Corruption and the Maximalist Theory of Presidential Power
Trump’s conflict of interest regime is about much more than greed.
Please click here to opt in to receive via email our Morning Roundup—brief daily summaries of news developments and commentary related to executive power.
In describing how Donald Trump is remaking the presidency, analysts have come up with various monikers: autocracy, authoritarianism, competitive authoritarianism, clientelism, patrimonialism, patronage politics. The differences are sometimes significant, sometimes more nuanced, but in all cases, Donald Trump is at the center. He is “personalizing the government to an extraordinary extent, making Donald Trump himself the focal point of federal power.” His style of governing is defined as at the core “replacing impersonal, formal lines of authority with personalized, informal ones” and removing, as Jack described it, “all internal executive branch legal constraints on presidential action.”
Throughout this analysis of the personal style of governing, the exploitation of government power for private gain is a consistent theme. Under the patrimonialist theory in particular, a presidency like Trump’s obliterates the line between what is public and private and “see[s] legal institutions as obstacles to personal enrichment.”
In this post, I will focus on how the rejection of government conflict of interest and other rules and norms that distinguish between the public and private interests, is also central to Trump’s realization of a “maximalist” presidency. Stripping away anti-corruption controls is one more way that this president can achieve his stated goal of being able to do as he sees fit to “save the country.” It is among the “internal executive branch legal constraints on presidential action” that Trump has gone about systematically removing.
The Old and New Models of Corruption
Under the standard model of corruption in the American legal system, a public official is self-interestedly transactional, trading policy and votes for personal benefits ranging from bribes to specific deals made for campaign contributions. Certainly, this is a danger to the democratic process. We do not countenance public officials putting their power up for sale. But this standard form of corruption, prohibited by criminal bribery and gratuities statutes, is generally localized and covert. It is constituted by bargains struck in secret and focused on particular official actions that the private interest seeks to buy.
The model of corruption in Trump’s “maximalist presidency” is one that, while it can redound to the personal benefit of the president and allies, also serves the project of an all-powerful executive. It is an express policy. It may allow for transactionalism in particular instances, featuring a specific quid pro quo exchange of official favor for personal gain. But it is systemic in nature: a way of governing, and not, as under the standard model, aberrational. It is a source of power. In the absence of anti-corruption controls, Trump has at his disposal the tools for building support for his rule and undermining his opposition. The takedown of rules and norms is an affirmative step in building his version of the presidency.
That this is express policy, not just discrete pilfering, is evident in the openness with which this president has discarded anti-corruption standards. The standard model of corruption is hatched in the dark; when it surfaces upon press or other exposure, it is typically denied. The Code of Ethics for Government Service, enacted in 1958 by joint resolution of the Congress, calls on those in public service to “[e]xpose corruption wherever discovered.” The understanding behind this ethical injunction is that corruption is the proverbial mushroom that thrives in the darkness.
Trump is not hiding. Less than two months into this administration, the list is familiar and growing. He has broken with the tradition of presidents issuing executive branch-wide ethical standards. The ethics policy adopted by his business authorizes the Trump Organization to pursue deals overseas, including those with foreign governments. Then, by executive order and directive from his attorney general, he weakened controls on the conduct of corrupt overseas business practices. He has fired inspectors general across a range of agencies. He fired the head of the Office of Government Ethics and replaced him with a politician who is also a cabinet secretary, who cannot do the job full time, and who does not have background expertise relevant to the job. Many of the Department of Justice lawyers experienced in public corruption prosecutions have been reassigned. And, most recently, the Department of Justice pardon attorney was fired apparently for declining to agree that a “personal relationship with President Trump” was a “sufficient basis” on which to restore gun rights to a domestic abuser.
Conflict of Interest Norms or Rules as Impediments to Presidential Power
Early in this administration, the freedom afforded a presidency unburdened by conflict of interest constraints could expand the range of executive actions in any number of ways. It remains to be seen the direction this anti-anti corruption policy will take. Three examples serve to illustrate in different ways how this policy can remove obstacles to the effective exertion of presidential will.
