Articles / Interesting Case of the Month
President Donald Trump and the Emoluments Clause of the Constitution:
There have been numerous articles and talk show discussions regarding our current president’s refusal to sell his businesses or create a blind trust, and his seeming use of the presidency to enhance and promote his and family’s businesses. One group has taken their concerns beyond just “talking” and filed a lawsuit against the president.
The organization, Citizens for Responsibility and Ethics in Washington (“CREW”), per the organization’s self-description on its website, “uses aggressive legal action, in-depth research, and bold communications to reduce the influence of money in politics and help foster a government that is ethical and accountable.” CREW’s legal team comprises some of the country’s highest profile legal scholars, and includes as counsel on its complaint Laurence H. Tribe (Harvard Law School), Erwin Chemerinsky (Dean of the School of Law, University of California, Irvine), and Ambassador (Ret.) Norman L. Eisen. Put simply, the CREW lawsuit is not an action brought by lightweights or some seeking a quick buck or their five minutes of fame.
The lawsuit was initially filed in January immediately after the president’s inauguration. It seeks to find the president in violation of the emoluments clauses of the Constitution, which prohibit Trump from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress, and prohibits him from receiving during his term of office any “emoluments” other than his compensation from the United States.
Details matter, and many have spoken about the emoluments clauses, so I thought it appropriate to set forth their exact language. There are two emoluments clauses: one dealing with emoluments received from foreign entities, and one from domestic. Both are set forth in full below.
Beginning with the foreign emoluments clause, it is embedded in the section of the Constitution prohibiting the granting of titles of nobility. The entire clause (US Constitution, Article I, Section 9, Clause 8) states as follows:
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 domestic emoluments clause (US Constitution, Article II, Section 1, Clause 7) states:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Nowhere in the Constitution is the word “emoluments” defined. Thus, the CREW complaint sets forth its understanding of the definition of the term:
Consistent with the Framers’ intent, the definition of a “present” or “Emolument” under the Foreign Emoluments Clause is properly interpreted in a broad manner, to cover anything of value, monetary or nonmonetary. The text of the clause itself prohibits the receipt of both a “present,” which, presumably, is provided without a return of anything of equal value, and an “Emolument,” which could cover anything else of value, including without limitation payments, transactions granting special treatment, and transactions above marginal cost. The Foreign Emoluments Clause also explicitly prohibits the receipt of “any present [or] Emolument . . . of any kind whatever,” emphasizing the breadth of the things of value covered under the provision.
The same concept of “anything of value” applies to the domestic emoluments clause.
Per the CREW complaint: “Though courts have not had many occasions to interpret [the emoluments clauses],. . .it is widely understood—and CREW agrees—that [the foreign emoluments] clause covers the President of the United States and prevents him or her from accepting anything of value, monetary or nonmonetary, from any foreign government or its agent or instrument without congressional consent. The Framers inserted this clause into the Constitution to prevent any type of foreign influence or corruption from infiltrating the United States government.”
CREW alleges that –
Defendant has violated the Constitution during the opening moments of his presidency and is poised to do so continually thereafter for the duration of his administration. Specifically, Defendant has committed and will commit Foreign Emoluments Clause violations involving at least: (a) leases held by foreign-government-owned entities in New York’s Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant’s Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by Defendant; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program “The Apprentice” and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.
The complaint goes on to detail numerous financial arrangements between Trump businesses and foreign entities. For example, the complaint notes in some detail that the largest tenant of Trump Tower in New York is the Industrial and Commercial Bank of China (“ICBC”), “which is a Chinese majority-state-owned enterprise.” Other examples:
The Trump International Hotel Washington, D.C. recently opened and is located at 1100 Pennsylvania Avenue N.W., Washington, D.C. 20004, just blocks from the White House. Defendant owns and controls this hotel through various entities.
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Defendant, through entities he owns, receives payments made to the Trump International Hotel by guests who stay in hotel rooms or pay for a venue or other goods or services in this hotel.
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Since the election, Trump International Hotel has specifically marketed itself to the diplomatic community.
