The legal case against US president Donald Trump
On January 20, Donald John Trump was inaugurated as the 45th president of the United States. As the chief justice anointed him, Trump touched Abraham Lincoln’s Bible, which was placed upon another copy of the book gifted to the new president as a child.
The peaceful and co-operative transfer of the world’s most powerful office happened again. It had also installed a historically compromised custodian.
Given the popular beatification of the 16th president, it was no surprise that the 45th would touch his halo. We don’t know what lessons Trump has taken from Lincoln, if any, but under light rain he gave one of the most blithely radical inaugural addresses in modern history. “Blithely radical” might seem self-refuting, but so breezily did his speech divorce itself from history and custom that I suspect self-absorption, rather than political calculation, as the principal author. “You came by the tens of millions to become part of a historic movement,” Trump said, “the likes of which the world has never seen before.”
Trump’s address was aloof from history, at least in the customary way of these speeches; it cited no one but himself, and while there were overtures of unity, much of the speech seemed to be lifted from his campaign – myopic but effective appeals to lost status. Which is precisely what gave him the White House. None of this should be surprising. Trump was elected to blow up Washington: history rebuked; custom and its craven servants repelled. In many ways, this was the perfect inaugural address. The speech was not for those who would write about it.
It’s been a busy week. Aerial photography showed the inauguration crowds were significantly less than Obama’s, which might otherwise be a trivial source of partisan cheer but for Trump’s press secretary aggressively contesting the fact.
Behind the surreal press conferences lies genuine trouble for the new president. The senate intelligence committee is investigating clandestine links between Trump’s presidential campaign and Russia. Meanwhile, a group of former White House lawyers has lodged papers in an attempt to sue Trump for violating the constitution. This is week one of the Trump presidency.
Earlier this month, BuzzFeed published in full an intelligence dossier compiled on Trump that alleged a long collaboration between his campaign and the Russian government. The document, passed around Washington circles for months last year, was a poorly kept secret. Senate minority leader Harry Reid alluded to it last year, as had a number of news reports. Originally conceived as opposition research on Trump, financed by one of his Republican opponents, the contract to privately investigate the new president was passed to the Democrat Party when Trump secured the GOP’s nomination. Its author was a former senior intelligence officer for MI6, who has since gone to ground.
The use of private investigators and former spooks to “dig dirt” on political aspirants is common. Less common are the opaque, byzantine entanglements of their subject. Some of the dossier’s allegations were provably false, such as the claim that Trump’s lawyer had covertly met with Russian operatives in Prague. Some of it was dubious. Most of it was unverifiable. But it remained sufficiently credible that US intelligence agencies adopted it, and John McCain sought to privately test its claims and press it upon the director of the FBI. As it is, the dossier exists within espionage’s kingdom of fractured mirrors. Trump incorrectly accused his own intelligence agencies of leaking it, before tweeting indignantly that the behaviour of the intelligence community was similar to that of the Nazis. What remains is the fact that up to six US intelligence agencies are investigating Trump’s businesses and presidential campaign.
Against this, the new president addressed the CIA on his first full day in office. He spoke in the agency’s vast entry hall, before its wall of honour – white marble engraved with 117 stars representing those who have died in service. “You know, the military and the law enforcement, generally speaking, but all of it – but the military gave us tremendous percentages of votes,” he said. “We were unbelievably successful in the election with getting the vote of the military. And probably almost everybody in this room voted for me, but I will not ask you to raise your hands if you did.”
It was a bizarre speech, given the stakes. Trump had previously slandered his intelligence community, and now spoke at their sacred site with sloppy, unscripted insouciance. He praised himself, denounced the media and barely discussed the CIA itself. “You know, I have a running war with the media,” Trump said. “They are among the most dishonest human beings on Earth. And they sort of made it sound like I had a feud with the intelligence community.”
It was not an audience to be flattered with oily platitudes, but with knowledge of their work. Respect might also have been shown with prepared remarks, rather than the improvised non sequiturs that resembled not so much a presidential speech as an open mic in a nightclub basement. He was more interested in braggadocio about Time magazine than service to the nation. “I have been on its cover, like, 14 or 15 times. I think we have the all-time record in the history of Time magazine. Like, if Tom Brady is on the cover, it’s one time, because he won the Super Bowl or something, right? I’ve been on it for 15 times this year. I don’t think that’s a record ... that can ever be broken.”
It’s of low importance, but Trump often exposes a contradiction: citing media profiles as proof of his infinite glory, while just as frequently denouncing journalists as incurably deceitful.
The most obvious sign of respect, of course, would have been to invoke at least one of the lives that the 117 stars behind him symbolised. Trump didn’t. A man who had dodged the draft, who had sacrificed nothing, was happy to riff like a Rodney Dangerfield impersonator before a wall of honour. Former CIA leaders expressed pained astonishment. “It was,” outgoing director John Brennan said, “a despicable display of self-aggrandisement.”