The Adams Case
The dismissal of the prosecution of Mayor Eric Adams shows how a president may augment his power to achieve a particular policy goal by directing the course of a federal criminal prosecution. In this particular case, Trump leveraged the prosecution of Mayor Adams to establish a working alliance on immigration policy. Trump and Adams had both suggested that the mayor had been targeted—in Trump’s word, “persecuted”—for supporting Trump immigration policy and after he was elected, Trump suggested he might pardon Adams for that reason.
After Trump took office, the Department of Justice dismissed the case against Adams. As Department leadership briefed the issue to the court, the prosecution “interfere[d] with President Trump’s efforts to … manage national security and immigration.” The benefits to the administration of this move were immediately realized. Within three days of the Department’s directions to prosecutors to drop the case, precipitating several of their objections and resignations, Adams said he would issue an executive order that would enable federal immigration authorities to enter the Rikers Island jail complex, apparently claiming authority under the city’s administrative code to override its ban on ICE’s access to the jail.
It remains noteworthy that the government moved to dismiss without prejudice, which, as Paul Clement noted to the court in an amicus brief, would have provided the government with “improper leverage over the official’s discharge of his duties to constituents.” He argued to the court that the case should be dismissed with prejudice, because “[e]ven the appearance that the prospect of re-indictment would cause public officials to be more attendant to the executive branch than to constituents is deeply troubling and raises serious accountability concerns.”
Additional details in the Adams case underscore Clement’s expression of concern with the “improper leverage” available to the government in a dismissal without prejudice. On February 13, Adams stated that he would issue a directive to allow immigration authorities into Rikers. As of last week, Adams indicated that the order was in the works. If the order doesn’t surface soon, Trump’s border czar Tom Homan might do as he promised on February 14: “If he doesn’t come through, I’ll be back in New York City, and we won’t be sitting on the couch — I’ll be in his office, up his butt, saying, ‘Where the hell is the agreement we came to?’” And if the case is still pending, only dismissed without prejudice, Adams might face a threat or outcome worse than Homan being “up his butt.”
The court has yet to rule, but if the motion is granted, with or without prejudice, the dismissal will exhibit the power of full presidential direction of criminal law enforcement—without regard for norms of independence—to expand the executive’s power to effect particular policies.
Elon Musk
Elon Musk has been assigned extraordinary responsibilities in this administration, as the DOGE mastermind is laden with conflicts stemming from his vast business interests. These include interests that benefit from government contracts and are affected by federal regulatory oversight and enforcement. Yet the president has decided that Musk may police his own conflicts, and the president will take personal responsibility for keeping an eye out for any such issues. Musk might assess the question in the first instance, but in the end, the president will decide what is, or is not, a conflict. By reserving to himself that judgment, he can determine when it is useful to him to rein Musk in, and when he can let him loose—all as his goals in a particular situation require.
Stated another way, the “ethics” judgment is political rather than grounded in standard “conflict of interest” policy applied by officials trained in the relevant principles. No one else—not at the Office of Government of Ethics, nor at the Department of Justice—has a say in the matter. And that is the point: Any such sources of authority or advice would constrain the president in using Musk as he chooses.
In a further and unusual turn in this tale, the president is now promoting the sale of Tesla cars as the company faces declines in shares and sales apparently as a result of backlash against Musk’s DOGE and other administration-related activities. The president, long a biting critic of the electric car industry, has announced he plans to buy a Tesla in a show of confidence in Musk. Nothing bars the president from doing this, as conflict of interest rules—and notably the one barring government endorsement of commercial products—do not apply to the president. But it is a remarkable instance of a president’s disregard of ethical norms to shore up the public standing—and influence within an administration—of a close adviser. It is a show of “soft power” that this indifference to conflict of interest standards makes possible.
