What if Trump resigns during the trial process and Pence pardons him? Does jeopardy have to have attached for it to count?
No.
Look, there’s very little case law on the Clause, but there’s a huge amount on standing. It’s not enough to allege potential or theoretical injury. The successful Art. III plaintiff must have suffered an "injury in fact, meaning "…an invasion of a legally protected interest which is (a) concrete and particularized. . . and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” (See Warth v. Seldin, Sierra Club v. Morton, Los Angeles v. Lyons.) Also, the plaintiff’s injury must be caused by the defendant’s conduct, “fairly … trace[able] to the challenged action of the defendant, and not … the result [of] the independent action of some third party not before the court.” Quoting Lujan.
It’s true that hotel owners get closer than ethics groups, but they don’t get to where they need to be, unless they can plead a much more direct, non-speculative quanta of proof.
No. That’s not any standard. If you were to uncover a bombing direction memo and accompanying video that showed Trump saying, “Now, General, I want the bombs to hit here and here. That will destroy my competitors’ hotels in Manama and leave my hotel property there in perfect shape,” that would not have one scintilla of bearing on an Emoluments Clause case.
Obviously it might have significant political effect. There may be some other statute that is violated, although I can’t think of one. But it’s perfect acceptable Emoluments Clause activity.
The trial could not be a criminal one. There is no crime associated with violating the Emoluments Clause.
Therefore, there would be nothing for President Pence to pardon.
Does the tone of this thread remind anyone of the various Electoral College threads that ran between the election and December 19th?
“Yes, yes, I know it’s probably impossible, but what about _______?”
I’m very sorry. The Emoluments Clause is a clever idea for sustaining discussion in the media, but it is legally meritless.
So are you saying the Emoluments clause has no possible bearing on the president, except through impeachment, which we all know is virtually impossible at this stage?
Even setting aside the issue of standing, it’s rather ridiculous to say that Trump’s business interests and the income they derive constitutes emoluments if revenue is received from foreign governments. Might as well say that the emoluments clause is violated when France buys Microsoft Office licenses because Microsoft issues a dividend to Pelosi because she’s a shareholder.
Plenty of office holders own businesses that derive revenue from foreign sources - that’s not an emolument. I realize owning businesses is not the same as owning stock.
So let me ask the group a serious question: is it more worthwhile to offer up the legal picture, or to treat these threads as more healing or venting? That is, does everyone benefit from the hope, and the legal facts are an unwelcome dash of cold water? Or is there genuine interest in the legal framework in play?
Believe me: I wish there were a way to derail this nascent Presidency. So I’m not blind to the warm feeling discussing a potential strategy to stomp Trump.
Yes.
For some meanings of the word “possible.” That is, I can craft a scenario that’s highly unrealistic, like Trump being given a title of nobility, and imagine that a court might enjoin his acceptance of it.
But in terms of realistically possible, the Emoluments Clause cannot be applied to the current business interests of the President in any non-impeachment context.
I’m sorry. I wish that were not the case.
Well, if you’re asking in general… I was not so reminded as the Electoral College is a somewhat antiquated but reasonably robust representational-democracy mechanism for the transfer of power, while Trump is a known slimeball and con-artist. The two concepts and the tones of how they may be discussed by various people at various times are not sufficiently similar to trigger the pattern-seeking neurons provided me by the lengthy evolutionary process that formed the species we call homo sapiens of which I am by numerous measures a typical specimen.
TLDR: “Not me.”
The similarity I was struck by was expressed in another thread by a poster who said, “Well, maybe that they are grasping at straws, but even that brings happiness to people who like straws.”
Well, heck, described in those terms, I am instantly reminded not of various fantasies of de-faithing electors but of the sustained (and probably ongoing, for all I know) birtherism effort against Obama.
Anyway, if we’re indulging hypotheticals, I can picture Trump screwing up enough that Democrats retake Congress in 2018 and vote on legislation that clarifies the now-murky ramifications and untested premises of the emolument clause, which Trump will promptly veto and the congress will probably not be Democratic enough to over-ride.
I’m reasonably confident there’s enough existing legislation to zap Trump on other means, though. Heck, I can see him doing something illegal but totally unrelated to his presidency, like fraud or tax evasion in one of his business deals. Whether or not he’s impeachable depends on congress’s makeup and mood, of course.
Sure, that’s a good illustration as well, although we didn’t have much of it here. But the process was identical: different scenarios that would somehow magically undo what the participants saw as a horrid misfit for the office. (“When the long-form is revealed…” or “When his transcripts are released”) were very much what I’m describing now. At some level, they must have known that Obama wasn’t going to be tossed out of office by a Kenyan birth certificate. But apparently the talk itself was soothing, somehow.
Sure.
You just asked Bricker to put forward an opinion that doesn’t regard a legality.
Are you HIGH?!
Trump’s case provides a more direct line of pay-for-play from “foreign state(s)” than does the case you posit (of a member of Congress holding stock that goes up in price if the hypothetical foreign state buys products made by the companies who issue the stock).
It’s already happened that citizens of Foreign States have said they’re happy to pay the rates charged by a Trump hotel because they hope it will please Trump. But to believe that a French official would say to Nancy Pelosi anything like “I see from your financial disclosure statements that you own some Microsoft stock, well, I just bought 200 licenses for Office 365, nudge nudge wink wink!”
Well, I assume no French official would wink at Pelosi and expect favors in return, anyway. Not for mere stock ownership. If Pelosi were a partner at Microsoft it would be different, of course.
The legal picture is very helpful to me. As irritating as I find the bet/boasting business, I strongly appreciate your legal insight.
At the same time, try to see it from the perspective of a lay person. On the one hand, I have you putting forward a clear legal theory for why this case will go nowhere. On the other hand, I have attorneys who have served in the ethics offices of Democratic and Republican presidents pushing the case forward and explaining to interviewers why they think the case is strong.
If people don’t immediately acquiesce to your perspective, it’s possible that they’re failing to do so not out of some wishful thinking, but because the law really does seem murky in this area, and attorneys appear to disagree.
This isn’t remotely like Birtherism, promoted by a Moldovan dentist and a billionaire blowhard, where it requires a tinfoil hat and a hardon for the president to think there’s a there there. This is a case of dueling experts.
I appreciate your opinion, but reserve my own until things shake out further.
You know, in the aftermath of the election, we had nothing less than a Harvard law professor (Lessig) swearing that he had 20+ Republican electors ready to switch their votes. Explaining it to the interviewers etc 
As for the lawsuit and interviews etc. - it is a (poorly executed, IMO) LyndonJohnsonian “pigf*cker” strategy. It doesn’t matter to these attorneys that the lawsuit is frivolous and going nowhere. The goal is to drop it into the public’s consciousness that Trump is a foreign agent. Just like before Allred et al tried to do the same with “Trump is a child molester” via the repeatedly filed/dropped frivolous lawsuit. Failed miserably.
I greatly appreciate your insight into legal matters on this and other threads.