Monthly Archives: May 2017

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


Cold Wet Gnosis

If James Comey, the recently fired FBI Director, doesn’t have a dog, he should adopt one.  There’s a well-known trope of undetermined origin that states, “If you want a friend in Washington, get a dog!”  While Comey is, by all accounts, a stand-up guy who continues to be liked and respected within the Bureau, he was friendless in the political community.  Republicans didn’t trust him because Barack Obama appointed him and Democrats were seething over a gratuitous rebuke on his part that may have cost them the White House.  Donald Trump doesn’t like him because he was being investigated by Comey and Trump desperately wants the investigation to end.  When that many knives are unsheathed, the chances for survival are pretty much zero.  Comey is now a private citizen.  A dog would not care.  A dog would be loyal, would love him unconditionally, would jump and wag enthusiastically when he saw him, would gaze at him adoringly and carefully sniff him up and down — a dog’s way of asking:  “How was your day?”

Donald Trump doesn’t own a dog.  He has people for that.

People like Rod Rosenstein, a Deputy Attorney General who, at Trump’s request, authored one of the lamest firing memos in history.  (Full disclosure:  I have conducted several hundred workplace investigations, followed by detailed findings. conclusions, and recommendations.)  He focused on two items:  Comey’s July 5, 2016 announcement that no charges would be brought against Hillary Clinton for using a private email server – including the aforementioned “but she was naughty” rebuke – and his October 28, 2016 letter to Congress, that there might be classified emails on a laptop computer shared by the king of the laptop selfie, Anthony Weiner.  He said Comey’s actions “ran counter to guidance that I put in place four years ago,” and cited seven former Justice Department officials as his only authorities.  After noting that a decision to fire the FBI Director “should not be taken lightly,” he wrote, “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”  He concluded, “Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”  There is no evidence that Comey “refused to admit his errors” to Rosenstein or Trump.  That comment refers to Comey’s response to what Rosenstein characterized as “skeptical questions” from a Congressional committee.  To recap:  (1) The letter was confined to a pair of single examples, not the Director’s overall performance; (2) Comey was accused of violating a “guidance” written by the author of the letter; (3)  Rosenstein only cited the public comments of former Justice Department officials; (4) he also failed to cite any former FBI officials; (5) further, he failed to cite any laws, regulations, protocols or policies; and (6) Comey was never given the opportunity to explain his actions personally to Trump, nor to assure the President that he would not repeat them.

That latter omission violates former Google Executive Kim Scott’s guidance for knowing when to fire a problem employee.  “Make sure that you’ve communicated the problem clearly,” she wrote.  “If you have doubts about whether or not you’ve done so, then you probably haven’t.”  Trump and his administration have not communicated anything clearly, whether to Comey or Congress, resulting in a media firestorm.  “The tipping point comes,” wrote Allison Rimm and Celia Brown in the Harvard Business Review, “when the cost of keeping an employee is greater than the disruption of letting him or her go.”  Clearly, Trump’s advisers didn’t read that article.  Frank Kalman, Managing Editor of Talent Economy, wrote that Comey’s firing was “a stark example of how not to fire someone.”  Kalman found it “incredible” that Trump would not fire Comey personally, but in a memo delivered to his office – when he wasn’t even there.  He called Trump’s action “unprofessional and, dare I say, cowardly.”

When Rosenstein wrote his amateurish memo he was doing his gutless Master’s bidding.  “Rod, come!” Trump told him a day earlier.  “Sit, boy.”  “Stay here while I teach you a new trick.”  If Rosenstein hesitated, Trump told him, “Roll over and do what I say.”  When Rosenstein finally acquiesced, Trump told him, “Good boy.  Shake hands,” then handed the leash to Jeff Sessions, who quietly led Rosenstein back to his kennel.

Comey was not a good dog when Trump summoned him to dinner.  “Come in James,” said Trump.  “Sit down and stay for dinner.”  Comey did so, but refused to roll over and pledge his loyalty.  He would not beg for his job.  Worst of all, he would not let go of his favorite chew toy:  the investigation into Trump’s Russian connections.  Trump had no choice; it was time for a new forever home.  But the President didn’t kick Comey out personally.  He has people for that.

The President sees himself as the biggest dog of all, but is he?  Or is he, rather, a “little barky dog that gets its way and makes a big noise?”   Unfortunately, to quote Sam Houston,  “He has every characteristic of a dog except loyalty,” as he demonstrated by wagging his tail for those nice Russians and giving them highly classified information.  Trump is not a guard dog; he is a dog that needs to be guarded.  Sit, Donald.  Stay.  Lie down.  Roll over.  Play dead.

© 2017 by Mike Tully


Let’s Get This (Deleted) Thing Done

by Mike Tully

Arizona Congresswoman Martha McSally has jeopardized her political future by violating the trilogy of governance that applies to elected representatives:

  1. First do no harm. This phrase, a fundamental principle that guides medical ethics, is based on the words of Hippocrates, who is regarded as the “father of modern medicine.”  The same principal should guide Congress.
  1. Those who cannot remember the past are condemned to repeat it. The novelist George Santayana’s quote is one of the most profound, widely repeated, and frequently ignored statements in human experience.  It applies equally to history and politics.
  1. You don’t need a weatherman to know which way the wind blows. This Bob Dylan lyric is directly applicable to Congress, home to many notorious weathervanes.

McSally violated all three principles by voting for H.R.1628, the American Health Care Act of 2017 (AHCA)…


You Will Not Quiet Us

by Mike Tully

With daggers, bodkins, bullets, man can make
bruise or break of exit for his life;
but is that a quietus, O tell me, is it quietus?
Surely not so! for how could murder, even self-murder
ever a quietus make?

–  D. H. Lawrence, “The Ship of Death”

Donald Trump’s recent appearance before the National Rifle Association (N.R.A.) convention was his usual combination of pandering and self-adulation, although one comment was noteworthy.  “(W)e have news that you’ve been waiting for, for a long time,” he thundered.  “The eight-year assault on your Second Amendment freedoms has come to a crashing end.”  That statement drew applause and nobody stopped to ask the obvious question:  what assault