How the Supreme Court enabled Donald Trump’s mile high bribe

Reports of Donald Trump’s new flying palace — a luxury jet gifted by Qatar — are all over the news. A foreign government gifting a plane to the president (for him to keep after he leaves office, no less) struck many as, well, a little bit off. It’s part of a pattern of Donald Trump and his cohort gleefully trying to squeeze every profit and every penny they can get from the office of the presidency — whether it be hawking crypto while relaxing regulations on crypto, holding meetings and conducting business at Trump resorts, and so on. Some of this unseemly grift, including the possible new Qatar Force One, was made easier by the highest court in the land, which has allowed our government to operate according to the lowest standards.

Gifts from a foreign government raise obvious questions under the foreign emoluments clause. Article I, section 9 of the Constitution reads “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” A luxury jet seems like a present. It also came from a foreign state. Donald Trump holds an office (of the United States). And he didn’t get Congress’ consent to accept the jet. Pretty straightforward, no?

Alas, the United States Supreme Court wiped off the books what little judicial precedent there was on the topic of the foreign emoluments clause — precedent specifically involving Donald Trump. During the first Trump administration, and still to this day, Trump operates a bunch of Trump hotels in which he retains a financial stake. Numerous foreign state officials stay at those hotels and eat at Trump restaurants, funneling money into Trump’s hands. Several different groups sued to challenge these practices on the ground that they violated the foreign emoluments clause. Some of the plaintiffs obtained favorable judicial rulings that rejected Donald Trump’s arguments for why the emoluments clause posed no obstacle to his grift. Among other things, Trump argued the emoluments clause was a nonjusticiable political question such that courts couldn’t stop any of the grift. The cases eventually reached the United States Supreme Court toward the end of the Trump presidency. But after Joe Biden was elected in the 2020 presidential election, the Court opted to dismiss the cases as moot, saying they no longer mattered because Trump was no longer president. Equally importantly, the Court vacated the underlying decisions—it wiped the precedents off the books such that there’s no longer any established case law holding that people can, indeed, sue the president for violating the foreign emoluments clause.

But the court’s role in Trump’s latest grift goes much deeper than the emoluments clause. The Court has repeatedly insisted that it’s not really corrupt to bestow large amounts of money or gifts on political officials, and that influence and access schemes are not corrupt—they’re just how government works. The only real kind of corruption, the Court maintains, is quid pro quo corruption where political officials receive money or gifts and, in exchange, promise to do discrete political acts such as voting for a law or rescinding an executive order.

Based on some of the discourse surrounding the Qatari flying palace, the Supreme Court cases that have normalized and laundered influence and access schemes seem to have crept in to social and political understandings of what corruption is. Along these lines, the Trump administration, as well as a New York Times reporter, insist the g(r)ift the flying palace isn’t bribery or corruption because it wasn’t part of a quid pro quo exchange. That hardly makes it, uh, ok!

Some of the relevant Supreme Court cases blessing access to power holders through money and gifts are well-known campaign finance decisions. Take Citizens United v. Federal Election Commission. There, the Court infamously invalidated a federal law that restricted corporate independent expenditures where entities spend money on their own advocacy for or against particular candidates. The Court reasoned that Congress has a compelling interest that would justify restricting speech (money spent in elections) when Congress is attempting to prohibit quid pro quo bribery, again basically a 1:1 exchange of gifts or money for political favors. But, the Court continued, Congress does not have a compelling interest in preventing a deluge of corporate money in politics because massive expenditures “do not give rise or corruption or the appearance of corruption” since “[t]he appearance of influence or access … will not cause the electorate to lose faith in our democracy.” Money for influence or access is just how government works, according to the Court—it’s as American as apple pie and you’re the weirdo for thinking otherwise.

But the cases laying the groundwork for influence-and-access schemes also include lesser-known decisions that “interpret” anti-corruption statutes by insisting that the Supreme Court’s own definition of corruption (quid pro quo bribery) is the only acceptable definition of bribery. Take McDonnell v. United States, where the Court (mis)interpreted a federal law that made it a crime to “directly or indirectly, corruptly give … offer … or promise anything of value to any public official” to “influence any official act.” The case involved former Virginia Governor Bob McDonnell and his wife, who accepted nearly $200,000 in loans, gifts and other benefits from the CEO of a company that offered a nutritional supplement. While accepting this largesse, Governor McDonnell arranged meetings for the CEO to discuss the company’s product with officials, contacted officials about the company, hosted events for the company, and even said he personally used the supplement. None of that was corruption, the Supreme Court insisted — it just reflected “[t]he basic compact underlying representative government,” namely “that public officials will hear from their constituents and act appropriately by their concerns.” Gifts for influence and access, the court is saying, are very normal! Very legitimate!

More recently, United States v. Snyder made it A-OK for state and local officials to accept tips and gratuities from private individuals for the officials’ political acts, so long as there isn’t an explicit quid pro quo agreement that had promised the tip or gratuity for the official act. There, a local mayor had awarded a lucrative contract to a trucking company, which then hired the mayor for more than $10,000 in consulting services. What’s so wrong with a ‘thank you,’ the Justices seemed to imply.

Under the Supreme Court’s logic in that case, even if the flying palace is a thank you tip or gratuity for the administration disbanding the anti-corruption task force at DOJ and cutting back on the enforcement of federal laws increasing transparency for foreign lobbying and restricting bribery of foreign officials, it would still be just fine! Attorney General Pam Bondi, of course, did all of those things. She, along with several other Trumpers, also previously worked as lobbyists for Qatar, including Attorney General Pam Bondi, who disbanded the unit.

Several Republican justices have individually demonstrated that access to power holders is never corrupt, even when purchased. Justice Clarence Thomas has received some private jet trips, luxury vacations, and more from billionaires who then get access to the justice. Justice Samuel Alito took a private jet trip and luxury Alaskan vacation with hedge fund billionaire Paul Singer. Justices Neil Gorsuch and Brett Kavanaugh have accepted luxurious boondoggles from law schools that send them to European countries to teach — along with plenty of time for vacationing. That’s all fine and good, they say, because they didn’t accept the largesse in exchange for ruling in a particular case in a particular way.

So if you’re wondering, where did Donald Trump and his apologists get the crazy idea that Trump could accept luxurious gifts from someone who probably wanted to gain the president’s ear, look no further than the Supreme Court. As they say, a fish rots from the head (of the judicial branch). Many people, myself included, have come to think of the Supreme Court as, in part, a MAGA court. It just so happens that that includes the Make America a Grift Again part of the MAGA agenda.