The Ground Rules of a Democracy

The Constitution is our shared rule book. But everyone has to agree to play by it for it to work.

[N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. — U.S. Constitution, Art. I, Sec. 9, Cl. 8

Today House Democrats on the Oversight and Accountability Committee released a report called “White House for Sale: How Princes, Prime Ministers, and Premiers Paid Off President Trump.” (I find it to be a very effective use of alliteration.) Bottom line up front: Trump received more than $7.8 million from foreign states during the first two years of his presidency, including from countries like China, Saudi Arabia, the U.A.E., and Turkey. To be clear, his violation of the Emoluments Clause wasn’t limited to two years; it’s just that the House Democrats were only able to evaluate two years’ worth of transactions because Trump’s accounting firm, Mazars, has only released one tranche of documents under the subpoena requested by the Committee (which was litigated up to the Supreme Court) when Trump was in office. Since Republicans took control of the House, Committee Chairman James Comer has declined to continue enforcing the subpoena, so the receipts from Trump’s last two years of the presidency are still unknown. And yes, we’re talking about the same James Comer who is currently undertaking an impeachment investigation into President Biden for… [checks notes] improper foreign influence (allegedly through his son before he was ever president and for which Comer has produced no evidence). So.

A few observations about this report, which should surprise absolutely no one. First, It’s worth remembering that just two years ago, the Supreme Court dismissed three lawsuits that were brought while Trump was in office. The first one, Trump v. Citizens for Responsibility and Ethics in Washington (C.R.E.W.), was brought by competitors in the hotel industry who alleged that they suffered harm through Trump unconstitutional acceptance of foreign payments (which were largely being funneled through his hotels and real estate). The other two were brought by the District of Columbia and Maryland (based on the harm being caused to businesses within their respective jurisdictions). Both cases were allowed to proceed by the lower courts, but when Trump appealed to the Supreme Court, the Solicitor General under the Trump administration, Jeff Wall, asked the Court to wait until after President Biden’s inauguration, and then dismiss the cases as moot since Trump was no longer president. Which they did. Because of course.

Basically, when Trump violated the Constitution while he was in office, he kicked the legal can down the road and ran out the clock to avoid accountability. Now, when he is out of office and being criminally prosecuted for actions he took while he was president (and before and after), he’s trying to kick the can down to road until he is elected president again, so no one can touch him. In case you’ve never heard of it, it’s the super fun game called No Accountability — try playing it sometime!

For real, though: The failure to hold Trump accountable for his violations of the Emoluments Clause throughout his presidency, just as with the difficulty of bringing him to trial for January 6 or enforcing his ineligibility to hold office under Section 3 of the Fourteenth Amendment, demonstrates the limitations of relying entirely on the legal system to operationalize our “democratic ground rules,” i.e., the Constitution. Our system of government rests on the presupposition of a certain kind of normative consensus: Namely, that if someone (anyone!) is so OBVIOUSLY unfit to be president — because they either objectively violated a clear proscription in the Constitution or because they don’t meet its eligibility requirements, or, quite frankly, because they have been indicted on 91 criminal counts in four different jurisdictions — that that person is really not someone any American, regardless of their political affiliation, wants to be in the Oval Office.

Perhaps that statement has elicited a cynical snort from you, dear reader, but it’s worth remembering that it wasn’t too long ago that such a normative consensus existed. After all, although it took some time for the tide to fully turn with Nixon, it was, in the end, members of Nixon’s own party that told him he needed to step down — because they knew that if impeachment proceedings against him continued, those agreed-upon democratic ground rules on who ought to hold the presidency would require them to convict and remove him from office. In their book, How Democracies Die (which is a MUST READ), authors Steven Levisky and Danel Ziblatt talk about political parties as important “gatekeepers” to monitor and enforce these democratic ground rules. Clearly, those gatekeepers don’t exist anymore.

The parties themselves are, by the way, one of the last lines of defense in enforcing democratic ground rules. To wit: In Federalist No. 68, Alexander Hamilton extolls the brilliance of the electoral college as an insurance policy of sorts against the election of an obviously unfit candidate, noting that while the President must reflect “the sense of the people…. the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” Hamilton goes on to observe:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

And, just to bring this back to the emoluments point specifically, Hamilton had this to say about the virtues of the electoral college when it came to improper foreign influence:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.

Yeah, so that hasn’t worked out so well so far. (And it raises an interesting legal question: If Trump is kept on the ballot and the Supreme Court sidesteps the direct question of his eligibility, would Republican electors be in any way constitutionally required NOT to cast their vote for him? I start thinking of questions like this and start screaming “WHY ARE WE EVEN HERE???!?” into the void. But I digress.)

Of course, in the event that some kookpot is elected to the presidency, the Constitution offers another opportunity to reestablish democratic ground rules: Impeachment. As noted above, that process (or at least the threat of it) was what worked with Nixon. Yet, as we all have seen, impeachment not only failed to work with Trump — twice — but the senators who tried to establish a normative consensus by voting for his removal, like Mitt Romney, were not only ostracized and essentially prohibited by their own party gatekeepers from continuing to serve in government, but have faced violent personal threats. Ditto for the Republicans who were committed to upholding democratic ground rules in the aftermath of January 6, like Adam Kinzinger and Liz Cheney.

So then we get to party gatekeepers, and as I’ve noted that hasn’t worked, either. The metaphor which I have used previously on my podcast, It’s Complicated, is the supposedly watertight bulkheads in the hull of the Titanic: They were designed with the assumption that all of them wouldn’t flood. Unfortunately, the ship was hit in precisely such a way that they all did.

Folks, the ship of our democracy has taken a deep (DEEP) hit, and almost all of the bulkheads have flooded. That’s why we’re left hoping that the courts — which in the context of novel constitutional questions like the one Trump’s candidacy raises means the Supreme Court —will save us. You and I both know that’s not going to happen, just as it didn’t with in the emoluments cases. As I noted in an earlier Substack piece, having courts police our basic democratic obligations to each other is an example of “cool trust” — it means that we can’t rely the values that bind us fellow citizens to help us police ourselves. We need to find a way to get everyone, even our political opponents, to play by the same basic rulebook. It’s the only way for the Constitution to work.