TRUMP’S DALLIANCE WITH THE FOREIGN CORRUPT PRACTICES ACT ‘PRIMED THE PUMP’ FOR HIS DEFIANCE OF THE EMOLUMENTS CLAUSE
Untitled, Watercolor, 24.5” x 39”, Richard J Van Wagoner, Circa 1990, Courtesy of Robert Hodgson and Cheri Van Wagoner**
A significant percentage of public corruption in the United States is “legal.” Not coincidentally, corruption benefits the elected officials who render such conduct legal or, at least, refuse to make it illegal. If McConnell or Schumer, Ryan or Pelosi tells you otherwise, s/he is simply continuing the false narrative or lying. The electoral system in the United States is utterly corrupt. Presumably, anti-pubic-corruption laws seek to ensure our elected officials make merits-based decisions. Even marginally talented politicians can spin any decision as merits-based. Think Koch Brothers and climate change, for example. That’s not to say everyone is bought and sold. But that’s for another day.
http://thehill.com/blogs/blog-briefing-room/news/277462-60-minutes-fundraising-demands-turning-lawmakers-into (highlighting one area of legalized corruption)
This post addresses two categories of a growing body of exposed public corruption. Among the types of public corruption not addressed today:
• collusion with a foreign power (to influence the outcome of the election);
• politicization of the pardon power;
• obstruction of justice;
• assets and debt subject to regulation by people and agencies under the owner’s appointment control;
• efforts to influence, terminate or otherwise manipulate investigations, including inquiries into corruption;
• demands of fealty from investigators, prosecutors and others whose duty is to exercise independent oversight;
• gerrymandering (to influence the outcome of elections);
• voter suppression (to influence the outcome of elections);
• campaign finance;
• congressional insider trading;
• Icahnaclastacy—appointing as “special advisor” on regulatory reform (energy) a campaign financier who uses that position to increase by $500,000,000.00 his already vast portfolio.
With the benefit of hindsight, wisdom and foresight, the Founders sought formally to reduce and deter inevitable public corruption by including the Emoluments Clause in the new Constitution.
Trump's flouting the Emoluments Clause—well, that and the Mueller investigation and a host of other indicia of Trump’s venality that was on full display before and during the campaign—got me thinking about both sides of international public corruption quids pro quo. In 1977 Congress enacted the Foreign Corrupt Practices Act (“FCPA”) which makes it illegal to offer, promise or provide anything of value to a government official (non-US) in order to obtain or retain business. [Sounds fairly straight forward, but the Department of Justice, as it does with most federal criminal statutes, stretches its application almost beyond recognition. Maybe not so much under supervision of the current Attorney General.] It is my guess (and it’s only a guess), that Trump’s vast business dealings with foreign governments and foreign state-owned companies and their officials served as an apprenticeship for his future misuse of high public office to line his pockets with rubles, manats, riyals, liras, rupees, rupiahs, dirhams, shekels, won, yen, pesos, euros . . . . If such an education was indeed part of his historical business operation, and evidence of that virtual certainty is mounting, switching roles in the public corruption arena wasn’t much of a stretch.
Why do we care whether the US President or other government official “accept[s] of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”?
Why do we care whether someone offers, promises or provides anything of value to a government official (non-US) in order to obtain or retain business?
I think it has to do with our preference that elected decision-makers (as well as appointed and merit-based employees) make decisions on the merits. For our representative republic to function and survive, government officials—elected, appointed or otherwise—must keep the public trust. They must never seek, solicit, demand, receive, accept or agree to accept anything of value in exchange for being influenced in decision making or performance. Pure motivation may be too much to expect, but opportunities for outright corruption ought at least to be discouraged and deterred. As one commentator explained:
"Implicit in the Emoluments Clause is a distinctive theory about the nature of political corruption and how to thwart it. To quote Professor Teachout, ‘Corruption, in the American tradition, does not just include blatant bribes and theft from the public till, but encompasses many situations where politicians and public institutions serve private interests at the public’s expense. This idea of corruption jealously guards the public morality of the interactions between representatives of government and private parties, foreign parties, or other politicians.’ In other words, rather than worrying only about quid pro quo bribery, the Framers recognized the subtle, varied, and even unthinking ways in which a federal officeholder’s judgment could be clouded by private concerns and improper dependencies. Their anxiety encompassed the gift-giving habits of corrupt European diplomats, but also reached even the most virtuous domestic officials. And given the impossibility of effectively addressing this kind of corruption through bribery laws, or other statutes that criminalize particular transactions by reference to improper intent, the Framers decided instead to write a broad, prophylactic rule into Article I. The Emoluments Clause thus operates categorically, governing transactions even when they would not necessarily lead to corruption, and establishing a clear baseline of unacceptable conduct."
As for the FCPA, my guess is the United States believes its people (including corporations, since they are people, too) ought not to induce violations of public trust—corruption—in other countries. Violations are also anticompetitive, undermine and skew markets and value (not unlike insider trading), and otherwise circumvent oversight and regulation. Nothing, or very little, is on the merits when induced by bribery or Trumpism—the epitome of self-interest. Violations of the FCPA (portions of which are quoted below) implicate by their nature crimes against money laundering in the United States—the subject of another post.
Based on how Trump has acted and reacted in the face of the Emoluments Clause, how he has danced around the tax returns issue and responded to reports that the Mueller investigation has expanded into international business transactions; based on what the fake media have published (including verbatim Trump and publicly-available records); based on what is reported about Trump’s and his associates’/relatives’ international business practices; and based on the unabashed venality that largely defines who and what Trump is—how likely is Mueller to examine those practices through the filter of the FCPA? It’s worth pausing here to note that the criminal and civil penalties for violation of the FCPA are onerous. The FCPA includes:
(a) PROHIBITION It shall be unlawful for any domestic concern [which includes individuals] . . . to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to—
(1) any foreign official for purposes of—
(A)(i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or
(B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person;
(2) any foreign political party or official thereof or any candidate for foreign political office for purposes of—
(A) (i) influencing any act or decision of such party, official, or candidate in its or his official capacity, (ii) inducing such party, official, or candidate to do or omit to do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or
(B) inducing such party, official, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person; or
(3) any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office, for purposes of—
(A)(i) influencing any act or decision of such foreign official, political party, party official, or candidate in his or its official capacity, (ii) inducing such foreign official, political party, party official, or candidate to do or omit to do any act in violation of the lawful duty of such foreign official, political party, party official, or candidate, or (iii) securing any improper advantage; or
(B) inducing such foreign official, political party, party official, or candidate to use his or its influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,
in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person.
*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.