The Money 'Game' and the All-Powerful Executive
Trump’s open profiteering is not only about self-enrichment.
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When Donald Trump Jr. was recently discussing the conflict-of-interest issues raised by his family’s aggressive pursuit of business opportunities during his father’s presidency, he responded that he saw no point in worrying about it. At the time, he happened to be attending a business forum in Qatar where the Trump Organization is developing a luxury golf resort with Qatari government support. He waved off the ethics concerns: “They’re going to hit you no matter what. So we’re just going to play the game.”
Trump’s son did not elaborate further. It raises the question: What did Trump Jr. mean by “the game”?
What follows are reflections on the nature of the “the game,” both how others have played it by mixing public service and personal financial gain, and how Trump’s unique style of play is integral to his politics. His style is difficult to separate from his conception and exercise of power. While certainly about personal profit, his open profiteering in office is also about the augmentation of his power and his demand that others recognize it.
“The Game” from Trump 1.0 to 2.0
Those familiar with the ways of Washington would generally recognize “the game” as a reference to the leveraging of political power, influence, or position for personal financial gain. To play it successfully requires figuring out how to work personal profit into public service—as the saying goes, “to do well while also doing good.” A vintage example is the infamous “revolving-door culture of Washington” that features the “journey from the public payroll to the corporate towers and back.” Someone enters government with particular expertise relevant to public policy, enhancing their reputation and increasing their visibility, which translates into more business in that same line of work when he or she returns to the private sector.
“The game” can be played well or poorly. Those who look to do both well and good, but stumble in the execution, might break public corruption laws or violate government ethical standards. For this reason, those playing “the game” are typically coy or dishonest about what they are up to. To the extent that they have done well, they seek to be seen as having earned their good fortune. Their doing well is an incident, or outgrowth, of their doing good public service. Everyone benefits.
This was the game that Trump and his family played in his first term. Upon his last election, Trump accommodated to some degree the demands of the rules of this game. He hired a major law firm to assemble what he passed off as a reasonable trust arrangement in which he would hold his wealth but be “isolated” from its management. His lawyers made the case that, short of a costly and unrealistic divestment of assets, he could take effective steps to address conflicts of interests between his personal financial interests and his public responsibilities. The trust would have an ethics adviser to monitor conflicts of interests and a compliance officer to round out the commitment to sniff out potential conflicts in any possible deals the Trump Organization might consider. Trump would not wall himself off entirely, but mostly, from the operation of his business: He would receive quarterly briefings on the overall state of his financial affairs but stay out of management.
As for particular conflicts, the Trump Organization would not pursue overseas business deals, and would do its best to monitor foreign government patronage of Trump’s D.C. hotel or other resort properties and disgorge those profits to the U.S. Treasury. And Trump’s administration professed a concern with “the game” as played by others. Trump issued an executive order, as other presidents since Kennedy have done, to set the ethical standards for this government. It included requirements for avoiding “revolving-door” conflicts and, notably, limits on business relationships, including representations of foreign governments, that members of his administration could enter into after leaving their government posts. In certain respects, the Trump ethics EO was stricter than the one President Biden issued when taking office four years later.
Critics complained anyway. The details of those critiques are available elsewhere and not immediately relevant to this post. At their core was dissatisfaction with the steps he refused to take—releasing his tax returns, divesting assets, and achieving complete “isolation” from his business—and questions about his good faith compliance with the commitments he made.
The whole program changed from 1.0 to 2.0, and again, the details are well enough known that they need not be recounted at length. In sum, the Trump Organization ethics policy was revised to allow foreign business deals, including ongoing business with foreign governments and new deals with commercial entities such as sovereign wealth funds established and controlled by foreign governments. The role of the ethics adviser was cut back. The Trump family also established new business interests in crypto that may not all be subject to the ethics policy. Trump rescinded the ethics executive order issued by President Biden and did not replace it with one of his own. Trump also issued an executive order suspending for the most part investigations or prosecutions under the law prohibiting U.S. businesses (such as the Trump organization) from engaging in corrupt practices, such as bribery, in their overseas business dealings.
And Trump abandoned all pretense of worrying about conflicts between his office and public responsibilities. His “drain the swamp” anti-corruption rhetoric is no longer as central to his messaging and oratorical repertoire. The Trump family has pursued major business deals overseas in countries such as Vietnam and Saudi Arabia where the foreign governments have every reason, and the ability, to facilitate million- and billion-dollar deals with the Trump Organization and related entities. This president has explicitly marketed a meme coin with the offer of personal access for large purchasers, and many foreign participants were among those who successfully paid for this opportunity.
Behind the Change in “the Game”
This change may well have come about for the reason suggested by Trump Jr.: Trump and company just threw up their hands over their Trump 1.0 experience and decided that they would rather make as many bucks as they can—which, it turns out, is many bucks—than seek without success to placate their critics.
Or that reason may be only a part of the story. What seems also likely is that the change in Trump’s presidential politics from 1.0 to 2.0 have shaped the brazenness of this self-dealing.
Trump talks “the game” talk. The world in which he operates is divided into winners and losers. He is a winner and wishes to be seen, and often declares himself to be, a “winner.” He likes to refer to those who “hold all the cards.” It would be self-defeating for him to succeed at the game of wealth aggregation in public service, when he holds the winning hand, and not advertise it. To establish that you have won, you have to compete out in the open. And this is especially the case if you are planning to win big—turning public service into additional wealth in the many hundreds of millions of dollars. Winning a game at that level is not easily hidden. Trump has no desire to hide it.
