Jun 30, 2017
Con Law 2017: Constitutional Law for the Trump Era
Jun 30, 2017
By Tim Nardell
Difficult times in our nation’s political life make for interesting questions in constitutional law. Before this past November, who had even heard of the Emoluments Clause or given any thought to the 25th Amendment to the Constitution? In no particular order, with no particular emphasis, here is a handy overview (with sources for further reading) of some of the concepts that may or may not be dominating the news cycle over the remaining summer months and may or may not come to define the Trump Era.
Obstruction of Justice
While not a constitutional issue, one of the legal questions of the moment is whether President Trump’s February 14 one-on-one meeting with James Comey could provide the basis for charging the President with obstruction of justice. According to Mr. Comey, President Trump said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” While calling Comey a liar, the President has not yet (at least as of this writing) recounted his version of the conversation.
Title 18, Chapter 73 of the U.S. Code addresses obstruction of justice pertaining to the federal government. The catch-all or “omnibus clause” of 18 U.S.C. section 1503 provides that, "whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be [guilty of an offense]." Persons have been charged for violating this statute based on allegations that a defendant intended to interfere with an official proceeding, by doing things such as destroying evidence, or interfering with the duties of jurors or court officers. Section 1503 applies only to federal judicial proceedings. However, a parallel provision contained in 18 U.S.C. section 1505 sanctions attempts to obstruct a pending proceeding before Congress or a federal agency, which could include an informal investigation by an executive agency.
For a person to be convicted of obstructing justice, he or she must have a specific intent to obstruct or interfere with a covered proceeding. The person must know (1) that a proceeding was actually pending at the time; and (2) there must be a nexus between the endeavor to obstruct justice and the proceeding, and the person must have knowledge of this nexus. U.S. v. Aguilar, 515 U.S. 593, 599-601 (1995).
Some commentators (Jeffery Toobin, for instance) posit that the colloquy between the President and Mr. Comey tells a textbook story of obstruction of justice. They argue that the word “hope” takes on an exhortative meaning when used by an executive towards a subordinate, and the conversation must be considered in the context of President Trump’s later public interviews and widely reported comments to the effect that his decision to fire the FBI Director took “tremendous pressure” off the Russia investigation. Other commentators and Republican Senators doubt that a prosecution for obstruction of justice could ever be based on an expression of a “hope” that an investigation would be discontinued. Other prominent legal pundits (Alan Dershowitz, as an example) question whether Trump’s decision to fire Mr. Comey could ever form the basis for an obstruction of justice charge since the head of the FBI serves at the pleasure of the President and can be fired for any reason or for no reason at all.
For Further Reading:
- Full Text and Analysis: James Comey Opening Statement to Senate, NPR.org, June 7, 2017.
- James Comey testimony transcript on Trump and Russia,
Politico, June 8, 2017.
- U.S. Attorneys' Manual, Criminal Resource Manual § 1724 (Omnibus Clause -- 18 USC 1503).
- Trump and Obstruction of Justice: A Primer, New York Times, June 8, 2017.
- Jeffrey Toobin on Obstruction of Justice: Comey’s Remarkable Story About Trump, New Yorker, June 8, 2017.
- Alan Dershowitz on Obstruction of Justice: Dershowitz: No Plausible Case for Obstruction of Justice, Fox News, June 9, 2017.
A question that we may have the pleasure or displeasure of entertaining this summer (depending on your political tastes) is whether alleged collusion between members of the Trump campaign and Russian operatives constituted an actionable crime that could form the basis for criminal prosecution or impeachment.
Treason is the only crime that is defined in the United States Constitution. Article III, Section 3 of the Constitution states: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” The crime and applicable punishment for treason are further defined by 18 U.S.C. section 2381, which provides: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
It doesn’t seem likely that any of President Trump’s associates could be charged with or convicted of treason for at least one fundamental reason: the United States is not at war with Russia. Those hoping for a criminal prosecution of members of the Trump team will likely have to settle for more pedestrian crimes such as making false statements in sworn declarations (it seems pretty clear that Michael Flynn forgot to mention connections with foreign governments when he was investigated for his latest security clearance), and (conceivably) mishandling of confidential information (18 U.S.C. § 798), lying under oath (18 U.S.C. § 1621) or violation of the Logan Act (18 U.S.C. § 953, which prohibits unauthorized negotiations with foreign governments by private citizens).
For Further Reading:
- Dem rep: 'Conspiring' with Russia the 'very definition of treason', The Hill, Feb. 17, 2017.
