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Monday, March 06, 2017


For me, the case isn't so clear, and I'd need to know more. (And I might know at least a little more if I followed your links....I read only what you've put here.) For points 1 and 2, I'd think it's somehow relevant if those tenants are paying market rates or extra-market rates, and if those hotel slots would likely be filled at the same rates in the absence of those government tenants. For point 3, that just doesn't seem concerning to me.

I'd want to know how much the emoluments clause scales. Whenever a president visits another country and receives a state visit, he's receiving something that can't be simply sent to the White House gifts manager. What about ex-presidents' practice of building foundations after their presidency? (That's not a "foreign emoluments" issue....but other politicians' polite and understated venality and greed tempers some of my outrage at Mr. Trump's more brazen varieties.)

I'd also want to know what remedy has been set in place by Congress: can/ought Mr. Trump be impeached over it? can he be ordered to divest himself of holdings? can the courts put all his holdings in something like a court-managed receivership for the rest of his tenure?

Not that this isn't concerning to me. Point 4, especially, seems VERY concerning and suspect, and the most likely to signal corruption.

(((I realize that in my last few comments at this site, I probably sound a lot like a Trump apologist. I wish I could say I'm just creating/enforcing high standards for how we oppose Mr. Trump. But in another sense, I can't deny that if I apologize, and hedge, and equivocate, and say "whatabout" enough, then maybe I am an apologist. I don't fully understand why I do that, but my not understanding doesn't let me off the hook.)))

Your questions about number 1 and 2 reflect a disagreement I've read about the interpretation of the clause. I do know that there is some disagreement among legal scholars. On one side, there are those who would say an ordinary profit is not necessarily an emolument. The opposing position, which I'll lay out in more detail, is that incentives are inherently skewed when a president does personal business with a foreign government, and it's effectively impossible to remove the skewed incentive from the equation.

It's not what the president himself does or says. The skewed incentive leaves the matter of corrupt practice in the hands of foreign leaders who are incentivized to curry favor with the president by making deals that are profitable to him--extending an existing lease for example, or cancelling a major event at a competitor hotel and switching it to a hotel owned by the president. The latter is exactly what happened with the Kuwaiti government.

The Kuwaitis have historically held an annual multi-million dollar DC event at the Four Seasons Hotel. This year was to be no different. They booked the Four Seasons, but days after the election, they cancelled with the Four Seasons and changed the reservation to Trump's DC hotel.

Even if the Kuwaitis pay the market rate for the event, Trump is profiting from what looks like a decision that proponents of points 1 and 2 say is effectively a gift to him. Initially, the Kuwaitis said that they were pressured by the president's staff to change the reservation, but when that came to public attention, the Kuwaiti Ambassador denied any pressure from the Trump administration to make the change. But in the case of emoluments, outright pressure doesn't need to be part of the equation. The question of whether a gift would have been given ordinarily or whether the value of the gift is ordinary or customary doesn't enter the analysis. It's prohibited unless congress approves the gift. So is changing the award of a profitable contract considered a gift or present, to use the language of the clause?

There are a couple of cases headed to court over this. The initial hurdle is standing to sue. Someone suing must show that they are harmed by these deals. It isn't sufficient for a citizen to say they're harmed. The Four Season's owners would almost surely have standing in the Kuwaiti case, but they're not suing. The problem with these situations it that those who have standing might not want to piss off a president who has the power to retaliate via, for example, justice department intervention in civil cases that might affect them (I think it's established that the current president has a thing for retaliation). But there are a couple of DC restaurants that are suing, arguing that some foreign dignitaries will take their business to Trump's hotel where they will be seen and greeted by Trump and members of his administration, which has apparently been occurring regularly. I don't know what level of proof of a loss a court would require of these restaurants to recognize standing to sue, but I guess we'll see.

