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CREW Emoluments Case Dismissed: The Only Road Is Impeachment

27 Wednesday Dec 2017

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By Frank Bowman

Over the past year, three different lawsuits have been filed against Mr. Trump alleging that he is violating either the foreign or domestic emoluments clauses of the Constitution. One of these suits was brought in the Southern District of New York by an organization styling itself Citizens for Responsibility and Ethics in Washington (CREW). CREW is headed by Norman Eisen and Richard Painter, top ethics lawyers for the last two presidents, and aided by a roster of big-name constitutional law academics including Erwin Chemerinsky and Larry Tribe. Nonetheless, from the outset its emoluments case rested on a shaky procedural foundation.

On December 21, 2017, District Judge George B. Daniels dismissed the CREW lawsuit on two grounds — first, lack of standing and, second, an amalgam of the political question and ripeness doctrines.  The standing problem with the CREW lawsuit has always been its obvious weakness.  The emoluments suit brought by the Maryland and D.C. attorneys general may be the best positioned to surmount that hurdle.  But Judge Daniels’ political question / ripeness rationale represents a more fundamental obstacle to any emoluments lawsuit against Mr. Trump.

Standing

I addressed the standing issue in the emoluments context a few weeks ago.  Briefly, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case or liability in a civil case, followed by a court order imposing a penalty or commanding compensation or perhaps injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions about a disagreement that has not actually manifested itself in a concrete real world dispute.  And even in cases where there may be a real dispute between identifiable parties, courts will not intervene unless one of the affected parties brings an action.  To take a simple example, if I am walking down the street and see a police officer assaulting a citizen without cause, I cannot bring a lawsuit against the officer even though the assaulted citizen surely could.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute.  A party with such a stake has “standing.”  A party without it does not. This is a problem in the emoluments clause suits against Mr. Trump. One might think that all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required.

The plaintiffs in the CREW lawsuit were of two kinds — first, CREW itself, and second, individuals and groups involved in the hotel and hospitality business in markets where the Trump organization has holdings.

CREW argued that it had standing based purely on the fact that, once Mr. Trump took office and declined to fully divest or disassociate himself from businesses like the Trump Hotel in downtown Washington, D.C., CREW — as an organization devoted to promoting ethics in government — felt obliged to expend resources to investigate the conflicts of interest presented by Mr. Trump’s continued association with these businesses.  If this sounds thin, it is.  There is a line of cases, beginning with Havens Realty Corp. v. Coleman, in which public interest organizations gained standing on somewhat analogous grounds.   However, Judge Daniels concluded that those cases were directed at situations in which the government policy at issue adversely affected some program being conducted by the organization or some class of persons with protected interests the organization was designed to serve.  He found that expanding standing to the degree advocated by CREW would give any organization with a “mere interest in a problem” standing to sue, something not contemplated by standing doctrine.

The other plaintiffs in the CREW lawsuit, the individuals and groups engaged in the hospitality industry, were plainly recruited in order to circumvent the standing hurdle.  Their argument was that, if Mr. Trump is allowed to continue to operate — and profit personally from — hotels and restaurants during his term as president, many customers with an interest in currying favor with the Trump Administration will patronize Trump hotels and restaurants, rather than those operated by his competitors, to the financial detriment of those competitors.  Judge Daniels did not deny that such financial injury might occur, but he found the causal relation between Trump’s continued financial interest in his hotels and injury to the plaintiffs too speculative.  He observed that customers may prefer Trump properties for reasons of location, price, superior services, and the like, and believed it impossible to determine the reasons for their preferences with any exactitude.  Frankly, I find this argument rather weak inasmuch as some customers plainly will choose Trump properties to curry favor with the Trump family and CREW provided examples of customers who have publicly said as much.

More convincingly, at least to my mind, Judge Daniels held that the sort of competitive injuries allegedly suffered by the hospitality industry plaintiffs were not within what he called the “zone of interests” protected by the foreign and domestic emoluments clauses.  Judge Daniels concluded that the domestic emoluments clause was intended to prevent states from giving financial benefits to federal officers that might induce favoritism by the federal government, and the foreign emoluments clause was designed to protect against the corruption of high federal officials by foreign governments.  Thus, he said, neither clause was intended to protect commercial competitors of a president’s businesses against any competitive advantage accruing to those businesses by virtue of his office.

Political question / ripeness

The final portion of Judge Daniels’ opinion rests on the text of the foreign emoluments clause and two policies developed by federal courts to avoid involvement in cases that are either outside their institutional competence or unready for resolution: the political question and ripeness doctrines.

Put very simply, the political question doctrine is a rule of abstention –  the federal courts should generally decline to rule on “constitutional issues that are better left to other departments of government, mainly the national political branches.”  The ripeness doctrine is a component of the “case or controversy” requirement — since federal courts are only supposed to rule on cases where there is a concrete legal dispute capable of resolution by court order, they should hesitate to intervene if a threatened injury has not yet occurred and its occurrence is contingent on unpredictable future events.  Sometimes ripeness questions turn on whether a party seeking redress has exhausted all its other avenues of relief.

The foreign emoluments clause reads as follows:

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.

