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Donald Trump vs. The Rule of Law

Wednesday, August 02, 2017 By Marjorie Cohn, Truthout | Report
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President Donald Trump uses an umbrella after stepping out of Air Force One July 28, 2017 in Joint Base Andrews, Maryland. (Photo by Chip Somodevilla / Getty Images)President Donald Trump uses an umbrella after stepping out of Air Force One July 28, 2017, at Joint Base Andrews, Maryland. (Photo by Chip Somodevilla / Getty Images)

One of the most sacred duties of the president of the United States is to enforce the laws. The Take Care Clause, in Article II, §3 of the Constitution, says the president "shall take care that the laws be faithfully executed." 

Yet, six months after taking office, Donald Trump has demonstrated contempt for the rule of law. He has not only refused to enforce certain laws; he has become a serial lawbreaker himself and counseled others to violate the law.

Trump is undermining Obamacare, which is currently the law of the land. He is advocating police brutality. Plus, he has illegally bombed Syria, killed large numbers of civilians in Iraq and Syria, instituted an unconstitutional Muslim Ban, violated the Emoluments Clause and obstructed justice.

To read more stories like this, visit Human Rights and Global Wrongs.

Each of these actions either violate or indicate an intention to violate the law.

Sabotaging the Affordable Care Act

The Affordable Care Act (ACA), also known as "Obamacare," is a federal statute that has been upheld by the Supreme Court. Yet, instead of vigorously enforcing it, Trump has, on several occasions, announced his intention to let the law "fail" or "implode."

He has threatened to withhold cost-sharing reduction payments that reduce what individuals must pay for copayments, deductibles and insurance. He has curtailed outreach, pulled $5 million in advertising that encouraged individuals to sign up for health care under the ACA, and even promulgated negative ads. He has proposed reducing the ACA's tax credits, which offset premium costs for middle-income individuals; this reduction would make insurance plans more expensive and raise deductibles and co-payments. And he has moved to weaken the individual mandate by lifting the requirement that taxpayers report to the Internal Revenue Service whether they have health insurance.

"Trump is not talking about letting the patient die," wrote Dean Baker, co-director of the Center for Economic and Policy Research, on Truthout. "He is talking about murder. Trump and the Republicans are not discussing whether they should let Obamacare die. They are plotting to kill it."

Rather than faithfully executing the ACA, Trump is doing his best to destroy it.

Advocating Police Brutality

Last week, Trump suggested that police officers effectuating arrests should bang suspects' heads against police car doors. Trump told officers, "Please don't be too nice" when arresting people.

He elaborated, "Like when you guys put somebody in the car, and you're protecting their head, you know, the way you put your hand over" their head, "I said, 'You can take the hand away, OK?'"

In response to Trump's comments, New York police commissioner James O'Neill stated, "To suggest that police officers apply any standard in the use of force other than what is reasonable and necessary is irresponsible, unprofessional and sends the wrong message to law enforcement, as well as the public."

Indeed, the Fourth Amendment to the Constitution prohibits police officers from using unreasonable force. Trump was advising officers to violate the law.

Promulgating an Unconstitutional Muslim Ban

In January, Trump signed an executive order that would have barred nationals from seven Muslim-majority countries from the US for at least 90 days. It would also have indefinitely prevented Syrian refugees, even those granted visas, from entering the United States. And it would have suspended the resettlement of all refugees for 120 days.

After the ban was struck down by several courts, Trump issued a second Muslim ban, reducing the seven countries to six and lifting the total ban on Syrians.

Opponents of the ban argue it violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause and the Take Care Clause of the Constitution. It also could violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights; both are treaties the United States has ratified, making them part of US law under the Constitution's Supremacy Clause. The ban likely violates the Immigration and Nationality Act as well.

The Supreme Court will determine the legality of the ban when the high court reconvenes in October.

Illegal Bombing of Syria and Unlawful Killing of Civilians in Iraq and Syria

In April, Trump bombed Syria with 59 Tomahawk cruise missiles, each armed with over 1,000 pounds of explosives, in retaliation for a deadly chemical attack allegedly mounted by Syrian president Bashar al-Assad.

