THE LOWEST COMMON DENOMINATOR DROPS TO ITS BOTTOMMOST POINT
Nothing Is On The Merits In Trump World Except, Possibly, The Quality Of The Scam
Untitled, Oil on Panel, 19.5" x 34", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trustt**
Days before Trump’s impeachment trial began in the Senate, Washington Post reporters revealed in their new book A Very Stable Genius one of the many indicia of Trump’s attitude toward corruption. Bring it on! Larry Kudlow, the National Economic Council director, admitted that yes, in fact, they “are looking into it.”
The “it” to which Kudlow referred is to invite and encourage corruption as a lawful means of conducting international business. Trump is “looking into” repealing the federal criminal law that prohibits United States individuals and companies from bribing foreign officials to obtain or retain business. You read that correctly. For some reason Trump believes an integral component of international business should be pay to play. It’s what people do. That’s how business gets done. One example might be to offer Putin a $50,000,000.00 penthouse suite as inducement to approve Trump Tower Moscow, hypothetically speaking, of course.
Lest we forget, Congress, not the president, passes and repeals laws. I suspect “it” is his continuing public defense in anticipation of more breaking news about Trump’s international business modus operandi.
The Foreign Corrupt Practices Act (“FCPA”) imposes serious criminal and civil sanctions on those who bribe foreign officials for business purposes. Subjecting Americans and U.S. companies to criminal sanctions for doing what everyone else does, the argument goes, is so unfair, so anti-competitive, so economically stifling. It’s just not fair, unless we can cheat—too. And it’s not really cheating if everyone does it. Right? Allowing U.S. citizens and companies to bribe would level the playing field, albeit to subterranean depths.
This reminds me of the All Drugs Olympics. One of my favorite SNL skits features Kevin Neelan color-commentating Phil Hartman’s Sergei Akmudov who attempts to clean-and-jerk 1,500 pounds for the new world record. The power lifter, Neelan explains, had consumed a panoply of steroids and other chemicals including a fish paralyzer, all of which, of course, is not only allowed but encouraged at the All Drug Olympics. It’s worth a look:
Had Akmudov’s arms not torn off at the shoulders (“Oh, that’s gotta hurt”), a world record would not have registered on any books, even with an asterisk, unless the devious means of winning—the cheating itself—is the event. Hey, a win’s a win!
Trump’s world view dovetails ironically into an impeachment defense in which Trump denies he solicited a bribe—pay to play—or extorted the leader of a war-torn, vulnerable ally in exchange for a personal, political favor. Trump’s team began their defense of the Articles of Impeachment by intimating that the furtive, surreptitious activities leading up to and following the “perfect” call and Trump’s refusal to comply with any congressional oversight were and are soundly based in Trump’s desire to eliminate corruption in Ukraine. Must be part of his much larger, well hidden, highly secretive plan to eradicate corruption world-wide.
We gain greater insight in this latest revelation by considering his approach to the Emoluments Clause, a kind of FCPA in reverse. Why do we care whether the US President or other government officials “accept 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 in the public interest over their own and on the merits. For our representative government to function and survive, officials—elected, appointed or otherwise—ought to keep the public trust. They should not seek, solicit, demand, receive, accept or agree to accept anything of personal 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."
In 1977 Congress enacted the 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. [Other laws on the books prohibit bribing US officials.] 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 continues to mount, employing the same education in the public corruption arena wasn’t much of a stretch.
And, by the way, Trump National Doral Miami, on its own merits, is the very best possible location in the entire U. S. of A. to host the next G-7. Plenty of parking and close to the airport. And the weather in June in Miami is spectacular. It also makes perfect sense to divert US Air Force planes for refueling at Scotland’s otherwise faltering Prestwick Airport 259 times in 2019 at premium rates while the crews drive the 54 miles to Trump Turnberry and drop another $200,000.00 of taxpayer money for overnight stays. And who wouldn’t award a $400,000,000.00 border wall contract to a North Dakota GOP donor who “did not meet the operational requirements of U.S. Customs and Border Protection and its prototype project came in late and over budget”?
The FCPA exists to help assure fair competition, that market decisions are made on the quality of the goods or services, on fair market economies. 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. Contrary to Trump and Kudlow, violations are anticompetitive. They undermine and skew markets and manipulate and undermine value, like insider trading. They circumvent oversight and regulation. They limit entry into the market, reduce economic choices, increase the costs of goods and services, and reduce their quality. By their nature, violations of the FCPA also implicate crimes against money laundering in the United States.
Someday, maybe, the United States will set and enforce the example rather than sinking to the lowest possible common denominator.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 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 https://medium.com/@richardvanwagoner and https://lastamendment.com are hers