Feb. 20th, Trump makes history!

On Presidents’ Day of all days, Monday, Feb. 20th will mark Trump’s 31st day in office, tying William Henry Harrison for the number of days serve. Harrison died on his 31st day, not because of his interminably long inauguration speech, but because D.C. was literally a swamp in 1841, and he had a fatal GI bug. (Drain THAT swamp!)

So now that Trump won’t set a record for the shortest presidency, will he pass the second shortest ever? Garfield is 2d, serving 199 days, Zachary Taylor is 3d, serving 492, and Harding served 881. I’m hoping the news about the FBI and congressional investigations will help shake up that list. Lincoln and Washington are rolling in their monuments.

No Supreme Court nomination hearings until Russia investigation complete 

There were many precedents for Presidents to appoint a Justice in the  year before a presidential election, as I’ve written before. The Senate GOP straight up lied to block Garland. Do you know what is truly unprecedented? A nomination during a criminal inquiry into a president and his campaign. Reuters reports the FBI is conducting three separate investigations into Russian financing of Trump campaign and hacking. 

Senate Dems: boycott any hearings. Filibuster.

When “the President is unable to discharge the powers and duties of his office…”: The Cabinet Math of the 25th Amendment

Section 4 of the 25th Amendment, the presidential “inability”/incapacity amendment, has never been invoked. After four weeks of the Trump administration and especially after yesterday’s press conference, it is time for a sincere conversation about how it might be invoked and its mechanics: Pence plus a majority vote of the cabinet. Which of the cabinet members might be just independent enough from the Trump/Bannon orbit to weigh Trump’s incapacities seriously? And shouldn’t the Senate Democrats — plus a handful of concerned Senate Republicans — vote on cabinet confirmations with that question in mind?

Section 4 of the 25th Amendment states:

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

My generous colleague Dean John Feerick literally wrote the book on this subject (an award-winning book). What is the conceivable path to a majority if the Trump crazy degenerates, and/or if a true crisis exposes his emotional/intellectual incapacity? I consider two factors: Is the cabinet member from inside or outside the Trump/Bannon circle? Does the cabinet member have a strong external base of support? And importantly, how much would the cabinet member approve of a Pence presidency in any event?

Here is the list of the cabinet members who have been confirmed, with my oversimplified best guess on a scale of 0 (vote “no” on inability) to 5 (vote “yes”). (I think 48% of America is already at 6 to 10, so I am already grading on a curve.)

State: Rex Tillerson. 4. Not the Trump/Bannon circle, independent base in the business world, unhappy with Trump’s immigration debacle and getting frozen out of those plans, happy with the establishment pro-business Pence.

Defense: Mattis. 5. Way outside the Trump/Bannon world, and seems to be increasingly critical of the Bannon agenda. He is the best of the Trump cabinet. Independent base in the defense world. Probably comfortable with Pence.

Treasury: Mnuchin. 0. Fahgeddeboutit. Total Trump toady.

Attorney General: Sessions. 1. The Mercury of the Trump/Bannon solar system. Small, alternately blazingly hot and ice cold, unsustainable for life as we know it, and racist. (Wait, sorry, Mercury wasn’t racist. Sorry, Mercury.) The only reason to think he is a maybe is because he was a Senator for two decades, and he is not part of the Trump business crony world. He is probably fine with Pence.

Homeland Security: Kelly. 5. The same as Mattis.

HHS: Price. 4. As a veteran Congressman, Price still has an independent base. His crusade is against the Affordable Care Act, and I can only imagine how frustrating Trump’s La La Land health care promises have been for Price. Trump makes Price’s job harder, Pence makes it easier.

Education: DeVos. 2. She is probably the closest to Pence’s fundamentalism, but she is weak, shallow, and stunningly ignorant about the world. She will follow a majority, but she won’t lead it.

Transportation: Elaine Chao. 4. She is very independent of the Trump world, and very much part of the GOP establishment (8 years as Labor Secretary under W., married to Sen. McConnell). If Trump’s insanity and unpopularity become a threat to her husband’s power as majority leaders, she will be among the first to vote yes. And a Pence presidency would play out fine in Kentucky.