The War Powers Resolution allows the president to introduce US Armed Forces into hostilities or imminent hostilities in just three situations: First, after Congress has declared war, which had not happened in this case; second, in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," which had not occurred; and third, when there is "specific statutory authorization," which there was not.

The 2001 Authorization for the Use of Military Force allowed the president to use force only against those groups and countries that supported the 9/11 attacks. The bombing in Syria was not authorized by any other act of Congress. Thus, Trump's missile attack violated the War Powers Resolution. 

Regarding international law, the United Nations Charter prohibits the "use of force against the territorial integrity or political independence of any state." There are only two exceptions: when conducted in self-defense after an armed attack, or with the approval of the Security Council.

Syria had not attacked the United States or any other country before Trump ordered the missile strike. Assad's alleged use of chemical weapons was Trump's justification for the strike. But using chemical weapons did not constitute an armed attack on the United States or another country. And the Security Council had not approved Trump's bombing. It therefore violated the Charter. 

In addition, the Trump administration has killed an inordinate number of civilians, in violation of the UN Charter and the Geneva Conventions.

"Almost 1,000 non-combatant deaths have already been alleged from coalition actions across Iraq and Syria in March -- a record claim," according to Airwars, a non-governmental organization (NGO) that monitors civilian casualties from airstrikes in the Middle East. "These reported casualty levels are comparable with some of the worst periods of Russian activity in Syria." US aircraft inflicted most of the casualties in the coalition strikes, Airwars added.

Indeed, so many civilians have died from coalition airstrikes since Trump took office, Airwars is reducing its work on "alleged Russian actions in Syria -- so as best to focus our limited resources on continuing to properly monitor and assess reported casualties from the US and its allies."

Violating the Emoluments Clause

On January, 23, 2017, Citizens for Responsibility and Ethics in Washington, a nonprofit legal watchdog group dedicated to holding public officials accountable, filed a federal lawsuit against Trump in the Southern District of New York for violation of the Foreign Emoluments Clause of the Constitution.

Located in Article I, §9, the clause prohibits Trump from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress. Since Trump refused to divest from his businesses, he is receiving money and favors from foreign governments and from guests and events at his hotels, leases on his buildings, and real estate deals abroad.

The lawsuit alleges that Defendant Trump

has committed and will commit Foreign Emoluments Clause violations involving at least: (a) leases held by foreign-government-owned entities in New York's Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant's Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by Defendant; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program 'The Apprentice' and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.

Trump's violations of the Emoluments Clause have likely increased since January, when the lawsuit was filed.

Obstructing Justice

The felony of obstruction of justice constitutes an attempt to stop an investigation with a corrupt intent. Trump asked then FBI director James Comey to block the criminal investigation of former National Security Advisor Michael Flynn for his undisclosed contacts with Russia.

Shortly after Flynn resigned, Trump told Comey, "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go." Comey testified, "I took it as a direction" that "this is what he wants me to do."

When Comey did not halt the investigation of Flynn, Trump fired him. On two separate occasions, Trump admitted he had fired Comey to stop the investigation of ties between Russia and Trump's campaign.

First, the day after the Comey firing, Trump told Russian officials in the Oval Office, "I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That's taken off." Then, the following day, Trump informed the NBC's Lester Holt, "When I decided to just do it [fire Comey], I said to myself … this Russia thing with Trump and Russia is a made-up story."

Moreover, Trump lambasted Attorney General (AG) Jeff Sessions for recusing himself from the Russia investigation because Sessions had undisclosed contacts with Russia during the presidential campaign.

After Sessions' recusal, Assistant AG Rod Rosenstein assumed stewardship of the investigation and appointed Robert Mueller as Special Counsel to pursue a criminal investigation of Russia-Trump campaign ties and other related matters.

Trump told the New York Times, "A special counsel should never have been appointed in this case."

The president is apparently hesitant to fire Sessions outright due to the outrage over the Comey firing. It seems that Trump is trying to prod Sessions into quitting, but the AG has refused to take the bait.

