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- Stanford Law School professor Pamela Karlan hypothesized a scenario last year in which President Trump conditioned disaster assistance to states on them giving in to his personal demands during a national crisis.
- “Wouldn’t you know in your gut that such a president has abused his office?” Karlan said while testifying at Trump’s impeachment hearings in December.
- Karlan’s testimony catapulted back into the spotlight this month as Trump suggested a quid pro quo similar to the one she laid out.
- Specifically, he implied the federal government would only send urgently needed financial aid to Democratic-led states grappling with the coronavirus if they gave in to his political demands regarding tax policy and sanctuary cities.
- “Professor Karlan correctly envisioned this scenario, where an out-of-control president extorts change in policies for disaster relief funds,” one DOJ veteran told Business Insider. “The hypothetical worst-case scenarios are now becoming par for the course.”
- Visit Business Insider’s homepage for more stories.
On December 4, Pamela Karlan, a professor at Stanford Law School, presented a hypothetical scenario to the House Judiciary Committee.
“What would you think if, when your governor asked the federal government for the disaster assistance that Congress has provided, the president responded, ‘I would like you to do us a favor. I’ll meet with you and send the disaster relief once you brand my opponent a criminal,'” Karlan said.
“Wouldn’t you know in your gut that such a president has abused his office?” she added. “That he’d betrayed the national interest, and that he was trying to corrupt the electoral process? I believe the evidentiary record shows wrongful acts on those scale here.”
Karlan was speaking as part of an expert panel of constitutional lawyers during the House’s impeachment hearings against President Donald Trump. Lawmakers were investigating whether Trump had abused his power by holding up military aid to Ukraine while pressing the Ukrainian government to investigate his political rival.
Trump was ultimately acquitted by the Republican-controlled Senate after the House impeached him.
But this month, Karlan’s testimony catapulted back into the spotlight as the president suggested a quid pro quo similar to the one she laid out — a scenario in which the federal government would only send urgently needed financial aid to Democratic-led states grappling with the coronavirus outbreak if those states gave in to his political demands.
“Well run States should not be bailing out poorly run States, using CoronaVirus as the excuse!” the president tweeted on Tuesday. “The elimination of Sanctuary Cities, Payroll Taxes, and perhaps Capital Gains Taxes, must be put on the table. Also lawsuit indemnification & business deductions for restaurants & ent.”
That morning, he also told The New York Post in a wide-ranging interview that it would be unfair to Republicans if Congress passed a “bailout” for coronavirus-stricken states because the states that would benefit are run by Democrats.
“It’s not fair to the Republicans, because all the states that need help, they’re run by Democrats in every case,” Trump said. “Florida is doing phenomenal. Texas is doing phenomenal. The Midwest is, you know, fantastic — very little debt.”
(Every US state is battling the coronavirus outbreak, and recent data showed that the number of confirmed cases is still rising in every US state other than New York, which has seen a decline in recent weeks. Traditionally Democratic-led, high-tax states also contribute more to the federal government than Republican-led, low-tax states, and red states benefit more from federal government assistance than do blue states.)
Jeffrey Cramer, a longtime former federal prosecutor who spent 12 years at the Justice Department, told Business Insider that Trump’s views on tying federal funds to political favors or requiring states to change their policies “has been consistent” and is “similar to tying aid to Ukraine in exchange for them to investigate a political opponent.”
“Professor Karlan correctly envisioned this scenario, where an out of control president extorts change in policies for disaster relief funds,” Cramer added. “The hypothetical worst-case scenarios are now becoming par for the course.”
This week wasn’t the first time Trump has implied he may link government aid to states complying with his hard-line immigration demands.
“I don’t think you should have sanctuary cities if they get that kind of aid. If you’re going to get aid to the cities and states for the kind of numbers you’re talking about, billions of dollars, I don’t think you should have sanctuary cities,” he said last Wednesday.
Four days later, Trump’s top economic adviser, Larry Kudlow, also hinted that Trump had not yet ruled out tying federal aid to sanctuary cities.
“Regarding the states, as you know, the president has from time to time spoken about linking that to sanctuary cities,” Kudlow said on CNN’s “State of the Union.” “I don’t think anything’s been decided yet.”
It’s not clear whether the Trump administration can legally condition federal aid on states complying with his immigration-related demands, and he’ll almost certainly face pushback in the courts if he seeks to impose such an order.
In 2017, Trump’s Justice Department tried to condition some criminal justice-related grants on cooperation with immigration authorities. When the requirements were challenged in court, several lower courts blocked the administration and those rulings were later affirmed by higher courts, CNN reported.
The main issue in those cases was that the “Justice Department couldn’t add contingencies that Congress had not authorized in the statute,” Theresa Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center, told the outlet.
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The legal issues at play would be slightly different in any new efforts by Trump to block coronavirus-related funding from states because those funds would be congressionally appropriated.
“Two things would have to happen,” Brown told CNN. “Congress would have to authorize the contingency for whatever monies they’ll offer to state and localities,” and “the courts would have to find that condition is lawful, that it wasn’t coercive, that it wasn’t forcing states to do federal enforcement.”
Cramer echoed that view, telling Business Insider that while Trump can move funds around in the executive branch to finance his initiatives — like a border wall — funds to states do not fall under the purview of the executive branch.
Barbara McQuade, a former federal prosecutor in the Eastern District of Michigan, told Business Insider that while Congress can impose certain conditions on states receiving federal funds, “the condition must be closely related to the purpose of the money.”
“Demanding concessions about sanctuary cities seems far afield from federal funds for recovery from COVID-19, and therefore, is probably not legally permissible,” she added.