Veteran Affairs: Shulkin. 5. A serious doctor from far outside the Trump world, probably Trump’s most unassailable, professional choices. He cares deeply about good management. His father was a psychologist. He knows crazy when he sees it, and I can only imagine how concerned he must be already. I want to believe he is an 8, but then I might be crazy.

UN Ambassador: Haley. 2. She was already a sharp Trump critic in the primaries. But she has presidential ambitions herself, and she is probably more worried about the Trump voters in the primaries of 2020 or 2024. And I bet she would see Pence as a threat to her immediate White House ambitions. She will only follow a majority.

OMB: Mulvaney: 3 or 4. Former Congressman, very much establishment GOP, fiscal conservative, zealous pro-lifer. He must think a Pence presidency would be preferable. An OMB head isn’t going to lead this vote, but he would jump on board in a crisis.

CIA: Pompeo. 4. I’m not a fan, but he is serious about national security and stable executive leadership. He is a Congressional veteran and a professional. In a deep crisis, he would be a “yes” vote to put country over party. This position probably doesn’t count formally in cabinet anyway.

Small Business. Linda McMahon from the WWF. 0. Not even worth an explanation.

(I believe Priebus does not count as a cabinet-level officer under the 25th amendment, so I’m not counting him, but he would be a 1. A craven hack who would only follow.)

Of the already confirmed cabinet-level nominees, I count seven out of 12 as being open to voting “yes” on incapacity. (I’m not counting Haley or DeVos, because they would only be followers).  That’s a bare majority. Every new confirmation could tip the balance, and the balance is very close:

Maybes: Zinke (Interior) and Perdue (Ag) are political veterans, a recent Congressman and a recent Governor. 3s or 4s? The media reports that Perdue is getting cold feet about serving anyway. Acosta, the new Labor pick, is a solid choice, a veteran of the DOJ and the W. administration, a reputable law school dean. He’s probably a 4. Coats (DNI) is like Pompeo, a 4 or 5.  USTR Lighthizer? A Reagan official/Skadden partner/steel industry lawyer. He is not a Trump troll, but he is not in a strong cabinet leadership position. A 3 or 4.

Zeroes: Rick Perry (Energy) is a humiliated has-been who depends on Trump entirely for getting back into power. Carson (HHS) knows crazy, and he loves it. Ross (Commerce) is a Trump crony. Those three guys are zeroes.

I’m not yet counting Pruitt, because he has serious email problems that are going to delay if not kill his confirmation. He may be too weakened to have any independent political life after Trump, so I would count him as a 1. [Update: So maybe I am the crazy one. I thought Pruitt’s record plus email legal troubles would stall him when I posted this. Four hours later, he was confirmed. But the upside is that ethics issues don’t seem to weaken Republicans within their own party! So he is not too weakened to vote “yes” on Trump being too crazy for even this Republican party. He is now a “3.”

If Pence quietly initiated a 25th Amendment process behind the scenes, are there leaders in the cabinet who might be open to agreeing?  Yes. By my count, there might be a very narrow majority, and the unconfirmed nominees also might sustain that narrow majority for the 25th amendment math.

My best guess in light of the 25th Amendment: Confirm Pompeo, Coats, and Lighthizer soon. Ask more questions quietly about Perdue, Zinke, and Acosta, but don’t delay them. Slow down the process (or block) Perry, Carson, Ross, and Pruitt.  And that’s a more likely path to stopping the insanity than impeachment.

Update: Christian Turner asks about the rest of the Amendment, the role for Congress to resolve a dispute over inability after the cabinet majority vote. Congress would need a 2/3 vote in both Houses to keep Pence over Trump.  Here is the rest of the text:

“If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

Once Pence, an establishment/solid fundamentalist Republican, and a cabinet moves on this, the political dynamics in Congress would change dramatically. Congress would have so much political cover from the cabinet, and I think once there is a majority vote in the cabinet, a few followers like Haley, DeVos, and other “2s” or “3s” in my scale would jump in to increase the cabinet vote to a two-thirds vote. Keep in mind that I am talking about a scenario where Trump’s insanity becomes more obvious and more dangerous. The word from the conservative media today (including former GOP rep. Joe Scarborough) is GOP Congressmen and Senators were “panicked” after Trump’s unhinged press conference. I’ll bet they are having some similar conversations as the one here.

