Trump’s Moscow Deal Is Exactly What the Framers Worried About
Self-dealing and foreign influence were their biggest fears for the presidency.
By Asha Rangappa
Michael Cohen’s guilty plea for lying to Congress about Donald Trump’s Moscow project prompted a new frenzy of “Did the president commit a crime?” chatter among legal pundits. Finding—or refuting—a smoking gun of criminality has become the singular focus for the president’s supporters and critics alike, and his ex-lawyer’s plea deal has turbocharged the search for evidence that will definitely prove his illegal behavior. The implication is that the federal criminal code is the only arbiter of President Trump’s fitness to remain in office and that special counsel Robert Mueller will have the final say on the matter.
As a former FBI agent and lawyer, I sympathize with the temptation to find the statute that will crack open this case. But what matters most here is not found in a criminal law text. It’s a 230-year-old document in the National Archives. Cohen’s guilty plea on Thursday demonstrates that Trump’s behavior is fundamentally incompatible with the vision of government expressed by the Constitution itself. To wit, Trump not only believes it’s OK to profit from the presidency, but he’s also willing to put the U.S. under a foreign adversary’s thumb to do it.
The office of the presidency outlined by the Constitution is animated by two main fears: that the person occupying it might engage in self-dealing behavior, and also that the president might succumb to foreign influence. The former is most obvious in the impeachment clause, which enumerates the crime of bribery as grounds for removal. Clearly, the framers foresaw that opportunists might seek to profit from the awesome powers of the presidency. It’s less evident, but very much present, in the requirement that the president execute the laws “faithfully,” as stated in the so-called take care clause of Article II. Contrary to some assertions that the power to execute the laws gives the president unfettered authority to start and stop investigations, legal scholars like professors Andrew Kent, Jed Shugerman and Ethan Leib have provided historical evidence that “faithful” execution imposes a fiduciary duty upon the president to act in the public’s interest, not his own.
Meanwhile, worries about foreign influence were raised even in the debate over the ratification of the Constitution. In Federalist Paper No. 68, Alexander Hamilton warned that the “most deadly adversaries of republican government might naturally have been expected to make their approaches … chiefly from the desire in foreign powers to gain an improper ascendant in our councils.” The emoluments clause does double duty here, prohibiting federal officeholders from self-dealing by receiving gifts and things of value from a foreign government. But the desire to safeguard the presidency against divided loyalties is also underscored by the requirement that the president be a natural born citizen. Even the crime of treason—one the framers viewed with some circumspection (and therefore narrowly defined) because of its abuse by the British crown—was included, along with bribery, as a danger that might require removal from office.
Candidate Trump’s secret attempt to enrich himself through a business deal with a hostile foreign adversary is the embodiment of the twin evils the Constitution seeks to prevent. That the deal didn’t materialize is immaterial from a constitutional point of view: They may still have influenced Trump’s weirdly favorable view of Russia, or the inexplicable change in the Republican Party platform on Ukraine. And by keeping it secret, President Vladimir Putin’s ability to expose Trump, at any time, gave the Russian government leverage over the highest public office in the country even after the deal fizzled out. Even if Trump began these negotiations while he was a private citizen, its impact on our relations with Russia has continued into the presidency—making it a matter of public concern that required transparency from the outset.
This is the most egregious instance of Trump’s self-dealing and of him being beholden to a foreign power, but only because it’s the only one that we know about for sure. The public still hasn’t seen Trump’s tax returns, and what other liabilities he might have in Russia or elsewhere. The president is also facing three lawsuits—from members of Congress, the attorneys general of Maryland and the District of Columbia, and the nonprofit Citizens for Responsibility and Ethics in Washington—over potential violations of the emoluments clause. And without knowing what financial interests Trump has in Saudi Arabia, the public is in the dark regarding the United States’ failure to take action—at Trump’s direction—over the murder in October of journalist Jamal Khashoggi in the Saudi Arabian Consulate in Istanbul.
Looking to the Constitution, rather than the criminal code, to determine whether Trump is fit to remain in office makes sense. After all, federal crimes are by definition a narrower category of offenses than state crimes. Because of state resistance to a national police force, most of the crimes in the current U.S. code didn’t even emerge until the 20th century. Most important, what makes Trump’s actions egregious is not just what he did, but the position he was running for—and now holds—while doing it. For example, Trump’s business entanglements in Saudi Arabia matter because as president, he holds almost sole authority over the Unites States’ foreign policy decisions with that country. Congress can’t be expected to imagine and criminalize every possible abuse of power that would ultimately only apply to one person. There’s a reason that impeachment isn’t just reserved for “offenses against the United States” (the language used in the pardon power) but for a broader class of “high crimes and misdemeanors.”
Of course, impeachment is about accountability, which also requires transparency. That’s why Trump’s lies about his Moscow tower, or about his taxes, or his financial entanglements in Saudi Arabia, or his campaign’s contacts with Russia are the most problematic issue of all. They undermine the ultimate check contemplated by the Constitution on unfit aspirants to the Oval Office: An informed vote by the American public. By continuing to lie, Trump has prevented Congress from being able to effectively utilize the Constitution’s Plan B: impeachment. With the Cohen plea, however, it’s time to acknowledge that Trump’s unfitness doesn’t hang on what Mueller uncovers. It’s demonstrated by his disregard for the basic premise of the Constitution he’s sworn to uphold.
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