Subsequent to Defendant’s election, the Trump International Hotel held an event where it pitched the hotel to about 100 foreign diplomats.
The hotel also hired a “director of diplomatic sales” to facilitate business with foreign states and their diplomats and agents, luring the director away from a competitor hotel in Washington.
Diplomats and their agents have expressed an intention to stay at or hold events at the Trump International Hotel. One “Middle Eastern diplomat” told the Washington Post about the hotel: “Believe me, all the delegations will go there.”
An “Asian diplomat”explained: “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’”
In April, CREW expanded its complaint adding Restaurant Opportunities Centers United and a woman who books embassy events for two Washington hotels to its complaint. Restaurant Opportunities Centers United represents more than 200 restaurants and nearly 25,000 employees. Its clients compete directly with restaurants that Mr. Trump owns or in which he has a financial interest.
Per Sharon LaFraniere, writing for the New York Times –
By failing to sufficiently distance himself from his companies, CREW has charged, Mr. Trump has violated clauses of the Constitution that ban the acceptance of any government-bestowed benefits, or “emoluments,” either at home or abroad. Among those benefits, the organization contends, was China’s decision this year to grant preliminary approval of 38 trademarks protecting Mr. Trump’s name.
Justice Department lawyers, who have been working for weeks on their answer to the lawsuit, plan to counter that the framers of the Constitution meant only to rule out gifts and compensation for services. The Justice Department is expected to argue that ordinary arm’s length transactions for services, like the payment of a restaurant bill at a hotel, are not prohibited.
They will also contend that only Congress can intervene if a president violates either the domestic or foreign emoluments clause of the Constitution. Under the separation of powers doctrine, they argue, courts are powerless to act.
Personally, I’m not sufficiently knowledgeable about the emoluments clauses to have an opinion regarding the merits of the case. I do find it deeply troubling, however, that our president has been holding diplomatic meetings at his Mar a Lago resort, and that the State Department posted a de facto ad regarding Mar a Lago. I also find it troubling that tax payor dollars are being used to defend the president and fight the CREW lawsuit (the Justice Department is defending the case).
The Amended Complaint in Citizens For Responsibility And Ethics In Washington, Restaurant Opportunities Centers (ROC) United, Inc. and Jill Phaneuf v. Donald J. Trump
Andrew Denney, “Trump Business Competitors Allege Unfair Impact in Emoluments Suit,” New York Law Journal, April 18, 2017
CREW Press Release upon filing its complaint
Japan PM Abe at Mar a Lago: Julie Hirschfeld Davis, “A Presidential Golf Outing, With a Twist: Trump Owns the Place,” New York Times, Feb 11, 2017
State Department Website and Mar a Lago: The Washington Post
State Department Website and Mar a Lago: The Daily Beast
The Psychology of Fake News:
One of the hottest topics in news, politics and media generally today is “fake news.” Setting aside the politically expanded definition (it seems that news is now “fake” if one disagrees with the content of what is reported, regardless of the facts), many (myself included) have wondered how any rational person could possibly believe some of the factually fake news content that is being published or broadcast.
While social media and politically biased media outlets such as Fox News and MSNBC are often blamed, Adam Waytz, an associate professor of management and organizations at the Kellogg School, believes that there are deeper reasons.
“To understand how people in the same country, or same family, can have such vastly differing takes on reality, Waytz suggests we should focus not on the role of social media, but on the role of social psychology—in particular, the cognitive bias that stems from our tribal mentalities. For Waytz, before we can learn to address our divisiveness, it is important to understand its roots.
“There’s an assumption that fake news exacerbates polarization,” Waytz says. “But it might be the case that polarization exacerbates fake news.”
Waytz identifies two psychological concepts to explain the phenomenon: “motivated reasoning” and “naïve realism.” Motivated reasoning is “the idea that we are motivated to believe whatever confirms our opinions.” For example, if “you’re motivated to believe negative things about Hillary Clinton, you’re more likely to trust outrageous stories about her that might not be true. Over time, motivated reasoning can lead to a false social consensus.”