Trump has also verbally attacked Mueller, with veiled threats that he might take action to fire Mueller if the Special Counsel investigates Trump's finances.

A special counsel may only be removed by the AG -- in this case, Rosenstein, since Sessions has recused himself. And Mueller could only be removed for misconduct, dereliction of duty, incapacity, conflict of interest or other good cause. Trump could order Rosenstein to fire Mueller, and if Rosenstein refused, Trump could fire Rosenstein. Trump could also issue an executive order terminating Mueller. Were Sessions to be fired or resign, Trump could appoint a new AG who could rescind the Justice Department regulations governing appointments of Special Counsel.

But termination of Sessions and/or Mueller would not sit well with leading congressional Republicans. Sen. Lindsey Graham (South Carolina) said there will be "holy hell to pay" if Trump fires Sessions. Graham also warned that firing Mueller could be "the beginning of the end of the Trump presidency."

By prevailing upon Comey to curtail a criminal investigation, then firing him for continuing to pursue it, Trump engaged in obstruction of justice. If Trump takes action that leads to the firing of Sessions and/or Mueller in order to halt the investigation, that would compound the offense of obstruction of justice.

Trump Preemptively Explores Pardoning Himself

The New York Times recently obtained a Clinton-era memo that indicates a president can be indicted for criminal activity. The memo from independent counsel Kenneth Starr's investigation of President Bill Clinton says, "It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president's official duties. In this country," the memo adds, "no one, even President Clinton, is above the law."

Meanwhile, Trump is considering the scope of his pardoning power, saying he has the authority to pardon anyone, presumably including himself. Although it is not settled whether a president can pardon himself, the fact that Trump is thinking about such pardons is an indication he is concerned about his own criminal liability.

Rather than acting to fulfill his constitutional duty to faithfully execute the laws, Trump is violating or advocating violation of many of them. His law-breaking renders him vulnerable to criminal indictment and perhaps eventually to impeachment.

Copyright, Truthout. May not be reprinted without permission.

Marjorie Cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.

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Donald Trump vs. The Rule of Law

Wednesday, August 02, 2017 By Marjorie Cohn, Truthout | Report
  • font size decrease font size decrease font size increase font size increase font size
  • Print

President Donald Trump uses an umbrella after stepping out of Air Force One July 28, 2017 in Joint Base Andrews, Maryland. (Photo by Chip Somodevilla / Getty Images)President Donald Trump uses an umbrella after stepping out of Air Force One July 28, 2017, at Joint Base Andrews, Maryland. (Photo by Chip Somodevilla / Getty Images)

One of the most sacred duties of the president of the United States is to enforce the laws. The Take Care Clause, in Article II, §3 of the Constitution, says the president "shall take care that the laws be faithfully executed." 

Yet, six months after taking office, Donald Trump has demonstrated contempt for the rule of law. He has not only refused to enforce certain laws; he has become a serial lawbreaker himself and counseled others to violate the law.

Trump is undermining Obamacare, which is currently the law of the land. He is advocating police brutality. Plus, he has illegally bombed Syria, killed large numbers of civilians in Iraq and Syria, instituted an unconstitutional Muslim Ban, violated the Emoluments Clause and obstructed justice.

To read more stories like this, visit Human Rights and Global Wrongs.

Each of these actions either violate or indicate an intention to violate the law.

Sabotaging the Affordable Care Act

The Affordable Care Act (ACA), also known as "Obamacare," is a federal statute that has been upheld by the Supreme Court. Yet, instead of vigorously enforcing it, Trump has, on several occasions, announced his intention to let the law "fail" or "implode."

He has threatened to withhold cost-sharing reduction payments that reduce what individuals must pay for copayments, deductibles and insurance. He has curtailed outreach, pulled $5 million in advertising that encouraged individuals to sign up for health care under the ACA, and even promulgated negative ads. He has proposed reducing the ACA's tax credits, which offset premium costs for middle-income individuals; this reduction would make insurance plans more expensive and raise deductibles and co-payments. And he has moved to weaken the individual mandate by lifting the requirement that taxpayers report to the Internal Revenue Service whether they have health insurance.

