Trump’s $230 Million Heist Is Unconstitutional

 

...The weight of history shows that the term “emolument” is expansive and covers any form of profit, advantage, or benefit. So, when the president seeks compensation from the Department of Justice based on spurious claims under the Federal Tort Claims Act, he is really seeking compensation from the government in excess of his salary, and he is doing so using his subordinates to award him a profit, advantage, or benefit in violation of the Domestic Emoluments Clause.

Special Counsel Jack Smith’s cases were supported by the evidence but were not decided on the merits one way or another because Trump won the 2024 election. The Justice Department will not try a criminal case against a sitting president. Special Counsel Robert Mueller’s 2017-2019 investigation did not result in criminal charges being brought for the same reason stated in Part II of Mueller’s report—again, the Justice Department will not indict a sitting president. 

Finally, the FBI search of Trump’s Florida estate for classified documents was pursuant to a valid search warrant signed by a judge. None of this justifies a $230 million payment from the Treasury to Trump.

Indeed, many presidents, including Richard Nixon, Ronald Reagan, Bill Clinton, and Joe Biden, have been subjected to special counsel investigations. Not one of them sought or received reimbursement of legal costs from the government. Trump is the only president to be indicted after leaving office, but there are very few cases in which more ordinary defendants acquitted in criminal cases received compensation from the government. 

And, again, Trump was never acquitted or adjudicated guilty of the charges against him because there was no trial. Finally, execution of a lawful search warrant almost never leads to compensation unless federal agents cause bodily injury or serious damage to property. That did not occur at Trump’s Florida residence. 

Trump seeking compensation for the investigations is nothing more than an attempt to squeeze hundreds of millions of dollars from the American taxpayer. By filing a claim with the Justice Department, Trump is now seeking approval from the very same lawyers he appointed to their positions, some of whom also previously defended him, including serving as his personal lawyer in these same matters. 

If Attorney General Pam Bondi and Deputy Attorney General Todd Blanche fail to recuse themselves from this matter, they open themselves up to potential violations of government ethics rules and their professional ethical obligations. Bondi challenged Smith’s Special Counsel appointment in an amicus brief, arguing it was unconstitutional. Blanche represented Trump in the same matter.

Justice Department lawyers are covered by important government ethics rules and legal ethics rules that bar their participation in the decision-making process in a particular matter in which their impartiality would be questioned and from using public office for the private gain of any private person.

Bondi and Blanche also signed ethics agreements promising to recuse themselves from any specific party matter involving a former firm or former private-sector client for one year from the date they last provided them legal services.

They, like all government officials, are required under federal regulations to recuse themselves for the duration of their government service from any matter in which their impartiality would be questioned. There is no way that any of these officials could operate in a neutral, unbiased way toward the president, as is required by the ethics laws. The officials who personally represented the president are also generally prohibited by Bar rules from engaging in the same or similar matters that they worked on while in the private sector.

But, more important, the president’s actions now more than ever present an impossible choice for Justice Department officials who are being asked to provide hundreds of millions of dollars to the president for immensely specious claims under an implied coercion that arises from fear of removal. 

Their legal and ethical obligation instead is to uphold the rule of law and to avoid aiding and abetting any scheme in which the government pays anyone, including the president, money it does not owe. If Bondi and Blanche sit by and permit the abuse of the department’s authorities and assist in facilitating such payments, they will have failed their obligations to uphold the Constitution, to represent the interests of the government, and to ensure that their subordinates follow the law.

-Norman Eisen with Richard Painter and Virginia Canter: The Contrarian 

The Contrarian is reader-supported. To receive new posts, enable our work, help with litigation efforts, and keep this opposition movement alive and engaged, please consider joining the fight by becoming a paid subscriber.