Trump Says the President Can't Have a Conflict of Interest

Yesterday, Donald Trump said that he faces no legal obligation to cut ties with his businesses. He even admitted to recently discussing business with a British politician (Nigel Farage), and said he could continue to run his businesses during his entire presidency. Technically, he is right. Federal conflict-of-interest laws do exempt the president.

However, there are potentially other stumbling blocks. One is the well-known "Emoluments Clause" of the Constitution (well known among constitutional lawyers, at least). Art I, Sec. 9 of the Constitution 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.

There has been little jurisprudence over this clause, but the founders' intention was clear: No federal official should take money or presents from foreign governments. As an example, if Trump owns a Rolls Royce that is worth $200,000 and he were to sell it to the Queen of England for $250,000, that would be a gift of $50,000 and violate the clause. If Trump enters into any business deal with Russia or any other country and gets better treatment than an unknown citizen would get, that would also violate the clause. Given that Trump intends to continue running his businesses as president and many of them involve foreign governments, he could potentially violate this part of the Constitution. (V)

Court Strikes Back Against Gerrymandering

If a news story is wonky and rests on tricky legal details, it can easily fly under the radar as the media focus on more audience-friendly fare. This explains, perhaps, why little attention is being paid to a major decision related to gerrymandering, one that (tentatively) has the potential to remake the electoral map.

First, some background. The Supreme Court has already affirmed that gerrymandering on the basis of race is unconstitutional. In 2004's Vieth v. Jubelirer, five justices—including, most importantly, opinion author Anthony Kennedy—agreed that partisan gerrymanders are also likely unconstitutional as well, but lamented that there was no "manageable standard" for assessing such cases.

This brings us to this week's ruling, which struck down the Wisconsin Legislature's 2011 redrawing of State Assembly districts to favor Republicans. This is the first time that a court has actually ruled against a gerrymander on political (as opposed to racial) grounds. The vote in the United States District Court for the Western District of Wisconsin was 2-1, with Reagan appointee Kenneth Ripple casting the deciding vote and authoring the decision. The court proposed the use of a measure called "efficiency gap" for judging inappropriate political gerrymanders.

Explaining the efficiency gap is a little tricky, but it's based on the number of votes the losing party "wastes" on victorious candidates across a state (any votes beyond 50% +1). This is best illustrated with a hypothetical example. New Mexico has three congressional districts; imagine that in NM-01 and NM-02, the Republican wins the House seat 200,001 votes to 199,000. All the two Republicans needed, in the end, was 199,001 votes, so in both cases the last 1,000 votes were "wasted" (for a total of 2,000 wasted votes across the two districts). Then, imagine that the Democrat wins NM-03 by a margin of 220,001 votes to 180,000. In this case, any vote above 180,001 was wasted for the Democrats. And so, the Republicans "won" the state (2-1), while the Democrats wasted 40,000 votes compared to 2,000 for the Republicans, for a "net" waste of 38,000 for the blue team. Meanwhile, a grand total of 1,200,003 people voted, which means that those 38,000 wasted votes represent 3.1% of all New Mexico voters. That 3.1% is the efficiency gap. Generally speaking, an efficiency gap of 7% is considered insurmountable. The efficiency gap in Wisconsin's now-unconstitutional districts is 13%.

It is likely that this decision will be reviewed by the Supreme Court. And given that the efficiency gap seems to address the exact question that Kennedy raised in 2004, those who read the tea leaves think a 5-3/5-4 decision is likely (with Kennedy joining the four liberal judges). If so, it would be a "huge deal," according to Yale University legal scholar Heather Gerken, who says, "If this were to be a nationwide standard, 2021 would look quite different, especially for the Democrats." So, this one bears watching. (Z)

