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PaperclipPerfector  4mo ago (text post)   29974 thread views

Culture War Roundup for the week of July 1, 2024

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For that reason, I think the decision is fairly sensible. If the President gets to appoint ambassadors, Congress cannot say "it's a felony not to appoint So-and-So as ambassador to France before August 1".

Is it okay for Congress to say "It is a felony to appoint an ambassador in exchange for a bribe"?

Given that the vast majority of prosecutions of elected office-holders for official acts after leaving office have been for bribery, and that the Court claimed they were making a rule for the ages, I think this point deserved more attention than it got. My read is that the majority opinion makes it effectively impossible to prosecute the President for bribery if the bribe-service falls within the express Constitutional powers (a pardon, an appointment, the surrender of a fort to the enemy etc.) and extremely difficult if the bribe-service is some other official act, such as the award of a federal contract.

Is it okay for Congress to say "It is a felony to appoint an ambassador in exchange for a bribe"?

At this point, after the Americans spent the better part of the last century and more doing just that for campaign donors? It'd be rather weird and imply a good deal of criminalizing bipartisan normal behavior, which itself would imply an intent for arbitrary and selective enforcement.

That is an interesting question, but I think it's clear that before we do interesting questions we should strive to get the uninteresting ones correct.

And truth be told, I'm not sure if Congress can regulate that criminally or must do so via the impeachment process. I could be convinced that it's proper to prosecute that criminally after he leaves office, but I could also be convinced that saying "you can't appoint an ambassador in exchange for a bribe" is not too far from saying "you must appoint an ambassador based only on X,Y,Z criteria".

Certainly I think the surrender of a fort to the enemy was already beyond the reach of the courts on a number of other grounds.

Well the president’s power does not include the power to receive a bribe. Therefore there would be no immunity. The harder part is the evidentiary burden. But I think getting say bank records would be permissible. By the way cushy ambassadorships are already sold off for donors. There is just no explicit quid pro quo.

Well the president’s power does not include the power to receive a bribe.

No, but if the bribe-service isn't admissible in evidence, then there is no way to distinguish a bribe from a gift.

By the way cushy ambassadorships are already sold off for donors.

Legally, there is an important distinction beween a donation to a politician's campaign, and a cash payment to the politician. We can argue about how relevant this is, but it is the law and it does reflect the way the American political elite behaves. I don't think the existence of unofficial quid pro quos for campaign donations is a good argument for legalising direct bribery.

I noted the evidentiary problem.

And yes there is a difference between today’s unofficial quid pro quo and literal quid pro quo. I’m just making the point there is already a degree of corruption going on.

Memorably, Trump appointed as Ambassador to the EU in 2018 a hotel businessman named Gordon Sondland who had donated $1 Million to Trump’s Inaugural Committee

Sondland ended up being a key figure in the Ukraine impeachment imbroglio, which is the only reason this was considered notable. I remember thinking at the time that i) $1M is not all that much money and becoming an ambassador seems readily achievable; and ii) that absolutely nobody seemed to care about this obvious bribe (again, the payment was to the Inaugural Committee, not even the campaign)

Dan Rooney became the ambassador to Ireland for supporting Obama and fundraising for him. Similar deal.

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