The Washington Post is reporting that King Trump gave $45,000 cash gifts to Natalie Harp and two other aides. These gifts amount to about a third of each of the aides’ annual salaries. They also may be illegal.
The Post Reports that “Richard Painter, the former chief White House ethics lawyer for President George W. Bush and a critic of Trump, said the payments appear to violate a federal statute that prohibits the supplementation of federal employees’ salaries from outside sources.” The federal statute that appears to be violated is 18 U.S.C. § 209.
I am going to put on my lawyer hat now to explain some of this, though I caution readers that I am not offering anyone legal advice here. (That’s the kind of thing the DC Bar, of which I am a paid-up proud member, would want me to say.) I also caution readers that they may want to stop reading now: although there is some snark and innuendo to come, I do get down into the weeds.
To continue: among other things, subsection (a) of 18 U.S.C. § 209 makes it illegal for anyone who serves in the Executive Branch to receive a “supplementation” of salary. It also make it illegal for anyone to pay such a supplementation. In this case, the receivers are the aides, and the payor is Trump.
The statute refers to another statute–18 U.S.C. § 216–for the penalties. Section 216 provides for terms of imprisonment and fines for violations of Section 209 (and other statutes). The severity of the penalties depends on whether the violation is willful or not. A willful violation is generally one where the violator knew the conduct would be illegal and did it anyway. That is, they not only voluntarily did the illegal act itself but also intended to break the law.
Under Section 216, a non-willful violation of Section 209 can result in a prison term of up to one year, plus fines. A willful violation can result in imprisonment for up to five years (plus fines). Section 216 also gives prosecutors the authority to institute civil–that is, non-criminal–actions for civil penalties and to seek injunctive relief in the form of an order directing the person(s) not to engage in the misconduct.
So this is serious stuff, and the penalties for violating Section 209 are not “small potatoes,” to use a phrase that Trump recently used in describing the Iran war. Still, whether Trump could be exposed to the most serious penalties for violating Section 209 is doubtful since his lawyers could argue that, in his diminished cognitive state, he couldn’t act willfully under the statute. (Multiple pieces of snark in one paragraph: Yay!)
Of course, whether Trump could be found liable at all is a huge question. In a number of subsections, Section 209 includes exceptions to the no-supplementary-compensation rule. I don’t think any of those subsections apply to Trump’s gifts to aides, so I won’t go into them. Suffice it to say, those subsections wouldn’t help Trump. (If this were a legal brief or memo, I would have to explain why each of the subsections is irrelevant, but this isn’t a brief or a memo. In the words of Steely Dan, “Those days are gone forever, over a long time ago.”)
But there is a get-out-of-jail card that I would expect Trump’s lawyers to trot out if charges were ever brought. Specifically, the statute prohibits only payments that are made “as compensation for [the government employee’s] services as an officer or employee of the executive branch of the United States Government.” 18 U.S.C. § 209(a).
So if Trump’s lawyers could make a credible argument that he didn’t give the gifts “as compensation” for the aides’ government “services,” he would be off the hook. For reasons that would be indelicate to get into, that argument might be somewhat credible in the case of Natalie Harp, although it might require that the lawyers explain the non-governmental “services” that she has been providing. I refrain from speculating on that here. (This is a family blog, after all.) But it would be be difficult to conjure up such an argument with regard to the other two aides.
So now, let’s get to the elephant in the room. Isn’t this all moot because the Supreme Court has given Trump broad immunity? Well, maybe not.
In Trump v. US, the Supreme Court gave the president absolute immunity only for actions within the president’s “core constitutional powers.” (Maybe it would be more correct to say that the Court gave Trump such immunity, because for some reason, I suspect the Court would wriggle out of its holding the next time there’s a Democratic president.) Giving cash gifts to aides is not within the “core constitutional powers” of the President. In fact, according to the Washington Post article cited above, there are no public records of it happening before. It’s hard to believe there’s a “core constitutional power” that no president up until Trump has seen fit to exercise.
Another form of immunity described by the Supreme Court in Trump v. US applies to official actions beyond the president’s “core constitutional powers.” Such acts were, perhaps, unhelpfully explained by the Supreme Court as “acts within the outer perimeter of his official responsibility.” For such acts, the immunity from prosecution is “presumptive.” The presumption of immunity can be overcome if the prosecution can show that applying a criminal law to a presidential act would pose “no dangers of intrusion on the authority and functions of the Executive Branch.” Prosecutions for illegally gifting some of your aides would not seem to pose any danger of intruding on the Executive Branch’s authority and functions.
Finally, the Supreme Court admitted that there is no immunity–not even for their boy Donald–“for a President’s unofficial acts.” And here is where we get to the nub of the situation: according to the Washington Post, White House spokesperson David Ingle said, “The President has a longstanding practice of giving Christmas gifts to people in his orbit, including at times employees and aides, both in government and in his time in the private sector. The gifts at issue here have nothing to do with any of these individuals’ official government duties, and therefore are entirely permissible under relevant legal and ethical standards.”
This is a clear admission that the gifts were not “official acts” of the President. Whether they are illegal or not would turn, as noted above, on whether the gifts were intended “as compensation for [the government employee’s] services as an officer or employee of the executive branch of the United States Government.” 18 U.S.C. § 209(a). If so, then King Trump (as well as the aides themselves) could be on the hook for prosecution, because no immunity applies to unofficial acts.
You may wonder, “Isn’t there a circularity here? If Trump gave the gifts as compensation for the aides’ government service, doesn’t that make it an official act, entitled at least to presumptive immunity?” I think the answer to that question is a clear “no,” based on the first half of the White House spokesperson’s quote above: the President has a longstanding practice both in and out of office of gifting his people. That makes it an unofficial act. As for why he gifts them, that’s clearly for their service to him. The aides’ service to him is and remains service to the government.
That Trump and his White House may have failed to understand the distinction between service to Trump and service to the United States speaks volumes about Trump and his Administration.
I will close this long walk by discussing one final issue that the two of you who are still reading this may be wondering about: Isn’t this all irrelevant because Trump’s Department of Justice would never prosecute him for this?
It’s true that Trump’s DOJ would never prosecute this. But the general statute of limitations for federal crimes is five years. See 18 U.S.C. § 3282. So we can hope that when the time comes to hold Trump and his lackeys accountable, an honest DOJ, run by lawyers with actual integrity, will consider this matter as one–admittedly, a minor one–of the crimes that Trump should answer for.