Pardons
The firing last week of the Department of Justice’s pardon attorney is also instructive. It may seem less remarkable than the other measures taken, or to be taken, in this program. The Constitution confers on the president full power to formally intervene in the criminal justice system and insulate allies, and those he would recruit as allies, from the consequences of corrupt conduct. Presidents are not required to observe the institutional check on the exercise of this power provided by the involvement of DOJ’s pardon attorney and senior departmental officials, and Trump is far from the only president to have bypassed in various instances that channel of advice and constraint. He did so in Trump 1.0, with relish, as only 25 of the 238 clemency grants by this president were issued on the recommendation of the pardon attorney.
Yet there has been for decades before Trump 1.0 a baseline expectation that some norms should constrain the exercise—potentially corrupt, or just arbitrary and inconsistent—of the pardon power. As an institutional matter, the Office of the Pardon Attorney is committed to “making recommendations to the President that are consistent, unbiased, and uphold the interests of justice” and also “seek[s] to provide the public with a clemency process that is accessible, fair, and transparent, and to fulfill our duty to those we serve.” The Department’s Justice Manual regulations set out standards that generally guide its review of applications. In specific clemency programs, such as President Obama’s clemency initiative, the Department has played a key role in the development of the criteria and of the recommendations based on them.
Already in his first term, Trump had made clear his interest in taking firm and direct control of the pardon process, establishing an “informal network” of allies to make recommendations. But Trump is taking in this second term the step of more formally eviscerating these institutional checks on what he has proclaimed to be his “absolute” and “complete” power to pardon. In this new term, he is openly “marginaliz[ing]” the role of the DOJ, firing the leadership of the relevant office, and “shifting control of much of the clemency operation to the White House Counsel’s Office.” He also announced the appointment of a “pardon czar” to support him in his choice of clemency beneficiaries. What was once in Trump 1.0 the “informal” process around the president and under his control has become formalized.
The circumstances surrounding the dismissal of the pardon attorney reveal how this administration is dispensing with norm-based checks on the president’s use of the pardon power. In this instance, the Department was charged with developing standards for restoring gun rights to those who had been convicted of crimes. Mel Gibson, however, was a friend of the president. The pardon attorney fired for not supporting restoration of Gibson’s gun rights had not threatened to resign over her reservations that, having been convicted of domestic violence, he did not qualify. But she was dismissed because she declined to affirmatively recommend restoration on the basis of Gibson’s “personal relationship” with Donald Trump. That, she was told and could not agree, should have been “sufficient.”
This is an unmistakable, clear statement about how pardons will be evaluated and approved. Now there will be little point or bite in criticisms of Trump for going around or directing the DOJ process, which has been standard in complaints about controversial presidential pardons in the past. The norms embedded in and served by this process have no remaining purchase. The disregard of DOJ will be standard operating procedure, better enabling the president to achieve efficiently the “complete” and “absolute” control over pardons for whatever personal, political, or policy purposes may motivate him. In the Adams case, a pardon was one alternative that the president considered for cementing his alliance with Adams on immigration.
In the past, it has mattered that the potential for the political and personal abuse of the pardon power be constrained to even some degree by expectations that in the main it would be exercised in a manner that was “unbiased” and “consistent,” as well as “accessible, fair, and transparent.” Once the norms, and the institutions attentive to them, evaporate, all that remains is the power, and the use of that power to acquire still more.
Conclusion
When Jonathan Rauch writes that the patrimonial presidency’s “reason for being is to exploit the state for gain—political, personal, and financial,” he is correct. Yet these goals—the political, personal, and financial—are not separate from one another and independently pursued. They are interrelated and mutually reinforcing in Trump’s version of the presidency. The absence of controls on conflict of interest will allow for self-enrichment and the bestowal of these benefits on family and allies. They also clear the way for the president to realize his aim of being able to “do whatever I want.”