Thursday, July 26, 2018

Emoluments might cause Trump to be deposed if he is deposed

(1) remove from office suddenly and forcefully.
“he had been deposed by a military coup”
(2) testify to or give (evidence) on oath, typically in a written statement.
“every affidavit shall state which of the facts deposed to are within the deponent’s knowledge”

Why Donald Trump fears the courts: if forced to (2), he might well suffer (1).

Trump’s legal nightmare is explained in the morning email by Judd Legum at Popular Information.

Robert Mueller’s investigation into the Trump campaign — and its potential collusion with the Russian government — has captured the attention of the public and the president. But Trump actually faces a dizzying array of legal problems.

While garnering less publicity than Mueller’s work, these other cases are quietly progressing. None of them are moving in a direction favorable to Trump.

These less well-known legal issues threaten something Trump cares about deeply — his money. They also may expose the intricacies of Trump’s efforts to silence and humiliate women.

This morning I will focus on the money, namely the emoluments Trump receives from foreign sources via his hotels. Legum continues.

Hotel horror show

Trump broke from the practice of previous presidents and maintained full ownership of his sprawling business interest. For context, Jimmy Carter put his peanut farm in a blind trust to avoid the appearance of a conflict. Trump operates a luxury hotel in the middle of downtown DC that openly solicits the business of foreign governments.

Standing in the way of Trump’s plan is The Constitution of the United States. Article 1, Section 9, Clause 8 states:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The key word here is “emolument,” which means anything of value. Trump, meanwhile, is receiving a steady stream of payments from foreign governments through his hotel and other properties.

The Constitution, according to Trump’s lawyers

Trump’s lawyers have adopted a convenient interpretation of the Foreign Emoluments Clause. They say that the constitution only prohibits the president from accepting payments in return for official actions. Moreover, Trump’s lawyers argue, transactions conducted at fair market value are exempt.

**The Constitution, according to a federal judge

Yesterday, a federal judge gave Trump some very bad news. Trump’s lawyers argued that a case brought by the Attorneys General of Maryland and DC should be dismissed because the Foreign Emoluments Clause didn’t apply to Trump’s conduct.

In a 52-page opinion, Judge Peter Messitte absolutely eviscerated Trump’s interpretation.

Here is the key bit:

If there were any doubt as to the limits of the Foreign Clause, the Framers used the word “any” twice, ensuring a broad and expansive reach. The President’s argument that these modifiers merely ensure that the Foreign Clause bans receipt of every type of “present,” “emolument,” “office,” or “title” is unconvincing. Even without the inclusion of the modifier “of an any kind whatever”in the Foreign Clause, it could still ban every type of prohibited category because it provides no exceptions… The more logical conclusion is the one that Plaintiffs urge: The use of “any kind whatever” was intended to ensure the broader meaning of the term “emolument.”

In other words, this federal judge is convinced that the Foreign Emoluments Clause prohibits any payments from a foreign government.

(There is also a Domestic Emoluments Clause, Article 2, Section 1, Clause 7, which the plaintiffs argue prohibits Trump, as president, from doing business with state and federal governments. The judge made a similar ruling against Trump on that issue.)

Pulling back the curtain

There have been scattered reports of Trump using his hotel to vacuum up foreign cash. But the operations of the Trump hotel in downtown DC have been largely opaque. Now that the case is moving forward and the next stage is “discovery,” which means that the plaintiffs get to review relevant documents and interview witnesses, potentially including Trump himself.

The writing on the wall

The judge did not rule against Trump on the merits, but he’s sent a clear signal about how things will end up. It’s really not disputed, as a factual matter, that the Trump hotel is getting money from foreign government. The judge has made clear that these kind of payments are unconstitutional. It’s hard to see how Trump prevails in the trial court.

The bottom line

Trump cares deeply about his businesses. He’s used the presidency to promote his properties. Legal rulings that impact Trump’s ability to maintain ownership of his property holdings are something that Trump will take very seriously.

If he had to chose between his business and the presidency, what would he pick?

If I were to make the choice for him …

Might he resign over the emoluments issue and cut a deal with Pence for a pardon? That way he keeps his businesses (and likely also his profits while president?) and dodges the issue of pardoning himself.

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