The Whistleblower, Impeachment, and New York’s Orwellian Speech Policy

Daniel Davis / Rachel del Guidice /

New York City is banning the term “illegal alien”—and what’s more, it says it’ll fine you up to a quarter-million dollars if you say it. Today, we’ll discuss that situation with Heritage Foundation legal expert Hans von Spakovsky. We’ll also have him weigh in on the latest impeachment news, and whether foreign leaders’ staying at Trump International Hotel in D.C. is a problem.

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Daniel Davis: We’re joined now in the studio by Hans von Spakovsky. He’s a senior legal fellow here at The Heritage Foundation.

Hans, thanks for being back on.

Hans von Spakovsky: Sure, thanks for having me.

Davis: We have a lot that I want to get to today regarding a new hate speech policy in New York City, which you say violates the First Amendment, and you’ve written for that at The Daily Signal. Also, Congress getting up in arms about foreign leaders and wealthy business people staying at the Trump hotel in D.C., and whether that constitutes some kind of corruption or violation of the Constitution.

But first, because impeachment is so fast-moving and there’s new information coming out, I want to start with that. We’ve been learning more about the Trump-Ukraine conversations, but the latest news is about Adam Schiff, the chairman of the House Intelligence Committee. Reports have emerged that his staff was actually in conversations with the whistleblower before the complaint went public. The minority leader, Kevin McCarthy, has now called for Schiff to step down as chairman because of that.

Is this damning news about Schiff, that his staff was talking with the whistleblower?

von Spakovsky: Yeah, I think it is, because what it does is it raises questions about whether this was really a legitimate complaint by an intelligence analyst over things that he thought were being done wrong and in the intelligence agency where he worked, or if he’s having all these discussions with the Democratic representative and his staff, who’s leading the impeachment charge.

Was this a coordinated, biased, and partisan political complaint that was being filed for its value in the media and to help spur the impeachment process? It raises a lot of questions about the legitimacy of the actual whistleblower complaint.

Rachel del Guidice: President Trump initially called for the whistleblower to be revealed, although more recently he said that he thinks whistleblowers should be protected if their claims are in fact legitimate. Should this whistleblower’s identity be protected or not?

von Spakovsky: Well, it’s kind of interesting. The whole purpose of the law is to protect your confidentiality, but the whistleblower didn’t seem to be concerned about members of Schiff’s staff knowing who he is. So if he was really worried, why would he do that?

There’s a balancing act here. On the one hand, the whistleblower law is very important and there is a reason why it protects whistleblowers, so we can find out about fraud and government and things like that.

But if this forms the basis of impeachment, fundamental requirements of due process require that the president and his lawyers be able to question the person making accusations against him. That’s why in any state and federal court in this land, you have the right to confront whoever is accusing you of wrongdoing.

So if this gets to that point of the House about to approve articles of impeachment or if it gets to the Senate, I think the president should be given the right to confront his accuser.

Davis: Right, right. Well, something that the president has also mentioned is that the rules for whistleblowers were changed just days before this complaint went public, which raises real questions about who is this whistleblower and who is behind those rule changes.

The previous rules were that you had to have firsthand knowledge of wrongdoing in order to get that whistleblower status. The rule change says no, it can actually be secondhand or thirdhand information, basically just hearsay, and you can raise the complaint and get whistleblower status. What does that say to you?

von Spakovsky: That also raises a lot of questions about the credibility of the inspector general for the intelligence agencies.

What this is about is the form, the complaint form that you previously filled out, you had to assert you had firsthand knowledge. And all of a sudden the form was changed recently so that you could check that you either have firsthand knowledge and/or you have secondhand knowledge, which is considered hearsay. That’s the legal term for it. And of course, hearsay is not accepted in any state or federal court anywhere in the country.

The inspector general is claiming that, “Oh well, we just changed that because we’ve always accepted secondhand information.” But that’s a little hard to believe. If that’s true, why did the form say you had to have firsthand knowledge? So again, that to me raises some questions about the credibility of the inspector general.

Davis: It’s been said that [former CIA Director John] Brennan, who was at the end of the Obama administration—

von Spakovsky: Right.

Davis: —left a bunch of his people actually in the intelligence community as career people. Do you think that this could be one of them trying to cover themselves with whistleblower status and try to “get” the president?

von Spakovsky: Well, look, we don’t know who the person is. So, of course that’s certainly a possibility. We don’t really know. The one thing I can say—this is from my prior experience in the federal government. I arrived at the start of the Bush administration, and I discovered—this happens all the time—that there were all these Clinton political appointees who had been squirreled away into career ranks inside the Justice Department. And, unfortunately, that’s the kind of thing that happens all the time.

