Morgan Lewis Joins Trump's Reich, Shills For Toothless Interpretation Of Emoluments Clause
Anti-Trump forces have to stop acting like the Constitution is going to save them.
President-elect Donald Trump (Photo by Win McNamee/Getty)
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President-Elect Donald Trump held his first press conference today since proving that America is a terrible country. Arguably it was to explain how he would extricate himself from his complicated business holdings. It wasn’t to deny rumors that he likes golden showers from Russian prostitutes (although he kind of did that), or praise Russia for hacking into the DNC (although he kind of did that), or suggest that the intelligence community was leaking classified information to embarrass him (although he actually did that), or to distract the media from the ongoing confirmation hearings of what is likely to be the most corrupt cabinet in American history (although that was in fact the whole point).
On the issues involving his companies and how he’d manage them while also being the leader of white America, Trump didn’t even speak for himself. Instead, he trotted out Morgan Lewis partner Sheri Dillon — behind a mountain of manila folders we learned were “parts of companies” he was letting his sons run — to do that heavy lifting.
Dillon didn’t take any questions.
If you are surprised that the Putin/Trump transition team tapped Morgan Lewis for this important work, maybe this little fact nugget will tie the room together:
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After telling the media that conflict-of-interest laws do not apply to the President and Vice President, Dillon eventually got around to “emoluments,” and made the entirely banal statement that the Founders who put the Emoluments Clause into the Constitution did not think “paying your hotel bill” was an emolument. I can only assume that this was a response to the criticism that foreign dignitaries with business before the government shouldn’t be staying in Trump hotels.
You see the sleight of hand that Dillon and MLB are confident Trumpkins are too stupid to notice? The issue is not the bill payment, it’s that Trump profits when foreigners with business before the government stay at Trump properties.
But Dillon went from “bill payment” to the larger point that the benefits the Trump brand receives because of Trump-President’s wishes are not emoluments to Trump-Donald, in the Constitutional sense of the word. And on that… she might be right. Or at least, she might be not-wrong.
Look, what Trump is doing might be the very definition of corrupt, but that doesn’t mean it’s unconstitutional. More than anything he’s done, Trump is a walking case study in the difference between “laws” and “norms.” The Constitution is a short, incomplete document that is silent about a lot of things. Here’s the actual Emoluments Clause, from Article I of the U.S. Constitution. Note how useless it is:
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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.
So the President of the United States cannot also be named the King of all England. Unless Paul Ryan agrees. Got it.
The mention of emoluments in Article 2 gets a little closer to the point:
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.
And just to round out the discussion, here’s Alexander Hamilton explaining what that means in Federalist 73:
The third ingredient towards constituting the vigor of the executive authority is an adequate provision for its support. It is evident that without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The Legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will, as they might think proper to make him. They might in most cases either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions taken in all the latitude of the terms would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils: And in the main it will be found, that a power over a man’s support is a power over his will…
The Legislature on the appointment of a President is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating upon his necessities; nor corrupt his integrity, by appealing to his avarice. Neither the Union nor any of its members will be at liberty to give, nor will he be at liberty to receive any other emolument, than that which may have been determined by the first act. He can of course have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.
“Power over a man’s support is a power over his will.” This is the issue the Emoluments Clause is meant to address. But “support” is simply not well defined by in the Constitution. “Salary,” okay, we know what that is. “Fee,” that’s a little more complicated, but still a fundamentally knowable standard. “Profit,” now we are fully in a gray area the Founders, in their wisdom, did not see fit to fully flesh out.
Can you give the president a slave? The Constitution doesn’t say. Can you bum the president a smoke? Can Congress? Can Russia? If I’m ever President, the person who slips me a cigarette without telling my wife will have a “power over my will.” The NCAA has more clear and more strict rules about what emoluments the third-string quarterback can receive than the Constitution does regarding the President.
The Emoluments Clause hasn’t been tested, because, up until now, presidents have understood that the appearance of improper benefits is more damaging than any legal proceeding over them. Think about Richard Nixon and the Checkers speech. Then-Senator Nixon had been accused of setting up an improper fund to reimburse him for political expenses. The dog, “Checkers,” was one of those improper emoluments. Nixon dodged and weaved around the issue, then triumphantly declared he wasn’t giving the dog back, and saved his career. For all of Nixon’s obvious and terrible scandals, emoluments were not something he ever got near again. Even Nixon understood that the appearance of financial corruption was a deal breaker with the American people.
That norm does not apply to Donald Trump, because his supporters simply DGAF. They. Do. Not. Care. They don’t care if he uses the presidency to make himself rich, they don’t care if he’s being blackmailed by Russian oligarchs. As long as Trump makes them money or keeps brown people from making money, Trump supporters and the Republican Party don’t give two s**ts.
Anti-Trump forces have to stop acting like the Constitution is going to save them. They have to stop acting like “the law” is going to stop this man. Trump, like Mitch McConnell before him, knows what the Constitution says, and knows what it doesn’t say. And they’re entirely comfortable living and legislating in the gaps. There will always be a Jones Day or a Kasowitz Benson or a Morgan Lewis willing to debase themselves and provide whatever fig leaf of legal cover is required. And there is no will on the part of Congressional Republicans to impeach this man anyway.
Trump is unconcerned with honor. He just wants to win, and “winning” for him involves making more money for himself. The “spirit of” the law means nothing to him. He’s already covered in filth; if you are going to fight him, you have to get dirty as well.
What are you prepared to do?
Earlier: Impeachment Primer: (Spoiler: Congress Is Full Of Cowards)
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
