Once again, Trump is doing what Democrats did, just far more ostentatiously.
Once again, Trump is doing what Democrats did, just far more ostentatiously.
I heartily endorse our editorial on President Trump’s appalling “anti-weaponization fund.” As I explained earlier this week (but after this column was substantially written), this fund is just part of a settlement that has proven all the more unseemly with the revelation that acting Attorney General Todd Blanche, previously Trump’s personal lawyer, quietly tucked in a provision granting his former client immunity against being further audited or potentially prosecuted for tax violations — notwithstanding Justice Department and government-wide conflict of interest rules.
Ostensibly, all of this self-dealing arises out of a lawsuit: a farcical “case” in which the president and his elder sons sued executive agencies that answer to him so that he might — with the blessing of the judiciary — pay himself $10 billion in taxpayer funds. No one, however, should be fooled by the legal trappings. This is a political controversy. I mean “political” in the constitutional sense of political power, which may be used or abused. Far from a legal matter, this episode powerfully demonstrates that law is inadequate to the task of political accountability.
To be sure, there may well have been a legal controversy in the technical, jurisdictional sense. On that score, I was underwhelmed by the Democratic lawyers’ amicus briefs that Dan McLaughlin addressed in his stellar article. Judge Kathleen Williams, the Obama appointee to the federal district court in South Florida who was presiding, certainly seemed poised to conclude that the president’s lawsuit was collusive. After all, it was collusive, as a matter of fact. As a matter of law, however, there is enough wiggle room in the relevant jurisprudence for a judge to come out either way on the key question: whether one actor has such dominant control over both the plaintiff and the defendant that the matter is not sufficiently contested to warrant judicial intervention.
It’s good that Trump withdrew the lawsuit. Not because the outcome will now be better but because the courts shouldn’t be drawn into another branch’s corrupt machinations.
As things played out, the Trumps will not be getting billions of dollars in damages over what was undeniably a violation of their legal rights. Yes, the government leaked nonpublic taxpayer information about Trump that Democrats long craved, and the politicized Biden Justice Department predictably gave a slap on the wrist to the perp, IRS contractor Charles Littlejohn. But the wrong isn’t worth anywhere near $10 billion in damages. It’s reminiscent of New York Attorney General Letitia James’s fraud suit against Trump: The allegations were based on what really were misrepresentations by the Trump organization regarding the value of its assets. But with no proof that anyone was actually defrauded (and with James’s invocation of a consumer fraud statute that was inapplicable to arm’s-length transactions between sophisticated financial players), a New York appeals court rightly found that the alleged wrongs were not worth anything close to the half billion in damages that James sought and an elected progressive Democratic judge awarded.
Nevertheless, what’s contemplated in the Trump DOJ–approved settlement of Trump’s claims against the Trump IRS is a slush fund — with Trumpian schmaltz, it’s $1.776 billion in public funds — to be paid out to the president’s fellow travelers for sundry political grievances in order to put a government imprimatur on the claim that Democratic policy and enforcement choices were not merely wrongheaded but illegal. In that, it’s just the flip side of Trump’s lawfare against his political enemies — we’re to see them not just as abusive but as criminals. It’s another step in the government’s bipartisan descent into banana republic depths.
There’s no original thinking here, just the familiar audacity. Naturally, Democratic critics of Trump’s collusive lawsuit — and of his Justice Department’s recent payouts of $1.25 million to Michael Flynn (in connection with his Russiagate prosecution) and $5 million to the family of Ashli Babbitt (a pro-Trump rioter shot to death by a Capitol Police officer on January 6, 2021) — make no mention of the Biden administration’s similarly generous settlements. These include those with Andrew McCabe (the FBI’s former deputy director in charge of the Russiagate fiasco, who was compensated despite the Obama-appointed DOJ inspector general’s richly supported findings that he lied to investigators on multiple occasions, including when under oath), and with Peter Strzok and Lisa Page (the FBI Russiagate culprits who were paid $1.2 million and $800,000, respectively, for the publication of texts that demonstrated their rabid anti-Trump bias and kid-glove approach to the Clinton emails caper). And Democrats were delighted by the Obama DOJ’s targeting of municipal police departments, a campaign in which the departments were “defended” by big-city Democratic officials who were only too happy to agree with the DOJ that the police were systemically racist and in desperate need of Obama-prescribed “reforms” that fueled Democratic political narratives.
