Donald Trump

Norman Eisen - [Donald Trump’s shenanigans this week were so outrageous that reinforcements were in order to push back! So, I invited George W. Bush White House ethics lawyer Richard Painter and Clinton White House ethics lawyer Virginia Canter to join me—the Obama White House ethics lawyer—to write about Trump’s misconduct.]

The president‘s outrageous request for $230 million from the federal government is not only an abusive attempt to raid the coffers of the Treasury, but it’s also an apparent violation of the Domestic Emoluments Clause—a constitutional provision that expressly prohibits the president from taking any emolument from the United States other than his statutory salary. And, unlike the Foreign Emoluments clause, the domestic clause is applicable solely to the president of the United States, and Congress has no power to waive it. We should know: The three of us served as ethics officials to President Barack Obama, President George W. Bush, and President Bill Clinton and brought suit against Trump in his first term for violating the Foreign Emoluments Clause.

The weight of history shows that the term “emolument” is expansive and covers any form of profit, advantage, or benefit. So when the president seeks compensation from the Department of Justice based on spurious claims under the Federal Tort Claims Act, he is really seeking compensation from the government in excess of his salary. And he is doing so using his subordinates to award him a profit, advantage, or benefit in violation of the Domestic Emoluments Clause.

Special Counsel Jack Smith’s cases were supported by the evidence but were not decided on the merits one way or another because Trump won the 2024 election. The Justice Department will not try a criminal case against a sitting president. Special Counsel Robert Mueller’s 2017-2019 investigation did not result in criminal charges being brought for the same reason stated in Part II of Mueller’s report—again, the Justice Department will not indict a sitting president. Finally, the FBI search of Trump’s Florida estate for classified documents was pursuant to a valid search warrant signed by a judge. None of this justifies a $230 million payment from the Treasury to Trump.

Indeed, many presidents, including Richard Nixon, Ronald Reagan, Bill Clinton, and Joe Biden, have been subjected to special counsel investigations. Not one of them sought or received reimbursement of legal costs from the government. Trump is the only president to be indicted after leaving office, but there are very few cases in which more ordinary defendants acquitted in criminal cases received compensation from the government. And, again, Trump was never acquitted or adjudicated guilty of the charges against him because there was no trial. Finally, execution of a lawful search warrant almost never leads to compensation unless federal agents cause bodily injury or serious damage to property. That did not occur at Trump’s Florida residence. Trump seeking compensation for the investigations is nothing more than an attempt to squeeze hundreds of millions of dollars from the American taxpayer.