Democratic Electors Might Sabotage the Electoral College

If 37 Republican presidential electors vote for someone other than Donald Trump, he will not be elected president when the electors meet in their respective state capitals on Dec. 19. There might be a few "faithless electors," but the number is not likely to hit 37. But some Democratic electors have a different idea: not vote for Hillary Clinton. They could vote for Sen. Bernie Sanders (I-VT) or Vice President Joe Biden, or anyone else constitutionally eligible to be president. The goal wouldn't be to elect that person, since there are only 232 Democratic electors, but it would be to cause a public outcry against the Electoral College. That outcry could increase pressure to either abolish it by amending the Constitution, or to get more states to join the National Popuar Vote Interstate Compact, which de facto eliminates it without an amendment. If half a dozen Republican electors vote for Speaker Paul Ryan (R-WI) or Mitt Romney and a dozen or more Democratic electors vote for Sanders or Biden, there would certainly be a hue and cry to do something. Almost 30 states have laws requiring the electors to vote for the popular vote winner in their state, but the penalty for violating the law is generally a small fine. Furthermore, no one has ever been prosecuted for being a faithless elector. Just imagine what would happen if an elector voted for Sanders' and then appealed to Sanders' supporters on gofundme.com for donations to pay the fine. The elector would get 100x the fine within a day.

A supporter of abolishing the electoral college is....Donald Trump. In 2011, he called it a disaster for democracy. In 2012, when he thought Mitt Romney won the popular vote but lost the Electoral College, he urged people to March on Washington to protest the results. (V)

Clinton Pushed to Challenge Election Results

Democratic officials and the punditry have both been a little leery of engaging in "rigged" election talk, given how strongly they condemned such verbiage when it issued from the mouth of Donald Trump. Nonetheless, there were some fairly clear anomalies in the vote in some states that, at very least, probably deserve a second look. Now, a group of computer scientists has produced an analysis that puts such claims on a much stronger footing. Their case is based on electronic voting machines, which we and many others warned about prior to the election. The scientists observe that in districts with such machines, Clinton performed 7% worse than she did in districts without such machines. This is a result well outside the realm of random chance, and so the scientists have suggested an independent review is in order.

We're still a long way from changing any actual results, of course. First of all, it may be that the pattern has some other causation, like that poorer/rural precincts (aka the red ones) are those who can least afford to replace outdated equipment. Second, it would be difficult to overturn a presidential election on circumstantial evidence of fraud, as opposed to direct proof. Still, given that the Clinton campaign has pointedly chosen not to comment on the claims, as yet, it means that they're at least mulling them over. So, the book may not quite be closed on the election of 2016. (Z)

Democrats Are Not the Minority

Ezra Klein makes the interesting point that while Democrats are pulling their hair and acting like they are in the minority, they are not. Their candidate for president got at least 1.7 million more votes than the Republican candidate and their Senate candidates got more votes than the Republican Senate candidates. When all the votes are counted, that may be true for the House as well. Klein's point is that while they have no power, it isn't because the voters prefer Republicans. It is due to the way the 18th-century Constitution was set up, intentionally favoring rural areas. In most other democracies, legislative seats are awarded in proportion to the popular vote. If that were true, the Democrats would control the Senate and probably the House. In other words, they should stop acting like a beaten dog and forcefully demand that Trump put forth compromise candidates for various positions and challenge his legitimacy at every step.

He also notes that such an approach might be quite popular, given how low Trump's favorability is compared to previous presidents-elect:

President-elect	Favorable	Unfavorable
Donald Trump	42%	55%
Barack Obama	68%	27%
George W. Bush	59%	36%
Bill Clinton	58%	35%

Democrats actually have more power in Congress than the Republicans did in 2009, and the Republicans tied Obama in knots. They could insist that Trump take their wishes into account and if he refuses, do everything in their power to block his administration, just as the Republicans did, starting in 2009. While Senate Majority Leader Mitch McConnell (R-KY) might abolish the filibuster for Supreme Court appointments, he is too much of a traditionalist to abolish it for legislation, which means the Democrats could probably block most of Trump's legislative agenda if they want to, although some items can be passed by a simple majority using the budget reconciliation process. (V)

Trump Drops Idea of Prosecuting Clinton

As we (and others) have noted, Donald Trump's campaign threat/promise to prosecute Hillary Clinton faced long odds from the outset. One pesky little problem is that she does not appear to have broken any actual laws (sloppy handling of e-mail, while troublesome, is not illegal). Another issue is that the system has many safeguards to protect against the prosecution of people who did not break the law, from FBI directors to judges with life tenure to juries. Ergo, if Trump proceeded, he would almost certainly be setting himself up for a high-profile defeat.