Judge Daniels makes the critical observation that the Clause does not absolutely prohibit federal officers from accepting presents or emoluments from foreign governments. Rather, it says that federal officers cannot do so “without the Consent of Congress.”  Judge Daniels notes that Congress has so far taken no action regarding Mr. Trump’s alleged violations of the foreign emoluments clause.  It has neither announced its opinion about whether Mr. Trump’s commercial ventures generate emoluments covered by the clause, nor, assuming that they do, either given or denied consent to Mr. Trump keep such emoluments. Judge Daniels seems to be of the view that the question of what constitutes an emolument is, at least in the first instance, a question for Congress.  Moreover, he strongly suggests that any dispute over emoluments cannot be “ripe” for adjudication by courts unless and until: (a) Congress has found the president to have received improper emoluments and refused its consent to that receipt, and (b) the president has refused to surrender the emoluments.

I am of two minds on this point.  On the one hand, I entirely understand the reluctance of a district judge, and indeed of the judiciary generally, to intervene prematurely in a matter that the constitutional text arguably frames as an issue between the executive and congress. On the other hand, in this case, it seems plain that congress has refrained from acting, not only for the political reason that it is controlled by members of the president’s party, but also because there is no authoritative definition of the constitutional term “emolument.”  If judges refuse to assume jurisdiction over any emoluments case because congress has not acted, and congress refuses to act because there is no judicial definition of “emolument,” then the foreign emoluments clause becomes a dead letter. It cannot be right that a major constitutional protection against executive branch corruption can be emasculated by the silence of a president’s political allies.

Several months ago, Professor Jed Shugerman considered this question on his blog and argued convincingly that the foreign emoluments clause is similar in structure — a general prohibition followed by a provision for congressional exceptions — to other constitutional clauses that courts have traditionally considered justiciable.

The only useful remedy is impeachment

The problem that remains for me, however, is remedy.  The CREW complaint seeks declaratory relief (for non-lawyers, a statement by the court of what the law is and that Mr. Trump is violating it), a court order directing Mr. Trump to formulate a plan for ordering his affairs in a way that does not violate the emoluments clauses, and an injunction ordering Mr. Trump to adhere to whatever plan is approved by the court. I suppose it is not beyond the bounds of possibility that some court might be willing to enter such orders.  But the project seems so fraught with difficulty that it strikes me as most improbable.  What district judge, after all, is going to feel comfortable ordering this notoriously bellicose President of the United States to rearrange his world-wide business empire, and then — as would inevitably be required — monitoring his adherence to the court-approved plan for the remainder of his tenure in office.

More to the point, even if a judge were willing to undertake such a task (and get his or her orders sustained in the inevitable appeals), what good would it really do?  If the objective is to place Mr. Trump beyond the reach of the temptation to monetize his office, or to insulate him from efforts by foreign governments to curry favor, that horse has already left the barn. He and his family have been monetizing furiously since the day he announced his candidacy, and foreign governments have already curried favor left and right with hotel bookings and trademark grants and what you will.  Turning off the spigot in the last year or two of Mr. Trump’s term — even if such a thing could be accomplished — seems a fairly pointless exercise. The damage is already done.

If one believes that Mr. Trump has been violating at least the spirit and possibly the letter of the constitution’s anti-corruption protections since the day he took office, then what one wants is not a weak-sauce declaration that he should stop being corrupt, but his removal from the office he besmirches. And the problem with any emoluments lawsuit is that no court can order the president removed from office, even if he is in open defiance of a court order.

Of course — and this is surely the real point of all three of the emoluments suits — if a court finds as a matter of law that Mr. Trump has violated one or the other of the emoluments clauses, that finding could trigger a congressional response in the form of impeachment.  But such a ruling is neither necessary nor sufficient for congress to move.

As Judge Daniels implicitly holds, congress, too, has constitutional authority to determine what is and is not an improper emolument.  Founder Edmund Randolph asserted that a president could be impeached for receiving unpermitted emoluments from a foreign power.  But only congress can decide whether a particular emoluments clause violation amounts to an impeachable offense.

And so, regardless of whether CREW or any of the other emoluments case plaintiffs manage to get a hearing on the merits of their complaints, it all comes back to impeachment.

Frank Bowman

The Logan Act: A Derelict Statute Robert Mueller Should Shun

06 Wednesday Dec 2017

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The following post first appeared today as an article on Slate.

The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen to contact agents of a foreign government for the purpose either of influencing that government’s policies in disputes with the United States or of defeating U.S. policies. In a New York Times op-ed piece on Monday, Professors Daniel Hemel and Eric Posner argue that the Logan Act remains good law, despite the fact that no one has ever been successfully prosecuted under it. They contend that former national security advisor Michael Flynn violated it during the transition period by secretly contacting the Russian ambassador and asking that the Russian government not respond sharply to Obama administration sanctions against Russia for meddling in the 2016 election. They suggest that Trump son-in-law and senior advisor Jared Kushner is at risk of being indicted and imprisoned under the Logan Act. And they contend that, if Trump violated the Act, he would be impeachable on that ground.

I agree with the first two points. The Logan Act remains on the books and long disuse does not automatically invalidate it. Likewise, General Flynn did violate the statute. He and the other transition team officials mentioned in Flynn’s plea documents plainly sought to influence the policies of foreign governments or to defeat U.S. policies.

That said, much as I admire Hemel and Posner, they are wrong to think that Special Counsel Robert Mueller should consider indicting anyone under the Logan Act, and equally wrong to think that a Logan Act violation would be a tenable ground for impeaching a president. More importantly, their focus on a statutory obscurity like the Logan Act exemplifies an error a good many Trump opponents are making—fixating on the technical violation of a criminal statute as a basis for impeachment.

