Maryland and D.C. Sue Trump over Emoluments

A year ago, very few Americans knew what emoluments were. This year, many will learn about them, in no small part because the state of Maryland and the District of Columbia are about to file a lawsuit alleging that President Donald Trump has violated the "emoluments clause" of the Constitution. This bit of arcana, in Art. I, Sec. 9 of the Constitution, forbids the president from receiving gifts from foreign kings, princes, and foreign governments. Interestingly enough, gifts from queens and princesses are exempt. The suit claims that Trump's worldwide business empire is constantly receiving gifts from foreign states. For example, Kuwait held a huge celebration of its national day on Feb. 25 at the Trump International Hotel in D.C. In past years, Kuwait has held the bash at the equally opulent Four Seasons hotel. Was Kuwait trying to curry favor with Trump? That goes to the heart of what the emoluments clause was trying to forbid. If the case goes forward, ultimately it may be for Supreme Court Justice Neil Gorsuch to cast the deciding vote.

The Maryland/D.C. suit is not the first one about the emoluments clause, but it is the first one from attorneys general, which may carry more weight than the suit from a D.C. wine bar in which the owners claimed Trump was unfairly competing with them. The Maryland/D.C. suit argues that strict adherence to the emoluments clause is necessary to, "ensure that Americans do not have to guess whether a President who orders their sons and daughters to die in foreign lands acts out of concern for his private business interests..." If the courts allow the case to go forward, it won't take long for the attorneys general to subpoena Trump's tax returns, which itself will probably lead to a big fight.

The suit seeks an injunction to have Trump stop violating the Constitution, but does not specify how he is to do it. In practice, his options would be to sell or give away his businesses or to resign from the presidency. The best option would be to sell his businesses, but he would have to allow a potential buyer to inspect the books very, very carefully to see what the businesses are worth. Giving his businesses to his children is legal, but would create a huge gift-tax liability. Resigning might actually be the most painless way to go, especially if he fired Robert Mueller and pardoned everyone he knows on the way out the door. (V)

Schumer Invites Trump to Testify before the Senate

President Donald Trump may regret saying that he would be 100% willing to testify under oath about whether he tried to pressure former FBI Director James Comey to kill the investigation of former NSA Michael Flynn. On "Face the Nation" yesterday, Senate Minority Leader Chuck Schumer (D-NY) took him up on the offer and invited him to do exactly that, Schumer is not on the Senate Intelligence Committee, so his opinion isn't so critical, but if committee co-chair Sen. Mark Warner (D-VA) starts thinking along those lines, Trump might get a formal invitation.

Open testimony would undoubtedly be a disaster for the President, but two factors mitigate against him getting an invitation. First, no one on the committee wants to interfere with special counsel Robert Mueller's investigation. Second, there are separation-of-powers issues here. The Senate probably can't compel Trump to testify, but if he volunteers to do it, then it is probably all right. (V)

Democrats Want Sessions to Testify in Public

Speaking of testifying, Attorney General Jeff Sessions is going to testify before the Senate Intelligence Committee tomorrow, but it has not yet been decided if his testimony will be in public or behind closed doors. Sen. Ron. Wyden (D-OR), who is a member of the committee, and other Democrats are calling for Sessions' testimony to be in public. They are saying the public has a right to know what happened at the Feb. 14th meeting in which Donald Trump asked Sessions to leave the room and he hesitated before finally exiting. Was he aware that what Trump was about to do was illegal? If Sessions testifies in private, it will take fewer than 5 minutes before his testimony leaks, so he is probably better off doing it in public such that everyone hears his side of it, and not some Democrat's version of it. (V)

Could Trump Fire Mueller?

Robert Mueller is building a team of heavy-hitters (see below) and appears set to tackle his assigned task with the sort of enthusiasm usually reserved for Beatles concerts circa 1964 or the Spanish Inquisition. It is very likely that he's going to uncover a few uncomfortable truths. But what if Donald Trump suspects those truths are going get a little too uncomfortable. Could he dust off his famous catchphrase and tell Mueller: "You're Fired!"?

