Trump's legal nightmare
Welcome to Popular Information, a political newsletter for people who give a damn — written by me, Judd Legum. Send your feedback to firstname.lastname@example.org or tweet your thoughts using #popularinfo.
Reminder: Popular Information is published Monday through Thursday. I’ll return to your inbox, bright and early, on Monday, July 30.
If you’ve been forwarded this newsletter, you can sign up at popular.info.
Trump’s legal nightmare
Robert Mueller’s investigation into the Trump campaign — and its potential collusion with the Russian government — has captured the attention of the public and the president. But Trump actually faces a dizzying array of legal problems.
While garnering less publicity than Mueller’s work, these other cases are quietly progressing. None of them are moving in a direction favorable to Trump.
These less well-known legal issues threaten something Trump cares about deeply — his money. They also may expose the intricacies of Trump’s efforts to silence and humiliate women.
Let’s take a quick tour of Trump’s legal nightmare.
Hotel horror show
Trump broke from the practice of previous presidents and maintained full ownership of his sprawling business interest. For context, Jimmy Carter put his peanut farm in a blind trust to avoid the appearance of a conflict. Trump operates a luxury hotel in the middle of downtown DC that openly solicits the business of foreign governments.
Standing in the way of Trump’s plan is The Constitution of the United States. Article 1, Section 9, Clause 8 states:
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 key word here is “emolument,” which means anything of value. Trump, meanwhile, is receiving a steady stream of payments from foreign governments through his hotel and other properties.
The Constitution, according to Trump’s lawyers
Trump’s lawyers have adopted a convenient interpretation of the Foreign Emoluments Clause. They say that the constitution only prohibits the president from accepting payments in return for official actions. Moreover, Trump’s lawyers argue, transactions conducted at fair market value are exempt.
The Constitution, according to a federal judge
Yesterday, a federal judge gave Trump some very bad news. Trump’s lawyers argued that a case brought by the Attorneys General of Maryland and DC should be dismissed because the Foreign Emoluments Clause didn’t apply to Trump’s conduct.
In a 52-page opinion, Judge Peter Messitte absolutely eviscerated Trump’s interpretation.
Here is the key bit:
If there were any doubt as to the limits of the Foreign Clause, the Framers used the word “any” twice, ensuring a broad and expansive reach. The President’s argument that these modifiers merely ensure that the Foreign Clause bans receipt of every type of “present,” “emolument,” “office,” or “title” is unconvincing. Even without the inclusion of the modifier “of an any kind whatever”in the Foreign Clause, it could still ban every type of prohibited category because it provides no exceptions… The more logical conclusion is the one that Plaintiffs urge: The use of “any kind whatever” was intended to ensure the broader meaning of the term “emolument.”
In other words, this federal judge is convinced that the Foreign Emoluments Clause prohibits any payments from a foreign government.
(There is also a Domestic Emoluments Clause, Article 2, Section 1, Clause 7, which the plaintiffs argue prohibits Trump, as president, from doing business with state and federal governments. The judge made a similar ruling against Trump on that issue.)
Pulling back the curtain
There have been scattered reports of Trump using his hotel to vacuum up foreign cash. But the operations of the Trump hotel in downtown DC have been largely opaque. Now that the case is moving forward and the next stage is “discovery,” which means that the plaintiffs get to review relevant documents and interview witnesses, potentially including Trump himself.
The writing on the wall
The judge did not rule against Trump on the merits, but he’s sent a clear signal about how things will end up. It’s really not disputed, as a factual matter, that the Trump hotel is getting money from foreign government. The judge has made clear that these kind of payments are unconstitutional. It’s hard to see how Trump prevails in the trial court.
The bottom line
Trump cares deeply about his businesses. He’s used the presidency to promote his properties. Legal rulings that impact Trump’s ability to maintain ownership of his property holdings are something that Trump will take very seriously.
If he had to chose between his business and the presidency, what would he pick?
Trump has been accused of sexual assault by at least 14 women. Most of the women cannot sue Trump for sexual assault because the alleged incidents occurred too long ago. But one woman, Summer Zervos, has sued Trump — not for sexual assault but for defamation.
Zervos says that Trump “kissed and groped her” in 2007 after she appeared on The Apprentice as a contestant. Trump defamed her, Zervos argued, when he accused her of lying. On Twitter, for example, Trump called Zervos’ allegations a “hoax.”
This could be a very big deal. Bill Clinton was impeached, in part, because he lied during a deposition in a civil lawsuit. The judge ordered the deposition to be conducted by January 31, 2019.
Trump has appealed the decision.
The investigation of Michael Cohen, while it could overlap with Mueller’s investigation, is separate matter. Mueller referred what he learned about Cohen to the U.S. Attorney’s Office for the Southern District of New York. That office obtained a search warrant and raided Cohen’s home and office.