 

 

 

 

 

 

 

Update: Quo Warranto

A few updates:
According to Kira Lerner at ThinkProgress, N.Y. Attorney General Eric Schneiderman’s office is telling the media that he “will review the letter” we sent on Wednesday to start quo warranto proceedings to dissolve the Trump corporation or seek other remedies against the illegal emoluments and other frauds.
Dahlia Lithwick at Slate finds the logic “persuasive.” My favorite line: “Shugerman’s approach uses a whole lot of Latin words.” My second favorite line: “This quo warranto business may feel airy and academic. But the logic behind it is persuasive, and the impacts of this legal theory could be very real.”
Emily Bazelon covered us on Slate Plus, on the Political Gabfest. (One comment: Emily says the quo warranto is a criminal proceeding. It’s civil, not criminal, and that’s important to me. I am worried about the criminalization of political disagreements, especially when there are reasonable civil measures for constitutional questions.)
Over the weekend, I will be on WNYC’s “On the Media” with Bob Garfield talking about “Stop Using the Word ‘Treason.’ We don’t need to.” (See my post below). And maybe they’ll keep a bit about emoluments and quo warranto!
My original post is here:

Stop using the word “treason.” We don’t need to.

[Update: I was interviewed on WNYC’s On the Media by Bob Garfield on this piece. Listen here.]
In the last 24 hours, I have seen people on the left and right throw the term “treason” at each other: “Flynn/Trump committed treason!” “No, the intelligence community/leakers committed treason!” Soon people will accuse each other of treason for making an accusation of treason. This is the sad repressive history of the charge of treason: the cycle of criminalizing political disagreements and criminalizing foreign policy or diplomacy we don’t like.
The Framers of the Constitution wisely defined treason — and wisely defined it narrowly — in Article III, Section 3: “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 legal consensus is that the charge of treason is only applicable during wartime, and only when one assists a wartime enemy or assists acts of war against the U.S.  The Framers knew their history and learned from it. In England and throughout human history, governments used the charge of “treason” to criminalize their opponents. If you did not support a government’s policies, then you did not support the government, and you were betraying your country or giving support to the country’s rivals. The charge of “treason” has a history entangled with authoritarianism, political repression, and the abuse of criminal prosecution. In medieval England, the government had expanded the common law of treason in precisely this repressive way. Eventually, Parliament passed the Treason Act of 1351 to define the charge of treason more narrowly in order to limit its use. But in the 18th century, Parliament expanded the law of treason and created too much ambiguity and discretion in bringing treason charges, all part of a century of religious and political struggles (see the Treason Acts of 1702 and 1708).
The Framers’ lesson was, “Enough with the treason talk already.” They adopted a narrow definition and a restrictive procedure to limit the abuse of treason charges.
We may not think of Putin and Russia as allies, but we are not at war with them under any definition of the word “war.”
There are other crimes that Trump and others may have committed:
1. Did Trump conspire with Russia to steal electronic information from public or private sources during the campaign? (High crime).
2. Did Trump make quid pro quo deals with Russia on Ukraine policy? (High crime).
3. Did Trump or others lie to the FBI about Russian contacts? (Obstruction of justice, high crime).
4. Emoluments are not a felony, but Randolph, one of the Framers, said that the refusal to return an emolument was impeachable.
5. I didn’t even mention the Logan Act of 1799, which has never produced a conviction for unauthorized negotiations with foreign countries. But we have never witnessed events like this before, and we could be seeing history being made.

Emoluments, Part 2: Trump Companies are Invalid Entities as Litigants

I am following up on the Quo Warranto/state AG strategy for enforcing the Emoluments Clause against Trump and his businesses.  My original blog post is here, my Law360 op-ed is here, and a story/interview by ThinkProgress’s Judd Legum is here (he kindly called it a “legal breakthrough.” I hope so!)

