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Brennan Center for Justice The Briefing
Eight years ago, the lobby of the Trump International Hotel in Washington became the symbol of influence peddling. Tourists giddily mingled with lobbyists and campaign donors. The cheapest cocktail went for $24. How quaint.
This term, Donald Trump Jr. announced he is opening a private, members-only club in Georgetown called Executive Branch. Members of the Trump administration, CEOs, and tech executives are among those who have signed up. The membership fee is currently $500,000.
That is the context for the controversy now erupting over Qatar’s gift of a roughly $400 million airplane for use as the new Air Force One, a 747 that would be transferred to the Trump Presidential Library when he leaves office, potentially making it available for his personal use (although he denies he would use it). It’s outlandish on its own terms. And it is just the most visible part of a new ethos of self-dealing, with lines between public purpose and private enrichment not just blurred but erased.
Days before his return to office, Trump launched his own cryptocurrency token, $TRUMP, which immediately enriched him by an estimated billions of dollars (although the coin’s worth has since dropped). Since crypto is a purely speculative vehicle, this gave “investors” a chance to send funds straight to Trump, without disclosure or pretense. Sure enough, the United Arab Emirates, another country where he visits this week, gave him . . . sorry, “invested” $2 billion.
Trump’s family enterprise already owns a crypto mining company, World Liberty Financial, which benefits from his shift from skeptic to deregulator. Then there are the transactions that all seem to end up with the first family being paid — starting with the $28 million paid by Amazon to First Lady Melania Trump for a documentary.
Now, let’s not romanticize a past golden age of government ethics. The White House saw the Crédit Mobilier scandal of the 1870s and Teapot Dome in the 1920s. Lyndon Johnson used the Federal Communications Commission to give preferential treatment to radio stations he owned. In more recent decades, presidents of both parties conducted a grueling schedule of nearly nonstop campaign fundraising. (My old boss Bill Clinton certainly got grief when party donors slept in the Lincoln Bedroom.) Hunter Biden was accused of peddling influence for personal gain before his father pardoned him on the way out of office.
What’s different here is that the funds are flowing not to a political party or campaign but to the officeholder as an individual. The transaction is direct, naked.
The founders were very concerned about an individual using the power of the presidency to enrich themselves and their family members. They focused sharply on the risks of corruption and were well aware of the myriad ways the system could be abused. And they were especially worried that foreign governments could influence American presidents.
At the Constitutional Convention, Gouverneur Morris feared the possibility of the president receiving foreign bribes: “One would think the King of England well secured against bribery. Yet Charles II was bribed by Louis XIV.” The founders wrote anti-corruption protections into our Constitution.
Article I of the Constitution forbids any officeholder from accepting any gift or title from any “King, Prince, or foreign State” without congressional consent. It’s called the “Foreign Emoluments Clause.” At the Virginia ratifying convention for the Constitution, Edmund Randolph made clear how viscerally the framers recoiled from the possibility of foreign funds. He described “an accident, which actually happened, [which] operated in producing the restriction. A box was presented to our ambassador by the king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”
Trump said, “I would be a stupid person” to turn down the $400 million plane. But remember that the Emoluments Clause is in the part of the Constitution making clear Congress’s power — it’s not up to the president to decide.
In his first term, Maryland and the District of Columbia sued, alleging that Trump illegally profited from foreign and domestic officials who visited his hotel. We agreed. That case got tied up in court, and in 2021, the Supreme Court ultimately dismissed it since Trump was no longer president.
So what lessons can we learn from this, and what ironclad rules could prevent future presidents from profiting so brazenly from office?
To start, Congress should make clear it does not approve of this massive foreign gift to our president. More comprehensively, Congress could pass legislation to fully enforce the Constitution’s Foreign Emoluments Clause and remove the procedural hurdles that derailed lawsuits in Trump’s first term.
Then it would be time to recognize that we have relied on common sense or self-restraint from previous chief executives. The Brennan Center’s task force of Republican and Democratic former senior officials recommended that presidents be required to put their businesses and assets into a blind trust, a proposal that is part of the Protecting Our Democracy Act that fell to a filibuster in 2022.
Even those protections may be inadequate. Neither the founders nor later generations of lawmakers profited from meme coins.
Out of today’s scandals come tomorrow’s reforms. For now, our astonished outrage is a good start.

 

Challenging Abuse of Emergency Powers
The Brennan Center filed a friend-of-the-court brief Monday supporting four companies challenging Trump’s use of an emergency powers law to impose worldwide tariffs. The president’s actions contradict the law’s actual purpose, which was to prevent presidents from misusing emergency powers to address ongoing problems. Allowing the president to expand his authority beyond what Congress has provided could do untold “damage to the constitutional separation of powers, and to our democracy more broadly,” Elizabeth Goitein writes. Read more
Attacks on Congressional Power
More than 200 federal lawsuits have been filed against the Trump administration’s actions so far, and most have won initial victories. The cases against high-profile efforts to shut down or remove the heads of independent agencies and freeze federal funds without congressional approval paint a picture of an administration seeking to usurp Congress’s constitutional authority. “By ignoring the checks and balances designed to keep him accountable to Congress, the president is threatening to become exactly what the framers feared: an all-powerful and unconstrained executive who operates more like a king than the head of a constitutional democracy,” Samuel Breidbart and Lauren Miller Karalunas write. Read more
How States Can Stop ICE’s Courthouse Arrests
The arrest of a Wisconsin trial court judge last month for allegedly blocking an arrest by U.S. Immigration and Customs Enforcement agents has raised concerns about judicial independence. Tension between immigration authorities and judges has grown since the Trump administration rolled back Biden-era reforms that had limited the widely criticized practice of courthouse immigration arrests. These restrictions should be reinstated, Alicia Bannon writes in State Court Report, “but it’s also worth noting that there are steps states can take to mitigate the threat of ICE arrests — and also protect judges and court staff.” Read more
North Carolina Dodges One Election Threat, Faces Another
Six months after the 2024 election, candidate Jefferson Griffin has finally conceded in his race for a seat on the North Carolina Supreme Court. His concession follows a federal court ruling that rejected his bid to challenge election rules and toss potentially thousands of ballots cast by overseas voters. Erin Geiger Smith recaps the case in State Court Report and underscores that the federal court’s decision reaffirms “a North Star of election law: You can’t change the rules after an election.” Read more
However, Justin Lam notes in another State Court Report piece, North Carolina voters must contend with a new threat. A recent state appeals court ruling allowing partisans to take power over the state’s election boards “could affect voter access for elections as early as this fall.” Read more
DHS’s Social Media Monitoring Plan
Last week, the Brennan Center and Columbia University’s Knight First Amendment Institute urged the Department of Homeland Security to abandon its proposal to collect social media identifiers from more than 3 million people who apply for immigration benefits each year, along with their family members. There’s no evidence that social media screening helps effectively vet people, and the proposal risks chilling the First Amendment rights of those impacted, many of whom are U.S. citizens and legal residents. Read more

 

News
  • Douglas Keith on immigration arrests in state courthouses // CNN
  • Lawrence Norden on voting machine accuracy // DESERT SUN
  • Marina Pino on changes to New York’s public campaign financing program // ALBANY TIMES UNION
  • Hernandez Stroud on takeover order for NYC’s Rikers Island jail // NY1