This weekend’s bombshell New York Times’ report on Donald Trump is an important deep dive into how business interests sought and received favors from President Trump after spending big money at his properties, and making large donations to Trump’s political machine.
The Times says that this is “the swamp that Trump built” — but the insinuation is a bit off. Yes, Trump certainly built his own egregiously rancid bog that needs to be drained in this election. However, he built it inside a giant wetland of graft that was constructed by a series of court rulings and enforcement policies that have effectively legalized corruption.
These rulings are particularly relevant right now, as the US Senate this week considers the nomination of Amy Coney Barrett to the Supreme Court. Barrett depicts herself as an Antonin Scalia acolyte who insists she believes judges should just call balls and strikes, and never legislate from the bench.
“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” she is expected to tell senators in her opening statement at her confirmation hearing. “The public should not expect courts to do so, and courts should not try.”
And yet much of the policymaking that legalized corruption — and that Trump is taking advantage of — came from court rulings written by conservative jurists who have billed themselves the same way. Those alleged “textualists” didn’t stick to any text — instead, they deliberately used their power to manufacture brand new graft-justifying precedents that are wholly divorced from any constitutional passage.
We cannot ignore those rulings and pretend that Trump is an anomalous creature from the black lagoon rather than what he actually is: a particularly grotesque product of a jurisprudential swamp.
Casting Trump as singular — rather than emblematic — ignores the systemic problem, and risks never draining the larger marsh that continues to turn corporate cash into corrupt laws.
2010 SCOTUS: “Ingratiation and Access, in Any Event, Are Not Corruption”
The construction of that marsh started more than forty years ago, when the Supreme Court issued its Buckley v. Valeo ruling declaring that limits on total campaign spending violate the First Amendment. That ruling was weaponized in the last few years to legally protect the kind of pay-to-play corruption that now defines the Trump era.
The first decision came in 2010, when the Roberts Supreme Court used Buckley as the foundation of its Citizens United ruling, which is mostly known for allowing unlimited spending in campaigns, but which did something even more profound: It effectively sanctioned certain forms of obvious corruption that have come to dominate American politics.
“Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” the court declared. “The fact that (spenders) may have influence over or access to elected officials does not mean that these officials are corrupt … independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate…. Ingratiation and access, in any event, are not corruption.”
This fantastical and deranged logic — which somehow pretends corruption isn’t corruption — is totally disconnected from any constitutional text, and yet was supported by the court’s alleged textualists.
If the court’s absurd corruption-legalizing rationales sound familiar, that’s because it is exactly how Mar-a-Lago members buying favors from Trump pretend that they didn’t engage in corruption. Indeed, as the New York Times reported in its story this weekend: Many of those enriching Trump, donating to Trump-aligned super PACs and then getting government favors, “said in interviews that any favorable outcome from the administration was incidental to their patronage.”
Back in 2010, dissenting justices sounded an alarm on just how radical this interpretation was — and their opinion reads like a warning of what would soon materialize.
“Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf,” they wrote. “There are threats of corruption that are far more destructive to a democratic society than the odd bribe. Yet the majority’s understanding of corruption would leave lawmakers impotent to address all but the most discrete abuses.”
2015 SCOTUS: Corruption Is Not “Setting up a Meeting, Calling Another Public Official or Hosting an Event”
Just five years after Citizens United, the Supreme Court issued its McDonnell v United States decision, which legalized corruption around the specific kind of favor-seeking that the Times story shows routinely occurs in Trump world.
That case revolved around Virginia Republican Gov. Bob McDonnell accepting $175,000 worth of loans and gifts from the CEO of a dietary supplement company, and then using his gubernatorial position to promote that company’s interests. McDonnell was convicted by a lower court on corruption charges in what seemed like an open-and-shut case.
That is, until the Supreme Court intervened to overturn the ruling in a decision aimed at narrowing the definition of what can be considered an “official” government act, for purposes of prosecuting quid pro quo corruption.
“Our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute,” Chief Justice John Roberts wrote in the ruling. “Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”
In practice, the McDonnell opinion deliberately legalized the kind of graft that defines Trump world, according to the Times story.
Yes, Trump ordering his Treasury Secretary to help out one of his tenants is certainly “horrifying,” as former government ethics regulator Walter Shaub said — but it is also precisely the kind of pay-to-play culture that the McDonnell ruling blessed.
That ruling, of course, was one in a series of judicial and law enforcement decisions that has now made it “almost impossible to put a crooked politician in prison,” according to University of Michigan law professor Leah Litman.
“There are several reasons corrupt officeholders can walk free,” Litman wrote earlier this year in the Washington Post. “Legislatures have few incentives to criminalize their own conduct; the statutes they pass can be defanged by prosecutors who decline to charge their political allies; public officials can often afford fancy lawyers to fight their cases; and courts have narrowly interpreted — or simply invalidated — public-corruption statutes. These trends have only accelerated over the past few years as Trump has normalized the problems those laws were written to fight.”
TODAY: Enforcement of Remaining Corruption Laws Hits Record Low
Of course, aggressive prosecutors could still try to crack down on the kind of corruption that defines the Trump administration and American politics in general — and there’s a chance Trump could at some point face charges. However, that would be surprising, considering that prosecutors rarely enforce the remaining anti-corruption laws that still exist.
In the last five years, the Justice Department’s prosecutions of official corruption have dropped by nearly 50 percent, according to data compiled by Syracuse University researchers.
That is part of a long-term trend. In 1998, the Justice Department filed more than nine hundred official prosecution cases. By 2018, the department filed less than four hundred cases. This decline has occurred under presidents of both parties.
Nobody could argue with a straight face that such prosecutions decreased because politics has suddenly become less corrupt. On the contrary, there has been a huge increase in the amount of money flooding into politics and elections and plenty of evidence that the political process has become a transactional machine that converts cash into government policy.
What’s changed is both the definition of what’s legal and illegal, and the desire by anyone in power to enforce the most minimal public corruption laws that remain on the books.
Corruption is now almost completely legal, the illegal stuff almost never gets prosecuted — and that normalization delivers predictable results.
You don’t just get Mar-a-Lago and Bedminster. You get an entire kleptocracy defined by billionaires and corporations funneling cash to both parties’ lawmakers, super PACs, and think tanks in exchange for propaganda, legislative proposals and laws.
Those laws have created the crushing inequality that enriches the donor class, while pulverizing everyone else. And now, thanks to war-is-peace jurisprudence and bipartisan policy, the pervasive corruption is seen as just the mundane, tolerable, day-to-day process of government and elections, rather than being recognized for what it really is: an unacceptable crime spree that is destroying the country.