Having brought Congress completely to heel in the political sphere, Donald Trump is now seeking to write them out of the Constitution. Both of his biggest moves of the past week entail the evisceration of a constitutional role the Framers very plainly and expressly wanted Congress to play.
That is the case for the flirtation with suspension of habeas corpus, which only Congress can do. And it’s even more manifest in Trump’s plan to accept a $400 million (or is it $625 million?) jumbo jet “palace in the sky” from the Qatari government.
On the suspension issue, Stephen Miller’s pompous primer on suspension of habeas corpus, coupled with the announcement that “we’re actively looking at [it],” was risible and unsettling in equal measure. The constitutional command he was mangling is directed to Congress, not the Executive—which is why it is in Article I along with other definitions of congressional power.
The recognition that only Congress can suspend is essentially universal, consistently reaffirmed in Court opinions from early in the 19th century, which themselves apply the previously ensconced practice from England. (Lincoln’s wartime suspension during the Civil War is not to the contrary: Congress was out of session; it later ratified the suspension; and many scholars still contend that Lincoln violated the Constitution.)
Moreover, Miller ham-handedly slices off the limiting half of the Clause in the second half—that suspension can occur only when “the public Safety may require it.” Whatever national crisis Trump is attempting to manufacture about the presence of immigrants in the country, the public safety does not require that courts not consider the due process rights of detainees.
Miller’s ensuing suggestion that the decision not to suspend is contingent on “whether the courts do the right thing” is a thuggish non sequitur. Whether courts remain available to entertain writs of habeas corpus cannot turn on the content of their decisions. This is no more than another “heads I win, tails you lose” suggestion from a lawless Administration.
Miller’s Suspension Clause rhetoric is of a piece with his assurance to Trump that the Supreme Court had ruled unanimously for him in its Alien Enemies Act opinion—when the opposite was the case. All nine justices agreed that the Administration has to provide due process to detainees. If the Administration continues to let Miller, a non-lawyer and faintly reptilian figure, announce its legal analyses, it’s going to suffer further embarrassment in the courts when actual lawyers have to disavow Miller’s legal twaddle.
But the Qatari 757 deal is even more blatant. The plane would replace Air Force One during the pendency of Trump’s tenure and then be given to his presidential foundation created after his presidency—presumably for his use.
There is, however, a small constitutional snag.
Article I, Section 9, Clause 8 of the Constitution—the Foreign Emoluments Clause—says that no person holding an office of the United States shall, without the consent of Congress, accept any present “of any kind whatever” from any foreign state.
Trump's first term was a serial violation of the domestic and foreign Emoluments Clauses, as influence seekers of all stripes clamored to support his Washington, D.C., hotel and other businesses. But the business profits he pocketed from people seeking his goodwill in the first term are chump change next to the gaudily lavish, gold-plated (and possibly bugged) Qatari luxury jet.
There is no serious argument that Trump’s acceptance of the plane does not violate the Emoluments Clause. Trump has tried to trot out an argument that it's really a gift to the government and not to him. But if it's partly for his personal enjoyment—and very clearly if it winds up with his foundation and not the government after his tenure—the law is quite clear that it falls within the Clause.
As usual, Trump is his own worst enemy in clarifying just what’s going on. Speaking to reporters on Monday, Trump noted, “I think it’s a great gesture from Qatar. I appreciate it very much. I would never be one to turn down that kind of an offer.”
He also justified the decision by saying he would have to be a “stupid person” not to take the plane, and he analogized the decision to agreeing to a gimme putt in golf. And we further know that Trump toured the jet in February. If Trump is the one to solicit and accept the offer, then it is not a gift to the federal government.
There is apparently an opinion blessing the deal from Attorney General Pam Bondi, who herself garnered six-figure fees from Qatar for lobbying on their behalf starting in 2019. We haven’t seen the analysis yet, but since Bondi sees it as her job to fight for Trump the person—as opposed to the office—you can bet that it’s at most as good an argument as can be made for a client, but a total loser.
The argument that Trump can be expected to rely on in the coming cluster of lawsuits from NGOs and state attorneys general is that the various plaintiffs lack standing. That was the central issue in most of the Emoluments Clause litigation during Trump 1.0. The courts were divided on the question, and eventually the Supreme Court dismissed the various cases as moot because Trump had left office.
