I Called the Constitution Police and They Say You're Going to JailArab Force One is either a gift or a bribe. The law forbids both. But who can actually block the transfer?
We were going to lead off today with a joke about the faux MAGA outrage over an Instagram post from former FBI Director James Comey, who had posted a picture reading “86 47,” which some were ridiculously characterizing as a call to assassinate the president. Except, uh, it isn’t just internet outrage anymore. Homeland Security Secretary Kristi Noem said last night that federal law enforcement had opened an investigation into the post. “He knew exactly what that meant,” Trump himself told Fox News last night. “That meant ‘assassination.’” Director of National Intelligence Tulsi Gabbard took to Fox as well to claim Comey “just issued a call to action to murder the president of the United States” and “must be held accountable under the full force of the law.” Stupider every day. Happy Friday.
So the Plane’s Illegal. Now What?by Andrew Egger As he tries to justify accepting a gift of a $400 million Qatari plane, Donald Trump is caught on the horns of an inescapable dilemma. If the Qataris are giving him the plane in exchange for something, it’s a corrupt bribe—a transaction so unforgivable the Supreme Court took pains to note it was not included in the sweeping grant of presidential immunity it created last year.¹ If, on the other hand, they’re giving him the plane in exchange for nothing, then it’s by definition a gift—which runs headlong into the brick wall of the Constitution’s Emoluments Clause, which forbids U.S. officeholders from accepting gifts without the consent of Congress “of any kind whatever, from any King, Prince, or foreign State.” In a better world than this, that would pretty much be the end of it. The moment the deed to Arab Force One changed hands, the Constitution Police would burst through the wall like the Kool-Aid man. “Hey!” they’d shout sternly. “You’re not allowed to do that!” “Oh, our mistake!” Trump and the Qataris would reply, and everyone would go their separate ways. Unfortunately, no such wholesome force exists, and all the relevant parties seem to be soldiering ahead with the obviously corrupt transaction. So what’s to be done? Start with the easiest and most implausible option. Congress, of course, could impeach the president. We’d like to live in a world where presidents feared to take such actions, knowing Congress’s vengeance would be swift and sure. In this world, alas, Congress is about as likely to impeach Trump as he is to be arrested by the Constitution Police. But what about Congressional action short of impeachment? After all, a remarkable number of Republican lawmakers—including plenty of staunch allies of the president—have already registered their discomfort with the whole affair. GOP majorities in both houses are slim: It’s a virtual certainty that majorities in both the House and Senate disapprove of the plane swap. A coalition of 27 Senate Democrats have already introduced a resolution condemning the transfer. But as Ryan Goodman of Just Security argued this week, that may be approaching the problem from the wrong end. Rather than register their disapproval, Goodman said, both houses of Congress should bring up a motion of consent for the plane—then vote it down. It’s a subtle difference, but a significant one. By voting down a consent motion, Congress would be fulfilling to the letter its obligation under the Constitution—to give or to withhold the consent by which no gift can be constitutionally bestowed on the president. What would happen next is unclear. A coalition of lawmakers could bring suit against the White House—but the available path there is narrow, thanks to an appellate court ruling during Trump’s first term (sort of weird how courts never had to address these issues before, huh?) that individual members of Congress lack standing to sue the administration over potential emoluments violations. Would their case be strengthened by having an explicit act of Congress—the withholding of consent over this specific violation—to stand on? Or would Congress need to act as a body to bring a suit—which would presumably require buy-in from Republican leaders in the House, the Senate, or both? Many questions obviously remain. Here’s one thing that should be painfully clear by now, though. The old regime turns out to have been one under which most statutory restraints on presidential action turned out to be pretty much just suggestions, able to be jettisoned at the president’s say-so, provided Congress didn’t have the spine to impeach him for it. That regime creaked mightily under Trump the first time around, and now seems in danger of collapsing altogether. It’s remarkable to think of how things might have been different—how Joe Biden and his Democratic Congress, for instance, might have used his term in office to throw up taller, stiffer restraints around the presidency. Instead, they chose to view Trump 1.0 as a blip—a momentary mania to which the voters would never see fit to return. We can only pray that—should we be fortunate enough to see another decent president reasonably soon—he or she won’t make the same mistake again. We rely on our readers to help spread the good word. Know someone who'd enjoy this newsletter? Feel free to forward it to them. Harvard Finds a Magna Cartaby William Kristol We interrupt our ongoing coverage of the current decline and the possible fall of the American republic to bring you some breaking news: Scholars have discovered a very old and rare Magna Carta, written by hand in Latin on sheepskin parchment in 1300, in the Harvard Law School archives. It had been mislabeled as a later copy of the famous document. The Magna Carta, signed at Runnymede near London more than eight centuries ago by King John of England and a group of rebellious barons, declares, as the Washington Post put it simply but elegantly, “that even the king must follow the rules.” It’s mostly a medieval document regulating how a feudal system should work. But it has within it some germs of modern liberty—in particular the principles of habeas corpus and trial by jury:
