Trump Is Getting Even Richer. Is That a Crime?

19:34Jack Goldsmith:That is a hook for Congress to define what an emolument is more clearly, to provide a way, a system for people to sue, to bring lawsuits to enforce it or use that use that power and other powers Congress has to, for example, force presidents to have financial arrangements of greater integrity. You know, this gets into the blind trust area. This gets into ensuring that the president is barred, legally barred from running a business. It gets into the idea that federal officials cannot be associated with entities that trade in crypto. So there's a whole bunch of regulations and laws that could be brought to bear to tamp down on this problem.

20:21Jack Goldsmith:And I think they should be considered. By the way, a lot of this stuff was apparent after the first term. The massive loopholes in presidential accountability for conflicts of interest was crystal clear. And the Biden administration didn't seem interested in working on that. President Trump himself, when he was asked earlier this year, I think by the New York Times, and I'm going to paraphrase again, you know, why are you more forward-leaning in your foreign adventures with your family's companies? And he basically said, because I learned that no one cared. And I think that was the lesson. I mean, the lawsuits against him failed.

20:58Jack Goldsmith:Congress didn't do anything about it. It was all out in the open and nothing happened.

21:02Christopher Caldwell:Well, you know, it's funny. Donald Trump, in his last campaign, argued that the government already was weaponized. And in a certain way, you can say he had a point. You had four prosecutions against him that were clearly coordinated at some level to fall in election season. And it seems to be the case that one man's weaponization is another man's accountability.

21:38Jack Goldsmith:I think that there is truth in the fact that aspects of the government were weaponized against Donald Trump before he came to office. I've talked about this before. If I could just get a definition of weaponization in the table. Weaponization, as I see it, is the use of discretionary executive power to use the tools of government to try to harm or destroy your enemy. Now, the problem with that definition is it kind of depends on what the intent is. The Democrats thought that they were just Trump enacted illegally and they were just getting accountability. And therefore, it wasn't weaponization because they had a good intent and the Trump administration saw it as them having a bad intent.

22:18Jack Goldsmith:the conglomeration of lawsuits against him, including not just the New York lawsuits, not just the federal lawsuits, not just the Georgia lawsuits, the 14th Amendment effort to get him removed from office and taken off the ballot. Elements of it, because of the unusual nature of some of it and how some of it was conducted, definitely seemed like weaponization. And I would also add to that some elements of Crossfire Hurricane, the investigation into the Russia matter. So I do think that the Trump administration, and I could go on on the score, there's more things. I do think that they had grounds for grievance about weaponization of government.

22:58Jack Goldsmith:But the last thing I'll point out is it was a very serious thing for the Biden administration to prosecute a former president for the first time in American history who was also the president's opponent in the election. I thought that the documents prosecution was justified. I was less convinced that the J6 prosecution against Trump was justified. But whatever, that was a momentous decision in American history to bring that prosecution prosecution against your opponent. And that was a norm violation, whether it was a justified one or not, people are going to debate about. That had a huge, it's going to have a huge...

23:39Jack Goldsmith:You're saying that Biden violated the norm of... I wouldn't say that Biden did because he was nominally out of it because there was an independent counsel. But yes, he did because, of course, the New York Times reports that Biden was furious that Merrick Garland was sitting on his hands. And, you know, Merrick Garland got that message. That was certainly a violation of the norms. He was meddling through the New York Times in the Justice Department's business. So the Biden administration was not clean on this. And then there was the kind of state stuff and other stuff that to Republicans seemed like part of democratic weaponization.

24:17Jack Goldsmith:And I think it's frankly a fair charge. I don't think it justifies what Trump is doing. And Trump, for what it's worth, has gone so far beyond that he's really taken it and run with it, including in his so-called anti-weaponization initiatives, which are weaponizing initiatives. And this is why I worry very much about the tit-for-tat, because if we have increasingly spiraling upwards, tit-for-tat weaponization, where one party uses the tools of the executive branch enhanced by the unitary executive to try to destroy and affect the candidates and infrastructure of the other party. That just, that's unsustainable for this country.

24:57Christopher Caldwell:But this is a very classic dilemma in a democracy because you don't, if you, if your opponent forges a weapon to use against you, what any party will do is hold it until it's ineffective. So you get these accidental stalemates that can demilitarize if that's the... I hope that happens.