Those individuals, who I got to know, they basically did everything they could from their current career slot to stop the enforcement priorities, for example, of President Bush and to cause trouble by, for example, leaking stories to outlets like the Washington Post whenever it looked like the administration was going to do things that they didn’t agree with.

They, frankly, were some of the most unethical lawyers I’ve ever had to deal with.

del Guidice: Hans, how far do you think this impeachment probe will get? We were talking just a few minutes before we got started here, and do you think this is going to be a situation sort of like the Russia collusion investigation was, where it’s kind of an ongoing thing until it dies down? Or do you think we’re going to see any kind of end to this? What is your forecast here?

von Spakovsky: Boy, I really don’t know the answer to that. What I will say is we don’t know what we don’t know, to paraphrase Donald Rumsfeld.

But particularly concentrating on the transcript of the phone call that the president had with the Ukrainian president—there’s nothing in that phone call that is a smoking gun. There’s nothing in that phone call that indicates the president violated any federal law, and I don’t see anything in that letter that would warrant impeachment of the president. Maybe there’s other stuff out there.

Unless the Democrats can uncover real wrongdoing, serious misconduct by the president, I don’t see how they could justify approving articles of impeachment.

Davis: Shifting to a story out of New York, which you wrote about in The Daily Signal today, the city’s Human Rights Commission, which is not an elected body, has announced that it’s banning the term “illegal alien” from common business usage and threatening to fine people if they use the term. Tell us what this is about.

von Spakovsky: Yeah. Not just a minor fine. Up to $250,000.

del Guidice: Whoa.

von Spakovsky: It’s a lot, yeah. They’re banning the use of the term “illegal alien.” They even say the use of the word “alien” instead of “immigrant” is demeaning to illegal aliens.

Davis: But we’re not talking about just people passing on the street using the word, right? It’s like some kind of official capacity?

von Spakovsky: Right, right. They have an ordinance in New York that, of course, bans discrimination by employers, by people who provide public housing—including, for example, landlords of apartments, hotels, etc. And they can be fined if they use those terms.

Now, what’s so bizarre about this is that the term “alien” is the term used throughout federal immigration law. And the term “illegal alien” is not only used in specific federal statutes, but it’s the proper legal term that’s used in Supreme Court cases.

So, in essence, New York is trying to say, “Your use of precise legal terminology is discriminatory and we’re going to fine you if you do that.” Like I said, I can’t think of a more fundamental violation of the First Amendment, besides just being totally absurd.

del Guidice: Beyond the official terminology piece, it also seems that this goes against free speech and the First Amendment.

von Spakovsky: Yeah.

del Guidice: Do you expect to see a lawsuit brought forth against the city?

von Spakovsky: I would hope so. The thing about that is, it’s going to take somebody—either a company or a hotel—who’s brave enough to do that, because we all know that they’re probably going to suffer bad publicity because the political orthodoxy today, particularly of the kind of liberal media organizations that exist in New York City, is that, “Oh, you can’t use the word ‘illegal alien.’ You have to use ‘undocumented immigrant.'” Which is a euphemism that was created to hide what’s really going on, which is an alien who’s in the country illegally.

Davis: Yeah. The term kind of assumes that the only problem is you don’t have documents.

von Spakovsky: Right.

Davis: That documents are just fake and arbitrary and you just need your document, just like the rest of us.

von Spakovsky: Right. Or you just don’t happen to have them with you when you’re out and about in the community. This is political correctness to the nth degree and it is just so fundamentally wrong.

Davis: So the city did try to say that this was limited guidance—

von Spakovsky: Right.

Davis: —saying that it only applies if you were intending to demean, humiliate, or offend someone. So limiting, are you convinced?

von Spakovsky: No because, look, they say that in this guidance, which is very long, this legal guidance they’ve issued, but then you read other parts of it and they clearly believe that just the simple use of those words is demeaning—

Davis: Right.

von Spakovsky: —and humiliating. So that’s not really a limitation.

Davis: If you could ask them, can you give me an example of a usage of this term that would actually not be demeaning, in your opinion?

von Spakovsky: I don’t think they could.

Davis: Yeah.

del Guidice: Shifting gears back to D.C., Democrats recently held a hearing that asked the question of whether Trump was in violation of the Constitution by letting foreign dignitaries, wealthy business owners, and others stay at the Trump International Hotel, which is a major five-star hotel near Capitol Hill.

They’re saying that Trump partly owns the company that owns the hotel, so he might be influenced by people purchasing rooms there. And more importantly, he could be in violation of the emoluments clause of the Constitution. What do you make of these claims?

von Spakovsky: They’re frivolous. I actually testified at the hearing and it shows you just how far gone folks in the House are that the House Transportation and Infrastructure Committee, which you think would be worried about rebuilding interstate highways and bridges, instead they have a half-day hearing on the Trump hotel.

