We owe an obligation to ourselves and to history to not meekly acquiesce in the what might be termed the normalization of outrage regarding Donald Trump and his actions, both before and during the campaign and since the election.
It may well be the case that there is no chance for the electoral college to deny Donald Trump the presidency on December 19. That does not mean, however, that they should not try.
Trump is in flagrant violation of a straight reading of the emoluments clause of the constitution, and has failed to take steps that might allay fears that he has been colluding with a foreign power, Russia, during and since the elections.
The emoluments clause
The “emoluments” clause of the U.S. Constitution provides,
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
Presumptive president-elect Donald J. Trump has refused to release his income taxes, so the American people and the Electoral College do not know what “emoluments” he may be receiving from any foreign state or companies owned and controlled by any foreign state.
Trump’s refusal to set up a “blind trust” means that he will not be able to avoid the inevitable conflicts of interest that will result from his simultaneously serving as president and as the de facto head of a business empire with far-flung interests in many countries, with him benefiting either directly or through his family from the resulting conflicts of interest.
The day he is sworn in, if he is, he would apparently be in flagrant violation of the emoluments clause and his oath to uphold the constitution of the United States.
Norman Eisen, Richard Painter, and Laurence H. Tribe, “The Emoluments Clause: Its text, meaning, and application to Donald J. Trump, Brookings (Report), December 16, 2016.
Adam Liptaknov, “Donald Trump’s Business Dealings Test a Constitutional Limit,” New York Times, November 21, 2016.
Not only would presumptive president-elect Donald J. Trump appear to be in flagrant violation of the Emoluments Clause of the Constitution, but he would enter office with serious doubts over whether he has collaborated with a foreign power, Russia, to undermine the integrity of the presidential and congressional elections in 2016. Beyond these two central disqualifying facts, Donald Trump does not seem to have the character and other qualities the founders of the Constitution considered to be essential to the election by the Electoral College to be President.
In these circumstances, a serious question arises as to whether he should be elected by the Electoral College on December 19, 2016.
Among recent articles and op-eds related to this subject, the following are particularly worthy of note:
The electoral college vote
(1) Christopher Suprun, “Why I Will Not Cast My Electoral Vote for Donald Trump, The New York Times, December 5, 2016.
The United States was set up as a republic. Alexander Hamilton provided a blueprint for states’ votes. Federalist 68 argued that an Electoral College should determine if candidates are qualified, not engaged in demagogy, and independent from foreign influence. Mr. Trump shows us again and again that he does not meet these standards. Given his own public statements, it isn’t clear how the Electoral College can ignore these issues, and so it should reject him.
(2) Polly Baca and Levi Guerra, contributors, “This presidential elector will vote her conscience in Electoral College,” The Hill, December 1, 2016 (10:22 AM EST).
Polly Baca (D) is a former state senator from Colorado. Levi Guerra is a Democrat elector from Washington state, who will be casting her vote for an alternative Republican candidate in the December 19 Electoral College.
(3) Tina Nguyen, “This Group of Rogue Electors Have a Plan to Stop Trump. The Constitution allows electors to vote their conscience. But don’t get your hopes up yet,” Vanity Fair, December 6, 2016 (11:29 am).
(4) Lawrence Lessig, “The Constitution lets the electoral college choose the winner. They should choose Clinton.” Washington Post, November 24, 2016.
(5) Elizabeth Williamson, “How Would the Electoral College Dump Donald Trump?” New York Times, December 6, 2016.
The bottom line: Two reasons electors should not vote for Trump on December 19
The two biggest reasons electors should not vote for Trump on Decembr 19 are:
(1) He would be entering office while in defiant violation of the emoluments clause of the constitution; and
(2) Until further investigation, electors will not know whether he has been acting in coordination with Russian officials during the campaign.
His tax returns might reveal some of his ties to Russia.
Contacts between his campaign and Russian officials could constitute violations of U.S. law. If Trump has cooperated with the Russians to undermine the democratic electoral process in the United States, he should not be elected president.
How electors could proceed
Trump electors have various alternative courses of action they might pursue.
First, they might simply refuse to vote until the emoluments question and the Russian question are investigated with reports back to the electoral college, in effect not “refusing” to vote for Trump, but in view of the issues raised demanding that the vote be postponed until the Obama administration reports on its answers to the questions raised.
Second, they could simply vote for another Republican candidate on the grounds that Trump’s loyalties to the United States are unclear, and the fact that his continuing conflicts of interest and violation of the emoluments clause make him constitutionally unfit for office.
Electors should recall the book by John F. Kennedy entitled “Profiles in Courage”. The book is available from Amazon in a kindle edition.
If nonetheless, Trump is elected by the electoral college on December 19, the two disqualifying facts referred to above may well form the central charges in articles of impeachment to be presented to the House of Representatives after he has assumed office.
The Trenchant Observer