25:21Jack Goldsmith:And I think there's a chance that that could happen after Trump. Another dilemma, by the way, that's related is the dilemma of if there's wrongdoing by a prior administration, do you use legal tools to go after them? Do you investigate them? We're now in three cycles of investigations of past administrations. Yeah. There's a massive tradeoff there between accountability, the rule of law. But on the other hand, it is extremely dangerous and corrosive to do these things. And I would say that all of the people who were insisting on these rule of law prosecutions against the Trump administration and about how it was necessary to uphold the rule of law, I think the rule of law is in a worse place now because of those.

26:03Christopher Caldwell:They really do back politicians into a corner and they may wind up offering incentives to bad presidential behavior.

26:13Jack Goldsmith:Agree.

26:13Christopher Caldwell:But you have, you know, another thing that Trump has said is that he believes that the constitutional pardon authority applies to him. And I think that that's created a certain, let's say, fatalism on the part of a lot of his political adversaries. But I think that certain people who study the Constitution have said there's no reason to be so fatalistic. It's not obvious that a president can pardon himself. Do you come down anywhere on that question?

26:51Jack Goldsmith:So I'll answer that question, but I just want to explain first why I don't think the self-pardon issue is as important as some people make out if I could. So the pardon powers are powered to relieve the consequences of a criminal prosecution or a criminal investigation, is to wipe out the effects of the crime effectively. It's not clear that there's any crime being committed here. It's not clear that there could be a... In fact, it's far from clear that there's any crime being committed here. It's not clear that there would be an investigation of Trump in time if there were a crime for him to even be able to assert the self-pardon.

27:33Jack Goldsmith:The pardon power is stated in a way that doesn't answer the question. It says the president has the power to pardon. Some people think that a pardon involves a bilateral relationship and therefore that you can't, the president can't pardon himself. Some people think that as the Office of Legal Counsel once said in the 1970s, no man, and I'm paraphrasing, can be a judge in his own case. It's not necessarily a constitutional principle, but it makes sense.

27:59Christopher Caldwell:It's an ancient common English law principle. Makes sense.

28:02Jack Goldsmith:There are other arguments that say because a pardon is not allowed, a pardon cannot cover an impeachment, that maybe the framers thought that the president could pardon himself because he could be impeached. I don't find that argument terribly persuasive. I've looked at this question a lot. A lot of people have. My candid judgment is that I don't know the answer. I do believe that Trump will pardon himself, along with a lot of other people. at the end of his term. But I doubt it will ever be adjudicated. I don't think we're ever going to reach the stage where he will assert a pardon to stop an investigation.

28:39Jack Goldsmith:That's so many years down the road. And I don't know if he's going to be around then, and it's not even clear that a prosecution of Trump after he leaves office is in the country's best interest. So I tend to think that the self-pardon issue is just not terribly salient. But to answer your question, it's not clear. Sorry about that.

28:58Christopher Caldwell:To put this in a broader historical perspective, there is a kind of an irony about this because Donald Trump ran on a number of very popular things from limiting immigration to more dignity for working class people. I agree. One of the key things that he ran on was cleaning up corruption, draining the swamp. Drain the swamp. We're not finished yet, but we're getting really close. Give us four more years, go out and vote. When you have a bureaucratic, what he would call a deep state, when you have an administrative state like that, you have a certain amount of opacity that does allow people to claim certain privileges out of sight of the public.

29:53Christopher Caldwell:Has there been any progress on that front against which this other kind of corruption might be considered a price?

30:02Jack Goldsmith:So you're asking me, has he cleaned up the deep state? And I take it more concretely, has he made inroads against the deep progressive bias of the deep state? Right.

30:18Jack Goldsmith:I think that that's still out to lunch, but I'll tell you what I think on that score. It is clear that in many agencies that the Trump administration has cleared out a whole range of career officials. They've done so on a whole number of criteria, and they've done so in my judgment because they want to get rid of the influence that you're talking about. Republicans and conservatives have long seen the federal bureaucracy and the deep state part of the federal bureaucracy as a font of kind of asymmetrical power by the Democrats and progressives. So they've clearly made progress in diminishing that.

31:03Jack Goldsmith:And especially in the department I know best, the Justice Department, the career officials have really been decimated there. And again, I'm just focusing on the Trump perspective. I think a lot of what the Trump administration is doing is trying to dole out punishment against the sources of political, cultural power where they have always felt disadvantaged in the hopes that it will be, they will raise the cost so much that it will never go back. That's one of the most important things I'm going to be watching for after Trump.

31:34Christopher Caldwell:And the USAID firings might be the archetypal example of that.

31:39Jack Goldsmith:That's an archetypal example, but there are others.

31:41Christopher Caldwell:If you view the problems of the American government the way most Republicans did at the start of this when they voted for Trump, then there is a real benefit to having a sort of like a goal -oriented businessman to cut through some of this stuff.

