JONATHAN HENNESSEY: ‘Obfuscation and distraction’ on emoluments issue

By JONATHAN HENNESSEY
Guest Columnist

(TNS) Citizens of Maryland and the District of Columbia may not know it, but the recent government shutdown created such a backlog of unfinished business that even now some of the federal priorities pertaining to them remain sidetracked. Take, for example, D.C. and Maryland v. Trump, the federal court case alleging the president has violated the U.S. Constitution’s emoluments clauses.

Before its interruption, the case was at a cliffhanger. Attorneys General Brian Frosh of Maryland and Karl Racine of D.C. had a quiver of 38 subpoenas notched and ready to fly. But with the shutdown came a curiously advantageous new situation for the president. His defense could, and did, persuade the courts that since the flow of judiciary operating dollars was stoppered up, the case should be placed on ice.

On Tuesday, however, the U.S. Court of Appeals for the 4th Circuit will hear oral arguments exhorting them to step in and halt D.C. and Maryland v. Trump before it can proceed. Messrs. Frosh and Racine’s discovery powers, through which the president may face real legal peril, are still in check, even with the post-shutdown thaw.

Since Mr. Trump became president, his businesses have received payments and benefits from both foreign governments (China, Saudi Arabia, Qatar) and domestic ones (Maine and the U.S. General Service Administration among them). Native business operators in D.C. and Maryland say they suffer when parties hoping to curry favor with the president forsake them to instead patronize the Trump International D.C. On this basis D.C. and Maryland believe they have standing to sue.

The implicit constitutional question is whether the revenues the president receives from the likes of the GSA and UAE offend two anti-corruption provisions in our supreme law of the land. The Foreign and Domestic Emoluments clauses prohibit a president from reaping rewards of office other than his salary. They were instituted to ensure that the chief executive’s loyalty to our country is uncompromised and to thwart “pay for play” politics.

We don’t know what to anticipate from the Fourth Circuit. But we can expect a fresh volley of obfuscation and distraction to be fired from the sidelines: smoke and chaff calculated to deepen public perception that the emoluments issue is arcane, unknowable and not worth enforcing.

In part, this is a tactical maneuver from the right to protect Mr. Trump. But more sinister, long-term consequences attend to it as well.

James Madison insisted the Constitution must be adopted “in toto and forever.” So, we should be asking ourselves if efforts to discredit one of its supposedly “obscure” components signals a campaign to soften up the whole document and render it more pliable to the powerful groups who seek to remake it in the mold of hardline ideology.

No organization has been as successful as the Federalist Society in shifting law and policy to the right. And there is a conspicuous pattern of its members penning articles in national publications that question whether the emoluments clauses apply to the president.

A favorite tactic in this mode has been to question George Washington’s presidential conduct. University of South Texas Law Professor and Federalist Society member Josh M. Blackman has promoted a claim that Washington purchased federal land in 1793, in breach of the Domestic Emoluments Clause. Antonin Scalia Law School Professor Eugene Kontorovich, also a Federalist Society member, charged that Washington dealt with a British government agency when seeking new farm tenants at his Mount Vernon estate, contravening the Foreign Emoluments Clause.

Evidently the papers running such articles take them at face value. Are these law professors betting, in furtherance of designs against constitutional precedent, that the public will, too?

Examining Washington’s conduct with a historian’s approach — one employing primary documents — starkly erodes such claims. In Mr. Blackman’s case, contracts and maps point to Washington’s land deals having been made with private landowners, not the U.S. government. In Mr. Kontorovich’s, little more than the copy of a charter is required to reveal that the London-based “Board of Agriculture” was in fact a private corporation with no legislative or regulatory authority. Its secretary (who delivered no tenants) had been a gushing admirer of and correspondent with Washington since before the Constitution existed.

The assertions do not hold up. Keep that in mind when the dubious experts enter the fray again as the future of D.C. and Maryland v. Trump comes into focus.

Jonathan Hennessey is a New York Times bestselling author of six books, best known for a graphic novel edition of the U.S. Constitution (Farrar Straus & Giroux). He wrote this for the Baltimore Sun.

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Posted by Tribune News Services

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