This document has stood through the centuries as a rebuke to the exercise of arbitrary and tyrannical power. So conservatives, who feel more comfortable defending our liberties if they can be found to have originated in the mists of antiquity, should be reinforced in their determination to oppose our current anti-conservative administration. Liberals, on the other hand, skimming over the document in modern English translation, will correctly remark that the concession of certain liberties by a king to the nobility is not the same thing as the acknowledgment of unalienable natural rights. They may even be prompted to cite the young Alexander Hamilon, writing in 1775 against the argument that the colonies should remain loyal to the British king: “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, by the hand of divinity itself; and can never be erased or obscured by mortal power.” So liberals will grant that it’s nice that Harvard found this “old parchment” and “musty record” hidden in its archives. But they will correctly insist that we didn’t need this discovery to oppose an anti-liberal administration that is subverting the sacred rights of mankind. Conservatives and liberals will each take their own lessons from this discovery. And some of us will take one more lesson of our own. To wit: Yes, there’s a case for getting rid of all those “unnecessary” papers and notes and xeroxes and clippings one has accumulated over the years. But there’s a lesson in caution here. Don’t move too fast! Don’t act precipitately! After all, there could be an original and invaluable Magna Carta hidden in those piles of papers in the basement! How terrible if it were discarded in a misguided frenzy of spring cleaning! AROUND THE BULWARK
Quick HitsTHE SCALE OF HUMAN MISERY: How to quantify the staggering human cost of the administration’s cuts to foreign aid? Asterisk magazine commissioned expert forecasts of the likely effects of cuts to five broad USAID efforts: PEPFAR (the HIV/AIDS relief effort), anti-malaria programs, anti-tuberculosis programs, nutrition programs, and programs on water, sanitation, and hygiene. These forecasts go deep on the details, but just to share the topline:
“We’ve published critiques of USAID programs in the past, but we believe the life-saving impacts, especially of its most cost-effective programs, remain under-appreciated,” the authors write. “We think quantifying those impacts—transparently and probabilistically—is critical to the conversations happening now and in the future over whether these programs should be restored.” Back when Elon Musk was the public face of these cuts, he routinely assured the public that DOGE was only targeting those skimming off the top of federal programs—that the government’s actual lifesaving work would continue. As the White House forges ahead with a budget request that would cut funding for a host of these critical programs by 50 percent or more, they’re plainly no longer even pretending that’s true. The White House’s startlingly deep cuts to USAID and other foreign aid programs haven’t been as much in the news lately. It’s easy to forget about anonymous suffering on the other side of the world when there’s so much to worry about at home. But read through these reports and witness the coming carnage. THE SALT IN OUR STARS: The Republicans trying to pass Donald Trump’s “big, beautiful bill” are under a lot of pressure. With such small majorities, even a small coalition of holdouts could be enough to tank the whole thing—and there’s a number of different factions threatening to do just that if the bill doesn’t go their way on key issues. The thorniest divide involves the SALT deduction, a boon for taxpayers in high-tax states that the 2017 Tax Cuts & Jobs Act seriously crimped, and which a handful of blue-state House Republicans are determined to restore.² Most Republican lawmakers argue: Why would we put back a regressive tax policy that subsidizes Democrat-run states that tax their citizens out the wazoo? Representatives from the New York City exurbs reply: Oh my God you literally could not have a majority without us and this is the single thing our voters care about can you seriously not throw us one bone? Predictably for today’s GOP, it’s all getting pretty cranky and personal. Rep. Mike Lawler—one of those New York bedroom-community Republicans—has been mixing it up with Rep. Marjorie Taylor Greene online this week. “Mike Lawler has a toss up seat,” Greene wrote on Wednesday. “What’s the point in Republicans fighting to protect and keep re-electing ‘Republicans’ if they constantly undermine the agenda America voted for???” “Shockingly the ‘Jewish Space Laser’ lady once again doesn’t have a clue what she is talking about,” Lawler shot back. “By the way, the reason you enjoy a gavel is because Republicans like me have won our seats. Good luck being in the Majority if we don’t.” We have to acknowledge there are good points on both sides here. We may be with Greene when it comes to the SALT deduction, but we’re definitely with Lawler when it comes to Greene. Cheap Shots
1 Some, including the dissenting justices in that case, have argued that the grant of immunity would make trying a president for bribery more difficult, but none of the justices disputed that taking bribes would remain a criminal act. 2 I wrote about the merits and demerits (the latter outnumber the former) of uncapping the SALT deduction last September. You’re a free subscriber to The Bulwark—the largest pro-democracy news and analysis bundle on Substack. For unfettered access to all our newsletters and to access ad-free and member-only shows, become a paying subscriber. We’re going to send you a lot of content—newsletters and alerts for shows so you can read and watch on your schedule. Don’t care for so much email? You can update your personal email preferences as often as you like. To update the list of newsletter or alerts you received from The Bulwark, click here.
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I Called the Constitution Police and They Say You're Going to Jail
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