I'm frustrated too with the practices that have enriched presidents in their post-presidency years, President Clinton being the first to take these practices to levels not remotely seen before. While that disgusts me, a key difference from a sitting president is that a retired president does not have the power of a sitting president to effectively compromise the office in negotiations with foreign governments on behalf of the citizens of the United States. In the extreme, if a sitting president has business deals with a foreign government, and that president is facing a crisis that calls for economic sanctions against that government, what does he do if imposing those sanctions might cost him millions, or even bankrupt him? And does the foreign government's power to punish a president personally, effectively turn a pre-existing deal with a president into a gift/present because it can be taken away from the president?

I'm not fond of anachronistic attempts to ask what the founders would do in a present-day circumstance because so much about legal and cultural context changes over time, but I do wonder what the various founders would say if they could be apprised of the entirety of the situation with Trump. Would they think, no problem, iffy or clearly prohibited? Would they disagree among themselves?

Anyway, if you are up for following links, Vox reports on views of some legal scholars here. http://www.vox.com/policy-and-politics/2016/11/23/13715150/donald-trump-emoluments-clause-constitution

Thanks for the reply, and for the link (which I may read if I have time). I hadn't known about the Kuwaiti thing. And your point about ex-presidents not having the kind of power that now-presidents do is spot on. I also agree with the incentives. I like your speculation about the founders (and I like your reluctance to go full-hog into anachronisms), and my guess is they'd probably disagree over whether it's "merely" iffy or actually prohibited, but a clear majority would say it's prohibited.

About standing (and maybe the vox link addresses this), I would hope that the justice department would be able to prosecute. Not that it would, because it answers to Mr. Trump. But the remedy need not be only a civil suit, but perhaps a criminal case (I think....depending on what the established laws say). I'd be curious to know if a US District Attorney could initiate a prosecution. The d.a.'s, as I understand it, serve at the pleasure of the president, but they're appointed to specific terms. I understand that to mean a) a goodly number of d.a.'s haven't been appointed by Mr. Trump and b) while Mr. Trump could fire them, it would be a brazen move that would put him in a bad light. Of course, he doesn't really seem afraid of being put in a bad light. But even some Republicans in Congress might balk. (Or not, but one may hope....)

Congress can take action, and impeachment is an option, but so far the GOP has shown no interest. I've read that there is some uncertainty about whether a sitting president could face federal criminal prosecution. Impeachment and conviction may be required before a criminal prosecution could proceed. The Supreme Court has never addressed the question. (explained here). And presumably, you've heard about yesterday's DoJ bloodbath with the unprecedented request for the resignations of 46 US Attorneys appointed by Obama.


(CNN)The high-profile US attorney for Manhattan, Preet Bharara, has indicated he will not submit a letter of resignation as requested by the Trump administration Friday -- placing the President in the position of having to fire him in a public standoff, sources tell CNN.

Interesting that Bharara, one of the most high profile US attorneys, was specifically asked by Trump to stay on last November. Does his refusal to resign have something to do with that, or is something else going on? Is he upset about possible corruption, and does he wants a more decisive showdown? Is there something more specific in that regard? It may just be personal, but it's an odd situation.

US Attorney Preet Bharara just got fired.

And there is this


The president’s son Eric probably said it best: “I think our brand is the hottest it has ever been.” No surprise there — nothing like a presidency to boost business. It is nevertheless shocking to see the brazenness of the ethical conflicts and watch the first family celebrate its good fortune.

But shock is giving way to action, and the lawsuits are starting to pile up. Last week, several public interest groups, including Democracy 21 and Citizens for Responsibility and Ethics in Washington, called on Preet Bharara, the United States attorney for the Southern District of New York and an aggressive prosecutor of corruption, to investigate the Trump Organization, the New York-based business through which Mr. Trump owns and controls his hotels, golf courses and other holdings. But that effort might not go far because the Department of Justice on Friday asked Mr. Bharara and 45 other United States attorneys appointed by former President Barack Obama to resign.

I didn't know any of this. Thanks for bringing it to my attention.

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