Domestic Emoluments, Fund Certifiers and Contracting Officers (and the Wall)

When the District of Columbia and Maryland Attorney s General sued over Emoluments in order to force the public release of the Trump tax returns, the DOJ submitted an opinion challenging the concept that profit was a foreign gift. They also cited the Foregn Gifts and Decorations Act. The DOJ requested immediate dismissal on standing. The Court did not agree on standing but eventually agreed with DOJ, whose job was to defend the current position of the government against novel challenges, not the President.

That opinion likely informed the decisions of departmental solicitors in all other agencies and allowed contracting officers and fund certifiers to approve using Trump facilities. These three officers are the speed bumps that are supposed to stop abuse.

Appointed leadership was likely pleased with the results of the DOJ brief. They are good at gaming the system. They like their perks and it takes a great deal of courage for fund certifiers and contracting officers to slow them down, but it is not unheard of. Usually Inspectors General find abuses, report them and officials resign.

Some of the things that get through, like private aircraft for secretarial travel, come in response to really dumb ideas, like banning Department Secretaries from flying business class. Penny wise and pound foolish.

If the cost analyses show that bringing staff is cheaper than airline tickets, the FAA private jet usually can be used.  I know. As a contract specialist, I put forward the interagency agreements for the DOE Secretary to use it. This was not a problem for official travel. That Trump Appointees thought that they could use the same justifications for vacation trips is where the line was crossed.

Bad things happen when abuse becomes flagrant. Pence staying in a Trump property near his great grandmother's home village is not a bad thing. Taking the entire delegation and commuting is one of those "what were they thinking?" moments. If Trump had any class, he would have comped Pence for a night and left the delegation in Dublin. Remember, Reagan visited his Irish roots and his ranch was made secure at public expense. It is not an unheard of thing to do.

Using government expense to have other officials go to Trump properties to prop them up is a bridge too far. The ethical rule of thumb is that if doing something looks bad if reported in The Washington Post, don't do it. Blame Fox News for Trump not understanding or respecting that advice. Is such sloppiness an impeachable offense? In a target rich environment, going there is more stunt than anything else.

The Civil Service needs to protect Trump from himself in such cases. At some point, department soliciters, fund certified and contract specialists need to say no and their senior executives need to back them. As a former program controller and contracting specialist, it saddens me when no one stands up to craziness in its raw form. Usually, appointees blink. White House staff should let them.

The Solyndra DOE Loans show what can happen when the White House is not protected from itself. Going along to get along is also a dumb idea. The DOE head of the HQ contract activity was moved back to a policy position and the responsible Contracting Officer retired. Standing their ground would have been better for all concerned.

I offer this lesson for anyone on the fence on letting Trump do ham fisted things. Also, Pence needed to invoke the 25th Amendment long ago. Not doing so and McConnell resisting removal will end the GOP.

One last related thing about funding the Border Wall. On process grounds, the reprogramming from MILCON is not a constitutional violation. It is likely not even a violation of the Budget and Impoundment Control Act of 1974, which was enacted after Nixon used Impoundment to fund the Vietnam War and cut spending he disagreed with.

If Congress is consulted, reprogramming can quietly happen. It is why the Soil Conservation Service Budget funded the development of the B-2 Spirit. This was so secret that the OMB budget examiner directed to cut that budget did not know that Chairman Witten restoring the funds had nothing to do with the environment. Chairman Nadler and his Committee need to keep past practice in mind before putting the kitchen sink in the articles of impeachment.