Category Archives: Law

Donald J. Trump, Defendant

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.
        –  Constitution of the United States, Article 1, Section 9, Clause 8

Since he was sworn in, Donald Trump has violated the Constitution’s Foreign Emoluments Clause, based on a plain reading of its text.  That seems clear, but what is less clear is what the consequences will be for the Trump Presidency or, more critically, the future of the American Republic.

The Foreign Emoluments Clause is one of the more arcane provisions of the Constitution, with no meaningful court decisions and few legal opinions addressing it. But Donald Trump, with his various domestic and international business interests and many potential conflicts, is bringing the ancient word “emoluments” into common parlance.  Citizens for Responsibility and Ethics in Washington (CREW) has sued him in federal court in New York for violating the Clause. 

While other matters, such as firing the FBI Director, dominate the headlines, the CREW lawsuit quietly abides, the pleadings not yet joined, and no motions or discovery requests filed.  However, the lawsuit may tread uncharted Constitutional territory that can shape the Presidency for decades.  Whether we regard the President as a public servant or monarch may be determined by its outcome.

A lawsuit requires a “justiciable controversy” — a party must convince a court that actions of another are damaging its interests.  CREW argues that Trump’s Emolument Clause violation damages it by requiring it to devote resources to the lawsuit against Trump that would otherwise go to other lawsuits, educational activities and research, all functions historically conducted by CREW.  There are two problems: (1) the lawsuit against Trump is the kind of activity CREW routinely engages in, so that claim would apply to any defendant; (2) CREW could forego suing Trump and preserve its assets.  CREW’s damages claim smacks of chutzpah.

Perhaps that’s why CREW submitted a First Amended Complaint (FAC), adding plaintiffs who can show cognizable damages:  an organization of restaurant workers, owners and diners competing with Trump-owned properties, and a Washington booking agent whose business may suffer for the same reason.  Foreign governments have already removed events to Trump properties, such as his new hotel in Washington, and foreign emissaries have admitted they will patronize Trump properties to make a good impression on him.  CREW is asking the Court to enjoin Trump from engaging in unfair competition made possible by his Emoluments Clause violation – which means he would have to divest any interest in the competing properties.  (CREW also argues that Trump is violating the Domestic Emoluments Clause, but their primary focus is on the Foreign Emoluments Clause.)

Trump’s lawyers will try to dismiss the case on motion, likely arguing the Clause does not apply to the President, and the Plaintiffs have not articulated a basis for recovery.  They are likely to lose both motions (although CREW’s damages claim is marginal), but their efforts will slow down the process.  There will be a protracted fight over Trump’s financial records and deposition.  Those matters alone, if appealed on an interlocutory basis, could drag the case out for a year or more.

At some point the case must be resolved, through a dismissal (voluntary or otherwise), stipulation, or judgment.  Trump may elect to simply pay off the Plaintiffs to resolve the lawsuit.  While CREW would likely resist – they want a legal ruling – the other Plaintiffs may be inclined to take the money and run.  Trump may get the case dismissed or prevail at trial, although trials resolve factual disputes and CREW seeks legal decisions, which are made in hearings and appeals.  Finally, Trump might lose at trial.

At some point the Supreme Court may determine the application of the Emoluments Clauses to the President – something the Court has never done.  It’s unlikely the Court would adopt CREW’s expansive reading of the Clause:  that any payment, however routine, from a foreign government or official is a violation.  Trump’s lawyers may argue that the Emolument Clauses don’t apply to the Presidency at all, allowing a President to engage in any manner of foreign or domestic financial entanglements with immunity.  That would make the President a monarch. 

The Court may be guided by the only Justice who wrote an opinion on an Emoluments Clause, Samuel Alito, when he was a Deputy Assistant Attorney General, permitting a NASA scientist to accept remuneration from an Australian university for reviewing a thesis.  Alito wrote:  “(I)n light of the Framers’ concerns expressed in the Emoluments Clause, we do not believe that it presents the opportunity for ‘corruption and foreign influence’ that concerned the Framers and that we must presume exists whenever a gift or emolument comes directly from a foreign government or one of its instrumentalities.”  If the Court adopted this reasoning, the CREW Plaintiffs might have to show evidence Trump was guilty of “corruption or undue influence”– a heavy lift, but consider:

Chinese law prohibits trademarks that are the same or similar to names of national leaders, such as Trump, and consistently rejected Trump’s trademark application until Trump, as President, declared support for the “One China” policy.  China then granted the application (FAC, ¶ 113).  Trump exempted countries in which he enjoys financial relationships from his Executive Order banning visitors from predominantly Muslim nations (FAC, ¶ 107).  There are concerns involving the United Arab Emirates, Indonesia, Turkey, the Philippines, Azerbaijan and elsewhere.

