"The central doctrine of Christianity, then, is not that God is a bastard. It is, in the words of the late Dominican theologian Herbert McCabe, that if you don’t love you’re dead, and if you do, they’ll kill you."--Terry Eagleton

"...doesn't philosophy amount to the sum of all thinkable and unthinkable errors, ceaselessly repeated?"--Jean-Luc Marion

“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Monday, August 26, 2019

You Can Build A Case

It’s Trump Doral, the President’s Florida golf course and resort, and from President Trump’s public comments today, it will host next year’s G7 Summit.

But President Trump hosting the G7 at one of his highest-grossing properties raises a host of issues that range from the Constitution’s Emoluments Clause – which prohibits the president from receiving things of value from foreign governments – to potential procurement regulations to a basic sense of propriety in government, attorneys and government ethics experts told TPM.

No shit, Sherlock:

“Whether or not it violates a specific law or diagnosis of law, it’s completely unethical for the president to use the G7 to profit his hotels and himself,” Larry Noble, a former FEC general counsel, told TPM. “The idea of leveraging your office to make money goes against the very concept of public service,” he said, adding that such acts are “normally a criminal violation.”

Kathleen Clark, a law professor at Washington University in St. Louis who focuses on government ethics, told TPM that there are two separate issues in play with the Doral G7: Trump “using the government’s power to line his pockets” by holding the summit at one of his properties, and a separate question around whether the foreign money that would flow to him would qualify as a foreign emolument.

Legal experts described the potential event – to be held at one of President Trump’s highest grossing properties – as a “monumental” emoluments issue, and one that is more acute than previous allegations in part because the President is using the influence of his office to stage an event from which he will profit.

“The president is essentially requiring [foreign officials] to enrich him through his Doral property,” Clark said.

And maybe it's sound and fury, signifying nothing more than contempt for, through ignorance of, what government service is supposed to mean:

Noble, the former FEC general counsel, told TPM that the government would “presumably have to go through a procurement process to find a resort.”

“It may violate contracting laws, or any sense of propriety,” Noble said. “He basically used the announcement to tout the benefit of the resort.”

But will Trump's staff find a way around that, as Mnuchin and Kudlow already think they've done?

These laws—like so many laws—are imperfect. But the primary fault here lies not with the law books but with Trump. Our laws of course could be better, but Trump’s breaking the ones we already have. What’s more, those laws were designed not to expand presidents’ emergency authority but to restrain it. So blaming them for Trump’s excesses fails to recognize that fewer checks on executive power would exist in their absence. There’s plenty of work ahead to reform federal statutes in light of lessons learned from the Trump era. Yet that task ahead shouldn’t distract us from the fierce urgency of now: calling out Trump’s actions as unlawful and, moreover, reining them in.

This analysis fits rather neatly into the "opposing view" TPM was able to dredge up from a Constitutional expert in Ireland (!):

Seth Tillman, a lecturer at Maynooth University in Ireland who has studied the issue, offered TPM an opposing view which aligned with that of Trump’s, arguing that the framers intended “emoluments” to be limited to “a benefit that extends to holding office” in a foreign state.

“It could be a conniving attempt to extract an unfair benefit, akin to a bribe – and I don’t believe that’s what the foreign emoluments clause is about,” Tillman said.

In his view, “the more general concern of self-dealing and bribery” is suited for the basis of an impeachment inquiry.

Which is really an elaborate way of saying nothing, but everything a President does that violates the law or the Constitution, or even the oath of office, is "suited for the basis of an impeachment inquiry."  The narrow reading of the emoluments clause might be a legal defense in such an inquiry, but it's hardly dispositive of the issue.  And the issue is this:

Whatever one thinks of the laws currently on the books, Trump is breaking them. Recall the proclamation that Trump issued in February to declare “a national emergency concerning the southern border of the United States.” It recounted a handful of long-standing facts concerning the southern border, then identified only a single recent change at the border: “Recent years have seen sharp increases in the number of family units entering and seeking entry to the United States.” It then proceeded to “declare that a national emergency exists at the southern border of the United States.” An increase in families entering the United States simply isn’t a “national emergency” of the type contemplated by the National Emergencies Act. It may present a hard policy challenge, but many things do. For Trump to insist that it’s a “national emergency” represents not statutory ambiguity but presidential lawlessness. And, indeed, we all know why Trump really invoked the NEA: because he failed to convince Congress to approve his wall funding.

And this entire conversation needs to conducted in this context and with this understanding:

A House report on the NEA emphasized that the proposed law was intended to restrain presidents’ invocation of national emergencies, not aggrandize it. The report noted that “there has been an emergency in one form or another for the last 43 years,” adding: “The history of continued and almost routine utilization of such emergency authorities for years after the original crisis has passed … serves only to emphasize the fact that there is an urgent need to provide adequate laws to meet our present day needs.” And a Senate report made clear the NEA’s purpose: “Enactment of this legislation would … insure that the extraordinary powers which now reside in the hands of the Chief Executive … could be utilized only when emergencies actually exist.” The genealogy of the IEEPA is similar, with its enactment intended, as one commentator has rightly summarized, “to restrict the president’s powers to declare an indefinite emergency during peacetime.”

So it’s critical to remember the baseline against which emergency laws like the NEA and the IEEPA were enacted: essentially uninhibited presidential invocation of national emergencies and executive branch actions in response. That’s what made these laws’ introduction of new requirements—such as the specification of particular emergencies, the expiration of old ones, the demand that new ones be recertified periodically or expire, and the reporting to Congress of each new emergency declared—collectively a step forward in reining in the exercise of presidential emergency authority.

The laws only work when they are enforced.  Oddly, I hear this argument a lot when it comes to "gun control."  One argument against further laws is that we don't enforce the ones we have.  It's a fair argument, but it underscores the problem with Trump.  Yes, we elected him, but we didn't suspend the rule of law and the strictures of the Constitution when we did so.  If there is a Constitutional crisis in the land, it's in the refusal of our elected officials to enforce the rule of law and uphold the concepts of the Constitution we've all agreed to (including but not limited to questioning basic concepts like birthright citizenship.)  When we've come to the point where law professors are defending the critique of that concept as one that is not inherently racist (yes, it is), is it any wonder 70% of Americans report they are angry with the established order of things?  Maybe that anger is aimed at the sense of betrayal of our collective inheritance more than it is the rages of white supremacists like Stephen Miller.

It isn't that the laws are weak; it's that they aren't being enforced.  Miller, through Trump, has even challenged Plyler v. Doe, the 1981 case that established a baseline definition of "equal protection of laws" which has been a powerful sleeper case ever since, but now because of racism and xenophobia in the highest office in the land, it is, like the 14th amendment on which it rests, now called into question.  You don't pull up the roots of the democratic republic like that without causing a great deal of upheaval, even if you can't chop those roots free and throw them on the fire as you wish to do.

"A government of laws, not of men."  Most people in America understand that concept; and even if they can't name their pain, they don't like seeing that concept trampled on.  It's what brought Nixon down; it's going to more decisively end Trump.  But not soon enough; and not without the expression, the insistence, of the governed that their government follow the law, not the man.


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