For Trump, Unconstitutional Is No Problem

      President Trump's plan to ban birthright citizenship with an executive order in direct contradiction of the plain language of the Fourteenth Amendment comes as no surprise to anyone aware of the president's limited respect for the Constitution. Trump took an oath to "preserve, protect, and defend the Constitution of the United States," but he has been in open violation of one of its provisions since his first day in office.
      The provision at issue, equally as plain as the Fourteenth Amendment's citizenship clause that Trump proposed to defy, prohibits the president or any federal official from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State" except with permission from Congress (Art. I, sec. 8, cl. 9). Trump is violating the so-called Foreign Emoluments Clause, according to a lawsuit filed by the attorneys general for the District of Columbia and the state of Maryland, by profiting from foreign governments' patronage of the eponymous Trump International Hotel that the president still owns even if removed from managing it.
      The lawsuit cleared a second procedural hurdle last week [Nov. 2] when a federal judge in Maryland rejected a motion by Trump's lawyers for an immediate pretrial appeal of legal issues in the case and a stay of any pretrial discovery. U.S. District Court Judge Peter Messitte rejected point by point all of the justifications Trump's lawyers offered for allowing the president a so-called "interlocutory appeal" to the Fourth U.S. Circuit Court of Appeals in advance of discovery or trial. "Judicial economy favors going forward with the case in this Court at this time," Messitte wrote at the end of his 31-page opinion.
      The case, District of Columbia v. Trump, PJM 17-1596, is now set for pretrial discovery that could include, according to D.C.'s attorney general Karl Racine, examination of some of Trump's federal income tax returns. Messitte ended his opinion by asking the lawyers to submit a proposed schedule for discovery within 20 days — that is, by the end of Thanksgiving week.
      Trump's lawyers contended, among other arguments, that the president ought not be burdened by a civil lawsuit and pretrial discovery given all the demands on his time. Messitte, a senior judge appointed to the federal bench in 1993 by President Bill Clinton, batted that claim away by noting that Trump has found the time while president to pursue or threaten lawsuits against, for example, the author Michael Wolff or his former aide Steve Bannon. "[T]he President himself appears to have had little reluctance to pursue personal litigation despite the supposed distractions it imposes upon his office," Messitte wrote.
      The D.C./Maryland suit now appears to be the farthest advanced of three Emolument Clause lawsuits filed against Trump. Messitte noted in his opinion that one of the suits, brought by the whistleblower advocacy group Citizens for Responsibility and Ethics in Washington (CREW), was dismissed by a federal judge in New York, George Daniels, for lack of legal standing. The other suit, filed in federal court in the District of Columbia on behalf of 200 members of Congress under the name Blumenthal v. Trump, survived a motion to dismiss after Judge Emmet Sullivan found the lawmakers had legal standing. Sullivan noted in his ruling that under the Emoluments Clause, Trump had the obligation to seek permission from Congress to receive any payments prohibited under the provision.
      Trump's lawyers have argued in all three cases that arms-length transactions with Trump properties are outside the Emoluments Clause. In their view, prohibited "emoluments" are limited to payments to an official "arising from an office or employ." Messitte rejected that "cramped" interpretation in his July 25 decision refusing to dismiss the case. As Messitte explained in the new opinion, the definition urged by Trump's lawyers would be "tantamount to a bribe," a significantly narrower definition than the broad reading of "emoluments" found in 18th century dictionaries.
      Messitte noted that Trump is still receiving foreign emoluments even within his narrow definition of the term. Several foreign governments, including as examples Kuwait and Saudi Arabia, "have expressly stated in the media that they are patronizing the President’s hotel precisely because he is the President." Those payments, Messitte continued, "constitute an 'emolument' foursquare within the President’s definition of the word, especially if, what appears likely, the payments to his hotel are being made with an expectation of favorable treatment by the President in matters of foreign policy."
      Trump's lawyers cited four legal issues they wanted to include in the midstream appeal, including the court's authority to issue either declaratory or injunctive relief against the president. Again, Messitte found the argument baseless. He repeated from his earlier opinion that there is "ample authority suggesting that even the President — in his official capacity — can be the subject of equitable relief, especially given a situation such as the one at hand." Put differently, the president is not above the law.
      The president previously demonstrated his shaky knowledge of the Constitution by claiming to have read all 12 articles: it has only seven. The supposed birthright citizenship executive order, unissued more than a week after Trump's boasting of it, needs no extended discussion here to underscore that the president has no power with the stroke of a pen to amend the Constitution that he swore to "preserve, protect, and defend." So far, Trump has gotten away with mocking and defying the Constitution, but the independent judiciary that the Framers created may yet be strong enough to hold him accountable.