I am not a lawyer. But I have a legal question regarding the emoluments clause that could be the start of a constitutional confrontation. Lawyers in the audience, please tell me where I am going wrong in the following scenario?
Let us assume a foreign government official without diplomatic immunity from Fredonia stays at the Trump Hotel in Washington D.C. tonight. The Trump Hotel is still owned by the President. He had not given a credit card to hold the room. The foreign official is conscientious and checks out tomorrow morning. He receives a charge for the room. He refuses to pay for the room as it would be an emolument. He offers to place the money into escrow until the dispute can be resolved.
At that point the hotel management has two choices. Eat the loss to not embarrass the boss or initiate civil or criminal action to get the room fee? If they choose the second option, the entire question of what is an emolument has to be answered. Is that correct?
What am I missing here? And if I am not missing anything big, how do we recruit a good test case?
eric
if it eats the loss, wouldnt that be sort of a gift from the US president and potentially a bribe in violation of statute?
Richard Mayhew
@eric: I was thinking that the word would get out that the Trump hotels would eat the losses to avoid problems for the boss and become an adverse selection magnet for foreign officials in the US but you’re thinking is better
SiubhanDuinne
@eric:
So if Richard’s scenario happens, the President is in violation of the Emoluments Clause, and if your scenario happens, the President illegally profits from a bribe, but either way the President is in violation of the law. Sounds about right.
Lock him up! Lock him up!
aimai
Trick question? Answer: nothing will be done. It doesn’t matter what is or is not a violation of any clause of the constitution or the law under Trump.
Seth
Well, the whole point of staying at the Trump hotel is to curry his favor. What foreign official wants to be the the bad side of a petty, vindictive President?
Schlemazel
The hotel will do whatever the boss says they should do. If the room is part of the quid pro quo nothing is said or done. Nothing is going to come from any of this & it is a waste of time to discuss it. IF the GOP decides to dump the asshole these questions will be answered but it won’t matter then either as the train will be on the track. till then you might just as well ask how many angles can dance on the head of a pin.
SWMBO
Slightly off topic (but possibly fits under one of the categories), @POTUS is now Donald Trump on Twitter and https://twitter.com/BarackObama/status/822550300942856193 is Barack Obama. If you are going to unfollow POTUS go follow Barack Obama so he gets more followers than the Tangerine Taint. He no likely being less popular.
rikyrah
Good question. Can’t wait for the answer.
eric
@Seth: why would staying at the trump hotel curry favor with Putin?
rikyrah
A presidential giant exits the stage
01/20/17 04:30 PM
By Steve Benen
Presidents are often judged by a historical shorthand that highlights their most historic achievements. Abraham Lincoln, for example, won the Civil War and signed the Emancipation Proclamation, Franklin Roosvelet created the New Deal, rescued the country from the Great Depression, created Social Security, and won World War II.
These are the kinds of successes that put a president in the pantheon of American leaders of legendary consequence.
THE RACHEL MADDOW SHOW, 1/19/17, 11:13 PM ET
Barack Obama departs with legacy of accomplishment
As President Obama becomes former President Obama, the debate can now begin in earnest about his tenure. When that historical shorthand is applied to his terms, what will include? How will it compare to those who came before him?
I’m reminded of a piece Paul Krugman wrote in the fall of 2014, a month before the GOP took complete control of Congress, when Obama’s standing wasn’t nearly as strong as it is now.
Richard Mayhew
@aimai: But let’s get it on record and lets make it clear
David Hunt
The hotel initiates whatever action it normally takes to deal with deadbeat guests. Maybe it gets Trump some bad press, but Trump’s ownership of the Hotel is already a well known nakedly unconstitutional thing he’s doing. As to what gets done, it’s nothing. The ultimate enforcement against Presidents doing nakedly unconstitutional things is Congress and their power of impeachment and no GOP Congress is going to impeach Donald Trump or any other President who has and “R” after his name.
rikyrah
In his inaugural address, Trump vows to end ‘American carnage’
01/20/17 01:42 PM—UPDATED 01/20/17 01:46 PM
By Steve Benen
The story of Donald Trump’s political trajectory is one of a series of “pivots” that were predicted but never seen.
After Trump’s belligerent campaign kickoff in June 2015, many observers said he’d soon pivot towards a more responsible campaign message in order to extend his appeal to more Republican constituencies. That didn’t happen.
After he secured the Republican Party’s presidential nomination, many assumed Trump would pivot away from his primary persona and become a general-election candidate with a message that resonated nationally. That didn’t happen, either.
