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Corruption and the Constitution

May 9, 2019

The framers tried to build some protection against government corruption into the Constitution. Kathleen Clark tells how the Department of Justice long has viewed the emoluments clause as a rule against conflicts of interest:

For more than 150 years, the Department interpreted the Constitution’s “emoluments” clause to protect the government from the corrupting influence of foreign powers through gifts, emoluments and titles. The Department has issued more than 50 legal opinions declaring that the clause prohibits important federal officials from accepting anything of value — even token gifts — from such powers, unless Congress consents. .. The Department even prohibited a part-time federal employee who was also a partner in a law firm from accepting any money from the firm’s legal work for foreign governments, even though he had not worked on those cases, because “the partnership would in effect be a conduit” for foreign governments.

That long and reasonable view now is no more:

Trump’s personal lawyers have argued that the emoluments clause allows Trump — and all federal officials — to accept unlimited amounts of money from foreign governments, as long as those payments are in the form of commercial transactions with a business owned by the federal official. Contradicting its entire history, the Department adopted Trump’s lawyers’ argument.

Note that new interpretation applies to Congress and to all federal officials. The emoluments clause was purposely broad. That bar to corruption now has been lifted so high it hardly matters.

This sea change highlights how the text of law, whether in the Constitution or elsewhere, takes meaning and significance only through the exercise of those committed to its purpose and through the legal precedents they practice. When the deep state fails, the rule of law fails.

Congress should investigate that failure. If Trump instigated or encouraged it, that by itself is cause for impeachment.

This shift in law should be a major scandal attracting significant media attention. Today, it almost gets lost among all the other substantive scandals. Americans take for granted that their nation is not one where government corruption is ingrained habit. The problem with taking things for granted is that you lose sight of how they came to be and what sustains them. Josh Marshall fumes over a related lapse, at how Trump’s personal lawyer now is conducting government business.

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