As for Mueller, he and his team have two intertwined objectives. The first is to investigate and prosecute crimes connected with Russian interference in the 2016 election. The second objective, unstated in his mandate but equally significant, is to ensure that the results of the investigation will withstand—at least in the eyes of rational observers—the inevitable allegations of political bias. Employing the Logan Act would defeat this crucial second objective.

There are good reasons why the Logan Act has not been successfully invoked in more than 200 years. The primary one is that it is violated routinely and enforcing it would contravene well-established norms of political behavior.

Consider, as but one example, the plethora of private persons and organizations interested in U.S.-Israeli relations. Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel.  Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in “correspondence or intercourse” with official representatives of Israel.

The same could be said of any number of other associations. Many Latino groups oppose current U.S. immigration policy. Does anyone seriously suppose that representatives of such groups should be criminally prosecuted if they met with, say, the Mexican ambassador, and urged the Mexican government to continue opposing Trump’s infamous wall? Amnesty International and Human Rights Watch vigorously opposed the U.S. practice of torture and so-called “extraordinary rendition” during the Iraq War and its aftermath. Should American members of these organizations be prosecuted if they met with representatives of foreign governments urging them, in the words of the Logan Act, to “defeat the measures of the United States.”

Criminal prosecutions for this ordinary form of American political behavior would excite clamorous public objections, invite comparison to efforts by authoritarian regimes like Russia to suppress domestic contact with Western open society groups, and draw immediate constitutional challenge on either First Amendment or overbreadth grounds. The fact that in Flynn’s case the American contacting foreign agents had quasi-official status as a member of a presidential transition team made it rather more likely that the meddling would have some practical effect. But transition contacts with foreign governments, complete with signals of varying degrees of directness about impending policy changes, are hardly unprecedented, even if they are poor form. And it’s hard to see why a member of a transition team should be prosecuted when others never have been.

This is not to say that contacts between members of the Trump team and Russia during the transition period were necessarily innocent. They may end up as components of some criminal charge. But Mueller and his people are not likely to complicate any case they bring by basing it on a controversial and constitutionally doubtful relic like the Logan Act. Doing so would be a gift to those who seek to question the legitimacy of their work. And these guys seem unlikely to score that kind of own goal.

For similar reasons, a Logan Act violation is not a plausible impeachable offense. It is a crime, yes, but, as the Clinton affair taught us, not all crimes are “high crimes and misdemeanors.” Conversely, not all “high crimes and misdemeanors” are violations of the criminal code. For example, James Madison maintained that abuse of the pardon power was impeachable. Edmund Randolph thought the same of receiving foreign emoluments. George Mason, who proposed the phrase “high crimes and misdemeanors,” was most concerned with what he termed “attempts to subvert the constitution.” Speaking generally, an impeachable offense is conduct that is both grave and involves genuine danger to the constitutional order. The danger can arise either if the conduct itself endangers constitutional order—as for example Nixon’s efforts to use intelligence and law enforcement against political enemies—or if the conduct indicates that the president is personally unfit to continue service. A violation of the Logan Act—which has been virtually ignored without consequence for two centuries—just doesn’t cut it.

Of course, if Trump were shown to have “colluded” with the Russians to rig the election and if, in gratitude for the help, he made policy concessions of some sort, either during the transition or later, the concessions could be part of an argument that Trump’s pre-election behavior constituted an impeachable offense.  Founder George Mason observed that corrupting the “electors” – by which he meant members of the Electoral College — would be impeachable.  In the social media age, one could fairly argue that some kinds of cooperation with a foreign power to affect voter decisions is a modern equivalent.  But in such a case, the impeachable offense would be the election meddling in collusion with a hostile power and the giving of the quid pro quo.  Adding the Logan Act into the equation would merely confuse the issue and weaken the case.

The fact that brilliant legal scholars like Hemel and Posner are arguing for reanimation of a legal derelict like the Logan Act seems likely to reinforce two themes regularly advanced by Trump’s defenders—first, that Trump opponents are mining the federal criminal code for nitpicky crimes that can be stretched to cover normal political behavior, and second, the popular misconception that impeachable “high crimes and misdemeanors” must be indictable crimes.

The reality is that, however thorough and professional Mueller’s team may be, they have a limited brief—to investigate the Trump campaign’s involvement with Russian interference in the 2016 election. They are turning up a lot of dodgy behavior, but it is entirely possible, indeed likely, they will never produce indisputable evidence that Trump himself committed the kind of plain, unambiguous crime that people across the political spectrum will accept as an impeachable offense.

Sure, it’s possible that Mueller will find that Vladimir Putin has had leverage over Trump for years, or that the efforts of Trump’s bumbling crew of children, in-laws, and campaign sycophants to cadge Clinton dirt from the Russians rendered Trump subject to Russian blackmail. But face it—that kind of dramatic, unambiguous outcome is improbable. The current wishful obsession with Mueller’s work merely invites crushing disappointment among Trump’s opponents and cries of “I told you so” from his defenders. What’s more, a narrow focus on pre-election conduct in a way that relies on dubious laws like the Logan Act diverts attention away from what ought to be a primary focus of any effort to impeach Trump—his near-daily post-election assaults on the norms of American constitutional order. It is that behavior that makes Trump a constant danger to the Republic. And it was to defend against precisely that kind of danger that the Founders gave us the power to impeach a president.

