Our problems remain epistemological.

Tuesday, September 15, 2020

Extracts from Bauer & Goldsmith’s “After Trump”


Bob Bauer & Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press 2020).

The Foreign Emoluments Clause, found in Article I, Section 9, is written in the passive voice and does not specifically reference the president. Instead, it provides that “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.” There is disagreement, as yet unresolved by the Supreme Court, whether this provision applies to elected federal officials, including the president. However, Congress assumed that the Foreign Emoluments Clause applies to the president when it exercised its power to “consent” to foreign “emoluments” in the Foreign Gifts and Decorations Act of 1966. That statute specifically applies to the president and supplies congressional consent for gifts of “minimal value” that might be received in the course of hospitality provided by a foreign government or official. 

Id. at 51 (footnotes omitted).

We acknowledge that it is an open question whether the Foreign Emoluments Clause applies to the president and thus whether Congress can regulate the president pursuant to its consent power in that clause. We agree with the weight of lower court and scholarly analysis that concludes that the Foreign Emoluments Clause applies to the president, but the matter is not open and shut. Only the Supreme Court can definitively resolve this issue. But we expect that most if not all future presidents would not challenge the constitutionality of our reform proposal. And the statute could in the interim go a long way in establishing the right norms even if there were eventually litigation over the matter. And in any event, the Supreme Court cannot resolve the issue unless it is presented to it in a challenge to the statute, assuming that one can be crafted. 

Id. at 66.

That said, the application of the anti-bribery statute to the president is not certain, especially since it defines a covered “public official” as a “Member of Congress, Delegate, or Resident Commissioner, … or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof.” In the absence of a plain statement, it is possible that a court might would rule that the president is not an “officer or employee” of the United States. There should be no doubt on this matter. We thus propose that Congress make clear that the president is a “public official” within the meaning of the bribery statute. Congress should also amend the statute’s prohibition on a public official seeking or accepting a bribe “in return for being influenced in the performance of an official act” to make clear that “official act” includes a pardon. These changes are entirely consistent with the Justice Department’s view of presidential prerogative and would clearly criminalize pardons as part of a bribery scheme. The amended bribery statute would not prohibit a president from pardoning a campaign supporter to reward his or her loyalty, without regard to the merits. Such a pardon may well be unworthy or controversial, but it would not be a crime for the president to use the pardon power in this fashion. Under the amended statute (and quite possibly under the current statute), the same pardon of a supporter would give rise to legal jeopardy if evidence surfaced that the president had entered into a corrupt agreement to grant the pardon in return for political contributions.

Id. at 113 (footnotes omitted) (emphasis added). 

Query: What does the word “corrupt” add? What did the authors think it added? If the word “corrupt” had been dropped, how would the effect of their proposed statute change? Would it be possible for the President to agree to exchange a pardon for campaign contributions and the transaction not be corrupt and, therefore, lawful? 

It is a puzzle.


Seth Barrett Tillman, Extracts from Bauer & GoldsmithAfter Trump,New Reform Club (Sept. 15, 2020, 5:30 AM), <https://reformclub.blogspot.com/2020/09/extracts-from-bauer-goldsmiths-after.html>;

1 comment:

Tom Van Dyke said...

Query: What does the word “corrupt” add?

Caught them begging the question. Hand in the pejorative cookie jar. Well done. I usually like Goldsmith. Perhaps it was Bauer's doing.