Trump Doral (Photo by Joe Raedle/Getty Images)
Yes, Donald Trump’s decision to award himself the G-7 Summit at his Doral Resort is a violation of the Foreign Emoluments Clause of the Constitution. And it’s probably a violation of the Domestic Emoluments Clause. In fact, it’s probably the most obvious violation of those clauses in American history. It’s self-dealing; it’s corrupt; it’s an impeachable offense on its own. The House Judiciary Committee is going to “investigate” the self-dealing, because they pretty much have to.
Trump has, of course, violated the Emoluments Clause before. He’s actually facing two lawsuits about that. In fact, the Fourth Circuit just agreed to hold an en banc rehearing of one of the emoluments lawsuit.
“Emoluments Clause” is probably enough “law” for the political press to handle for one scandal. But, just among us chickens, can we also talk about how the Trump administration is potentially violating laws regarding the assignment of government contracts? Like, ALL of the them?
This isn’t ‘Nam, there are rules. Hosting the G-7 is, at base, the awarding of a government contract. We have multiple, overlapping statutes regarding that process. There are procedures. There are forms. Those forms require signatures. Getting a government contract is a big part of our economy. Since our economy is based on competition, as opposed to central planning, it’s simply NOT A THING for the President of the United States to just “pick winners” of that economy, before we even get to the part where picking himself the winner is a violation of the Constitution.
I’m no expert on the laws regarding government contracts, because “government compliance lawyer” has never been my calling. But, unlike anybody at the White House apparently, I can Google. Here’s the header from the Legal Information Institute — which is just Wikipedia for people who don’t want to pay Westlaw:
The United States Government is the single largest procurer of goods and services in the world, and the Department of Defense (DOD) accounts for the lion’s share of federal acquisitions. Three major characteristics distinguish Government acquisitions from private sector contracts. First, Government contracts are subject to myriad statutes, regulations, and policies which encourage competition to the maximum extent practicable, ensure proper spending of taxpayer money, and advance socioeconomic goals. Second, Government contracts contain mandatory clauses which afford the Government special contractual rights, including the right to unilaterally change contract terms and conditions or terminate the contract. The most important clauses are the “Changes” clause, the “Termination for Convenience” clause, and the “Default” clause. Third, due to the Government’s special status as a sovereign entity, claims and litigation follow the unique procedures of the Contract Disputes Act.
Government contracts are subject to several statutes, including the Competition in Contracting Act and the Federal Acquisition Streamlining Act. In addition to statutes, there are a multitude of regulations which govern acquisitions by executive branch agencies. Foremost among these is the Federal Acquisition Regulation (FAR), which is codified in Parts 1 through 53 of Title 48, Chapter 1 of the Code of Federal Regulations. Executive branch agencies may issue their own regulatory supplements to the FAR, such as the Defense Federal Acquisition Regulation Supplement (DFARS). The FAR is amended pursuant to the Administrative Procedure Act, with proposed changes issued jointly by the DOD, the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), in coordination with the FAR Council.
The Federal Acquisition Regulation (FAR) is a dense section of law, codified in Title 48 of the U.S. Code. The prohibition against self-dealing in this space is not one of those ephemeral “norms” that Trump disregards all the time. The self-dealing prohibition is codified right in the statute:
48 CFR § 3.601 – Policy.
(a) Except as specified in 3.602, a contracting officer shall not knowingly award a contract to a Government employee or to a business concern or other organization owned or substantially owned or controlled by one or more Government employees. This policy is intended to avoid any conflict of interest that might arise between the employees’ interests and their Government duties, and to avoid the appearance of favoritism or preferential treatment by the Government toward its employees.
(b) For purposes of this subpart, special Government employees (as defined in 18 U.S.C. 202) performing services as experts, advisors, or consultants, or as members of advisory committees, are not considered Government employees unless –
(1) The contract arises directly out of the individual’s activity as a special Government employee;
(2) In the individual’s capacity as a special Government employee, the individual is in a position to influence the award of the contract; or
(3) Another conflict of interest is determined to exist.
Again, the law is complicated and full of exceptions and I’m no compliance wonk. But the point is that this law EXISTS. So do others. The Trump administration needs to show that it complied with the law, or show that it doesn’t need to comply with the law because it is eligible for some sort of exception. ALL OF THAT MUST BE WRITTEN DOWN. If those arguments don’t hold water, Trump is in violation of statute. If those arguments are lies, on official government documents, those lies are crimes.
Making the Emoluments Clause argument against the president for this deal is valid, but it’s a little bit like pursuing a Fourth Amendment violation against the president for a car-jacking. Sure, it probably is. But, also, THERE ARE LAWS AGAINST CAR-JACKING.
President Trump and his administration, including his administration’s lawyers, act like our laws are mere guidelines that don’t apply to a “strong” president. That’s just not true. Awarding yourself a government contract is, at least, a facial violation of law. Does Trump have a defense? Mick Mulvaney suggests that he just won’t show us the government’s defense to these… CHARGES… which is also not an acceptable answer.
Trump, obviously, isn’t allowed to do this. WHO IS GOING TO TELL HIM?
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.