After Trump won the election, much of the country expected him to pivot from campaign mode to governing mode as he prepared for the awesome responsibilities of the American presidency. That didn’t happen, either.
After he actually became president this afternoon, Trump was supposed to pivot, embracing the fact that he now represents the nation and its people, and recognizing that the time for deliberate divisiveness has passed.
………………………..
There will be no pivot. The Donald J. Trump we saw riding down an escalator in New York 19 months ago is the same Donald J. Trump who’s on his way to the Oval Office. The nuances of his personality don’t really exist. What we saw is what we have and we’ll get.
The result was an inaugural address intended for Trump’s base – and no one else. Those waiting for an uplifting message were left wanting. The expected olive branches were set on fire.
The speech was, to be sure, deeply and unapologetically populist, which was only surprising because I thought everyone knew better by now. Sure, Trump exploited populist anger throughout his campaign, but during the transition period, the new president appointed billionaires and Washington insiders to help lead his administration, started selling access to megadonors, and moved forward with an agenda built on tax cuts for the wealthy elite.
Schlemazel
Trump helps out home buyers as only he can
https://www.bloomberg.com/politics/articles/2017-01-20/trump-administration-overturns-obama-s-fha-mortgage-fee-cut
Chris T.
@Schlemazel: 360˚ worth of angles, of course!
carolus
Trump doesn’t own the hotel, the US Govt. does. Trump developed the property and leases it from the US Govt.
The GSA is somewhat fuzzy on the issue. The lease stipulates quite clearly no elected Govt official can benefit from any part of the lease. But GSA has said they have “no position” on Trump’s lease.
Lawrence Tribe and several other ethics lawyers make a strong argument Trump’s DC Hotel is a violation of the Emoluments clause, however.
Joseph W Nobles
There is a petition at the newly rebooted White House petition site to release the Donald’s taxes. If you would, please go there by signing my petition first about the removal of civil rights and climate change pages from official government websites. The site doesn’t like Autofill! https://petitions.whitehouse.gov/petition/restore-all-excised-civil-rights-lgbt-protection-and-climate-change-web-pages-all-government-websites
catclub
Another thing I just heard ( where was THIS during the campaigns before the election) is that the lease to the Trump Hotel in DC is voided/cancelled/invalid if it is held by any Government office holder.
catclub
@carolus: beat me to it.
kindness
How long will it be before we hear ‘Git a rope’?
Too long.
randy khan
Problem number one with this approach is that there is no possible way that the hotel would take a reservation without a credit card to guarantee it (or a big deposit check). If there’s one thing that people in the hotel business know, it’s to make sure you can be paid in advance.
Seth Owen
I haven’t seen it remarked upon yet, but the inaugural speech included the word ‘decree.’ Has that word appeared in any of the previous ones? It’s a very unrepublican (small r) word.
Obdurodon
What would actually happen is neither of the above. The Bully In Chief would let it be known, to other people within that foreign government, that very bad things might happen to their country or its other citizens in the US if the bill’s not paid. All out of public view/record of course.
J R in WV
Eric, Richard, I like the way you think. The
GAOGSA should have delivered a repo statement to Trump Enterprises at the White House when he arrived there. Or just gone to the building, ordered everyone out, shut it down, and changed the locksI think (from what I have recently read) that the lease agreement has specific requirements that were broken when Don was sworn in. He can’t lease that facility from himself.
But of course, those who point out that the sole remedy against a rabid President is the Congress via impeachment, or the 25th amendment, the VP, and a majority of the cabinet, but that then takes an ever larger margin in the House to sustain the removal of the president’s powers than mere impeachment.
WASF
ETA to fix wrong federal agency… so many 3 letter agencies!
bemused
Ugh, the usurpers are arriving at WH. I do feel sick now. It’s an abomination.
Jeffro
So…how’s everyone’s “Day of Patriotism” going? LOL what a fucking moron.
And hey, speaking of morons, I went over to Foxnews.com where I guess they stream the TV channel at the top in addition to having “news” stories…holy cow are they in the bubble. I mean it was OFFENSIVE, the kind of shit they were talking. Excusing the “carnage” line – as if American cities are just fucking going up in flames. Calling Trump’s lines copying the Batman villain Bane as a nod to ‘populist tastes’?!? There’s really nothing they won’t excuse in the service of Mammon, er, I mean, Trump.
NCSteve
@Seth: A question that raises a bit of a standing issue, even aside form the Foreign Sovereign Immunities Act defense if they sue him . . .
But right now I’m still trying to figure out if there’s ever been a case that made its way up to SCOTUS from a municipal small claims court.
Another Scott
@carolus: Indeed.
