Tuesday, November 29, 2016

Are We Headed to a Constitutional Crisis?

As a post yesterday noted, once Donald Trump assumes the presidency - unless the Electoral College does its job and voids his election - America will be governed by the most corrupt regime in the nation's history.  For those who doubt this, one need only look at Trump's behavior over the last 19 days and all the actions taken to further his business interest at the potential expense of the nation's interest.  Like Putin and other tyrants and dictators, Trump seemingly sees his own financial interests and further accumulation of wealth as synonymous with the national interest even when the two sharply diverge.  His behavior would seem set on a collision course the Emoluments Clause of the U.S. Constitution that forbids elected officials from receiving benefits, a/k/a bribes from foreign powers.  The one question is whether or not Congress will act to stop Trump's excesses.  If the issue is left to Congressional Republicans, don't count on it.  Republicans in the Senate refused to do their constitutional duty and vote on Barack Obama's Supreme Court nominee.  Why think they will care about unrestrained corruption and payoffs, especially if they receive some of the loot.   A piece The Guardian looks at the coming confrontation and constitutional crisis.  Here are excerpts:
Constitutional lawyers and White House ethics counsellors from Democratic and Republican administrations have warned Donald Trump his presidency might be blocked by the electoral college if he does not give up ownership of at least some of his business empire.
“The brand is certainly a hotter brand than it was before,” Donald Trump told the New York Times on Wednesday, and his election victory buzz does indeed seem to have been good for business.
Since the surprise outcome of the 8 November vote, foreign diplomats have been flocking to the newest Trump hotel in Washington to hear sales pitches about the business and vie to book their delegations into its rooms overlooking Pennsylvania Avenue for the inauguration on 20 January.
Trump, meanwhile, used a meeting with a delegation of Brexit activists including his closest British ally, Nigel Farage, to urge them to oppose wind farms which he felt would spoil the view from one of his Scottish golf courses. He also took time out from selecting cabinet officials to meet his Indian business partners and pose for pictures with them, while the Philippines government announced it was appointing his business partner in Manila as its next ambassador to Washington.
A day after a phone conversation between President-elect Trump and Argentinian president Mauricio Macri, Trump’s Argentinian associatewho was reported to have organised the call – confidently predicted that construction would start next year on the planned Trump Tower Buenos Aires, to be completed by 2020.
The associate, Felipe Yaryura, seemed supremely confident that the zoning restrictions that had stalled the project for years would soon be swept away.
[M]uch of what he has said and done since winning the election suggests that Trump comes to the presidency in the spirit of a tycoon making a new acquisition, overseeing the merger of Trump Inc and America Inc – a merger in which it is far from clear which would be the senior partner.
“It clearly degrades the presidency,” said Ian Bremmer, a political scientist and president of the Eurasia Group, a global political risk research and consulting firm.
“It is going to undermine the legitimacy of the US around the world. Soft power has been about being able to project values. That already took a hit. It really comes to an end with this election.”
Although the president-elect claims to have handed the day-to-day running of the Trump Organization to some of his children, he has so far retained his ownership stake and those same children are sitting in on his meetings with foreign leaders. 
When the constitution was written, the founding fathers wrote the rules so that people like themselves, whom they expected to fill the presidency, could do so without having to sell off plantations or slaves.
The president is exempt from conflict-of-interest laws that constrain other office holders. The discovery of this loophole seems to have surprised and delighted Trump.
It was an interpretation of executive power that did not work out well for the US, nor for the president in question, Richard Nixon.
Constitutional lawyers are now warning that Trump’s presidency is in danger of going the same way as Nixon’s before it even gets started. Some say that unless Trump takes urgent steps to fully divest himself from his business interests, he might not even enter the Oval Office as president.
Trump seems to have received only a partial legal briefing on his exposure. Although the conflict-of-interest clauses do have a loophole for presidents, there is no such loophole for the “emoluments clause”, Article I, Section 9 of the constitution, which prohibits public officials from taking payments “of any kind whatever from any king, prince or foreign state”.
“Trump was totally wrong when he said the conflict of interest doesn’t apply to me,” said Norman Eisen, a former ethics counsellor to the Obama administration. “It shows he doesn’t know the constitution.
“The most fundamental conflict clause in the US constitution is the prohibition on emoluments on payments, presents or other things of value being given to American political officials including the president.”
Before Trump can even take that oath, he will have to be elected by the electoral college, another legacy of the founding fathers. . . . . The electors are under more pressure than usual because although Trump won the majority of seats in the electoral college, he lost the nationwide popular vote to Hillary Clinton by 2m ballots. Some legal experts argue that the electoral college cannot approve a candidate like Trump, who does not fulfill the basic legal requirements to be president.
Harvard constitutional law professor Laurence Tribe said in an email that the “electors who are to cast their votes for president on 19 December not as automatons but in light of constitutional constraints and principles cannot in good conscience vote for Donald Trump as president of the United States unless he fully divests himself of economic interests dependent on the fortunes, for good or ill, of the private Trump empire”.
That view is not restricted to academics and Democrats. Richard Painter, George W Bush’s chief ethics counsel, agrees that without a major reconfiguration of the Trump Organization, the president-elect is heading for a constitutional collision with the electoral college.
Eisen and Painter called on the Trump transition team to take urgent steps to address the problem, before it triggers a constitutional crisis. They recommended he sell all his business holdings and put the proceeds in a blind trust, the composition of which would remain unknown to him, as his predecessors have done for the past four decades. Painter offered his advice to the Trump circle as a fellow Republican, but has not received any response.

The optimist part of me hopes that the Electoral College voids Trump's election.  The pessimist expects it to rubber stamp the madness of a minority of voters - some 2 million fewer than those who voted for Clinton - and thereby cast the nation on the road to disaster and a constitutional crisis.  

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