BOB GARFIELD This is On The Media, I'm Bob Garfield.
BROOKE GLADSTONE And I'm Brooke Gladstone.
PRES. DONALD J. TRUMP And I thought after two years we'd be finished with it. No, now the house--[END CLIP]
BROOKE GLADSTONE This week from the White House lawn the president's accounting of his enemies investigations. Replete with, somehow still astonishing, B.S.
PRES. DONALD J. TRUMP Now Mueller, I assume, for 35 million dollars checked my taxes. Check my financials, which are great by the way. You know they're great. All you have to do is go look at the records. They're all over the place. [END CLIP]
BROOKE GLADSTONE We don't know if they're great. We do know they're certainly not all over the place. This week the Treasury Department missed a second deadline to hand over the president's tax returns to House Democrats.
PRES. DONALD J. TRUMP Now the House goes and starts [00:25:53]subpoenaing, [0.0s] they want to know every deal I've ever done. Now--[END CLIP]
BROOKE GLADSTONE The White House directed its former head of personnel security do not adhere to a congressional subpoena to answer questions about the administration's handling of security clearances.
PRES. DONALD J. TRUMP I think I read where they interviewed five hundred people. I say it's enough. [END CLIP]
BROOKE GLADSTONE And on Monday the commander in chief sued his own accounting firm and Elijah Cummings, the Democratic chairman of the House Committee on Oversight and Reform, to block the committee from accessing his past financial records.
PRES. DONALD J. TRUMP Well, we're fighting all the subpoenas--[END CLIP]
BROOKE GLADSTONE As the Washington Post reported earlier this week, the lawsuit quote 'amounts to Trump, the leader of the executive branch of government, asking the judicial branch to stop the legislative branch from investigating his past.' But so much lies in Trump's past–and the nation's. Before taking office, the president resigned from the Trump Organization and left his sons to run the company but he profits from it.
BROOKE GLADSTONE Zephyr Teachout, author of Corruption in America, told us just weeks after Trump's inauguration that it shows how far we've come from the original intent of the founders. When even a snuff box could offer a whiff of potential corruption. I think Ben Franklin got ensnared by a snuff box didn't he?
ZEPHYR TEACHOUT He was well loved by the French court. In fact, a lot of people were worried about his loyalties. And then when he was leaving his diplomatic tour he got this really glamorous diamond encrusted snuff box and a portrait of the French king. This caused a fair amount of concern and in fact was part of the reason that we have in our Constitution the provision called the Emoluments Clause which prohibits taking gifts as well as offices and titles of nobility from foreign governments.
BROOKE GLADSTONE What's an emolument?
ZEPHYR TEACHOUT Basically, in situations in which you're getting paid by foreign governments. The easiest way to think about it is something of value. This is one of those rare constitutional clauses that tells you how to read it. It includes this phrase of 'any kind whatever.' And it's really clear from reading contemporary understandings of the word emoluments that it covered a broad range of situations including business enterprises.
BROOKE GLADSTONE Why were the founders so concerned about corruption? You call it their constant obsession.
ZEPHYR TEACHOUT These are not naive writers of our Constitution. They've experienced what they perceive as the intense corruption of Britain. And they're all steeped in the story that Rome was torn apart, from the inside, by corruption. It's thumbing its nose at European practice even though they cared so, so deeply about developing their own trading relations. The anti-corruption principle was so important to Americans that they were willing to sacrifice some comfort and ease in those relationships to have this anti-corruption principle.
BROOKE GLADSTONE So going back to the snuff boxes--
ZEPHYR TEACHOUT Yes.
BROOKE GLADSTONE --what did they decide? How did they thread that needle of forbidding gifts while existing in a world where this was the general custom?
ZEPHYR TEACHOUT To allow Congress to basically bless gifts that came in. Congress would typically say, 'that's OK. You can keep that snuff box.' Or when John Jay got a horse from the government of Spain. Congress gave Jay permission to keep the horse. This congressional check plays this really important role because the American public, through Congress, gets to understand what was the nature of the gift. If there's anything suspicious, if there's any sense that this might actually lead to either an explicit bribe or to influence that would really undermine the integrity of our decision making.
BROOKE GLADSTONE In your book, you emphasize and this is really important, that the founders forbid presence not bribes. No exchange your agreement is required to bring it within the ban.