- Five myths about treason, Washington Post, Feb. 17, 2017.
The Emoluments Clause
Way back in December and January (it seems like years ago now), there was a lot of talk in the press about the “Foreign Emoluments Clause.” Article I, Section 9, Clause 8 of the United States Constitution, was terra incognita for students of constitutional law; it states: “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.” The Framers intended the Emoluments Clause to protect the republican character of American political institutions from foreign corrupting influences. The Emoluments Clause has never been litigated.
But, until now, we have never had a President with such a wide array of foreign interests through decades of labyrinthine business ventures. In January 2017, a group of legal scholars and former White House ethics officials (including the ethics advisor to President George W. Bush, Harvard Law Professor Lawrence Tribe, and Erwin Chemerinsky, the newly appointed dean of the U.C. Berkeley Law School) filed what may well be the first case ever brought under the Emoluments Clause. Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, Southern District of New York, Case No. 17-cv-00458.
The “CREW” plaintiffs allege that the President’s known business interests in more than twenty foreign countries, through the “Trump Organization” and otherwise, pose conflicts of interest that violate the Emoluments Clause. The lawsuit highlights the conflicts of interest that may be posed, if or when foreign diplomats seek to curry favor with the President by staying at the newly opened Trump International Hotel in Washington, D.C., as well as conflicts that could be posed to the extent that foreign governments grant permits, trademarks, licenses or other benefits to the President’s businesses. The plaintiffs seek a judicial declaration that the Emoluments Clause applies to President Trump’s business interests and injunctive relief to order that he divest himself of business interests that violate the Emoluments Clause.
The Department of Justice has filed a motion to dismiss the CREW complaint for lack of jurisdiction and failure to state a claim for relief. The DOJ argues that the CREW plaintiffs have not suffered a cognizable injury and therefore lack Article III standing. They further argue that the Emoluments Clause cannot be construed to prohibit market rate transactions between a business owned but not actively managed by the President and foreign governments. A decision is expected by late summer.
On June 12, 2017, Maryland and the District of Columbia filed a similar lawsuit as sovereign states. The next day, a group of Democratic members of Congress also filed a similar lawsuit, which alleges that the President’s business activities have wrongfully deprived the Congress of the constitutional right to rule on whether it is proper for the President to accept economic benefits from foreign governments.
While all three of these cases stretch the limits of Article III standing, the Courts may be hard pressed to find that none of the plaintiffs (and perhaps other plaintiffs in additional lawsuits to follow) have cognizable standing to challenge the President’s business activities, and so the Courts will likely eventually reach the merits of the claims in at least one iteration of the “CREW” plaintiffs’ claims.
And the litigation will continue…..
For Further Reading:
- The Heritage Guide to the Constitution, Emoluments Clause.
- Dan McGlaughlin, Foreign-Emoluments Clause: Trump's Administration & the Constitution, The National Review Online, Mar. 6, 2017.
- CREW v. Trump, Complaint
- CREW v. Trump, Motion to Dismiss
The 25th Amendment
For those who are terrified by the prospect of a four-year Trump Administration, one unlikely glint of hope is to be found in Section 4 of the 25th Amendment to the Constitution, which allows the Vice President and the majority of the Presidential Cabinet to institute a process to take executive control away from the President.
The Vice President and the Cabinet would start a process of removing the President from office under the 25th Amendment by transmitting “their written declaration that the President is unable to discharge the powers and duties of his office” to the President pro tempore of the Senate and the Speaker of the House of Representatives. Once such a declaration has been delivered, the Vice President “shall immediately assume the powers and duties of the office as Acting President.” Thereafter, the President may contest the Vice President’s declaration of the President’s inability by filing his own “written declaration that no inability exists.”
In the event of such a dispute, both Houses of Congress would have twenty-one days to determine by a two-thirds majority vote whether the President is able “to discharge the powers and duties of his office.” In the event that a two-thirds majority of Congress votes that the President has an inability to discharge his duties, the Vice President would “continue to discharge the same as Acting President.” In the event that such a vote fails, “the President shall resume the powers and duties of his office.”
For Further Reading:
Tim Nardell is a partner with Nardell, Chitsaz & Associates LLP in San Rafael. He has a broad civil litigation and business practice, including extensive experience in commercial and business disputes, real estate matters, defending and prosecuting claims involving unfair business practices, and class action cases. He serves on the MCBA Board of Directors.