In fact, properly understood, the standing issue only reinforces the unconstitutionality of what Trump is doing. It's true that it's hard to conceptualize the injury of the constitutional violation in terms of a pocketbook loss to, say, an individual state attorney general. It requires ingenuity and a court that takes a somewhat elastic view of standing.
That's precisely because the constitutional injury entailed by Trump’s acceptance of the palace in the sky is social, absorbed by all of us. It’s precisely for that reason that the Framers specified that Congress, the representatives of the people, must determine whether a particular gift may be accepted.
After all, not all gifts to officials are objectionable. Most famously, Congress in 1791 passed a resolution allowing Ben Franklin to keep a gold snuff box given to him by Louis XVI. On the other hand, Congress never exercised its authority to approve President Lincoln’s request in the middle of the Civil War to keep an elephant tusk from the King of Siam (along with an elephant, which Lincoln politely declined).
Consider the example of the Statue of Liberty, which Trump defenders are wont to proffer in his defense for keeping the plane—but which actually cuts sharply in the other direction.
The statue was a gift from the French people to the American people, not to a particular official. Moreover, Congress ratified its receipt.
But suppose Trump decided to transfer the Statue of Liberty to the Rose Garden, to gaze on and continually remind him of the grander purpose of his presidency. The injury of its removal from Liberty Island—and make no mistake, it would be an injury—would be to all of us, equally. And it would not really be a pocketbook injury, of the sort that confers standing in the federal courts, but an injury to our shared civic sense.
In the same way, Trump's acceptance in the people’s name of this gaudy showpiece would pose severe problems to the nation, even if no individual could demonstrate a particular monetary loss.
These examples illustrate that the appropriateness of a particular gift is a nuanced, contextual, political question. The Framers were extremely concerned about the prospect that gifts could be used corruptly to buy and sell influence. But they declined to constitutionalize a categorical rule against gifts, instead opting for greater flexibility and political accountability by insisting on an overall political judgment by the body best positioned to deliver it.
That judgment, by the way, is pouring in—and it’s largely negative. Many people on the right and left are expressing grave reservations about Trump’s excitement. Conservative commentator Ben Shapiro wrote that “[t]aking sacks of goodies from people who support Hamas, the Muslim Brotherhood, Al Jazeera, all the rest—that's not America First.” No less staunch a Trumpista than Laura Loomer called the Qatari officials “jihadists in suits” and disparaged the idea as “a stain on the administration.”
The chorus of critics now includes a number of elected Republicans. On Tuesday, the Senate Majority Leader, John Thune of South Dakota, said of the jet, “I can assure you there will be plenty of scrutiny of whatever that arrangement might look like.” Republican Senator Ted Cruz, a strong Trump ally, expressed national security concerns. “I also think the plane poses significant espionage and surveillance problems.”
All of this suggests that political pushback may eventually doom Trump’s cherished idea. If so, that's the sort of national judgment that the Constitution contemplates.
It goes without saying—anywhere but in Trump World—that the last person to decide whether a gift should be kept is the putative recipient. That means that, questions of standing aside, Trump’s plain constitutional responsibility is, as with Franklin and Lincoln, to serve up to Congress the question of whether he gets to keep his gold-plated palace in the sky.
And if he fails to do that, the plain reading of the Constitution is that he may not keep the plane. To do so would be to accept a present without the consent of Congress.
It’s not an anomaly but a matter of constitutional design that the charter establishes a limit that falls to the political branches to enforce. This being America in the twenty-first century, there surely will be lawsuits attempting to get at the constitutional problem.
But the fundamental dereliction is by our political leaders: If Congress fails to take up the question of whether Trump can keep the plane, it’s a fundamental disregard of its constitutional duties; likewise, if Trump tries to keep his latest and greatest toy without submitting it to Congress, he is flouting the Constitution, whatever Pam Bondi may say. The question, as always with Trump, is not what’s right or lawful or even decent, but whether anybody can stop him.
Harry Litman is a former United States Attorney and the executive producer and host of theTalking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing toTalking Feds on Substack.
Reprinted with permission from Substack.
