As a matter of
constitutional law and federal statute, President Donald J. Trump has no
conflicts of interest. This is not a statement of partisan sentiment. It is a
statement of prima facie legal fact.
The concept of “conflict
of interest” is not a category inherent in the nature of things; like the
categories “personal property”, “real property”, and “fixed property” as legal
categories of property created by law and applied to things in accordance with
the legally defined meanings of such terms, the category “conflict of interest”
is a legal category created by statue and subject to the definitional scope and
limitations specified in such statutory text.
Like legal
categories such as “contract” (think of the “Social Contract” theory advanced
by Enlightenment legal philosophers) and dicta
such as “clear and present danger” which have obtained usage far beyond their
strict and original meaning, the original term and its context have given way
to analogical predications of such terminology. This is all well and good, as both
univocal and analogical prediction are natural operations of human language.
A problem
arises, however, when a term commonly predicated analogically and thereby
extended beyond its strict and original meaning is then predicated univocally
of a subject capable of being predicated of univocally under the original
meaning of the term wherefrom the analogical predication arose. Such abuse of
logic, language, and law I have termed Retrograde Analogy.
Retrograde Analogy
When a
conceptual category is abstracted from phenomena—or, in the case at hand,
defined by statute—and is assigned a term (e.g. “conflict of interest”), such
assigned term is univocally predicable of the phenomena from which such
conceptual category is abstracted. If the assigned term is applied to a
similar yet distinct conceptual category, the term is predicated analogically
of the differentiated conceptual category.
At this point in
the logical flow of language, the term as originally used has undergone a
slight modification in meaning; while the new meaning of the term is not wholly
unrelated, neither is it wholly identifiable therewith. Wherefore Aquinas calls
such analogia (for a philosophical
treatment of the logic of analogy, see The Logic of Mystery in the Concept of Analogy). Insofar as the original term
has taken upon itself an analogical meaning, however, a new term has been created
which is thereby non-predicable—at least univocally—of the original phenomena
encompassed by the original conceptual category abstracted from the latter.
Insofar as the analogical term is predicable of
phenomena categorically distinguished from phenomena univocally so predicated
of, such analogical term has become a true term with
all the linguistic and logical properties inherent therein. A distinct
conceptual category has been created from the abstraction of the distinguished
phenomena, and the analogical term qua term
will naturally evolve (i.e. ‘morph’) into yet further terms predicable of
phenomena distinguishable from the phenomena encompassed by the analogical
predication of the original term.
In this process,
a new analogical term is created from the analogical predication of the
original analogical term qua term;
this is the process of linguistic conceptual development, the means whereby money was analogically predicated of Monopoly money, which in due course became
analogically predicable of worthless compensation generally, and which may
become analogically predicable of a fourth as yet uncreated conceptual category
of phenomena. The linear progression of linguistic development constitutes a 1-way street as it were (to analogically
predicate of the term univocally predicable of a category of municipal
infrastructure [let the record reflect that the term retrograde analogy is itself an analogical predication of the term
“retrograde”, which is itself univocally predicable of moving geometrical
objects, not conceptual categories of law or logic]).
The forward
movement of language is as natural a property of verbal communication as verbal
communication itself is of human nature. The perversion of speech consists in
the systematic attempt to overrule the linearly forward-moving property of
linguistic development by the intentional introduction to the phenomena
encompassed by a preceding conceptual category the analogically predicable term
derived therefrom—retrograde analogical predication that contravenes the very
nature of language. To univocally predicate a term of analogically related
phenomena constitutes a high crime and misdemeanor against the very concept of
language; if Retrograde Analogy escapes conviction in the Court of Public
Discourse, such acquittal shall constitute the death of the linguistic rule of
law and the birth of predicational mob rule.
Conflicts of Logic
To cite the
venerable authority Black’s Law
Dictionary—regularly cited by Federal Courts as quasi-prima facie evidence of the authentic meaning of legal terms—a “conflict
of interest” is a
[t]erm used in connection with public officials and
fiduciaries and their relationship to matters of private interest or gain to
them. Ethical problems connected therewith are covered by statues in most
jurisdictions and by federal statutes on the federal level. Generally, when
used to suggest disqualification of a public official from performing his sworn
duty, [the] term “conflict of interest” refers to a clash between public
interest and the private pecuniary interest of the individual concerned.
Trump is alleged
to have business holdings that constitute a conflict of interest with his
current constitutional office of President of the United States, an office
created by the U.S. Constitution in
Article II, Section I, in contradistinction to an office created under the U.S. Constitution’s grant of
legal authority, such as the office of the Secretary of State, an office created
under the revised constitution by Act of Congress on July 27, 1789 as the
“Secretary of the Department of Foreign Affairs” and
whose occupant is “appointed in consequence of this act”. The
distinction is crucial for the matter at hand.
Qualifications (or disqualifications) cannot be imposed by statute upon offices created by the Constitution, since the statues themselves are
created by means of legislative power derived from Article I, and since a lower
law cannot contradict a higher, it would be logically improper for a statute
(a lower law) to contradict the Constitution (a higher law) by imposing further
qualifications not decreed by the Constitution itself. By contrast, offices
created under the constitution are
subject to the statutory imposition of whatever qualifications the Congress
deems appropriate—insofar as these do not themselves contravene the
Constitution itself—for both office and statute are on juridically equal
constitutional footing qua creatures
of the Constitution. An office created by
the Constitution, however, is not a creature of the Constitution, but
constitutes a constituent part of the Constitution itself. Consequently, the imposition
of further qualifications for the office holder to validly hold his office can
be accomplished solely through the procedure of constitutional amendment defined in Article
V.
Since such an
allegation is necessarily understood as an allegation of fact in violation of
statutory law, it is improper to impose any non-legal predication—analogical or
otherwise—upon such term in the legal context of such allegation, and the legal
meaning of the term “conflict of interest” by right ought to be predicated
thereof. But Trump’s alleged conflicts of interest are non-existent by the body
of statutory law under which such term obtains legal meaning and injunctive
force. Wherefore Trump’s alleged conflicts of interest are non-existent insofar
as the term “conflict of interest” is understood as a univocally predicable
term of juridical art.
Legal terms acquire
legal meaning solely through the legislative-constitutional context under which
such terms originally acquired substantive content. In the case before us, the
original legal meaning is patently inapplicable. Wherefore I declare that Trump has
no conflicts of interest under the American system of federal constitutional
law. Rather, his legion of legally illiterate detractors have manifested a
conflict of logic neither present in the law of the land nor in the nature of
things; in the absence of legal fact they have created a
legal fiction in blatant contravention of constitutional law and linguistic
logic: Retrograde Analogy.
Original idea Feb 6, 2017, 9:55am
Blogpost started Feb 14, 2017, 8:15pm.
Continued Jul 9, 2017, 9:15pm.