Frank Bowman

“Standing” in the Emoluments Lawsuits Against Mr. Trump: An Answer to a Reader’s Question

15 Wednesday Nov 2017

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Reader Richard Weisfeld has asked a question that may puzzle others.  He writes:

I’d be thankful if you could offer some insight: I’ve read about “standing”, a concept I generally do understand, even as a layman, in regard to the foreign emoluments clause. Specifically, I read that Washington DC hotel owners needed to bring suit, because they had standing, having lost business to the Trump Hotel. Where does the idea come from that this clause was somehow in the constitution to protect businesses from the president and unfair competition, as opposed to being there to protect every American citizen, and the republic itself, from corrupt presidents, or presidents who would be swayed by foreign powers or entities, to take actions against the interests of the United States? How is that not the obvious primary purpose for the clause? How does every citizen not have standing? There must be some historic line of reasoning, but I have not heard one explained or reported.

This is a great question, and resolving it presents perhaps the largest challenge to the plaintiffs in the emoluments lawsuits.  The short answer runs like this —

Leaving the emoluments clauses to one side for a moment, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case, liability in a civil case, or an order of injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions on a matter that has not actually manifested itself in a concrete real world dispute.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute. This is a problem in the emoluments clause suits against Mr. Trump. As Mr. Weisfeld points out, in a general sense, all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required. Hence, the hotel owners — the argument being that Mr. Trump is violating the foreign emoluments clause by drawing foreign government guests to his Washington hotel and thus causing a discrete injury to other hoteliers who would otherwise get the business.

I am not an expert on standing in federal civil actions, and thus have no intelligent opinion about this approach. I have to say, however, that it feels thin to me. Better informed observers than I have opined that this may prove to be the Achilles heel of the plaintiffs’ case.

Even if the courts grant standing to some of the emoluments plaintiffs, and if the courts conclude that the president is covered by the foreign emoluments clause, and if the courts conclude that some kinds of commercial transactions qualify as prohibited emoluments, there remains the question of remedy. Perhaps a court could order a president to disgorge payments received as prohibited foreign emoluments. Perhaps it could issue an injunction ordering him to cease engaging in activities that violated the clause. So, at best, the current private lawsuits annoy Mr. Trump, strip him of some cash, and prevent him from making some more in the future. But even if a court decides to go that far, it cannot order the president to vacate his office.

If that’s right, you may well ask, “Then what good is the foreign emoluments clause?” The answer, I think, is that the Framers plainly believed that a president could be impeached for a violation of the clause. Edmund Randolph, a member of the Virginia delegation to the Philadelphia convention, said in the later Virginia Ratifying Convention:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached.

Thus, it may well prove that there is no meaningful remedy available in courts for presidential violations of the emoluments clauses, and that the only meaningful remedy for such a violation is to impeach, convict, and remove the president under Article II, Section 4.

Frank Bowman

The Russian collusion investigation: Bumbling grifters & the risks of keeping it all in the family

12 Sunday Nov 2017

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Earlier this week, I had the pleasure of doing an interview with Canada’s CTV network on developments in, and speculations about, the progress of the Mueller investigation.  The anchor wanted to talk about the testimony of  former Trump campaign foreign policy advisor, Carter Page, to the House Select Committee on Intelligence, Attorney General Session’s upcoming appearance before the House Judiciary Committee, and the rumor that an indictment of former Trump National Security Advisor Michael Flynn (and possibly his son) will soon be forthcoming.

I can’t say that I had anything particularly novel to tell Canada’s TV audience about any of these subjects, but reflecting on the interview has provoked a couple of observations.

First, as I have had occasion to observe before, passionate opponents of Mr. Trump who confidently expect (or even fervently hope) that the Mueller investigation of Russia-Trump campaign collusion in the recent election will produce some smoking gun that will lead naturally to articles of impeachment should moderate their expectations.  So far, at least, the picture is not one of sophisticated, nefarious, high-level Trump operatives working hand-in-glove with agents of the Russian government, but of something altogether murkier and more ambiguous.

To be sure, there exists nearly irrefutable evidence that the Kremlin was working hard through every means at its disposal to harm the Clinton campaign and help Mr. Trump. Mr. Putin’s repeated denials that Russia was meddling and Mr. Trump’s on-again–off-again acceptance of those denials may convince his endlessly credulous base, but outside those blinkered precincts it merely prolongs the bizarre spectacle of an American president siding with the dictator of a hostile foreign power against the conclusions of his own intelligence agencies.

(As an aside, when I began drafting this post, Mr. Trump had just said that he accepted as sincere Putin’s denial of meddling.  Mere hours later, Trump straddled the question, saying that he accepts both the findings of U.S. intelligence and Putin’s sincerity.  This waffling is either: (a) Yet another example of Mr. Trump’s persistent tendency to say whatever he thinks will please the audience immediately in front of him, with no thought for either truth or how today’s effort to ingratiate will affect his own or the country’s interests tomorrow; (b) Yet another example of Mr. Trump’s seeming inability to engage in rudimentary critical thinking — the idea that the Russian government could engage in a wide-ranging effort to influence the American presidential election without the knowledge or approval of Vladimir Putin is laughable, and thus it is impossible for U.S. intelligence to be right and for Putin to be sincere; or (c) Just another manifestation of Mr. Trump’s knee-jerk rejection of any fact, however firmly established, that might suggest his election victory was due to anything other than his own personal merits. My best guess is that all three factors were at work.)

