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The President v. the Law: How Four Types of Lawsuits Will do the Job Congress Should be Doing

“It’s good to be the king” as Mel Brooks once exclaimed, for kings are above the law.  But US presidents are not kings because they are subject to the law.  Donald Trump is increasingly confronting this reality, with the fate of his presidency resting in four types of law suits that are gradually  grinding he and his administration to a halt.  The latest is a Maryland judge allowing for a suit against Trump alleging that foreign governments doing business with him violates the Constitution’s Emoluments  Clause.

Presidents are not kings, and they are not like Captain Picard from Star Trek declaring “Make it so” and it will happen.  The US Constitution and America’s laws–both civic and criminal–limit presidential power.  Presidents have no inherent power to do whatever they want–all of their authority must come from the Constitution or delegation from Congress.  Trump has never understood this.  He thinks he is the CEO of the federal government, beyond reproach and accountable to no one.

Yet the defining trait of his first 15 months in office has been his and his administration’s woeful ineptness, driven in part but collective inability to act in accordance with the law, whether it be regulating conflict of interest, immigration, or criminal matters.  The Republican Congress has proven unwilling and able to check Trump, botching the Russian investigation and failing to use its checks to hold him accountable out of fear that they will alienate their base.  Yet there are four different legal nooses tightening around Trump’s neck, dictating the fate of the 2018 elections and the future of the Trump presidency.

The first and most famous is special prosecutor Bob Mueller’s investigation into Russian involvement in the 2016 election and what, if any collusive activity did Trump and his campaign have.  The investigation includes not just the question of whether there was collusion but also has the Trump administration obstructed justice, hindered prosecution, committed perjury, or engaged in any other activities to impede the Mueller investigation.  Already the special prosecutor  has netted several indictments and guilty pleas, and at any time many expect Jared Kushner, Donald Trump, Jr., Ivanka Trump, and maybe the president himself to be indicted for something.  The Justice Department along with much of the Trump Administration is self-destructing under the weight of this investigation and with future trials and indictments certain, this issue is not going away before the 2018 elections.

Second, one already saw multiple lawsuits in 2017 challenging Trump executive orders when it came to immigration and sanctuary cities.  With this administration ready to roll out a ton of new  administration regulations, look to see a range of environment and public interest groups as well as states challenge them in court.  Trump may eventually win, but look to see more injunctions, stays, and delays to these rules and orders.

Third, already there are three lawsuits surrounding sexual harassment and women claiming they were paid hush money about affairs.  Gloria Allred–perhaps the best sexual harassment lawyer in the nation–is already representing one alleged victim.  Expect more lawsuits this year.  Thanks to Bill Clinton and the Supreme Court decision that allowed Paula Jones to sue him as president, these cases will multiple and proceed against Trump.  One will see subpoenas and depositions that Trump cannot suppress, forcing Trump in some cases to give testimony under oath and penalty of perjury.

Finally there is the Emolument clause.  The Framers put it in the Constitution out of fear that foreign governments would try to give gifts or other valuables to our federal offices in order to influence them.  The suit that a federal judge just allowed to proceed alleges that the business that foreign governments with the Trump business empire constitute emoluments.  Whether an appeals  court will allow the suit to continue and if it does whether a court agrees that there is a constitutional violation are good questions.  If it proceeds, it may force Trump to release his tax records and open up his private business to legal and public scrutiny.

Taken together, these four sets of legal challenges are doing the work that Congress should be doing but cannot or will not.  With the exception of the Mueller criminal investigation, the other three cannot be derailed by presidential pardoning power, claims of executive privilege, or firing someone.  Should they succeed–even if politically to flip one or two houses of Congress–they will  determine the fate of the Trump presidency. A flipped House or Senate means impeachment or other hearings, or a halt to judicial nominations.  It will also enhance gridlock even beyond what it is now, and it may lead the Congressional Republicans abandoning him where to all surprise–they might actually find it in their interest to do their job and go after him.

 

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David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

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