32:00Jack Goldsmith:So, yes, I would say that from that perspective, there's a benefit. It comes at a cost. Because a lot of the stuff that they've been doing, the inside the government initiatives, in addition to the cruel ways in which they've done it, but just focusing on legality, the legality of what they've done there is quite contested. And there's actually more executive branch authority to effectuate those changes than I would have thought at the beginning of the term. A lot of the other initiatives trying to achieve similar ends, going after big law, progressive law, going after my university, for example, going after some media properties.

32:40Jack Goldsmith:A lot of these things are being done with through, in my judgment, through clearly illegal means. And yet it's still effective. They can lose in court and still win because the law firms are settling. They want to avoid the whole hassle. The media companies are settling. Some of them are. They want to avoid the hassle. They don't want to cross Trump. I think their spines are stiffening a little bit lately. They're starting to stiffen a little bit, some of them. But the university, same thing. My university had a spine on this. But the question is not just what's happening now, but what's going to happen in the next round.

33:18Jack Goldsmith:And will these, what I view as vicious and often illegal attacks on these institutions, with the end of destroying these progressive power centers, will they in fact have this deterrent effect down the road? There are so many things that are going to happen, assuming a Democrat wins once Trump leaves office. This will be one of the big things to see if that snaps back.

33:41Christopher Caldwell:Does that make sense? Yes, it does. I'm just sort of like trying to imagine what a Democratic president could do that would be analogous. But maybe that's too speculative.

33:51Jack Goldsmith:Well, there's a lot of things. So I think we're now shifting to a slightly different topic, but it's related.

33:59Christopher Caldwell:Mm-hmm.

34:00Jack Goldsmith:There's, I have no doubt. This is by contrast with the, what I think is going to happen with the corruption, conflict of interest stuff. I don't think we're going to see president, I could be wrong. I'm not, maybe not cynical enough. President AOC or whoever the president is come in and start monetizing the government for her personal benefit. I just don't think that's going to be high on the agenda. Mm-hmm. And because Trump is really a unique figure in this regard. So, but what we're talking about now weaponizing the government to destroy the infrastructure of your enemies, I think it's going to be very hard for the Democrats not to use these tools.

34:38Jack Goldsmith:They're going to be huge. Sorry, go ahead.

34:41Christopher Caldwell:No, no, no, no. That's interesting. I would say in a more general way, there's a kind of a new normal that arises from the the vast sort of crypto governmental power that private corporations have. I mean, Google used to go around saying that we can predict epidemics better than the centers for disease control. There's tremendous governing power in a lot of these private businesses. And any president is going to need to use them lest they be used against him.

35:21Jack Goldsmith:use them or co-opt them the way Trump has been doing. I mean, Trump has done an extraordinary job of co-opting these major firms to give him money, give him fealty, to basically keep him off their backs, to get the policies he wants from the companies. And there's just a mirror image of what can happen when the Democrats do that, going after conservative power centers, I think. And there's going to be an enormous temptation to do that, I think.

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37:33Christopher Caldwell:There's also a kind of an ethics of the free market that has been developing for a much longer time than Donald Trump has been on the scene. And I'm wondering if maybe the president and some of the people around him aren't part of what they're expressing is just stuff they've absorbed in the general culture. I wonder if like looking back, you know, the last 30 or 35 years, you don't think maybe we've we've we've given money a little bit too much credit for being an aid to good governance. We've always said these things like, well, you make much better decisions if you have skin in the game and that kind of thing.

38:17Christopher Caldwell:And this guy's a better politician. You should vote for him because the other guys never met up payroll. And people who've been successful earning money in any walk of life think that that gives them a certain credential for reordering government in the same way.

38:37Jack Goldsmith:I think this is a fair argument if I understand it. This came up most clearly, I thought, when David Sachs, who became the crypto czar early in the Trump administration. And I think also he was in charge of having another portfolio. But it raised the question about, and there were all these questions about conflicts of interest and whether, and he was a special government employee. And so there had to be the subject to different types of ethics rules. And this has been, some Republicans have made this in the past. is that it's a good thing to have members of the private sector in the government.

39:14Jack Goldsmith:These are people that know how the world runs, and they know how to make money. And so we can just, we shouldn't worry about the conflict of interest rules so much, because they're going to have better government. And in fact, on this view, conflict of interest rules are designed for the deep state. These are people that try, who are less competent, and who are less expert at really getting things done. I'm just telling you what the argument is. And I think there's certainly something to be said for that theory in a world in which, and this is clearest in AI policy, but it's clear in other areas, the government is going to have to be drawing on the private sector more and more for expertise, for technology, for innovation.