But it is not a crime or an impeachable offense merely to be the unwitting beneficiary of foreign efforts to damage one’s political adversaries.  What must be shown to prove a crime is that affiliates of the Trump campaign consciously aided or sought to aid the Russians’ subversion and violated some statute in the process.  What must be shown for any of this to amount to an impeachable offense is that Mr. Trump himself approved, was aware of and failed to stop, or later tried to cover up culpable conduct by his subordinates.

It is too early to assess the ultimate question about whether culpable collusion occurred.  But the emerging (though far from complete) evidence suggests at least three points about the Trump campaign’s Russian contacts:

  • Repeated claims by Mr. Trump and his subordinates that there were no contacts between persons associated with the Trump campaign and Russian officials or agents were simply untrue.  As the Chicago Tribune summarizes, at least nine people in the Trump orbit had Russian contacts during the campaign or transition.
  • At least some of those contacts involved persons high up in the campaign hierarchy or personally close to Mr. Trump, people like Donald Trump, Jr., Jared Kushner, Paul Manafort, and Jeff Sessions.  Others, like George Papadopoulos and Carter Page, had impressive-sounding titles like “foreign policy adviser,” but  were in reality on the fringes of what was always a barely coherent campaign organization. Nonetheless, it is now clear that campaign higher-ups, like Senator Sessions, Stephen Miller, Hope Hicks, J.D. Gordon, campaign manager Cory Lewandowski, and national campaign co-chair Sam Clovis, knew about the Page and/or Papadopolous contacts.
  • Whether contacts between Trump surrogates and Russian actors ever produced concrete results, such as the direct transfer to the Trump campaign of negative information about Secretary Clinton or her team, remains unclear … and frankly seems doubtful.  What is clear is that multiple members of the Trump entourage were willing and eager to receive that kind of material — even when it was plain that the source would have to have been Russian intelligence services, and that the means employed to obtain the material would likely have involved violations of American law. The first proof of their eagerness was the now-famous Donald Trump Jr. – Kushner – Manafort meeting with the Russian lawyer.  Now Mr. Papodopoulos admits to having received a purported Russian offer of “dirt” on Secretary Clinton in the form of emails, and to have passed the offer along to Trump campaign officials.
  • If, in the end, Trumpists and Russian emissaries never quite did a deal that produced active cooperation or transmission of opposition research “deliverables,” efforts to cover up all the active flirtation could nonetheless amount to criminal obstruction of justice and even impeachable conduct.  That’s the thing to watch for in coming months.

Second, the overriding impression, reinforced by each new revelation, is that both the inner circle of the Trump campaign and the outer rings of staff, consultants, and advisers consisted primarily of pathetically ill-informed amateurs like the Trump children and in-laws, eccentrics like Carter Page, desperate wanna-be‘s like George Papodopoulos, or outright scoundrels like Paul Manafort.  Even those with long government resumes and conventional credentials, like Trump’s short-tenured National Security Adviser Michael Flynn and Senator Jeff Sessions, gravitated to Trump because, in Flynn’s case, he had been expelled from the circles of power for persistent bad judgment, and in Sessions’ case, he was a fringe player in the Senate, with views on many subjects too extreme even for for a caucus edging steadily to the right, and no path to any meaningful leadership role.

Moreover, the one character trait common to virtually all of this ill-assorted crew is greedy opportunism. The Trump family, from the paterfamilias on down, has profited by skating on or over the edge of legality for decades and has been monetizing its connection to the presidency ever since the election.  Manafort’s long career as apologist for thugs and dictators should have disqualified him from a role in any American presidential campaign, and predictably has both embroiled Trump in controversy and produced an indictment founded in part on money laundering and tax evasion. Page reportedly combined his Russian overtures for Trump with efforts to secure private deals for himself.  Michael Flynn is under investigation for an array of dodgy, but potentially lucrative, deals, as well as illegal failures to report work on behalf of authoritarian regimes like that of ascendant Turkish dictator Recip Erdogan.

The mix of incompetence, bad judgment, blithe disregard of normal legal and ethical boundaries, and personal greed in the Trump campaign is both a gift and an impediment to any effort to impeach Mr. Trump.

On the one hand, it is increasingly obvious that people high and low in the Trump campaign were trying quite hard to collude with a hostile foreign power to win a presidential election.  On the other hand, it may prove that the Russians simply didn’t trust these escapees from the Island of Misfit Toys enough to enter into any active collaboration, preferring to feed toxic misinformation to the American electorate indirectly through Wikileaks and directly through social media.  Now that Mr. Trump has shed virtually all of the primary actors in the Russian contacts — with the notable exceptions of his family members — he can disavow former staffers’ conduct as the inconsequential bumbling of fringe nobodies.

BUT — having foolishly chosen to ignore settled norms against nepotism in the White House, Mr. Trump is probably stuck with whatever the kids have done or may yet do. Even an ordinary father would shrink from throwing his children overboard and into the clutches of waiting prosecutors, but in Mr. Trump’s case, ordinary considerations of paternal affection are infinitely complicated by the fact that the Trump campaign was, and the Trump Organization remains, a family business … and the kids, notably including son-in-law Jared Kushner, are privy to their secrets.  Perhaps Ivanka or Don Jr. might be willing to take a fall for dear old dad.  Were I Mr. Trump, I would not bet that, at the last extremity, young Mr. Kushner would do the same.

Thus, Mr. Trump will never be able to make a clean break from the Russian meddling investigation. Some of its central figures will remain close to him.  He will continue defending them.  And as in Watergate, it may prove that the cover-up, rather than the original wrong, will be his undoing.

