Trump’s $230 Million Heist Is Unconstitutional
Publisher's Roundup 41
With special guest co-authors Richard Painter and Virginia Canter
Dear Contrarians, Donald Trump’s shenanigans this week were so outrageous that reinforcements were in order to push back! So, I invited George W. Bush White House ethics lawyer Richard Painter and Clinton White House ethics lawyer Virginia Canter to join me—the Obama White House ethics lawyer—to write about Trump’s misconduct.
The president‘s outrageous request for $230 million from the federal government is not only an abusive attempt to raid the coffers of the Treasury, but it’s also an apparent violation of the Domestic Emoluments Clause—a constitutional provision that expressly prohibits the president from taking any emolument from the United States other than his statutory salary. And, unlike the Foreign Emoluments clause, the domestic clause is applicable solely to the president of the United States, and Congress has no power to waive it. We should know: The three of us served as ethics officials to President Barack Obama, President George W. Bush, and President Bill Clinton and brought suit against Trump in his first term for violating the Foreign Emoluments Clause.
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.
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This week at The Contrarian, we welcomed political writer and editor Tim Dickinson, who joined us from Rolling Stone and who helped us cover No Kings Day. We also featured so much more. See for yourself:
Eyes on the courts The 7th Circuit rejects lies about Chicago
Jen Rubin wrote on the unanimous 7th Circuit opinion that underscored the utter lack of legal basis for Trump’s National Guard deployment in Chicago and what we can expect as the administration appeals to the Supreme Court. “If the MAGA justices again undo lower courts’ fact-finding and allow Trump to invade U.S. cities, they effectively will have given Trump wide berth to lie.”
Don’t lump Bolton charges in with flimsy cases against Comey and James
Barbara McQuade broke down the Bolton indictment, a case with more merit than the average Trump vendetta but that is no less compromised by the administration’s abuse of justice. “The shame of Trump’s vengeance crusade is that even when prosecutors bring important cases, the public might doubt their legitimacy.”
A Potential Rights Sunset on the Horizon: Rick Hasen on Louisiana’s Redistricting Supreme Court Case
Professor Rick Hasen offered an insightful dissection of the Supreme Court case that could slash fair representation in Louisiana communities, benefiting Republicans like Speaker Mike Johnson. His full interview is on Substack.
Trump is suing...the government? Andrew Weissmann on the DOJ suit & Comey Case
Andrew Weissmann discussed the shameful absurdity of Trump demanding that the DOJ pay him $230 million. “You have the president saying, ‘I want $230 million’ and you had 7 million people just this past weekend protesting for no kings.”
Extremism & criminalization of dissent The ‘antifa’ fiction
Jeff Nesbit wrote on Trump’s efforts to weaponize the state against a phantom menace, chilling the very concept of protest in America. Moreover, Trump is obscuring the actual most persistent and lethal domestic terror threat in the United States: white supremacist groups.
The extremism permissive structure that led to the Young Republicans’ chat
Shalise Manza Young unpacked JD Vance’s staunch support of the vile rhetoric revealed in a recently leaked group chat of influential young Republicans. “According to the vice president, as long as you’re white, all manner of violent, racist, homophobic, antisemitic, white supremacist talk is no big deal.”
Radicalism Among White Christian Nationalists: Robert P. Jones on the latest PRRI Survey
Robert P. Jones of the Public Religion Research Institute (PRRI) joined Jen Rubin to break down the findings of PRRI’s latest American Values Report, which finds that white evangelicals continue to retreat from the center to embrace more radical positions. “Today, it is actually hard as a pollster to write a question on immigration that is too harsh or too cruel for evangelicals to support.”
ICE is Nothing More than a Gang: Arne Duncan on ICE Disruptions in Chicago
In a special episode of The Tea, April Ryan was joined by non-profit leader and former Secretary of Education Arne Duncan to discuss the state of play in Chicago, where ICE raids are becoming increasingly hostile. “This is not a drill, this is reality.”
After No Kings The Contrarian covers the Democracy Movement
Last weekend you marched and danced, made signs and costumes, chanted and most importantly, showed up. This week we posted coverage of some of the millions of you who came out to No Kings Day nationwide. Get help organizing from Indivisible, find protests in your area at mobilize.us, and send us your protest photos at submit@contrariannews.org. And check out Gabriel Lezra’s essential 15 More Ways You Can Fight for Democracy.
No Kings gives us hope in saving American democracy
Tom Malinowski put the No Kings protest into perspective as a heartening sign that though new threats to our democracy emerge every day, we haven’t lost it yet—a truth that must spur us on to the hard work ahead. “We can still use democracy to save it.”
The No Kings rally was a good start, but a protest isn’t going to save America
Carron J. Phillips warned against self-congratulation after last weekend. “The ‘No Kings’ protests will be remembered as a waste of time unless some actionable offenses take place, and soon. What’s the next move? Is there a plan for the midterm elections? Are candidates being prepped for 2028? What do we do until then?”
The big ugly ballroom The grotesque metaphor of Trump tearing apart the figurative seat of American democracy
“For all the grotesque, lawless, self-aggrandizing actions Donald Trump has taken since his second inauguration,” wrote Shalise Manza-Young, the demolition of the East Wing still managed to shock with its horrifying haphazardness. “The poisonous icing on a rotting cake.”
Tearing down the People’s House for a pay-to-play palace
Jeff Nesbit saw in Trump’s calamitous new pet project “the physical manifestation of this administration’s core tenets: blatant disregard for process, the transformation of public office into private profit, and the replacement of a national symbol with a tacky, monarchical reflection of one man’s ego.”
The Ballroom and the Bubbles
Meghan Houser wrote on the hollow synergy between the ballroom and its craven funders: titans of tech and finance enriching themselves, and the president, on market bubbles with a future that looks much like the East Wing.
Culture, cartoons & fun stuff America needs to see ‘Ask E. Jean,’ but may not get the chance
Meredith Blake highlighted a moving, funny documentary that chronicles E. Jean Carroll’s legal battles against Donald Trump—and is struggling to find anyone in Hollywood with the courage to distribute it. “Ask E. Jean does not paint Carroll as a victim, but rather as a larger-than-life personality whose indomitable spirit served her well both as a trailblazing writer and as one of Trump’s greatest adversaries.”
Our cartoonists this week homed in on Trump’s latest kingly exploits, from a fetid flyover ( Trump’s fly-by, Nick Anderson; Tom the Dancing Bug, Ruben Bolling), to palace (de)construction ( Donald’s magical kingdom, RJ Matson), to good ol’ extortion ( Spreading the good news, Michael de Adder; Lip service, Nick Anderson), to playing well with other tyrants ( On the ropes, Michael de Adder).
The ‘wettest, weirdest and wildest’ baseball game that won the World Series
Fred Frommer writes on the game by which a hundred years ago, the Pirates stunned the Senators in the Fall Classic.
Healthy-Adjacent No-Cook Peanut Butter Chocolate Bars
Emily Beyda gave us a history of trick-or-treating and a great snack or quick sweet-tooth satisfaction for dark times and spooky season.
Contrarian Pet of the Week
And last but never least we have Birdie, the 3-year-old “failed” foster cat who comes to us from our newest Contrarian, Tim Dickinson. Welcome, Tim and Birdie!
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There you go, Contrarians—another great week of holding Trump to account in print and in the courts of law. With all of you on the case, democracy is well-represented. Have a great weekend and see you at 9:15 am ET Monday for Coffee with the Contrarians. Warmly, Norm
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