That is a question that has both a legal answer and a political answer. Legally, the answer is effectively "yes." Under federal law, specifically 28 CFR 600.7, only Deputy Attorney General Rod Rosenstein actually has the authority to fire Mueller. However, Trump can order Rosenstein to do so, and if Rosenstein refuses—which he presumably would—then Trump can fire Rosenstein and hire someone who will do the job. Since that person would be "acting," he or she would not need to be approved by the Senate, and would be able to dispatch Mueller immediately. This, of course, would be an almost a blow-by-blow re-creation of the Saturday Night Massacre.

Politically, the calculus is a little different. Huge segments of the public would be outraged by such a maneuver, and would be convinced Trump is guilty of high crimes and misdemeanors. However, most of those people are already outraged, and are already convinced he's guilty of high crimes and misdemeanors. The President has made clear that he considers those individuals to be a lost cause (while his son has concluded that they're not actually people), and has doubled down on his base. The base might well be persuaded that Mueller is a witch hunter and is part of the deep state, and that firing him is appropriate and even courageous. Already, pieces are popping up on right wing media sites arguing in that direction. At the same time, former House Speaker Newt Gingrich is making the rounds to blast "Robert Mueller's so-called independent investigation," calling it "poisoned fruit."

If Trump can keep the base on board with the possibility of firing Mueller, and then he actually follows through, it will put the GOP members of the House in a tough place. They could decide to take no action, which might mean sacrificing their careers to save a man whom they largely loathe and who they don't think of as a real Republican. Or, they could bring the impeachment hammer, potentially driving a wedge between factions of the party that could cripple the GOP for years. With Richard Nixon, the House was ready to impeach, but it was Democrats who were in the driver's seat. In this case, we may end up in uncharted waters. (Z)

Mueller Hires Top Criminal Lawyer

Robert Mueller is continuing to hire staff. His latest acquisition is one of the best criminal lawyers in the country, Michael Dreeben. He has an encyclopedic knowledge of the law and has argued over 100 cases before the Supreme Court, sometimes without any notes. Prof. Walter Dellinger of Duke Law school described him thusly: "Michael is the most brilliant and most knowledgeable federal criminal lawyer in America—period. He's the kind of guy you would like on your team, but not the kind of guy you want to face in court." Dreeben will work part time for Mueller and continue as deputy solicitor general for the rest of his time.

This is not even Mueller's first top pick. Others who are tops in their respective fields are Jeannie Rhee (also criminal law), Aaron Zebley (cybersecurity), Andrew Weissman (finance), and James Quarles (government ethics). Donald Trump's lawyer, Marc Kasowitz, who is not even a criminal lawyer, had better try to hire half a dozen of the best criminal defense lawyers in the country or he is going to be completely outgunned by Mueller's all-star team. But he's working on that. He just hired Jay Sekulow to join his legal team. Sekulow has known Trump for years. One role that Sekulow is expected to fill is be the face of the legal team on TV. Kasowitz is very good facing juries but not so good facing reporters. Sekulow has his own radio show and is better at dealing with the media. But Sekulow is not just a pretty face. He has argued 12 cases before the Supreme Court, so his legal skills certainly aren't in doubt. (V)

Trump to Address Tapes Next Week

Jay Sekulow may be a brand-new member of Donald Trump's defense team, but he's already making headlines. He appeared on ABC's "This Week" on Sunday, and said, in no uncertain terms, that the President will address whether or not he has been recording conversations in the White House this week, once he's had time to consult with his legal team.