USA Today:
IANAL, but the lease language seems clear-cut. One could read the GSA statement as them wanting to get all their ducks in a row and make sure every “i is dotted and t is crossed” before making their ruling. They undoubtedly know that Donnie would sue them if he could, so they want to make the case iron-clad. That would be the smart thing to do, anyway.
So, independent of the Emoluments Clause, he’s clearly violating the lease.
With the Emoluments Clause, it would seem clear that he couldn’t (actually) own a hotel and have representatives of foreign governments stay there for free (or pressure them to stay there and pay, either). He’s doing things for his personal benefit and not putting the interests of the USA first.
And the bolded part shows that just having Uday and Qusay and Morticia run the place for him isn’t good enough, either.
But, we’ll see.
Cheers,
Scott.
NCSteve
Speaking of the new black, this morning, while I was putting on a black sweater, making plans to avoid the news and contemplating the renewed sense of nausea and horror that set in last night, I got texted by a friend. Who told me her plan for the day included avoiding the news and wearing black.
Then I went to Starbucks and saw that about 60+% of the people there were wearing black. Went to lunch, again close to two thirds wearing black. Black, black and blue, black and gray. Lots of it. Everywhere.
So how many people here today, unprompted by any Twitter or FB campaign, donned the color of mourning today, whether deliberately or because it matched their mood?
hilts
@rikyrah:
Trump IS the carnage.
In First of Many, ACLU FOIA Request Seeks Information About the New President’s Conflicts of Interests:
h/t https://www.aclu.org/blog/speak-freely/first-many-aclu-foia-request-seeks-information-about-new-presidents-conflicts
a hip hop artist from Idaho (fka Bella Q)
@SWMBO: If I’m reading the numbers correctly it’s BHO 81.1M followers and POTUS Tangerine 10.1M. But he can improve!
Lavocat
Answering this question specifically and precisely is far more difficult than you may think, as it involves other aspects and doctrines of law. However, I think Laurence Tribe’s analysis is best. His position is basically quite elegant: full divestiture or violation of the emoluments clause. He states that even a blind trust will not suffice.
However, the harder test here concerns the doctrines of standing and justiciability. In other words, who can bring suit over a violation of the emoluments clause, and how can they prove they’ve suffered damages and be accorded the appropriate relief? Hell, what would “the appropriate relief” even be? We are moving through the Looking Glass in this area.
However, even with full divestitutre, there are other, more arcane issues at play. This will be entertaining First Year law students for centuries to come, if there’s even a United States by then.
With any luck, the emoluments clause WILL be litigated before the Supreme Court.
I still maintain that Donny Boy is going to fuck up so badly as President that impeachment and removal will be all but unavoidable.
a hip hop artist from Idaho (fka Bella Q)
@Lavocat: Considerations of standing and justiciability as applied to this question gives me a headache. But if it didn’t, I’d be tempted to chart applicability options in an essay. Emoulements violations are going to be very far down the list of concerns of the new regime I suspect. And some believe we’ll know how far down soon.
Immanentize
@Schlemazel: OK, I have a question in a different direction — is Trump Hotel now subject to the Freedom from Information Act? I would like to test this.
ETA Aren’t all Trump properties and businesses similarly implicated and isn’t EXXON as well?
SatanicPanic
@carolus: He owns the hotel (i.e the business), he doesn’t own the real estate.
/nitpick
rikyrah
Obama Legacy: The True Impact Of Having Two Black Lawyers In The White House
By Paula Edgar
Jan, 20, 2017
0
I could never have imagined as a child that the leader of the free world and his wife would both be Black lawyers. Their presence in the White House reminded me of the responsibility we as lawyers have to use our legal training to become servant leaders.
“I am asking you to believe. Not in my ability to bring about change — but in yours.” – President Barack Obama’s Farewell Address, January 10, 2017
Everyone will have their individual take on the legacies of Barack and Michelle Obama. We know Barack Obama’s resume. He is America’s 44th President and our first Black President. Before becoming President he was a community organizer, a law Professor, and a Senator. His impact as our President stands alone, but for me, as a Black attorney and leader, his legacy is inextricable with that of his wife, Michelle.
Michelle Obama’s legacy and impact as a mother, health and education advocate, lawyer, wife and advisor to the President is unparalleled. She is from the south side of Chicago, and like her husband, attended Harvard Law School and later worked at a top law firm. After private practice, her career went on to local government, nonprofit, community organizing and finally a position in healthcare administration. Mrs. Obama has been our most experienced and accomplished First Lady to date.