Finally, it would be easy to dismiss the near-universal obsession of those around the Trumps with self-enrichment through politics as a side issue.  For two reasons, it’s not.

First, as Mr. Manafort recently discovered, the United States has a web of laws that regulate, and often criminalize, aspects of the “deals” he and his ilk are so eager to make.  Those laws are a tool box for Robert Mueller’s prosecutors, and the questionable financial motives and maneuvers of those involved in contacts with Russian representatives will provide legitimate grounds for inquiring deeply into financial matters the Trumps would surely prefer remain hidden.

Second, to the extent Mr. Mueller’s investigation or other sources reveal that Mr. Trump and family have used the presidency for personal profit, such disclosures implicate at least two grounds for impeachment.  The most obvious of these is violation of the emoluments clauses.  But I would go a bit further.  I do not believe that a technical violation of, for example, the foreign emoluments clause of Article I, Section 9, is required to make out an impeachable offense if it could be shown that, as James Madison put it, the president “pervert[s] his administration into a scheme of peculation.”

I will expand on this latter point in later posts.  Stay tuned.

Frank Bowman

 

 

 

Foreign Emoluments, the President & Professor Tillman

27 Friday Oct 2017

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Impeachment aficionados will be aware that a group calling itself Citizens for Responsibility and Ethics in Washington (CREW) has filed suit in the Southern District of New York seeking a declaration that Mr. Trump’s copious and lucrative business transactions with foreign governments and entities violate the Foreign Emoluments Clause of Article I, Section 9, which reads as follows:

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.

Leaving to one side the question of whether the CREW plaintiffs have standing to bring the action, the central dispute is whether money paid to a president as a result of commercial transactions is a prohibited emolument.

As discussed on this site earlier in the year, Seth Barrett Tillman, an industrious professor from the National University of Ireland – Maynooth, has opened a second front in the emoluments battle with his claim that the foreign emoluments clause doesn’t apply to the president, or indeed to any elected federal official such the vice-president or members of congress.  In recent weeks, Professor Tillman has won two victories, one minor and another potentially less so.

His petit coup, recounted in a recent New York Times article, involved a dispute over the provenance of certain documents allegedly signed by Alexander Hamilton.  To make a long story short, in 1792, the Senate asked Hamilton, then the Secretary of the Treasury, to provide a list of all salaries and emoluments of “civil offices under the United States.” In a letter, Hamilton provided a list that included executive branch appointees, but not the president or vice president. Prof. Tillman contends that this letter is proof that Hamilton believed that the president is not a “person holding any Office of Profit or Trust under [the United States]” for purposes of the foreign emoluments clause.

You may think that this is a pretty thin argument (and as discussed below, it is), but a group of distinguished legal historians led by Professor Jed Shugerman who rejected Tillman’s interpretation in their amicus brief made an embarrassing mistake.  They pointed to a later 1793 document in government archives which does list the president and vice-president as holding civil offices under the United States and which appears to bear Alexander Hamilton’s signature.  They trumpeted this second document as conclusive disproof of an important prong of the Tillman position, only to have Tillman show that the second document almost certainly was not signed by Hamilton, but by some anonymous government functionary. Red faces abounded.  And the legal historians (very graciously) issued apologies for impugning the integrity of Tillman’s archival research.

Professor Tillman’s potentially more significant victory came in a letter from the Department of Justice to the judge in the CREW lawsuit in which DOJ stated that it is not conceding that the Foreign Emoluments Clause applies to the president.  This is notable because the Department’s position has traditionally been to the contrary, as most recently embodied in a 2009 memo from the Office of Legal Counsel opining that the president is “surely” covered by the clause.  So far, the Department has not reversed its 2009 opinion or affirmatively pressed the claim of presidential exemption, but the letter opens that possibility.

So does Tillman have a good argument?

In a word, no.

Tillman’s claim that the Foreign Emoluments Clause doesn’t include the president is based on two doubtful premises.

First, he contends that the phrase “office of profit or trust under [the United States]” doesn’t include the president because, he says, in English practice, the phrase “office under the Crown” referred not to the King or to elected offices, but only to appointed offices whose authority derived from the appointing hereditary sovereign.  But in the United States, the sovereign is not the president, but the people as a whole, or if one wants to take a strongly federalist view of the matter, the union of states represented by the elected central government.  All American officeholders — including the president — hold office “under the United States” because they derive authority from, and are not the sources of, the general government’s democratically legitimated sovereign power.

And even if this were not self-evidently the case, there is no plausible founding-era evidence that the drafters or ratifiers of the constitution viewed the phrase “office of profit or trust under” the United States in Professor Tillman’s peculiarly Anglophile sense.  Indeed, as the legal historians noted, the only direct expression of opinion by constitutional founders expressly endorses the view that the president is covered by the Foreign Emoluments Clause. During the Virginia ratifying convention, Edmund Randolph and George Mason plainly stated that presidents are bound by the clause, and Randolph, who would become Washington’s attorney general, went further to declare that a president who received foreign emoluments could be impeached for doing so.

The sole statement from a founding-era figure to which Tillman can point is the Hamilton response to the Senate inquiry.  But, as the legal historians convincingly explain, the Senate was asking for an accounting of “civil offices” and their salaries for a particular reason.