Assuming that Trump follows through on this promise, which is always far from certain with him, the "consulting" with his legal team is presumably figuring out how to minimize the damage to Trump when he admits there are no recordings. That conversation, in turn, will probably focus on three things: (1) Making sure Trump doesn't say anything that makes things worse, like "I decided to delete the recordings," (2) Figuring how to frame and present the announcement, and (3) Deciding exactly when to make the announcement, so as to minimize coverage as much as possible. Probably the smartest thing to do is to have Trump tweet, on Saturday evening, that the whole thing was just a joke—Ha, ha! That "explanation" would give him some cover, that platform would allow him to avoid withering questions from the press, and that timing would squeeze the announcement in at the least engaged part of the news cycle (which is why the "Saturday Night Massacre" happened on Saturday night). Another option would be to appear on a show like "Fox and Friends" and let them help with the spin. In any case, we should find out later this week. Unless we don't. (Z)

Trump Orders Priebus to Drain the Swamp by July Fourth

Donald Trump doesn't seem to be happy with how things are going and thinks that draining the swamp begins at home, so he has ordered Chief of Staff Reince Priebus to clean it up by Independence Day or be fed to the alligators. Trump has made threats like this before, but often fails to carry through. Part of the problem is that much of the White House is infected with Potomac fever. What Trump needs (as opposed to what he wants) is a staff who will stand up to him and tell him the truth to his face. Priebus is very unlikely to hire such people. Among the possible candidates are Trump's former campaign manager, Corey Lewandowski, and his former deputy campaign manager, David Bossie. These are precisely the kind of "yes men" that Trump likes to be surrounded with, but who in the end do him more damage than good because when they see trouble down the road, they are afraid to give Trump the bad news. (V)

No Trump Visit to the U.K. Anytime Soon

Shortly after he became president, U.K. Prime Minister Theresa May invited Donald Trump to make a state visit to Great Britain. It was an unpopular decision with many of her constituents, and she got some blowback for extending the offer. Now, Trump has effectively declined, telling May he does not want to come until the British public supports him coming.

The day that the British public supports a visit from Donald Trump will come shortly after the day that hell freezes over. The Labour party despises him, from left-of-Bernie-Sanders party leader Jeremy Corbyn on down. The Conservatives are largely not fond of him either, nor are most of the minor parties, with the exception of the right-wing Democratic Unionists. Further, Trump has insulted Sadiq Khan, the popular mayor of London, which just so happens to be the city where the British government is located. Add it all up, and a Trump visit would result in massive protests, which would lead to exactly the kind of photo-ops the President doesn't want. Meanwhile, the Prime Minister hardly needs to be seen associating with an unpopular foreign leader after the reverses she suffered last week. If she does need to chat with The Donald, that will presumably happen in Washington, or at some sort of international summit. Or, perhaps better yet for both of them, on the phone. Wherever it may be, it won't be 10 Downing Street, at least not anytime soon. (Z)

Sheldon Adelson Is Planning to Create a New Super PAC for 2018

Normally, the president is the chief fundraiser for his party, but Donald Trump doesn't seem to have much time available for that. So Republican megadonor Sheldon Adelson is trying to fill the void. He is talking to other major Republican donors, like the Ricketts family, with the intention of setting up a new super PAC to help Republicans in congressional and gubernatorial races and also races for the state legislatures.

Many Republicans have come to realize that Trump is not going to spend much time raising money for them, so they will have to do it on their own. Adelson's super PAC could be a start. One Republican who could help raise large amounts of money is Mitt Romney, but he hasn't really made it clear what is in his future. There has been speculation that if the 83-year-old Sen. Orrin Hatch (R-UT) decides to retire next year, Romney may run for his seat. If he does run, he won't have so much availability nationally to fundraise, but if he doesn't run, he could travel all over the country raising serious money for the GOP. (V)

Is Romney Really Running?

Speaking of Mitt Romney, the reason that people are speculating that he might be interested in a Senate run is that he's playing it close to the vest about his plans. For example, at an event they both attended last week, Joe Biden declared that Romney should throw his hat into the ring, and Romney just laughed merrily. As we all know, in politician-speak, anything short of the full Sherman means, "Yeah, maybe."