39:57there's an argument for this new theory or Newton I wouldn't say new conception but for this other

40:03Jack Goldsmith:conception of complex but I think that's different from what just to go back to where we started I think that's different from from the weakening conflict of interest rules in in the service of getting private sector people in the government to bring their expertise to bear that strikes me is quite different from Trump making money off of the UAE. But we seem to be entering a sort of new period here.

40:29Christopher Caldwell:I agree. And I think when you look back at our quarter of a millennium, you have to say we've been incredibly fortunate in the way our leaders have dealt with money. You had a couple of scandals in the 20th century. Well, you had the Grant administration, the aides to Ulysses S. Grant, Many of them profited off of railroads and other arrangements. You had the Teapot Dome scandal under Harding. Then you've had some ethics scandals from Nixon to Clinton. But really, we've been quite lucky. And in each of these cases where we've had scandals like these, they've led to more congressional oversight.

41:21Christopher Caldwell:or oversight from some other quarter of government. Do you see that happening now?

41:28Jack Goldsmith:I'm pessimistic. I mean, yes, especially, as you know, in the 1970s, following Watergate, following Vietnam, following church, especially Watergate on this front. There was a, and then the country was for this, and that's the most important point. There was a concerted effort to bring ethical rules to the presidency. And it was not just Congress. Congress did its bit with a whole bunch of statutes, some of which, like the Ethics in Government Act, which introduced the Independent Council, made things worse, not better, but a lot of which made things better. But at the same time, and this is really important, there was a parallel track where presidents, starting with Gerald Ford and Ed Levy in the Justice Department, but then Jimmy Carter, adopted a whole set of very important norms, which a norm is a rule of right reason that's not legally binding, but that if it works right, has political consequences if you don't follow it.

42:28Jack Goldsmith:And those norms worked remarkably well for, say, the next 50 years. And they were starting to frazzle. I don't want to blame Trump only for the diminution of the norms or the blowing up of the norms. But in his first term, he tried and failed. And in his second term, they thought about it more. And they've massively succeeded on a scale that's hard to fathom. So your question whether Congress can or will do something about this is going to depend on how important it is. They could have done something in 2021 and who the next president is. One really interesting question is if a Republican wins in 29, does it continue this or change this?

43:12Jack Goldsmith:So it's very hard to predict, but I do think the country is much more aware of the problem now than they were after Trump's first term.

43:20Christopher Caldwell:It seems that it's really a Democratic problem. It's really in the hands of voters. I mean, there were a number of attempts after 2020 by Democrats a little bit too concerted to hold Trump to account. One of them even resulted in a guilty verdict. But when the American people voted in 2024, they essentially vacated those convictions. And so it's kind of up to them now in the coming midterms and in 2028 to decide what kind of regime they want to be living under. And I will say that a recent poll indicates that about 90 percent of Americans consider their government in general quite corrupt. And what's surprising is that it's very high among both parties.

44:29Christopher Caldwell:So I wonder what you're expecting, what you're expecting that Democratic verdict to be. I mean, are you seeing people running on this issue in the midterms? Do you think it's gaining any purchase in the public?

44:45Jack Goldsmith:It's hard to tell. I hear a lot of people saying it's not getting any purchase. I think that's an open, that the drumbeat of stories about Trump lining his pockets set alongside stories of Americans not doing so well. People are shocked, surprised that this doesn't, this connection doesn't seem to be getting purpose alongside with Trump pledging to drain the swamp, but not draining the swamp in this respect. people say, well, why is it more happening? Part of the problem is, is that our, is that the Republicans control Congress. If there were a Congress opposed to the president, this would be a little bit different.

45:25Jack Goldsmith:And part of the problem is that democracies work slowly. And we just can't have, especially since Trump has shut down the internal executive branch check, totally shut down. So basically, and Congress has shut down, the courts have not been dealing with these issues terribly much, these issues of ethics that we're talking about in conflict of interest. I do sense that Democratic politicians are trying to make an issue of this. I do sense that Republicans are on their heels about this. It's extremely difficult to defend. But I couldn't agree with you more that this ultimately lies with the American people.

45:59Jack Goldsmith:Norms, which used to work in this area, they work if the people care and they express that care through their politicians and in other ways. Ultimately, this all depends on who the American people elect and how they respond to how the person they elect acts. I couldn't agree more. Jack Goldsmith, thank you so much. Thank you.

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