Once again, as with Trump’s cryptocurrency schemes with foreign benefactors, compared with which the Biden family’s $24 million influence-peddling haul isn’t even a rounding error, the president is doing what Democrats did, just far more ostentatiously.
None of this is illegal. Over a decade ago, I wrote a book called Faithless Execution about impeachment. One of the major points was that, while more serious than criminal offenses, impeachable acts need not be and often are not criminal offenses. Rather than private wrongs (which is how most actionable criminal and civil misconduct can be described), impeachable offenses are public wrongs — malfeasance that Hamilton (in Federalist No. 65) aptly described as “POLITICAL” (there’s that word again, all caps in the original) because they are offenses involving “abuse or violation of some public trust.”
On The Remnant podcast last week, in one of his solo “Ruminant” episodes, our pal Jonah Goldberg addressed a rhetorical tactic of Trump defense, in which it is contended that some grotesque act or other must be appropriate because it’s perfectly legal. It’s a peculiar line of argument. Often, the official behavior that threatens a society is most perilous precisely because it is legal.
It is not practicable for a well-functioning society to criminalize sundry forms of abusing power. If the judgment calls that must be made by top officials — e.g., cabinet officers, agency bureaucrats, judges, prosecutors, and police — could be grist for ex post facto criminal prosecution or civil liability, these officials would refrain from taking the actions that must be taken for society to be protected and to prosper. The Framers therefore insisted that executive and judicial officers be subjected to vetting by the Senate prior to assuming office; we need to weed corrupt people out before they wield power, because once they’re wielding it, there’s not much we can do other than strip them of it.
This was obvious to the Framers. It was obvious, with the benefit of over two centuries’ experience, when I wrote about impeachment. And it has never been more obvious than it is today, after the Supreme Court held in Trump v. United States (2024) that presidents have absolute immunity for core executive actions, no matter how potentially corrupt, and may have such immunity even for actions at the broad margins of executive authority. (The Court’s majority did not settle how far immunity goes, but it implied that the presidency cannot function as designed without it.) It’s no longer enough to say that most serious abuses of power may not be crimes; even if presidential crimes could be proved, they probably could not be prosecuted.
A corrupt pardon is not a crime, but it’s a classic impeachable offense. Exploiting an office of public trust for personal gain, especially financial gain, will frequently not be prosecutable (bribery is impossible to prove if the public official can show some plausible public purpose — the president has to have an airplane, right?), but it is clearly an impeachable offense. The president’s foreign affairs authority is so sweeping that courts will almost never entertain criminal or civil suits, but a president’s exercise of foreign affairs authority for the benefit of a foreign power and to the detriment of the United States may have been the potential impeachable conduct that most animated the Framers.
Madison, who led the crafting of our fundamental law, concluded that a congressional impeachment power would be “indispensable” for purposes of “defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.” Still, the Constitution does not call for Congress to leap instantly to impeachment as the remedy for executive abuses of power. The idea was that impeachment would be a rare occurrence (probably not as rare as it was until 1998, but rare nonetheless). Most of the time, Congress would use less drastic but quite effective ways to rein in a wayward executive — the power to deny funding, to deny legislative support, to refuse to confirm appointees, to conduct oversight in public hearings, etc.
That said, to have the democratic republic that the Framers contemplated, Congress has to be an active participant. As Madison put it (in Federalist No. 51), “In republican government, the legislative authority necessarily predominates.” If Congress is passive, if it does not jealously defend its institutional prerogatives, if it is derelict in its duty to check executive excess, then we no longer have the government formed by the Constitution. We are at the mercy of presidents, who might be good if we’re lucky but might just as easily be disastrous out of malevolence or incompetence or both.
The risibly labeled “Anti-Weaponization” slush fund that the president wants and that his Justice Department has dutifully concocted is a profound abuse of political power. So is the DOJ’s conferral of tax immunity on Trump in his private capacity. These are not legal problems. They are executive challenges that the Constitution empowers Congress alone to address.