With that said, it is very hard to believe that Romney has his eyes set on a career in the Senate. He will be 71 on Election Day next year, and it takes at least 12-15 years to gain any real power in the Senate. Does he really want to spend his golden years kowtowing to younger men and women in hopes of coming into his own in his late eighties? That would be like applying to medical school on the day you get your first Social Security check. No, if he runs for the Senate, there's only one plausible reason: To position himself for a presidential run in 2020. This still remains a longshot, of course. It's not easy to unseat a sitting president from your own party, even if that president has approval ratings in the 30s. Further, Romney would be 73 on Election Day 2020, and if Trump continues to show signs of infirmity, it may make voters leery of putting another person in their seventies into the White House. Finally, Romney the 2020 candidate would have largely the same list of liabilities as Romney the 2012 candidate, not the least of which is that he's perceived by many as an out-of-touch plutocrat. Longshot or not, though, it's not impossible, and so this situation is worth watching. (Z)

Puerto Rico Votes to Become the 51st State

Puerto Ricans went to the polls yesterday to indicate what status they want for their island. The choices were (1) become a state, (2) become an independent country, or (3) continue to be a U.S. territory. The voters chose statehood by an overwhelming margin, with 97.2% favoring that option, 1.5% supporting independence, and 1.3% voting for the status quo.

There is a catch, however. Turnout was very low, in large part because the two of the three major Puerto Rican political parties—the Popular Democratic Party (PDP) and the Working People's Party (WPP)—asked their voters to boycott the election. Why? Well, to answer that, we have to begin by noting that this issue is hotly debated on the island. Among the benefits of statehood would be the right to vote in presidential elections and to send full representation to Congress (as opposed to a single, non-voting member), adoption of the higher federal minimum wage, increased funding from the federal government for things like Medicaid, and greater ease in discharging Puerto Rico's crippling debt. Opponents of statehood, on the other hand, do not like the idea of paying federal income taxes, which Puerto Ricans currently have to do only for money earned in the United States. They also recognize that a number of corporations headquartered in Puerto Rico for tax purposes would pack up and leave, costing the island between 25,000 and 50,000 jobs. There is an additional concern about damage to Puerto Rican culture; the fear is that many young residents would leave the island temporarily or permanently, and would become overly Americanized. A final, albeit unstated, concern is that the two major political parties in the U.S. would take over Puerto Rican politics, leaving some of the movers and shakers of the PDP and the WPP on the outside looking in.

Given the pros and cons, past votes on this issue have generated ambiguous results, with 1993 and 1998 referenda giving a slight nod to maintaining the status quo, and a 2012 referendum giving a slight nod to statehood. However, the debt issue is starting to tip the scales, which the PDP and WPP both realize. The boycott maneuver was dreamed up by PDP leadership as a means of undermining the legitimacy of Sunday's result.

Back in the United States, meanwhile, the issue is equally fraught. The Democrats favor statehood, and have since the 1940s, recognizing that the addition of Puerto Rico would likely give them two more senators and another member of the House. Officially, the Republicans favor statehood as well. Gerald Ford, Ronald Reagan, and George H. W. Bush all endorsed it, and the last three GOP platforms have included this passage:

We support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state after they freely so determine. We recognize that Congress has the final authority to define the constitutionally valid options for Puerto Rico to achieve a permanent non-territorial status with government by consent and full enfranchisement. As long as Puerto Rico is not a state, however, the will of its people regarding their political status should be ascertained by means of a general right of referendum or specific referenda sponsored by the U.S. government.

This, however, is just lip service designed to attract the votes of Puerto Ricans living in the United States (who, unlike their fellows back home, can vote for president). The GOP, needless to say, does not want to add two more Democratic senators, nor do they like the way the numbers add up—it's estimated that Puerto Rico would pay about $2.5 billion in income taxes if it became a state, but would receive about $10 billion in benefits from the government.

So, the chances that Puerto Rico becomes the 51st state anytime soon are basically zero, because it is Congress that gets to make the call, not Puerto Rico. If Democrats ever get complete control of the government, they could admit the District of Columbia as the 51st state and then Puerto Rico as the 52nd state, adding four Democrats to the Senate. But as long as Republicans control the show, vexillologists need not run to their computers to start designing a new American flag. (Z & V)

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---The Votemaster and Zenger