ZEPHYR TEACHOUT It's really clear that the framers did not think that corruption was just quid pro quo or explicit exchanges. They really understood how humans can be tempted to betray their loyalties without even really being aware of it. So you need rules that, you know, in law we call these bright line rules or prophylactic rules. Rules that basically say you just can't do this category of behavior because there's a significant likelihood that if you're in this category of behavior something wrong is going to happen. So the category is taking gifts or payments. We're not gonna necessarily know which ones are influencing nor are we going to easily discover which ones there might be an agreement around. But we need to ban the category so that we don't risk corruption.
BROOKE GLADSTONE But the founders anti-corruption vision quickly ran into problems not in Europe but on our own shores. I'm thinking of a word that, if we were alive 200 years ago, you say we would all have an opinion on. Yazoo.
ZEPHYR TEACHOUT Yazoo. Yes, the Yazoo scandal really occupied the press and the public and everybody had a position on Yazoo. So Yazoo refers to the lands in western Georgia, and the Georgia legislature gives away millions of acres for pennies on an acre to land speculators. All of the lawmakers who'd voted for this land give away were getting paid by the land speculators.
BROOKE GLADSTONE Now the public throughout every lawmaker who'd voted for the deal.
ZEPHYR TEACHOUT Yes, they actually had a bonfire in the capital to burn the bill. And the new lawmakers immediately passed a law saying that law was not a law because it was passed through bribery.
BROOKE GLADSTONE You can burn the bill and you can pass a law but you don't get rid of the larger issue–at least not in this case.
ZEPHYR TEACHOUT That's right. The larger issue here is whether a law stops being a law because it was passed in part because of corruption. And this case goes on for years, finally makes it to the Supreme Court. One of my favorite facts about this case is it's the only case I know of where one of the litigators needed time to sober up halfway through oral argument. And basically the question was who really owned the land at this point? Was it still held by the people of Georgia or was it held by the people who had bought their land ownership from the speculators?
BROOKE GLADSTONE So the speculators that had bribed the Georgian legislators, sold the land to people who thought they had a legitimate contract. And basically, the court said the contract superseded the anti-corruption concerns raised by Georgia.
ZEPHYR TEACHOUT Yeah that's right. Justice Marshall, who by the way had been a land speculator himself, said it's so sad that corruption has crept into our young republic but it's sort of beyond the scope of this court to pass judgment on what was a fundamentally corrupt contract and what was not. But really until the 1970s, court after court after court understood that protecting against corruption inside our country was one of the jobs of our country. And was one of the greatest threats to our country. And then you see that kind of drop away really in the 1970s.
BROOKE GLADSTONE So take us there, what happened? So in 1976, the Supreme Court decided a really important case–Buckley versus Valeo. And struck down some campaign finance laws and set up a two step process that we've really been living inside ever since. The first step is to ask when there is a campaign finance rule, does that campaign finance rule infringe on freedom of speech? And the second step is to say, if it does, does it, however, serve an anti-corruption interest? Suddenly, it really matters what corruption means because of corruption just means explicit quid pro quo, then a lot of what we think of as anti-corruption laws are gonna get struck down.
BROOKE GLADSTONE So back in the days of the founders, they recognized that something could be corrupt even if it wasn't illegal. Now, you have to find an explicit exchange of something for something–a quid pro quo. And only a complete boob would get caught doing that. So much of this exchange is either behind closed laws or through intermediaries or is just assumed. So the kind of ambiguity in human nature, the indirect influence, that the Founders saw as corruption is, now strictly speaking, only if you have sold your office or your vote.
ZEPHYR TEACHOUT No, that's right. And the loss is enormous. It's certainly a loss of a central part of our heritage as a country. We were founded on anti-corruption passion but was also incredible wisdom. It was an understanding that corruption is this very serious threat to self-government. And we've certainly felt the effects. We felt the effects in the super PACs that have arisen since Citizens United. And we as citizens are left with fewer and fewer tools to fight corruption.
BROOKE GLADSTONE Zephyr, thank you so much.
ZEPHYR TEACHOUT Thank you so much.
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BROOKE GLADSTONE Zephyr Teachout is a law professor at Fordham University and author of the book Corruption in America.
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BOB GARFIELD Coming up, who came up with May Day. The answer may surprise you.
BROOKE GLADSTONE This is On The Media.