"Trump is not talking about letting the patient die," wrote Dean Baker, co-director of the Center for Economic and Policy Research, on Truthout. "He is talking about murder. Trump and the Republicans are not discussing whether they should let Obamacare die. They are plotting to kill it."

Rather than faithfully executing the ACA, Trump is doing his best to destroy it.

Advocating Police Brutality

Last week, Trump suggested that police officers effectuating arrests should bang suspects' heads against police car doors. Trump told officers, "Please don't be too nice" when arresting people.

He elaborated, "Like when you guys put somebody in the car, and you're protecting their head, you know, the way you put your hand over" their head, "I said, 'You can take the hand away, OK?'"

In response to Trump's comments, New York police commissioner James O'Neill stated, "To suggest that police officers apply any standard in the use of force other than what is reasonable and necessary is irresponsible, unprofessional and sends the wrong message to law enforcement, as well as the public."

Indeed, the Fourth Amendment to the Constitution prohibits police officers from using unreasonable force. Trump was advising officers to violate the law.

Promulgating an Unconstitutional Muslim Ban

In January, Trump signed an executive order that would have barred nationals from seven Muslim-majority countries from the US for at least 90 days. It would also have indefinitely prevented Syrian refugees, even those granted visas, from entering the United States. And it would have suspended the resettlement of all refugees for 120 days.

After the ban was struck down by several courts, Trump issued a second Muslim ban, reducing the seven countries to six and lifting the total ban on Syrians.

Opponents of the ban argue it violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause and the Take Care Clause of the Constitution. It also could violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights; both are treaties the United States has ratified, making them part of US law under the Constitution's Supremacy Clause. The ban likely violates the Immigration and Nationality Act as well.

The Supreme Court will determine the legality of the ban when the high court reconvenes in October.

Illegal Bombing of Syria and Unlawful Killing of Civilians in Iraq and Syria

In April, Trump bombed Syria with 59 Tomahawk cruise missiles, each armed with over 1,000 pounds of explosives, in retaliation for a deadly chemical attack allegedly mounted by Syrian president Bashar al-Assad.

The War Powers Resolution allows the president to introduce US Armed Forces into hostilities or imminent hostilities in just three situations: First, after Congress has declared war, which had not happened in this case; second, in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," which had not occurred; and third, when there is "specific statutory authorization," which there was not.

The 2001 Authorization for the Use of Military Force allowed the president to use force only against those groups and countries that supported the 9/11 attacks. The bombing in Syria was not authorized by any other act of Congress. Thus, Trump's missile attack violated the War Powers Resolution. 

Regarding international law, the United Nations Charter prohibits the "use of force against the territorial integrity or political independence of any state." There are only two exceptions: when conducted in self-defense after an armed attack, or with the approval of the Security Council.

Syria had not attacked the United States or any other country before Trump ordered the missile strike. Assad's alleged use of chemical weapons was Trump's justification for the strike. But using chemical weapons did not constitute an armed attack on the United States or another country. And the Security Council had not approved Trump's bombing. It therefore violated the Charter. 

In addition, the Trump administration has killed an inordinate number of civilians, in violation of the UN Charter and the Geneva Conventions.

"Almost 1,000 non-combatant deaths have already been alleged from coalition actions across Iraq and Syria in March -- a record claim," according to Airwars, a non-governmental organization (NGO) that monitors civilian casualties from airstrikes in the Middle East. "These reported casualty levels are comparable with some of the worst periods of Russian activity in Syria." US aircraft inflicted most of the casualties in the coalition strikes, Airwars added.

Indeed, so many civilians have died from coalition airstrikes since Trump took office, Airwars is reducing its work on "alleged Russian actions in Syria -- so as best to focus our limited resources on continuing to properly monitor and assess reported casualties from the US and its allies."

Violating the Emoluments Clause

On January, 23, 2017, Citizens for Responsibility and Ethics in Washington, a nonprofit legal watchdog group dedicated to holding public officials accountable, filed a federal lawsuit against Trump in the Southern District of New York for violation of the Foreign Emoluments Clause of the Constitution.

