There is a tendency, when confronted with the latest Trump financial innovation, to reach for the language of scandal. One reaches, and one reaches, and one never quite grasps the thing, because the vocabulary of scandal presupposes a deviation from norms, whereas what we are observing is the logical maturation of a system that was always going to arrive here. Truth API, launched August 1 by Trump Media & Technology Group, charges up to $100,000 per month for real-time, preferential access to the president’s Truth Social posts. Ten customers have already enrolled. The Intercept and the Freedom of the Press Foundation, represented by Citizens for Responsibility and Ethics in Washington, Yale Law School’s Media Freedom and Information Access Clinic, the Public Integrity Project, and Altshuler Berzon LLP, filed suit in federal court on August 12. The complaint alleges First and Fifth Amendment violations. It is, in the formal legal sense, correct. But the deeper problem is structural, and the lawsuit, however meritorious, is treating a symptom.
Consider the architecture. Trump owns approximately 41.43% of Trump Media through the Donald J. Trump Revocable Trust, of which he is the sole beneficiary. Those shares are worth more than $1 billion. He uses his Truth Social account, with its 13 million followers, as his primary instrument of governance: agency appointments, firings, military actions, foreign policy, tariff announcements, statements on the Iran war. The interim CEO of Trump Media, Kevin McGurn, described the product as providing “a direct, licensed, real-time feed of the platform’s most market-moving Truths.” The phrase “market-moving” is doing a great deal of honest work in that sentence. The president of the United States generates information that moves markets. His company sells that information first to whoever pays $100,000 a month. Everyone else, including the journalists he routinely threatens to criminally investigate, receives it later. This is not a loophole. It is a business model.
Giorgio Vasari (CC0) via Wikimedia CommonsThe First Amendment analysis is straightforward, perhaps deceptively so. The Supreme Court has long held that the government cannot grant preferential access to public information based on viewpoint or willingness to pay. The Fifth Amendment’s due process clause prohibits the government from imposing extortionate conditions on access to government benefits. Public statements by a sitting president are, by any reasonable definition, a public benefit. Charging a toll for early delivery of those statements is the kind of conduct that constitutional scholars refer to, in the technical literature, as “not even close.”
But one must complicate the complication. The deeper pathology is not that Trump is monetizing his posts. It is that the entire information ecosystem of the presidency has been privatized. Trump Media’s stock has fallen more than 70% since he took office, wiping out roughly $6 billion in shareholder value. The company’s advertising revenue is negligible. Truth API is not a sideline; it is a distressed firm’s attempt to extract rent from the one asset it possesses, which happens to be the president’s mouth. Senators Elizabeth Warren and Adam Schiff have already asked the SEC to investigate whether the service constitutes market manipulation and insider trading. The SEC, under Trump appointee Paul Atkins, will investigate with the vigor of a houseplant.
Official White House Photo by Shealah Craighead (Public domain) via Wikimedia CommonsWhat we are watching is the convergence of three trends that political scientists have been tracking for decades: the commercialization of the presidency, the regulatory capture of enforcement agencies, and the platformization of political communication. Each is well-documented in the literature. Their simultaneous acceleration in a single administration is, to use the academic term, unprecedented. Seth Stern of the Freedom of the Press Foundation called it “so blatantly corrupt and unconstitutional that it would have been hard to even fathom just a few years ago.” With respect to Mr. Stern, it was not hard to fathom. The structural incentives made it predictable. What was hard to fathom was that anyone would do it this brazenly, and that the institutional response would be a lawsuit rather than impeachment.
The courts may yet enjoin Truth API. They should. But the precedent this sets, should it survive, is not merely that a president can sell early access to his words. It is that the boundary between public office and private enterprise, already perforated almost beyond recognition, has been formally dissolved. The president is not merely corrupt. He is the chief executive officer of a publicly traded company that sells access to the chief executive office. The founders, whatever their considerable failings, understood the word “emolument” with a clarity that eludes us now.
Donald Trump (Public domain) via Wikimedia Commons