………………
Together, the Obamas made the roles of the President and First Lady approachable and authentic. They opened the doors of the White House to all of us, but I could never have imagined as a child that the leader of the free world and his wife would both be Black lawyers. My most memorable exposure to a Black lawyer as a child was the role of Claire Huxtable in the Cosby Show. As an adult, I remember that having a Black actor portray the President on “24” was controversial.
Mary G
@Seth Owen: That was the one that hit me hard. Presidents do not issue decrees.
Another Scott
@Immanentize: Tillerson is taking a golden parachute from Exxon as soon as he’s confirmed.
I have an opinion on the rest (of course he must (at minimum) set up a blind trust, but given his name is all over everything, that realistically wouldn’t be enough), but IANAL.
Cheers,
Scott.
Immanentize
@Another Scott: But Tillerson’s continuing property ownership is accessible, no? I wish I was a FOIA expert.
Richard Mayhew
@efgoldman: but let’s get them on the record that they are willing to sell their stated orginalism and claims of constitutional guardians out for a small tax cut… Make them own the shit gibbon
SiubhanDuinne
@NCSteve:
I am wearing black trousers (and black shoes and socks) and a sweater that’s such a dark charcoal grey that it might as well be black. Even a black elastic to hold back my hair :-)
Got at least two text messages from far-off friends who told me, unprompted, that they were wearing black today.
Mourning in America.
a hip hop artist from Idaho (fka Bella Q)
@Immanentize: I’m not an expert though I have done some state response work. That said, it would seem that all the lease docs, including bids and responses, are subject to FOIA. I think I read somewhere that cooperation of a restoration architect was a big factor in awarding the development contract, and that when the promised one withdrew due to health, the next one they hired quit over design issues. Historic building restoration tends to draw an opinionated crowd of players.
joel hanes
@NCSteve:
I’m in black.
Last time I did this was the day we invaded Iraq.
Another Scott
@a hip hop artist from Idaho (fka Bella Q): The stuff may be online already – Old Post Office Redevelopment Documents.
It even has meeting minutes.
Cheers,
Scott.
boatboy_srq
@Schlemazel: Angles are too big to dance on the heads of pins: even the tiny ballet students. Saxons, too. Now, Jutes,…
boatboy_srq
@NCSteve: All black. Our department’s resident Conservative (old-school, non-wingut) took due note.
Big R
Andy Grewal of Iowa thinks there’s no problem:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2902391
frosty
@NCSteve: black jeans, dark shirt, black vest, black shoes. On my own, no twitter or FB encouragement.
hellslittlestangel
Any foreign official who stays at a Trump property should just say they didn’t like the accommodation, and refuse to pay. If management squawks, the official should offer ten dollars, and say, if you don’t like it, sue me. Same thing anyone who does business with Trump should do.
Zelma
All black. Personal decision. I may wear black for the next four years. And I don’t look that good in black.
Richard Mayhew
@Another Scott: download and save those documents
Another Scott
@Richard Mayhew: It looks like the Wayback Machine has them.
It’s a wonderful, and important, resource. Everyone who’s able should Donate and support the Internet Archive if they’re able. They’re needed now, more than ever.
Cheers,
Scott.
Smedley Darlington Prunebanks (Formerly Mumphrey, et al.)
@Joseph W Nobles: I signed. I was the fourth one to do it.
trnc
Not yet, but hey, maybe all of us who post on these blogs will have plenty of time to study law in prison in President Sex Offender’s America.
Cheryl Rofer
To the hotel question at the top, I think you need to consider the effect of the sound and video recordings that will be standard.
Ethan's Mom
@a hip hop artist from Idaho (fka Bella Q): I’ve seen multiple reports on twitter of people discovering they are following @POTUS or @FLOTUS when they either unfollowed yesterday or had never followed the accounts at all. @POTUS is up to 14.5 million which is a pretty big jump in just a few hours.
Rat
This hypo doesn’t get you where you want to go. If the hotel eats the loss, Trump’s not accepting a gift or otherwise profiting from a foreign state in any obvious way and, even if it were, the remedy is impeachment. As to the second option, the hotel, like any private party, can’t initiate criminal proceedings, period. It could initiate a civil action to collect, but the issue would be whether the hotel owed the money, and the emolument clause wouldn’t come into play because it would be irrelevant to the issue before the court (whether the hotel is owed money), so the judge would never have to decide the clause’s scope. And even if the trial judge did, and the Supreme Court affirmed years later, it wouldn’t matter because we would then only have, at best, a definitive ruling on the clause’s scope. That would provide a basis for impeachment, which already exists today but for the political desire to exercise it.