Located in Article I, §9, the clause prohibits Trump from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress. Since Trump refused to divest from his businesses, he is receiving money and favors from foreign governments and from guests and events at his hotels, leases on his buildings, and real estate deals abroad.

The lawsuit alleges that Defendant Trump

has committed and will commit Foreign Emoluments Clause violations involving at least: (a) leases held by foreign-government-owned entities in New York's Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant's Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by Defendant; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program 'The Apprentice' and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.

Trump's violations of the Emoluments Clause have likely increased since January, when the lawsuit was filed.

Obstructing Justice

The felony of obstruction of justice constitutes an attempt to stop an investigation with a corrupt intent. Trump asked then FBI director James Comey to block the criminal investigation of former National Security Advisor Michael Flynn for his undisclosed contacts with Russia.

Shortly after Flynn resigned, Trump told Comey, "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go." Comey testified, "I took it as a direction" that "this is what he wants me to do."

When Comey did not halt the investigation of Flynn, Trump fired him. On two separate occasions, Trump admitted he had fired Comey to stop the investigation of ties between Russia and Trump's campaign.

First, the day after the Comey firing, Trump told Russian officials in the Oval Office, "I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That's taken off." Then, the following day, Trump informed the NBC's Lester Holt, "When I decided to just do it [fire Comey], I said to myself … this Russia thing with Trump and Russia is a made-up story."

Moreover, Trump lambasted Attorney General (AG) Jeff Sessions for recusing himself from the Russia investigation because Sessions had undisclosed contacts with Russia during the presidential campaign.

After Sessions' recusal, Assistant AG Rod Rosenstein assumed stewardship of the investigation and appointed Robert Mueller as Special Counsel to pursue a criminal investigation of Russia-Trump campaign ties and other related matters.

Trump told the New York Times, "A special counsel should never have been appointed in this case."

The president is apparently hesitant to fire Sessions outright due to the outrage over the Comey firing. It seems that Trump is trying to prod Sessions into quitting, but the AG has refused to take the bait.

Trump has also verbally attacked Mueller, with veiled threats that he might take action to fire Mueller if the Special Counsel investigates Trump's finances.

A special counsel may only be removed by the AG -- in this case, Rosenstein, since Sessions has recused himself. And Mueller could only be removed for misconduct, dereliction of duty, incapacity, conflict of interest or other good cause. Trump could order Rosenstein to fire Mueller, and if Rosenstein refused, Trump could fire Rosenstein. Trump could also issue an executive order terminating Mueller. Were Sessions to be fired or resign, Trump could appoint a new AG who could rescind the Justice Department regulations governing appointments of Special Counsel.

But termination of Sessions and/or Mueller would not sit well with leading congressional Republicans. Sen. Lindsey Graham (South Carolina) said there will be "holy hell to pay" if Trump fires Sessions. Graham also warned that firing Mueller could be "the beginning of the end of the Trump presidency."

By prevailing upon Comey to curtail a criminal investigation, then firing him for continuing to pursue it, Trump engaged in obstruction of justice. If Trump takes action that leads to the firing of Sessions and/or Mueller in order to halt the investigation, that would compound the offense of obstruction of justice.

Trump Preemptively Explores Pardoning Himself

The New York Times recently obtained a Clinton-era memo that indicates a president can be indicted for criminal activity. The memo from independent counsel Kenneth Starr's investigation of President Bill Clinton says, "It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president's official duties. In this country," the memo adds, "no one, even President Clinton, is above the law."

Meanwhile, Trump is considering the scope of his pardoning power, saying he has the authority to pardon anyone, presumably including himself. Although it is not settled whether a president can pardon himself, the fact that Trump is thinking about such pardons is an indication he is concerned about his own criminal liability.

Rather than acting to fulfill his constitutional duty to faithfully execute the laws, Trump is violating or advocating violation of many of them. His law-breaking renders him vulnerable to criminal indictment and perhaps eventually to impeachment.

Copyright, Truthout. May not be reprinted without permission.

Marjorie Cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.