In the months leading to President Trump's election in November 2016 questions about how he would handle his businesses were he to get elected kept popping up but never became a focal issue in the campaign. Then candidate Trump repeatedly assured members of the media that he would place his businesses in a "trust" so as to comply with the U.S. Constitution's Emoluments Clause plus address any other emergent conflict of interest issues. On January 11, 2017 his attorney Sheri Dillon held a press conference to address the Emoluments Clause and other conflict of interest questions. Since the January 11 interview, the Emoluments Clause question has lingered in the background until this week when some 200 Members of Congress(Democrats) announced they were filing a lawsuit against the President.
The Emoluments Clause lawsuit by the Members of Congress is by no means the first attempt at this. There have been two other notable suits filed against the President, one by the non-profit group CREW and the other by Maryland and DC Attorneys-General. What distinguishes the Congressional lawsuit from the previous two is it's strength in the all-important legal question of "standing". There are complex legal definitions as to what legal standing means but it boils down to this simple question:"Have you suffered harm as a result of the actions you're suing for?". Reasonable legal scholars have disagreed as to whether the plaintiffs in the CREW and the MD/DC case can demonstrate legal standing. There's absolutely NO QUESTION however that Congressional Democrats(or even Republicans) can demonstrate harm as a result of the President's actions and it's all in the text of the Emoluments Clause
The text of the Emoluments Clause makes it very clear that only with the "CONSENT OF CONGRESS" can the President receive foreign profits. For legal standing, all the Members of Congress have to show a Judge is that the President never sought/received their approval prior to making foreign profits. It's hard to envision a federal judge disqualifying this as a "harm". The Congressional lawsuit is therefore to date the most potent. Needless to say Congressional Democrats will as part of the Discovery process request the Judge to order the release of the President's Tax Returns, again a proposition I don't envision a federal judge denying. After all, the President did promise to release his Tax Returns during the campaign and as we saw in the Travel Ban case, his previous pronouncements can be used in court.
Therefore while we are consumed by the Trump-Russia investigation and it's potential to bring down the Trump administration, I will stick to my initial prediction that the Emoluments Clause is Trump Family's Worst Nightmare, a position that has earned me a PERMANENT "TEMPORARY RESTRICTION" on Twitter. I will even go out on a limb and say that a federal judge will find the Congressmen to have LEGAL STANDING and GRANT their DISCOVERY request for Trump's Taxes. A federal judge ORDERING the President to release his Tax Returns will mark the beginning of the end of the Trump administration.
Donate to emolumentsclause.com
President Donald J. Trump's daughter Ivanka has been in the news lately for a whole host of reasons. But unlike the attention usually showered on presidential children, attention on her has been more on the inquisitive side, specifically, why she is always present in meetings with world leaders at the White House. There is a lot of curiosity as to what her role is at her dad's White House. Before her dad became President, she was his trusted business partner. The logical question being raised now with her presence at the White House is whether she is using the hallowed office to conduct her father's business. This raises conflict of interest questions and is also possibly a violation of the Emoluments Clause(Foreign Leaders). Yours Truly recently asked this question in a Tweet to White House Chief of Staff Reince Preibus(see Tweet below)
Some sections of the media have confronted the Trump White House with the Ivanka question. The White House has always dismissed such questions saying the President's critics are just jealous because he is very close with his adult children and that it's very normal for them to desire spending time with him at the White House. In essence the response from the Trump White House, admittedly a very clever one, has been that critics are "mean" or "cruel" to even ask why Ivanka is at such high level meetings with her dad. In other words, what kind of a person gets mad that someone is spending a lot of time with their dad?
The "cruel" and "mean" defense however is getting old and the White House needs to explain what Ivanka's role is at the White House. Specifically, the White House needs to assure people that she is not there as her dad's business partner or even using the hallowed office to advance her personal business interests. Her continued mingling with foreign leaders raises the prospect of Emoluments Clause violations. The sooner this question is addressed the better because like the Tax Return question, it will not go away. It will only get louder.
Donate to emolumentsclause.com
Immediately after Donald Trump was elected President in November 2016, Republicans were quite content to stonewall any efforts at releasing the tax returns he promised to release while he was a presidential candidate. They even came up with a uniform response to all tax return questions that went like this--voters were presented with the tax return question and still elected Trump. This became the standard retort for Trump's Senior Adviser Kellyanne Conway on her numerous TV appearances. As far as the Trump Administration and the GOP were concerned, tax returns was a settled political issue.