The raid produced a massive trove of documents, including at least a dozen audio recordings. Cohen released one of those recordings publicly last night. In the tape, Trump is heard discussing paying the National Enquirer for the rights to the life story of Karen McDougal, who allegedly had an affair to Trump. (During the campaign, Trump, through his spokesperson, denied any knowledge of the National Enquirer’s involvement.)
More broadly, the raid has put Cohen under intense legal and financial pressure. Cohen hired a new team of lawyers and appears eager to provide the government with information about Trump. This could include damaging revelations about Trump’s business dealings or Trump’s efforts to silence women. In both cases, Cohen played a central role.
Stormy Daniels, the adult film star who allegedly had an affair with Trump in 2006, has filed two lawsuits against Trump.
The first, which is on hold pending the Michael Cohen investigation in New York, seeks a declaratory judgment voiding the $130,000 hush agreement she signed with Trump before the campaign. Among other issues, the lawsuit alleges that the agreement is void because it was not signed by Trump.
The substance of the suit is largely moot, since Daniels and her attorney, Michael Avenatti, are speaking freely about Daniels relationship with Trump. But if Avenatti can convince the court that Daniels still has a legitimate reason to obtain a declaratory judgment, he could compel a deposition of Trump.
Daniels’ second case against Trump is for defamation. This case is very similar to the Summer Zervos lawsuit. Unlike Zervos, Daniels is not alleging she was sexually assaulted by Trump. But her lawsuit argues that Trump defamed her by accusing her of lying about their relationship.
Daniels’ defamation suit was filed very recently and has not progressed as far as the Zervos action. But if the case is allowed to move forward it could present another opportunity to depose Trump.
ACLU: The government duped immigrants into signing away parental rights
In a blistering legal filing submitted to a federal court on Wednesday, the ACLU accused the federal government of “coercive and misleading” conduct. The government, according to the ACLU, is pressuring immigrants separated from their children into making momentous, irreversible legal decisions they do not fully understand. This includes parents who have purportedly elected to waive their parental rights and be deported without their children.
The ACLU is asking the court to stay deportations for 7 days to give immigrants a chance to reconnect with their children and receive legal advice.
Some of the problems, per the ACLU filing:
Some forms were presented in English to parents who did not speak that language.
Some parents with limited or no literacy were not told what they were signing.
Still others thought they had signed papers stating that they wanted reunification.
Attached to the filing are a series of declarations from lawyers who have spoken to immigrant parents. Here’s a portion of a declaration submitted by attorney Kathryn Shepard:
I personally interviewed approximately 15 separated parents… One father was told that if he didn’t sign the form presented to him, then he would not see his daughter again. A typical scenario relayed to me by detained parents was that ICE officers told the parents that in order to see their children, they had to sign the form that was presented in front of them. The parents reported that they were not permitted to ask any questions regarding the forms they were being asked to sign… One father also told us that an ICE officer told him that if he wished to fight his asylum case, that it would cost him at least $500 every time he wished to see any attorney.
Today is also the deadline that the court has set for the Trump administration to reunite all children ages 5-17 with their parents. The administration will not succeed — in part because it has simply lost track of hundreds of parents.
The clown show
There is an entirely different reality inhabited by Trump’s hardcore supporters in Congress and in the media.
The latest gambit was launched Wednesday by Congressmen Mark Meadows and Jim Jordan. The pair filed articles of impeachment against Deputy Attorney General Rod Rosenstein as punishment for Rosenstein’s appointment of special counsel Robert Mueller.
One problem: The articles of impeachment cite conduct that occurred six months before Rosenstein took office.
Under Mr. Rosenstein’s supervision, Christopher Steele’s political opposition research was neither vetted before it was used in October 2016 nor fully revealed to the FISC…
This kind of embarrassing error doesn’t really matter — these stunts are not designed to pass the laugh test. They serve a purpose as part of a closed system between President Trump, Sean Hannity and Trump’s fiercest allies in Congress.
Immediately after being introduced, the articles of impeachment were featured extensively on Sean Hannity’s show on Fox News, which reaches millions of people each night. Hannity speaks to the president on a daily basis, functions as one of his key advisers and is not worried about logical inconsistencies in the text.
The articles of impeachment provide important grist for Hannity’s show, which is effectively co-produced by Trump, and Trump’s Twitter account. It also further ingratiates Meadows and Jordan with the president.
All of these folks have dispensed with any sense of shame long ago.
Thanks for reading! Please send your feedback, including ideas for future emails, to email@example.com. Or tweet your thoughts using the hashtag #popularinfo.
Popular Information will return on Monday, July 30. If you can’t imagine that long without me, you can follow me on Twitter @juddlegum.
If someone forwarded you this email, you can subscribe at popular.info.