Now he seems to have seen the light on this subject. Former campaign manager Kellyanne Conway suggested on Monday that there would be no prosecution, and Trump confirmed that on Tuesday. "I don't want to hurt the Clintons, I really don't," he told the New York Times. "She went through a lot and suffered greatly in many different ways." Undoubtedly, many of Trump's supporters will be disappointed to see him back down on one of his loudest and most frequently-repeated campaign promises, but they will surely feel better once they see him smash a bottle of the best champagne against the solid concrete of the newly completed border wall. (Z)

Trump Foundation Admitted to Illegal Self Dealing

The Washington Post has discovered that the Donald J. Trump Foundation's 2015 tax filing admitted that it had broken the law. One of the questions on the form asks whether the foundation has transferred income or assets to a disqualified person (which is illegal). The "Yes" box was checked. The form also asked if the foundation had engaged in self-dealing in prior years, and again "Yes" was checked. The forms did not specify any details, so it is not clear if the answers referred to the stories uncovered by the Post earlier this year, or other incidents. (V)

Haley to Be U.N. Ambassador

Tuesday afternoon, news broke that Gov. Nikki Haley (R-SC) has been offered the post of U.S. ambassador to the United Nations, and has accepted the job. All that remains is approval by the U.S. Senate, which is all-but-certain for the popular governor.

On the surface, this may seem a strange move, given Haley's total lack of diplomatic experience (though her website brags that she's traveled abroad eight times while governor, so there is that). However, from a political standpoint, it makes perfect sense. Trump and Haley have a somewhat contentious relationship; sending her to a body that The Donald clearly plans to ignore anyhow gets her out of the way, elevates close Trump ally Lt. Gov. Henry McMaster (R-SC) to the governor's mansion, and allows him to claim that his administration is inclusive and diverse. Meanwhile, for her part, Haley will be term-limited as of early 2018. Neither of South Carolina's senate seats will be up until 2020; thus, if she wants to keep her career in public service (and her presidential aspirations) alive, then it means a position in the Trump administration. Also, if she ends up running for president eventually, having 4 years of foreign-policy experience will come in handy. So Ambassador Haley it is. (Z)

Carson Says Trump Has Offered Him Jobs

Former presidential candidate Ben Carson said Donald Trump offered him the job of Secretary of Housing and Urban Development. Carson said he would be thinking about it and praying for guidance over Thanksgiving. The argument for giving Carson this position is that he grew up in inner city Detroit, so he knows something about poverty and cities. However, he knows nothing about managing a large government agency. Carson's close friend, Armstrong Williams, said he was worried that Carson might take it, get in over his head, and damage Trump's presidency. Interestingly enough, there has been no suggestion about Carson becoming surgeon general, a position for which he might be qualified due to his long career in medicine. (V)

"Trump Rally" Drives Stock Market to New High

Initially, news of Donald Trump's victory sent the U.S. stock market into a tail spin, with investors apparently fearing the instability that his administration might bring. Now, however, they are seeing a future with less regulation, fewer taxes on businesses, and the government dumping trillions into the economy, and so they are licking their chops. Consequently, the Dow Jones Industrial Average has reached record highs this week, crossing 19,000 for the first time.

So, will it last? Probably not. The Dow has nearly tripled while Barack Obama was in office, from 6,400 during his first year in the White House to the 19,000 where it stands today. The sort of sustained growth that would be necessary to keep the party going during a Trump presidency—that is, 10-12 straight years—is historically unprecedented. Beyond that, investor confidence is currently rooted in assumptions about what Trump will be able to deliver. If he comes up short on his campaign promises, they will grow skittish, and the market will correct. So, as Herbert Hoover might tell The Donald: "Enjoy it while it lasts." (Z)

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---The Votemaster and Zenger