The same was true with Congress where the GOP controls both the House of Representatives and the Senate. Any effort to obtain Trump's tax returns to make sure he had no conflicts of interest was stonewalled. Rep. Jason Chaffetz(R-UT) Chairman of the House Oversight Committee blocked numerous attempts by Democrats to subpoena Trump's tax returns. His counterpart Rep. Kevin Brady, Chairman of the House Ways and Means Committee, which also has powers to subpoena the said tax returns repeatedly blocked efforts to get the returns. The message from the GOP Congress was very clear--we will not subpoena Trump's taxes.
If the GOP effort at stonewalling was meant to silence the people demanding the president's tax returns, it has failed dismally. Calls for the President's tax returns have only gotten louder. Vulnerable Republican Congressmen and Senators have been pelted with the tax return question at their local town halls and the pressure is beginning to show. Slowly but surely, Republicans are acknowledging that hiding the president's tax returns is not smart politics and are beginning to call on president to release the returns to not only resolve this lingering question but also to ease the political pressure on them.
Among the Republicans who have gone on record saying the President should release his tax returns are Rep. Mark Sanford(R-SC), Rep. Walter Jones(R-NC), Rep Matt Gaetz(R-FL), Sen. Susan Collins(R-ME), Sen. Joni Ernst(R-IA). Expect this list to grow longer as election year 2018 approaches and demands grow louder in the local Town halls.
Donate to emolumentsclause.com
The recent strike down of President Trump's travel bans gives us a window as to what to expect with other federal court cases especially Emoluments Clause and COIs. There's a theme developing in the federal courts that works against his administration in that his previous pronouncements are being used against him. In the Travel ban case for example, because the President had gone on record numerous times touting a ban on people from majority Muslim countries, that was enough to establish religious animus. This line of judicial thought could also hurt the president in his pending Emolument Clause cases.
In terms of Emoluments Clause he said time and again during the campaign that he would fully divest from his vast businesses if he won the Presidency. These assurances while not legally enforceable demonstrate that when he was running for office, he was fully aware how important these documents were to the voting public, especially as they relate to business conflicts of interest issues. Therefore when a litigant asks a federal judge for a copy of the President's tax returns to prove their conflict of interest or Emoluments Clause case, it will be impossible for the president to offer a credible opposing argument. How do you argue in court against releasing your tax returns when you are on the record promising to do exactly that?
Therefore in much the same way the president's previous pronouncements have cost him regarding the Travel Ban, they are set to do the same with Emoluments Clause cases. However unlike the Travel Ban losses which simply call for a re-drafting, Emoluments Clause losses may become quite problematic, including but not limited to opening the First Family to criminal corruption prosecution. Yours Truly is on record predicting on Twitter as far back as December 2016 that Emoluments Clause is the First Family's Worst Nightmare.
When Emoluments Clause finally brings down the Trump administration, expect some Chest-Thumping I-Told-You-Sos from Yours Truly.
Donate to emolumentsclause.com
President Trump's handling of the "One China Policy" is the best illustration to date of why the Framers crafted the Emoluments Clause into the U.S. Constitution. It illustrates clearly how financial benefits from foreign countries can be used to shape U.S. Policy. The Emoluments Clause prohibits the President from accepting any item of value from a foreign government without Congressional approval. It is precisely what President Trump has done regarding the One China Policy that the framers set out to prevent.
For years there has been controversy as to whether Taiwan, a little island off mainland China is part of China. The Chinese government views Taiwan as part of China while the Taiwanese consider themselves an independent sovereign state. Countries that treat Taiwan as an independent sovereign state inevitably get in trouble with the Chinese government. The U.S. officially endorsed the One China Policy in 1972 following talks between President Richard Nixon and Chairman Mao Tse-tung. Every U.S. administration ever since has honored the One China Policy. Enter President Donald J. Trump.
Shortly after his inauguration as the 45th President of the United States on Jan 20, 2017 President Trump declared that unlike previous administrations, his wouldn't necessarily abide by the One China Policy. The argument by President Trump, a plausible one, was that China has long taken advantage of the U.S. in trade agreements and that it was time for the U.S. to strengthen it's bargaining position. That means as far as his administration was concerned everything with China was up for renegotiation including the the One China Policy. As expected this created a lot of tension between Beijing and Washington. Foreign policy experts differ on whether such a tough stance on China benefits the U.S. and yours truly is not qualified to evaluate such merits and demerits. However what President Trump left out of his "feud" with China, which is the subject of this blog piece, is that privately since 2006 he has unsuccessfully sought to trademark his brand in China.