Naïve realism is “our tendency to believe that our perception of reality is the only accurate view, and that people who disagree with us are necessarily uninformed, irrational, or biased.”
Much of our susceptibility to fake news has to do with how our brains are wired. We like to think our political convictions correspond to a higher truth, but in fact they might be less robust and more malleable than we realize.
To some extent. . .our political beliefs are not so different from our preferences about music or food. In one unpublished study, Waytz and his fellow researchers presented participants with a number of statements. These included factual statements that could be proven or disproven (such as “the very first waffle cone was invented in Chicago, Illinois”), preference statements that people could assess subjectively (such as “any ice cream flavor tastes better when served in a crunchy waffle cone”), and moral–political belief statements that people could assess in terms of right or wrong (such as “it is unethical for businesses to promote sugary products to children”).
In one study, a group of participants was directly asked to read and rate statements as resembling a fact, a preference, or a moral belief. In a second study, a group of participants had their brains scanned using MRI while reading each statement and evaluating how much they agreed or disagreed with it. After the scan, they answered questions as in the first study about whether each statement resembled a fact, a preference, or a moral belief.
Waytz and his colleagues found that, in both groups of participants, people processed the moral–political beliefs more like preferences than like facts. Not only did participants directly rate moral–political beliefs as “preference-like,” but, says Waytz, “when they read moral–political statements while having their brains scanned, the scans showed a pattern of activity that’s comparable to preferences.”
This “hard wiring” of people’s brains may explain why many of the responses to fake news have failed to achieve any meaningful results in the effort to correct people’s false beliefs.
“One of the things we’re learning,” Waytz says, “is that fact-based arguments don’t always work.” Take, for instance, a 2014 study . . . that found that even presenting parents with hard scientific evidence that vaccines do not cause autism did nothing to persuade those parents who had previously held that belief.”
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So, how do we overcome ideological biases and counteract the polarization that fuels “fake news?” Waytz says that social psychology also points to a way forward.
Encouragingly, there is evidence that when you alert people to their biases, they tend to succumb to them less. A study involving Israelis and Palestinians—two groups that are famously entrenched in naïve realism—demonstrated that when the concept of naïve realism was explained to them, the groups were less hostile towards each other. “When they were told, ‘Hey, this bias exists,’ even the most hawkish among them were more conciliatory,” Waytz says.
Other studies have shown that people can overcome naïve realism by legitimizing one of their opponent’s legitimate (or semi-legitimate) points.
The article is thought provoking and worthy of a read, whether one is interested in calming the country’s political discord, convincing one’s young-adult children that their current thinking is ill-advised, or even negotiating the resolution of a dispute or aligning contrary positions of one’s fellow board members.
Waytz, Adam, “The Psychology Behind Fake News,” Kellogg Insight, March 6, 2017
Engineers Explain Why Shoelaces Keep Coming Undone:
I admitted in the introduction to this Newsletter that I’m a closet geek, and that were I able to add or subtract I would likely have gone to engineering school rather than law school. So, when I spotted an article in the New York Times’ science section on why I’m forever tying and re-tying my shoelaces, it was a MUST read. For those like me, I present the answer to that long burning question. For those not like me, I hope you found the rest of this Newsletter worthy of your time and in-box’s space.
So, shoelaces: why to do they never stay tied?
[T]he force of your foot striking the ground and the motion of your leg combine to help loosen and ultimately untie the knot.
When running, the foot hits the ground at about seven times the force of gravity. That impact is transmitted to the knot, which stretches and relaxes in response. As the knot loosens, swinging legs apply an inertial force on the free ends of the laces and — voilà! — pretty soon your laces are flopping around, looking like overcooked spaghetti.
The article goes into greater detail, but the above summarizes what occurs. The same process takes place when walking, but the forces of the of foot hitting the ground are of course less, hence the “untying” takes longer.
Mele, Christopher, “Do Your Shoelaces Keep Coming Undone? Engineers Explain Why,” New York Times, April 13, 2017