Jan 12, 2017
President-elect Donald Trump's plan to resolve potential conflicts of interest without divesting himself of ownership of his business empire, announced at a news conference on Wednesday morning, makes clear that the moment he takes the oath of office on January 20, he will be acting in violation of the Constitution, setting the stage for the most serious crisis of presidential illegitimacy in U.S. history.
If, after watching the television coverage of the press conference or reading the New York Times, you did not know about the looming constitutional crisis, you are not alone. It is astonishing in a nation dedicated to the rule of law that the news media covers every aspect of a momentous political event except the constitutional law that makes it a national crisis.
During the morning briefing, Trump's tax attorney, Sheri Dillon, a partner in the global law firm of Morgan, Lewis & Bockius stated that "the conflicts of interest laws simply do not apply to the president or the vice president." She explained that Trump was doing more than the law required by voluntarily taking steps to separate himself from the management of his company to assure the American public that "he is not exploiting his office of the presidency."
What Dillon failed to say was that the Emoluments Clause of the Constitution imposes its own anti-corruption obligations on the President and that Trump's failure to divest himself of ownership of his assets violates that constitutional provision. Simply transferring management of those assets to his sons, as Trump proposes, is not sufficient to comply with his constitutional duty.
A legal memorandum published by the Brookings Institution in December 2016 concluded that "under the text and purpose of the Emoluments Clause, a 'blind trust' in which Mr. Trump's children manage his assets and run the business is wholly deficient." The memorandum was authored by Laurence Tribe, a constitutional law Professor at Harvard University and author of the leading treatise on constitutional law, along with Norman Eisen and Richard Painter, chief White House ethics lawyers in the Administrations of Barack Obama and George W. Bush, respectively.
The Constitution's Emoluments Clause prohibits any "Person holding any Office of Profit or Trust under [the United States]" from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."
Although one legal scholar has argued that the Emoluments Clause does not apply to the President, the practice for more than 200 years has been to subject the President to its ban, and a 2009 opinion of the Justice Department's Office of Legal Counsel unequivocally concludes: "The President surely 'hold[s] an Office of Profit or Trust.'"
An "Emolument . . . of any kind" has been broadly defined to include any profit or financial benefit. Contrary to Dillon's assertion that the Emoluments Clause does not apply to "routine business transactions like paying for hotel rooms," the authors of the 23-page Brookings memorandum argue that insofar as the accepted legal definition of an emolument includes the profit arising from any office or commercial employment, the term would extend to any profit fairly earned in commerce: "While there is not yet a firm consensus on this point, the best reading of the Clause covers even ordinary, fair market value transactions that result in any economic profit or benefit to the federal officeholder." The Clause would thus be violated whenever a foreign diplomat stayed in a Trump hotel, for example, or a foreign-owned bank loaned money to a business in which Trump had an interest, or whenever a Trump entity made a profit on a business transaction with any foreign government or foreign-owned organization.
However, even as most constitutional scholars and ethics lawyers agree that Trump will be in violation of the Constitution as soon as he takes office, there also seems to be a consensus among legal experts that there's nothing that can be done about it. At least not until he becomes President.
After his term commences, the exclusive remedy, experts say, is impeachment. Or, as some have suggested, business competitors of Trump-associated entities may be able to sue him. But House Republicans are not about to impeach Trump, and even if businesses that suffer losses could sue, they would be entitled only to monetary damages, not to a court order removing him from office. The prevailing assumption is that, however corrupt, illegal, or unconstitutional his presidency might be, it is not legally feasible to prevent Donald Trump from becoming the 45th president of the United States.
How is this possible? If our nation really stands for the rule of law, why can't we do something in our capacity as individual citizens - "the most important office in a democracy," as President Obama said in his farewell speech. Why, for example, can't we file a lawsuit in federal court requesting injunctive relief to restrain Donald Trump from taking office on January 20 on the grounds that there is an imminent threat of his violating the Constitution? Why, at least, can't members of Congress file such a lawsuit, as trustees for their constituents?
The short answer is that the Supreme Court has said that even in the face of a serious violation of the Constitution, neither individual citizens nor members of Congress have what lawyers call "standing" to sue. Unless they can show a "concrete injury" personal to themselves as individuals - some physical harm or tangible loss - as distinguished from a public interest common to all citizens in having government officials comply with the rule of law, their lawsuit will be dismissed. The theory behind this distinction is that courts exist to decide disputes, not to ensure that other branches of government behave lawfully.
