Thursday, October 19, 2017

But is it unconstitutional?

[T]he president is seen as a walking, talking constitutional violation. And absent any corrective action by a complacent, complicit Congress, the only way to rein him in is to take him to court.

  NY Magazine
Which makes it a great perk that he gets to nominate judges - or "stack the bench" as they say.
[The foreign emoluments clause [...] decrees that “no Person holding any Office of Profit or Trust … 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.”

The Supreme Court has never interpreted what any of that means, let alone declared a sitting president in violation of it. But on Wednesday, a federal judge in Trump’s own backyard, Manhattan, began to crack the code, hearing arguments from CREW and the Department of Justice on the meaning of the clause.

[...]

Brett Shumate, the government lawyer dispatched to defend Trump’s business interests and get CREW’s lawsuit dismissed (read that sentence over one more time) insisted that [...] without an explicit quid pro quo from Trump, [nothing would] qualify as an emolument and thus would be perfectly kosher.

[...]

U.S. District Judge George Daniels didn’t seem too impressed. To him, emolument seemed to mean any “compensation” received by a federal official on account of a benevolent foreign entity. “Why isn’t that the most direct and accurate definition of its use?” he asked. “That doesn’t seem to be a complicated concept.” Daniels didn’t quite tip his hand either way, but he suggested that he sees the foreign emoluments clause (not to be confused with the domestic emoluments clause, which CREW also thinks Trump is flouting) as an “anti-bribery” and “anti-corruption” provision meant to keep government honest and free of foreign influence.

[...]

That may sound like good news to CREW, but the nonprofit has an uphill battle of its own. For one, the group may not even have standing to sue in the first place — as a government watchdog, they serve the public and are not competitors of Trump properties. And no matter what resources they spend or how many times they send former Obama “ethics czar” Norm Eisen to appear on MSNBC, that may not be enough to claim that CREW has been harmed by Trump’s emoluments.
So why can't they file the suit on behalf of their "clients" - the public?
Since filing the lawsuit in January, CREW has brought on other plaintiffs to strengthen their case, among them a restaurant association, a D.C. event booker for major hotel chains, and Eric Goode, a hotelier in New York City. Deepak Gupta, one of the superlawyers representing CREW, told Daniels that all of these plaintiffs, which are competitors in the hospitality sector, have been unfairly disadvantaged by Trump’s wooing of international patrons at his properties.
Even if the courts find in plaintiff's favor, there remains the question of a remedy. And that seems to be something that would have to go to Congress (remember "without the consent of congress" clause?). And, guess what? Yeah, you guessed it.

...but hey, do what you want...you will anyway.

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