The request came in 1792, at the end of President Washington’s first term and towards the close of the second session of Congress. The term “civil offices” is distinct from the phrase in the Foreign Emoluments Clause (“office of profit or trust under [the United States]”), but matches the language of Article I, Section 6:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The most plausible explanation for the Senate request is that the Senate wanted to know which “civil offices” federal legislators would be barred from accepting, and which offices those standing for election to Congress for the first time in 1792 would be obliged to surrender if elected.  The presidency, being elective rather than appointive and thus irrelevant to the point of the inquiry, Hamilton did not include it.  What we can be absolutely sure of is that the Senate did not ask for, and Hamilton did not give, an opinion on whether the president is covered by the Foreign Emoluments Clause.

Before moving to Tillman’s next point, it is worth pausing on Article I, Section 6, to consider one of the many unpalatable implications of his theory.  If he is right and the phrase “office under the United States” does not include the president, then Article I, Section 6, does not bar the president from serving as a member of Congress while also serving as president. Which is ridiculous inasmuch as it would utterly destroy the constitution’s separation of powers.  But it is the unavoidable implication of Tillman’s argument that the framers used “office under the United States” as a term of art excluding the president.

Second, and this is the real meat of Tillman’s argument, he points to a handful of incidents in which early American presidents accepted ceremonial gifts from foreign governments or their representatives.  Washington accepted a key to the Bastille from the Marquis de Lafayette and from Louis XVI a portrait of that ill-fated monarch. Jefferson accepted a bust of Czar Alexander I.  Madison accepted a pair of pistols from a South American revolutionary, which he apparently passed on to his successor, James Monroe.  Tillman argues that these gifts prove that Washington, Jefferson, Madison, and Monroe all believed that the Foreign Emoluments Clause didn’t apply to the president, and he contends that these early incidents outweigh the roughly two centuries of subsequent practice in which both presidents and congress expressly recognized the applicability of the clause to the presidency.

Professor Tillman is deadly earnest in professing the interpretive importance of these incidents, but the moment one takes a deep breath and steps back to gain perspective, it’s plain that there’s little substance to the argument.  In the first place, as I wrote several months ago:

After all, the point of the [Foreign Emoluments] clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

But the more important, and I think dispositive, point is this: If Tillman is right, then the framers wrote into the constitution a provision that would prohibit, say, the U.S. ambassador to France from accepting a jeweled snuff box from the French government, but would allow the King of France to award the President of the United States a title of nobility accompanied by a grant of land and revenues.  According to Tillman, King Louis XVI, rather than sending George Washington a portrait, could have tried to secure U.S. opposition to the Revolution of 1789 by declaring Washington the Duc de Haiti entitled to a percentage of the French crown’s revenues from that rich, sugar-producing colony.  Or George III of England could have begun the process of seducing America back into the British orbit by bestowing on Vice President Aaron Burr (a man notoriously open to extra-curricular peculation) the title of Baron of Barbados, with ownership of several large and lucrative sugar plantations.

These hypotheticals sound absurd to modern ears, but the problem of divided loyalties and overt corruption created by awards of foreign titles, lands, and revenue to heads of state and powerful notables was endemic to Europe from the Middle Ages through the 18th Century and would have been intimately familiar to the framers.

For centuries, English kings held French titles of nobility which, depending on the period, gave them French lands, which they held as feudatories of the French king, or even claims on the French crown.  Untold thousands of Englishmen and Frenchmen died in the wars fought over those territorial and dynastic claims. George III, the boogieman of the revolutionary generation, was simultaneously King of England, King of Ireland, and Duke and prince-elector of Hanover. And English critics were always troubled by the disposition of kings of the Hanoverian line to be drawn into German intramural squabbles. Phillip II was at various points King of Spain, Portugal, Naples, and Sicily, and Duke of Milan and lord of the seventeen provinces of the Netherlands. His far-flung dynastic commitments and devout Catholicism were the impetus for decades of near-constant warfare.  Endless additional examples could be cited, but the point is that the last thing the American framers would have wanted is an elected chief executive whose judgment might be distorted by enjoyment of an hereditary title or estate granted by a foreign power.

The even more acute problem that plainly concerned the founding generation was the seduction of both heads of state and lesser notables by rewards (or bribes, depending on your point of view) from foreign powers.  The practice was such a common aspect of European diplomacy as to scarcely merit remark on that side of the Atlantic. For example, the English Duke of Marlborough, Winston Churchill’s famous ancestor, was rewarded for his military successes with the title of Prince of the Holy Roman Empire and Prince of Mindelheim (a German principality). The entire European ruling class was entangled in a web of conflicting loyalties.

The American founders not only rejected hereditary aristocracy as a feature of the American future, but recoiled from the prospect of royal briberies.  In their brief, the legal historians note that Gouverneur Morris expressly cited the secret 1670 Treaty of Dover in which the King of England was induced to join France in its war against Holland both by providing him with a French mistress and paying him large sums to eliminate his debts.  Said Morris:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Morris was not discussing the foreign emoluments clause, but the passage reveals the founders’ acute awareness of the dangers of foreign payments to a head of state.  And it casts a revealing light on Professor Tillman’s primary defense against the practical absurdity of his position.  Tillman contends that it would have made sense to the framers to exclude the president from the foreign emoluments clause because a failure to do so would subject the country to diplomatic embarrassments attendant upon a constitutionally-mandated policy against the common European practice of accepting token diplomatic gifts.  But the whole point of the Foreign Emoluments Clause was to set the United States on a new path, free of the endemic corruption of European practices of the time.  To suggest that a fear of transitory diplomatic embarrassment would move them to gut this objective by permitting the most powerful officers of the United States to accept foreign titles and money is, frankly, absurd.