How is it possible in a nation based on the rule of law that citizens and members of Congress are legally powerless to prevent the presidency from being turned over to a person ineligible to serve as Commander in Chief? Suppose that prior to January 20, incontrovertible evidence were discovered proving that Donald Trump was born in Kenya, making him unqualified to take office because he is not a natural born citizen, as the Constitution requires. If a Republican-controlled Congress decided it was not in the political interest of Republicans to impeach him, however unqualified he might be, would the country be consigned to the fate of living under the rule of an unconstitutional administration for the next four years?
The idea that the courts would have no role to play in preventing such a constitutional calamity would be unthinkable. Yet the idea of filing a lawsuit to prevent Trump from arriving in the White House in violation of a constitutional provision that makes him as ineligible to become president as he would be if he were a foreign national has not been considered worthy of discussion in the national media.
President Barack Obama is the one person who could file a "public interest" lawsuit to enjoin Trump from taking office. The key to opening the door for the Supreme Court to confer standing on Obama can be found in the unique responsibility imposed on the Chief Executive by the so-called "Take Care" Clause of the Constitution which requires the president to "take Care that the Laws be faithfully executed." This constitutional duty is undertaken by the President on Inauguration Day when he takes the oath set out in Article II, Section 1 of the Constitution:
"I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
If the President sued to enforce his constitutional duty to "faithfully execute" the law and "preserve, protect and defend the Constitution," there would be no risk of undue interference by the judiciary with executive power, which is the principal reason the Supreme Court has given for denying standing to everyone else. As Justice Scalia wrote for a majority of the Court in a 1992 decision, the judiciary is constrained from assisting citizens or members of Congress in enforcing the Constitution because this would "transfer from the President to the courts the Chief Executive's most important constitutional duty to 'take Care that the laws be faithfully executed.'" Were the President himself to enlist the authority of the Court to assure compliance with the Constitution, the risk of conflict between the two branches of government would be at a minimum. Under these circumstances, there is a reasonable possibility the Court would grant standing to President Obama and perhaps relax the standing requirements for citizen plaintiffs who joined the lawsuit.
Because there are only eight days left until Inauguration, any lawsuit filed by President Obama's lawyers (joined by attorneys for citizen-plaintiffs), would commence with a motion for a temporary restraining order in the federal district court for the District of Columbia. The motion would have to demonstrate the likelihood of irreparable harm to the nation's constitutional system of government if Trump were allowed to take office without divestiture. Upon such a showing, Trump would be restrained from "enter[ing] on the Execution of his Office" under Article II until the district court had an opportunity, after a full hearing, to decide the merits of the case.
Such an order would have the effect of making Vice President-elect Mike Pence Acting President on January 20, pursuant to the Twentieth Amendment's provision for a case in which "the President elect shall have failed to qualify." The order would remain in effect until the District Court resolved the relevant issues and the losing party appealed the case all the way up to the Supreme Court.
It's impossible to know whether such a lawsuit would succeed, but President Obama is so committed to what Politico's Michael Grunwald calls his "no-drama reluctance to pick defining public fights," that he seems unwilling to even try to stand up to the Article II version of the schoolyard bully. Imagine what would have happened if the situation were reversed and Hillary Clinton, after winning the electoral vote, disparaged the U.S. intelligence community and trivialized its conclusion that Russian President Vladimir Putin had ordered the cyberattack on Trump's election operations to harm his electability. Trump's lawyers would have been in court the next day arguing that Russia's effort to undermine the election was being aided and abetted by Clinton's subversive statements, rendering her unfit for office. Why is it that Democrats don't have the grit for this kind of legal warfare?
After the 2000 election, the outcome of which turned on the popular vote in Florida, where George W. Bush received 1784 votes more votes than Al Gore, the legal army assembled by Bush asked a federal judge in Miami to issue a restraining order stopping the manual recounts begun under Florida law. The constitutional argument presented by the Bush team was so novel and far-fetched that liberal lawyers and constitutional scholars dismissed it as ridiculous. Yet the argument eventually prevailed in the Supreme Court where a 5-to-4 majority delivered the election to George Bush. Asked what he learned from the litigation, Stephen Zack, who was part of Gore's legal team, said, "America turns to its lawyers and not its generals when it has a problem."
America cannot be defeated, President Obama said in his last national address, "unless we betray our Constitution and our principles in the fight." So, please, Mr. President, do not betray our Constitution. As your final act, fulfill your duty to take care that the laws are faithfully executed.
In the past, autocrats have come to power by military coup, political assassination, or violent insurrection. Without a legal challenge by President Obama to the legitimacy of Trump's presidency, we will have demonstrated to the world that violence is unnecessary for tyranny to prevail, and that we, as a nation, are prepared to submit freely and democratically to an authoritarian leader. A Trump presidency without a constitutional fight would portend the beginning of the end of the rule of law in America.
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