The emoluments clause and potential collusion with the Russians: Two Reasons and 37 Profiles in Courage needed to Stop Trump

Developing

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.

See

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

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.