Trump has said that he doesn’t need the money and that he entered public service at some cost to himself. And it is true that whatever his wealth is, he has a good bit of it; and yet it is important to him and his politics to add ever more to his fortune, and very openly. That is the point: It is about him, if also (for his family as well as for him) about the money. He is a strongman ruler who seeks to show that he can do whatever he wants, which impels him to advertise this power so that it is widely recognized.
Trump spares little in this practice of self-advertisement. His conflict-of-interest-laden business interests are personally branded. The hotels carry his name, as does his meme coin. His image graces the websites of his business operations. World Liberty Financial, the cryptocurrency firm in which his family holds a major interest, features a photo of Trump and defines itself as “inspired by Donald J. Trump.” The real estate and resort company, The Trump Organization, speaks to the point clearly enough by name. Its website features a lengthy narrative of Trump. It describes him as “the very definition of the American success story … the archetypal businessman – a deal maker without peer.” It closes with the reminder that “[o]n November 5, 2024, President Trump was elected as the 47th President of the United States for his second term.”
There is another side to “winning” the game as he plays it that affords Trump considerable and often-expressed satisfaction. He like to receive tribute, to have his dominance acknowledged: in his words, to observe as others “kiss my ass” or give him the acknowledgement in the second term that he believes was denied to him in his first. By winning in 2024, coming back after the “rigged” 2020 election and surviving the prosecutions and lawsuits that followed, he established his dominance. In some contexts, Trump is particularly interested in a show of obeisance by those who have crossed him and then look to mend fences. The law firms targeted by his executive orders and settled rather than sued showed, in Trump’s word, “sophistication” in cutting deals, but they were also brought to heel. They came flocking to him, hats in hand, at least as he imagined and recounted their pleas: “Where do I sign? Where do I sign?”
There are other times when Trump is not so much vanquishing adversaries as he is seeing who will salute the flag. The meme coin auction he established with the lure of time with him and, for some large purchasers, a White House tour, included (speaking of “games”) a published “leaderboard” of the high bidders. Trump could then track who was putting up the most money in an open head-to-head competition. See how they run.
“The Game” and the Law
Of course, the exploitation of public service for private profit poses legal perils for politicians. A range of statutes can trip them up: bribery, illegal gratuities, mail and wire fraud. But the Supreme Court has systematically trimmed back the application of the statutes, leading one highly skeptical scholar to argue that “the Court has consistently—and [often] unanimously—ruled that federal law must be interpreted so as not to cover behavior that looks, to any reasonable observer, sketchy as hell.” The development of this doctrine and its current state is complicated and beyond the scope of this essay. But the narrowed application of these laws is one source of comfort to the legal advisers, if any, who are keeping an eye on the legal issues that might be presented by Trump’s gamesmanship.
These advisers might also conclude that Trump is protected by how he plays “the game.” At the core of the public corruption statutes is the prohibition on bribery: receiving “anything of value … in return for … being influenced in the performance of any official act.” Perhaps evidence of direct, criminal quid pro quo exchange will still surface over the next four years. “The game” as Trump plays it, so openly and with abandon, would seem to elevate that risk. But it is in the nature of his style of play, so connected to the show of power, that this player delights in demonstrating that he can pull in the riches without having to commit to promising or giving anything in return. (Qatar’s gift of a $400 million plane was just a “great gesture,” declared Trump, which only a “stupid person” would turn down.) He counts on star power, and, of course, on the prospect that those declining to play by his rules might suffer retribution.
And Trump has shown in his crypto ventures that he may concentrate his personal financial activity in an industry he has made a centerpiece of his deregulatory program. He may enjoy the crypto industry’s support, and crypto financiers may sign up for meme coin auctions, but the familiar challenge for anti-corruption law is that they may frame these activities as just expressing their gratitude for someone who thinks about these policies as they do.
This is all before we get to the Supreme Court’s decision on presidential immunity. How this opinion will function in practice is far from clear. For the time being, the lower courts will not have immediate occasion to consider and apply the Court’s distinction between “conclusive and preclusive” immunity, presumptive immunity, and the purely private conduct for which there is no immunity. Insofar as the Court gave guidance on those distinctions, it could afford Trump ample room in which to play his game without legal consequences. The Court stressed the complexity of distinguishing the official from unofficial spheres, barred the consideration of motive, and limited inquiries into official acts in the construction of a case for liability. And it should go without saying that if any such case is constructed, it would occur in the next administration, not in this Department of Justice.
Conclusion
In this Court’s public corruption decisions, Chief Justice Roberts, often writing for the Court, has defended the limiting constructions as protecting what is essential in a democracy to the interaction of the governors and the governed. In one instructive case, McDonnell v. United States, the Court struck down the conviction of an officeholder who had received a wide range of gifts from a constituent seeking at the same time support for his business interests. The Court held unanimously that the law could not prohibit an official from offering or providing a certain level of “access” in return for personal financial benefits. Roberts’s opinion set forth the view that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns” (emphasis in the original). Roberts also wrote that the law should not be interpreted in such a way that “citizens with legitimate concerns might shrink from participating in democratic discourse.” This “responsiveness, he had stressed in earlier case, “is key to the very concept of self-governance through elected officials.”
Trump’s game has exposed the limits of this conception of the self-interested exercise of political power. The Court’s framework may fit well enough within the standard debate between those who worry about the impact of money on politics and those more concerned about the cost to politics of overregulation. But it does not account for the exploitation of office for self-enrichment where the goal is one of further advancing the cause of an all-powerful executive: an executive “on a mission from God” who can do what he wants. The corruption in this sense is political and the consequences for constitutional democracy far from benign.