The Trump hotel is one of only two five-star hotels in the city, according to Forbes. The GSA, General Services Administration, owns the building. It’s the Old Post Office Building and it was a dilapidated, run-down building. It was built in 1899, and they put it out for bids to redevelop it, and a Trump organization—of which Donald Trump at the time was a majority shareholder, but there were other shareholders, too—put in a bid. They won it in 2013. They rebuilt it.

Davis: During the heart of the Obama administration.

von Spakovsky: Heart of the Obama administration. They rebuilt the hotel, the GSA, again during the Obama administration, and entered into a 60-year lease and the federal government went from losing $6 million a year trying to maintain this old property to being paid $3 million a year by the Trump Organization.

When Trump became president, he transferred his interest from this company into a trust, so he doesn’t have any management control of anything about it.

Here’s the claim that’s being made, the emoluments clauses—there are two of them, very obscure clauses—are clauses that say no federal official, including the president, can receive gifts, presents, or emolument from foreign governments, the federal government, or state government. Emoluments are considered compensation that you receive as you discharge your official duties.

So, in other words, if the president signed some bill that provides foreign aid to some country in Africa, Africa can’t send him money saying, “Thank you very much for doing that.”

Same thing with state government. If he signed some bill that’s going to distribute money to a state government, the state government can’t pay him anything above and beyond a salary.

Davis: Yeah.

von Spakovsky: But emoluments don’t include the business of a president. A business where people are paying the fair market value—

Davis: Right.

von Spakovsky: —for services in an open market. That’s not emoluments. And in fact, all you got to do is look back. George Washington and Thomas Jefferson kept running their plantations and farms and they sold their agricultural products abroad. What? Was that illegal emoluments? Oh, of course not.

The most ridiculous part of this theory—remember you can’t get anything from state governments either—under the view that anything of value that a president gets is a prohibited emolument. Both Bill Clinton and Ronald Reagan violated the monuments clause because they received pensions from their respective states from when they were governor while they were president.

Davis: Yeah.

von Spakovsky: It’s just another way of going after the president. And the claim was made as, “Well, the only reason foreign diplomats and others stay at this hotel is they’re trying to curry favor with the president., Well, that ignores the fact that—look, I’ve been in this town a long time. It’s one of the nicest hotels in the city.

Davis: Right.

von Spakovsky: It’s a great place to stay and if you’re somebody with a lot of money, you’re a jet-setter, you’re a foreign diplomat, that’s the place you’re going to want to stay.

Davis: Right, especially if you want to get close to Capitol Hill. It’s the only five-star hotel right there.

von Spakovsky: That’s exactly right. It’s on Pennsylvania Avenue. It’s within walking distance of the White House. It’s not very far from the Capitol. You couldn’t get a better location.

Davis: Now, some might say, “OK, yeah, state officials can’t give the president money—

von Spakovsky: Right.

Davis: —but that’s why you would expect countries like Russia and China to have front companies out or middlemen to funnel the money to the president so that they don’t have their fingerprints on it.”

How would you respond to that? Because people might say, “Yeah, you got all these businessmen with Russian names staying at the Trump Hotel. That sounds awful suspicious.”

von Spakovsky: First of all, it’s not going to the president directly. It’s going to a company that he owns a share in, and he has now put it in a trust and has said that the payments received from any foreign diplomats or foreign government officials for staying in the hotel and paying the market price for a hotel is going to be paid over to the U.S. Treasury. So, he’s not profiting from it at all. I think it’s just a silly claim.

There are several pending lawsuits, one of them that was filed by Maryland and the District of Columbia just got thrown out of court by the 4th Circuit U.S. Court of Appeals.

del Guidice: Final question, Hans, if there was some kind of wrongdoing here, some wrongful influence going on that did violate the emoluments clause, what would that look like?

von Spakovsky: A violation of the emoluments clause would be if a Russian government official said something of value to the president because they’re happy about something he did in his official duties.

For example, remember we have sanctions right now against the Russians, right? In fact, we have some of the strongest sanctions that have been put in since the Trump administration came in. If suddenly those sanctions were lifted by the president, which is in his official duties, and the Russian government sent him a payment of $10,000, or sent him a horse as the King of Spain did to John Jay—

del Guidice: That’s right.

von Spakovsky: —200 years ago, that would be a prohibited emoluments. But paying for a room at a hotel, that is not an emolument.

Davis: How did the horse situation end? Did he keep it?

von Spakovsky: Yeah, I think he did.

Davis: Did he get prosecuted for that?

von Spakovsky: No, because that was before Constitution and the emoluments clause.

Davis: Oh, there you go. Off the hook.

Hans, thanks for coming in and covering all of the news items. Appreciate your coming in.

von Spakovsky: Sure. Thanks for having me.

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