trump and America.

Trump carries that a step further by suggesting that Russian President Putin, the principal suspect for interfering with the American presidential election, should have a look at the details of the investigation and have his investigators help out. Wow. By Trumpian logic the objects of investigations should control what people discover about their behavior. It’s fine for Russians to control the FBI’s investigation of Russian activities in the U.S. but long time FBI agents should not have anything to do with the investigation if they have ever expressed an opinion.

This Trumpian view of human nature casts light on their own motives. People imagine motives in others that are familiar to them. Trump has turned his presidency into a series of infomercials for his properties. Many members of his family and Administration have similarly been using their offices for personal gain. Most recently, Scott Pruitt was forced out of office because he couldn’t take his hands off opportunities to use his position for personal gain. So I can understand why they’d see everything through the lens of self-interest and conclude that everyone is biased – to which we must add, including themselves.

The Founders understood that the devil lurks in the hearts of human beings without respect to wealth, class, heritage or learning. People, they understood, are subject to temptation. They anticipated that the highest offices of the land could, from time to time, be occupied by the most despicable people. Understanding that, they inserted the emoluments clauses in the Constitution to try to block foreign powers from offering rewards for selling out our country. And they inserted the impeachment clauses to provide a way to depose traitors and crooks from office.

We now have a person in the White House with private assets that reflect the patronage of foreign governments. He conducts foreign policy as a set of infomercials, making sure to play at his various resorts for all to see. His political fortunes may hinge on a single foreign power which used cyber warfare in an effort to install him in the White House. And he’s loyal to foreign powers.

The Republican Party is often called the G.O.P. The G.O.P. stood for the Grand Old Party that won the Civil War under Lincoln’s leadership. They fought for the Union and for principle. Too many current Republicans are loyal to Trump, but not to America. They have neither patriotism nor spine. They prefer to sell their souls rather than protect their country. There is nothing grand or even old about this party.

— This commentary was broadcast on WAMC Northeast Report, July 24, 2018.

 

Impeachment for Corruption

We’ve discussed how impeachment organizes the disparate issues surrounding Donald Trump. We’ve focused on the poor political prospects of presidents who faced impeachment and the poor prospects of those presidents’ parties. We’ve examined the history of the constitutional language, especially “high Crimes and Misdemeanors.” We found that a major purpose of the language was to enable Congress to stop corruption in its tracks. Corruption of public officials was a major target of impeachments in both England and America, leading to our constitutional text.

The Founders were very concerned about corruption. One constitutional clause barred public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State,” and a second clause barred presidents from receiving any emoluments other than pre-determined compensation from the U.S. or any state. They couldn’t accept gifts. And they couldn’t accept other benefits, emoluments, including as pay for service. We have elaborate laws about gifts to public officials. They cannot, they must not accept pay as public officials for what they have to do anyway. Judges are generally quite scrupulous. When my classmate, Judge José Cabranes, officiated over a wedding for our son, I asked other judges what I could do in response. They told me anything I did, even though we are old friends, had to be minimal. Justice Sandra Day O’Connor wrote a chapter for a book I edited years ago. I arranged for all the contributors to share whatever royalties the book produced. Justice O’Connor was adamant that she would not take a cent – we put her share of the royalties into a scholarship fund instead. And you may not know that when foreign officials do bring presents to American public officials, the American officials are required to turn those presents over to be warehoused for use in public offices but not given to any public official to keep privately.

There were reasons that the Founders were so concerned. One source of the American Revolution had been the colonists’ anger at all the perks and goodies heaped on officials appointed by the Crown, and the colonists also reacted to the airs those officials put on. But the problem goes much deeper into economic and patriotic reasons. Opportunities steered toward public officials act like a tax on trade as other businesses have to struggle all the harder for business. Opportunities steered toward public officials distort the market because business doesn’t go to the best, but rather to the powerful. The economies of countries where those practices are common do much worse than those free of that kind of corruption. Until recently it’s not been a problem here.

The patriotic problem is loyalty. People perceive that doing business with Trump or his enterprises is more likely to win Trump’s favor and therefore affect American policy. They perceive it because it is ordinary human behavior to bless those who bless us. But it is precisely wrong for a president – their job in the White House is to pursue the best for America, not the best for their own businesses. No one asks presidents to impoverish themselves. I believe Truman was the last to retire without a presidential pension. And they can put their assets in a blind trust as presidents have been doing for some time now so that they do not know and can’t tell what will be better for their business or who has benefitted their assets. Trump has done the opposite. No blind trust. No disclosure of his taxes or the businesses reflected on them. And he blatantly steers business to his own resorts and enterprises.

That’s about the president’s welfare, not the people’s. Corruption has no place in the White House and should be the first article of impeachment. To paraphrase his own language: Dirty Donald; lock him up.

— This commentary was pre-empted by the Facebook hearings but included on the WAMC blog, April, 2018.