One of those stars represented the life of Gregg Wenzel, an unusually accomplished man who, in 2003, died in Ethiopia at the age of 33. A former CIA colleague of Wenzel published the following in The New York Times: “In Mr Trump’s rambling 15-minute speech, he made only one reference to the memorial, saying: ‘The wall behind me is very, very special’, before pivoting to his familiar mode of narcissistic diatribe.”
In fact, there was an appalling contrast simply between Trump and the carver of those stars, Tim Johnston, who in videos can be seen carefully chiselling replicas in his Virginian workshop. It was craft, diligence and respect for something greater than self that was so pointedly absent from the mouth of the president who used the wall and its sacrifices as a prop.
A dangerous game
Witless veneration is not appropriate. The CIA is the agency whose head once described the intelligence that premised the Iraq invasion as a “slam dunk”. But boastfulness and vaudeville levity were inexplicably weird ingredients of a speech intended, one might have thought, to help quell the suspicions and animosity of an intelligence community he had referred to as despotic killers only weeks before.
This isn’t a matter of style. Trump’s businesses are being investigated by this agency, and he enters his presidency having grossly insulted them. He is playing a dangerous game, if “game” doesn’t suggest too great a degree of thoughtfulness.
“The heart of Trump’s longstanding secret ties to Russia is about money, not espionage,” John Schindler, a former intelligence analyst for the National Security Agency, wrote this month. “The Trump Organisation gives the appearance of possessing dubious financial ties to Russian organised crime, which is linked to the Kremlin and its intelligence agencies. Putin and his spies know all about Trump.”
The most famous source of the Watergate stories was the deputy director of the FBI. Mark Felt, overlooked for promotion when J. Edgar Hoover died, gave invaluable direction to the young reporter Bob Woodward of Richard Nixon’s criminality. Deep Throat was establishment. “The next quarter-century in Washington,” the late Christopher Hitchens once wrote of Watergate, “persuaded me that you never get a seriously good scandal unless there is a rift within the political establishment.”
The emoluments clause
This week, some of America’s most eminent legal experts on ethics and the constitution filed a suit against Donald Trump in his capacity as president. The plaintiffs include Laurence Tribe – a professor of constitutional law at Harvard Law School – and Norman Eisen – a former US ambassador to the Czech Republic and a special counsel in Obama’s White House.
The suit argues that Trump’s refusal to properly divest himself of his businesses means that a constitutional provision – the emoluments clause – might be in breach. The emoluments clause prohibits government officers from financially profiting from foreign governments. It reads: “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.”
Trump – a billionaire with business interests scattered across the world – enters the White House especially vulnerable to conflicts of interest. A state-owned Chinese bank, for example, is a tenant of Trump Tower in New York City. There are myriad other examples. “Never in American history,” the plaintiffs wrote, “has a president-elect posed more conflict-of-interest and foreign-entanglement questions than Donald J. Trump.”
In an interview earlier this month, Eisen said: “A president is not permitted to receive cash and other benefits from foreign governments. And yet, Donald Trump is getting a steady flow of them around the world and right here in the United States … With Donald Trump receiving these enormous sums from foreign governments, and having strong property interests and relationships in many foreign governments, when he makes his decisions on domestic and economic policy, how will we know that he is not using the White House to do deals for himself at the expense of the people who voted for him? When he makes his decisions to use America’s military force, or threaten it abroad, how will we know that he is not putting ordinary Americans’ lives at risk in order to protect his properties, and his pocket, and his wallet, rather than in the best interest of our country?”
Elsewhere, Trump was censured by Walter Shaub, the director of the Office of Government Ethics. Shaub argued that Trump was failing to meet financial propriety standards that had been uniformly observed by presidents for the past four decades. “The president is now entering the world of public service,” Shaub said a fortnight ago. “He’s going to be asking his own appointees to make sacrifices. He’s going to be asking our men and women in uniform to risk their lives in conflicts around the world. So no, I don’t think divestiture is too high a price to pay to be the president of the United States of America.”
For these comments, Shaub was warned to “be careful” by Trump’s chief of staff, Reince Priebus.
Trump is no stranger to being sued. Just two days before his inauguration, Trump settled a fraud suit filed against him by former students of the business university that bore his name. They alleged it was a scam – that they’d paid their $35,000 tuition fees and received nothing. Despite repeated declarations he would never settle, he did just that for $25 million. The university closed in 2010.
Observers say the emoluments clause suit, filed with a federal court, is unlikely to succeed given the plaintiffs must prove concrete injury to themselves. It is very difficult to sue the government without a specific harm. A more practical alternative, legal observers say, would be to find a Trump business competitor willing to become a plaintiff. Other than that, congress could always adopt the issue. But impeachment, in practice, is a political instrument. Today, it is also wishful thinking.
Only two US presidents have been impeached – Andrew Johnson and Bill Clinton – though both were acquitted by the senate. Nixon faced impeachment, but resigned before hearings were completed. The constitutional grounds for presidential impeachment are “treason, bribery or other high crimes and misdemeanours”. What we have is a US president fairly elected but deeply compromised. We will wait to see how that might be reconciled, if at all.
This article was first published in the print edition of The Saturday Paper on Jan 28, 2017 as "The legal case against Trump". Subscribe here.