In the end, Professor Tillman deserves the respect due a diligent and inventive controversialist.  But his argument cannot stand up to serious examination.

Debunking the claim that the Foreign Emoluments Clause doesn’t cover Presidents

18 Tuesday Jul 2017

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Several days ago, I wrote skeptically about the claim advanced by Seth Barrett Tillman and Joshua Blackman that the Foreign Emoluments Clause of the Constitution doesn’t cover Presidents.  The online magazine Slate has just published a more extensive, and in my view, dispositive critique of the Tillman-Blackman argument.  The article by Professors Gautham Rao and Jed Handelsman Shugerman, is accessible here, and well worth reading.

A bit more on emoluments: Fun with old dictionaries

17 Monday Jul 2017

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Some readers may be aware that an organization called Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit claiming that Mr. Trump has violated the foreign emoluments clause of the constitution by accepting, through his various businesses, payments from foreign governments.  The Justice Department has sought to have the CREW suit dismissed.

One of DOJ’s arguments is that, at the time the Constitution was written and ratified, the word “emoluments” would have been understood as a term of art meaning “profit arising from office or employ.”  The implication of this definition is that the foreign emoluments prohibited by the Constitution would not include payments made to a president or other office holder as part of private business transactions formally separate from the conduct of the recipient’s government office.

DOJ’s endorsement of this narrow definition of emolument rests heavily on two particular dictionaries in circulation during the founding period –  A Complete and Universal English Dictionary on a New Plan by James Barclay and The Difference between Words, Esteemed Synonymous, in the English Language by John Trusler.

In a new article, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806, Professor John Mikhail of Georgetown Law School,  pretty thoroughly shreds DOJ’s dictionary-based argument.  He shows that almost every dictionary extant in the founding era contained far broader definitions of “emolument,” definitions that easily embrace payments to an office-holder’s private businesses.  Not only does it appear that DOJ cherry-picked its dictionaries, but Professor Mikhail makes a convincing case that the two dictionaries in question were probably not either possessed or relied upon by the founders.  (The best part of the Mikhail article for true legal history nerds is that it includes pdf images of the relevant pages from all the old dictionaries.}

Professor Mikhail’s work by no means proves that the Foreign Emoluments Clause does cover Mr. Trump’s business transactions, but it does cut away one prop of the DOJ argument to the contrary.

Emoluments: A teaser

14 Friday Jul 2017

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Should impeachment of Mr. Trump ever become a serious prospect, the Foreign Emoluments Clause of the constitution may be part of the conversation.  Article I, Section 9, Clause 8, in which the clause resides, reads as follows:

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 question in Mr. Trump’s case, of course, is whether payments by foreign governments to any of Mr. Trump’s businesses constitute prohibited emoluments.  Some observers take the position that payments, however large and lucrative, that are part of commercial transactions are not “emoluments.”  Others, emphasizing the anti-corruption purpose of the clause and recognizing the likelihood that foreign governments will try to curry favor with Mr. Trump by enriching him, disagree.

Another strand of the argument relates to the even more fundamental question of whether a president is covered by the Clause at all.  The most vocal exponent of the view that presidents aren’t covered has been a fellow named Seth Barrett Tillman, a lecturer in law from, of all places, the National University of Ireland in Maynooth.  He and co-author Josh Blackman had an op-ed in the New York Times yesterday espousing this view.

I haven’t yet studied the emoluments question, so I do not want to be unduly dismissive of Professor Tillman’s position.  Still, at first blush, his argument seems thin for at least two reasons.

First, his position rests heavily on the fact that several early presidents accepted and kept single ceremonial gifts like the key to the Bastille the Marquis de Lafayette gave George Washington, or the bust of Czar Alexander I sent to Thomas Jefferson by the Russian government.  Tillman discounts the fact that later presidents either treated such gifts as property of the nation or, if they wanted to keep them personally, asked congressional permission.  Tillman’s argument that events in the founding era have more interpretive value than later practice is a common trope in constitutional debate.  But it is never a dispositive argument, and, to me, carries even less weight than usual when it relates to events as obscure as the receipt of single ceremonial diplomatic presents.

After all, the point of the clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

Second, when interpreting constitutional language, considerable weight ought to be given to its apparent purpose. Again, the foreign emoluments clause was enacted because the Framers were realists who recognized that men are not angels and that the judgment even of persons of moderate virtue can be distorted by sufficiently generous rewards.  While those Framers would not, I submit, have had the least concern on this score about one-off ceremonial gifts of a key or a bust, they would quite certainly have thought that payments of hundreds of thousands or even millions of readily spendable dollars could have the corrupting effect they feared.

These considerations hardly settle the question.  Professor Tillman also makes the textual argument that the phrase “person holding an office of profit or trust under [the United States” doesn’t include any elected official.  And there remains the, to me, more substantial question of whether payments, however large, to a president’s businesses can be prohibited emoluments.  I’ll return to those another time.

Until then, if you are interested in reading more, I commend you to this page of the Constitution Center website, which explains the issue in some detail and features the differing perspectives of Professor Tillman and Professor Zephyr Teachout.

Violation of the Foreign Emoluments Clause?

16 Friday Jun 2017

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Check here for background on the lawsuits filed by the attorneys general of Maryland and the District of Columbia against President Trump, then click here for an analysis of whether the suits have legal standing, and finally click here for an analysis of whether they violate the Political Question doctrine (warning: the latter link contains some partisan bias).

maryland and dc.jpgAlex Brandon/AP