This evidence might not help the CREW Plaintiffs, but would be relevant to a Congressional impeachment inquiry.  Speaker Ryan, this case belongs in your court.

© 2017 by Mike Tully


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Arizona’s Voucher Bill and the New Segregation

When the Arizona Legislature passed, and Governor Ducey signed Senate Bill 1431, they opened the door to a substantial replacement of public schooling with a taxpayer-supported system of private and parochial schools.  Proponents claim their objective was to maximize school choice, despite insufficient evidence it will improve educational outcomes.  Critics claim there is no improvement and the real purposes are to undermine teachers’ unions and dismantle the public school system in furtherance of an ideology that decries what some deride as “government schools.”  Whatever the consequences, there is a danger that has not received sufficient attention:  creation of a new system of segregated schools likely to be more expansive, insidious and dangerous than the segregation that led to Brown vs Board of Education.

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Jeff and Martha’s Magnetic Ink

First Man:

I think…
I think I am.
Therefore I am!
I think…             

Establishment:

Of course you are, my bright little star…
I’ve miles and miles of files
Pretty files of your forefather’s fruit
And now to suit our great computer
You’re magnetic ink!

–  The Moody Blues, “On the Threshold of A Dream,” 1969

When The Moody Blues released “On the Threshold of A Dream” in 1969, the world was on the threshold of the Internet, a dream being slowly realized by the Advanced Projects Research Agency (ARPA), which was created in 1958 in reaction to the Soviet Union’s successful launch of Sputnik.  The Internet’s primordial ancestor, the ARPAnet, launched in 1969 by linking four universities in the western United States.  The effort spread overseas and into the private sector and, in 1989, the same year the Berlin Wall fell, the World Wide Web was created.  The Soviet Union disintegrated two years later and, by the end of the 1990s, the term “Internet” was entering common parlance.

The cables and fibers of the Internet gradually became neurons of a planetary nervous system and visionaries like Steve Jobs realized that individual computing devices were not merely tools, but extensions of the human nervous system into the grander structure.  Pleasure, purchases and knowledge were at our fingertips.  But we learned that the Internet, the planetary brain, had an id, a darker side laden with lies, pornography and terror.  We also came to realize that the wondrous new planetary network was a two-way mirror:  when we looked into the Internet, it looked back.

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The Kids Are Alright With It

The Trump administration’s decision to withdraw federal protections for transgender public school students constitutes poor governance, deficient humanity, and legal ignorance.  A “Dear Colleague Letter” from the Departments of Justice and Education dated May 13, 2016 detailed those protections.  The Obama administration recognized that transgender students were denied equal access to educational opportunities and did not enjoy civil rights protections available to other students.  Discrimination on the basis of gender identity and gender expression violates Title IX of the Education Amendments of 1972 (Title IX).  The new administration’s decision to abandon the protections endangers transgender students and will do far more harm than good.

In the 2011 National School Climate Survey by the Gay, Lesbian & Straight Education Network (GLSEN), eight out of ten transgender students said they felt unsafe at school.  Nearly six out of ten experienced verbal harassment on account of their gender expression, more than twice the rate of their peers.  A recent GLSEN survey in Arizona that included gay and lesbian students along with transgender students reached a similar conclusion.  “Schools are still hostile environments for so many of these students,” stated Ricardo Martinez, Chair of GLSEN Phoenix, “and now more than ever they need our support.”

Dr. Warren J. Blumenfeld, a lecturer with the University of Massachusetts, Amherst, College of Education and author of several books, including Warren’s Words: Smart Commentary on Social Justice, notes that LGBT youth live a very different life experience from their peers, and not just in the school setting.  “For one thing, they live in families who very often do not share their sexual and/or gender identity,” Dr. Blumenfeld wrote in an email message, adding, “I call these ‘diasporic’ identities — we are dispersed within families who are different than us.”  “LGBTQ youth live in families with the added fear of ‘coming out’ to others,” wrote Dr. Blumenfeld.  “They also suffer significantly higher risks of being bullied and dropping out of school.”

He blames adults more than kids for the harmful experience of transgender youth…

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