I have a new idea for enforcing emoluments in court, a kind of “full-court press” and even a kind of legal jujitsu flipping Trump’s litigiousness against him. The idea sparked by reading old Quo Warranto cases. In Bissell v Michigan S. & N. Ind. R.R. Cos., 22 N.Y. 258 (1860),  the highest court in New York (the Court of Appeals) heard a tort claim by a  passenger against a railroad. The defendant was actually a combination of two companies, one incorporated in Michigan, the other in Indiana. Their defense was the ultimate in legal chutzpah: the two railroads claimed that their combination into one railroad was illegal and “ultra vires” because this restructuring exceeded their corporate authority in each state. Thus, the victim’s lawsuit was against a fictional defendant that was void under the law. The Court of Appeals rightly rejected the defendant’s convenient timing in conceding illegality. (It turns out that other corporations in the nineteenth century tried to dodge debts and lawsuits by conveniently that their incorporation was void).

Judge Nelson, after discussing the quo warranto issue as  background, held that the victim’s tort suit was valid, despite the corporation’s invalidity. The problem remained: when should an “ultra vires” (unauthorized) corporation be held valid or invalid? I offer a long passage below:

“It is said that there will be no restraint upon the acts and dealings of corporate bodies, if we uphold them when in excess of rightful authority. To this I answer, that the most ample restraints will be found in the principles here advocated; while, on the other hand, if we concede to corporations immunity in all cases when they do wrong, we invite and reward the very abuse. It is also said, in order to render this doctrine less offensive to the reason and conscience, that the innocent dealer may, upon the voidness of the contract and a disaffirmance of it, recover back the value or consideration with which he has parted. This position necessarily concedes that the corporation, as a legal person, made the unauthorized contract, and received the money, or value, under and according to it; thus overthrowing the main objection to its liability to respond directly upon the contract. It also concedes the innocence of the other contracting party; thus, according to all the analogies of the law, refuting the only other objection (illegality) on which the absolute invalidity of such dealings is claimed to rest: for, surely, after conceding that the corporation actually made the contract, it will not be contended that it can set up that it ought not to have made it, against an innocent person who has given up his money or property on the faith of the same contract. But I answer, further, that while in many cases the remedy of a suit in disaffirmance of the agreement, and to recover back the consideration, will be sufficient to prevent wrong, in many others it will be entirely worthless. All collateral securities must fall to the ground with the principal contract, and all its consequences and results. The present case will afford the best illustration. The defendants, in consideration of a trifling sum received from the plaintiff for fare, agreed to perform the service of carrying him in their cars, perhaps some two hundred miles. By the negligent performance of that agreement, they inflicted on him injuries for which a jury has said the proper compensation was $2,500. This being the measure of damages for the breach of the contract, the absurdity, not less than the injustice, of confining him to the remedy of disaffirmance because the agreement was ultra vires, must be quite apparent.” (Bissell, 22 N.Y. at 277).

The basic idea is that courts should not give a corporation the advantages from an invalid/ultra vires incorporation, but it should disadvantage those invalid corporations when appropriate, explicitly with crafting a deterrent strong enough to deter the illegal actions. In this railroad case, Judge Nelson observed that the remedy of invalidating the contract was too weak, because the railroad would happily return the price of a train ticket rather than pay for a serious injury.  Invalidating a contract was not enough of a deterrent.  The New York court is clear that the remedy should be tailored to “prevent wrong” and to “restrain” illegal behavior, rather than to “invite or reward” such conduct.

How does this apply in the Emoluments context?  Whenever a Trump entity sues another party (whether contract, tort, property, debt), the court should consider whether the Trump entity is ultra vires and an invalid party because it serves to violate the U.S. Constitution. Even if there is a meritorious legal claim against a defendant, the court should consider the basic corporate doctrines of ultra vires, that incorporation is a state-created legal fiction for special rights and privileges, but comes with basic responsibilities of obeying the law in order to exist at all.  The court should also consider its duty to choose remedies to serve deterrence. Refusing to treat Trump entities as legally valid in everyday torts, property, and contracts cases would be one way to enforce the rule of law. There may be additional ways courts can consider this ultra vires problem when the Trump corporation is a defendant, case by case.

I am not sure how many cases the Trump organization is currently litigating as plaintiff, but Trump’s litigiousness can be flipped against him in a legal jujitsu move. Those lawsuits in federal or state courts could be invalidated, and the plaintiffs suing Trump entities could, in some cases, get some additional consideration as private attorneys general against Trump’s overall illegal behavior.