It appears that President Trump's tough stance on China wasn't necessarily aimed at improving the U.S. bargaining position with China but rather advancing his private business interests. Specifically, the President was fully aware that attacking the One China Policy, a highly emotional issue for the Chinese, would force them to finally grant his trademark licence. On February 9, 2016 following a phone conversation with the Chinese President, the White House announced that President Trump would now abide by the One China Policy as have previous Presidents. This abrupt change in course threw off even his most ardent fans. Shortly thereafter the Chinese reciprocated, granting the elusive trademark license. This is a classic case of an Emoluments Clause violation which the media is yet to pounce on. Specifically the President received a gift(trademark) from a foreign government in return for a favorable policy. To use a colloquial phrase President Trump just SHOOK DOWN the Chinese for a Trademark License
After the abrupt resignation of National Security Adviser Gen. Michael Flynn new questions are surfacing as to whether newly minted U.S. Attorney General Jeff Sessions can impartially handle any resultant investigations. Specifically, there are valid questions as to whether as a member of the Trump campaign himself, he can impartially investigate any collusion between his former campaign colleagues and the Russians. Several media outlets have raised this question but it's yet to get the serious attention it deserves.
Rachel Maddow of MSNBC did a segment on this topic with Rep. Adam Schiff(D-CA). In the segment, Senator Chuck Schumer(D-NY) stated:"Gen. Flynn's resignation is not the end of the story, it is merely the beginning. There needs to be an independent and transparent investigation. The White House counsel cannot lead this investigation and the new Attorney General Jeff Sessions cannot be the person to lead that investigation..."
Senator Kamala Harris(D-CA) also chimed in on this issue via Twitter
Bottom line Gen. Flynn's Russian scandal raises serious national security questions that cannot be surrendered to regular Washington politicking(hyper partisan Congressional Committees). Americans will only get to the bottom of this through an independent and bipartisan committee, a sentiment already expressed by Senator Lindsey Graham(R-SC). AG Jeff Sessions cannot be an independent arbiter in any such investigations. The media should have him explain to Americans why he believes he should not recuse himself given his proximity to the subject matter.
Yours Truly is fully aware that this blog is dedicated to "Emoluments Clause" enthusiasts. Because my readers and followers on Twitter are highly intelligent, I will go ahead and preempt the inevitable question, "What does this have to do with Emoluments Clause?". Well investigations/Hearings surrounding POTUS and his campaign staffers have the potential of netting his elusive tax returns, which are crucial for the "Emoluments Clause" movement. AG Sessions is probably going to be involved with any such investigations. Consequently he is crucial to the "Emoluments Clause" movement.
Donate to emolumentsclause.com
Yesterday's abrupt decision by General Michael Flynn to resign his position as National Security Adviser has thrown Washington, DC into turmoil. The turmoil is caused in large part by confirmed reports that as much as three weeks ago, Sally Yates, then Acting U.S. Attorney General had confirmed to the Trump White House that Flynn did in fact discuss U.S. Sanctions with the Russian Ambassador(a potential violation of the Logan Act) and wasn't being forthright about it. In essence the Justice Department was flashing a major "Proceed with Caution" sign to the Trump Administration regarding Gen. Flynn. The logical question now being raised by the media and the public is why such a dire warning went unheeded for weeks? The famous Watergate question comes to mind, "What did the President know, and when did he know it."?
However aside from all the political intrigue that is a staple of Washington DC, Gen. Flynn's exit provides a unique opportunity for "Emoluments Clause" enthusiasts--Americans who have clamored for an investigation into whether the President's foreign business dealings could be used to manipulate his policy decisions. This question was front and center during the recent Travel Ban when critics argued that some Muslim nations were not included in the ban list because the President had businesses there. Previous attempts to have Congress look into whether the President is violating the "Emoluments Clause" have landed on deaf ears because the President's Republican Party is in control of both Chambers of Congress(House and Senate). The only avenue left to pursue "Emoluments Clause" violations has been the U.S. Federal Courts
Gen. Flynn's abrupt exit and the serious national security questions it leaves behind will undoubtedly lead to some kind of Congressional hearings. This could potentially provide answers to the exact extent of Gen. Flynn dealings with the Russian Government. As is common with Congressional hearings, there is always an unintended revelation. Reasonable people will agree that at the very least a deep probe into Gen.Flynn's dealings with the Russians may "accidentally" give us an insight into the President's dealings with Russia too. Simply stated, it will be "Congressional Malpractice" if a Democrat Member of Congress failed to raise questions about the President's businesses in Russia. Until then "Emoluments Clause" enthusiasts can only anxiously wait.
Donate to Emolumentsclause.com
"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." ARTICLE I, SECTION 9, CLAUSE 8
There is a strong argument to be made that with his numerous business entanglements worldwide, U.S. President-Elect Donald J. Trump is running afoul of the Emoluments Clause. It is our duty to remain vigilant and ensure that he and other government officials are held accountable.
Donate to emolumentsclause.com