Dorf on Law

By Michael Dorf As many readers are no doubt aware from the substantial publicity the case has already received, (e.g., here ) a recent federal lawsuit against President Trump seeks declaratory and injunctive relief for the latter’s alleged violations of the Emoluments Clause. The dream team of lawyers representing the plaintiff includes legal scholars Erwin Chemerinsky, Zephyr Teachout, and Laurence Tribe, as well as Bush II and Obama senior ethics counsels Richard Painter and Norman Eisen (as well as other attorneys, including my former student Stuart McPhail). The substantive argument for an Emoluments Clause violation has been made in various fora already, including by Eisen, Painter, Tribe, and Joshua Matz in an article in The Atlantic, and by Eisen, Painter, and Tribe in a Brookings white paper. The public response of the Trump team thus far—that paying fair market value for a hotel room does not violate the Emoluments Clause—is woefully inadequate to address either t...

by Neil H. Buchanan To put it mildly, the first several days of his presidency have not gone well for Donald Trump .  He is picking fights with the press and is obsessed with trivialities in an effort to settle scores.  In this, there might be an opportunity to control the man. Surely the most instructively silly fight that Trump has chosen to pick is his insistence that the crowd at his inauguration was bigger than reported.  It is all about the "dishonest press," as Trump always has it, trying to take away the glory that he is sure rightly belongs to him. Trump, of course, was never going to say something modest and classy: "It's interesting that the Obama crowds were bigger.  I confess that I hoped for a bigger turnout, but that's water under the bridge and I have important work to do now.  Moving on." But even if he must be childish about it, there are better ways to respond.  Even a quick taste of sour grapes, such as "Who cares?" wou...

by Michael Dorf Now that Donald Trump is (gulp) president, we are, I hope, at the beginning of the end of a certain kind of at-best fruitless and at-worst divisive discussion among Democrats about how he got elected. In saying that, I am certainly not hoping for an end to the investigations into the role played in the election by the FBI, the Russian government, and possibly members of the Trump campaign team in traitorous collaboration with them. Although those investigations cannot lead to overturning the result of the election (except perhaps if evidence of, say, treason, leads to Trump's impeachment and Mike Pence's ascendancy to the presidency), they are important both to do what justice can be done and to prevent future improper interference. Nor do I wish or expect to see an end to efforts to discover how Democrats can do better in the future by figuring out what went wrong this time. How did a candidate as flawed as Trump pull off his narrow upset victory? Was it r...

by Neil H. Buchanan I voted for Barack Obama in the 2008 primaries, but I was skeptical.  The rhetoric of hope and change seemed to lack underlying substance, and he appeared to be trying to engage in Clintonian triangulation even as he sweet-talked liberals into thinking that he was not a center-right incrementalist. On the other hand, Obama was running against Hillary Clinton, whose record up until that point suggested that she was completely comfortable with the center-right policies of her husband and possibly that she would move even further to the right.  (In 2016, I became convinced that she had seen the light and was finally rejecting neoliberalism in a way that must have felt liberating for her.  But I digress.) Between Obama and Clinton in '08, therefore, it was a tossup on policy substance, except that Obama's possible non-liberalism was less certain than Clinton's.  This made it that much easier for Clinton's hawkishness, and in particular her vot...

by Michael Dorf Summer Zervos, onetime contestant on The Apprentice , has sued Donald Trump for defamation based on statements that Trump made calling Zervos a liar after Zervos went public with allegations that Trump had groped her much in the manner of his boasting to Billy Bush in the infamous Access Hollywood recording. The complaint is available here . It is juicy reading. 1) The complaint is clearly aimed not only at the court but at the public, containing details that are not directly relevant to the establishment of Trump's liability for defamation but nonetheless aim to expose negative aspects of his character. For example, Zervos avers that Trump "complained about the price" of the room service club sandwich and fries that he and Zervos shared in the room where Zervos expected to be mentored but, the complaint alleges, she was first groped. Complaining about the price of a sandwich is not at all relevant to the legal issues in the case. However, it does tend...

by Eric Segall     About a month before Justice Scalia passed away last February, the Supreme Court voted to hear an important case raising fundamental questions about the separation (or not) of church and state. The Missouri Constitution prohibits any and all public money going to religious institutions. A church school challenged this categorical exclusion when denied an opportunity to compete for state money to improve the safety of school playgrounds. The lower court upheld the exclusion, which exists in one form or another in many other states. The case is so difficult because, while all the Justices likely agree that state aid cannot go to core religious instruction, and while all the Justices also likely agree that police and fire protection cannot be denied to churches, temples and mosques simply because of their religiosity, this case falls right in the middle of those extremes.  Although the Court took the case over a year ago, it has yet to schedule o...

by Neil H. Buchanan Which is it?  Do rich people respond to incentives to get richer, or do they reach the point where enough is enough and other goals take precedence?  Does it matter? I raised this issue briefly at the beginning of my most recent column , referring to Trump's cabinet of billionaires.  In defense of Senate Republicans' efforts to rush through confirmation votes without carrying out the legally required vetting for conflicts of interest, the Trump team's response is that these people could not possibly be subject to any temptation to abuse their positions.  They're rich already! My purpose in that column was to point out a number of Republican hypocrisies, with my final point being that conservatives love to say that people should be held personally responsible for their actions and that "feelings" are irrelevant -- unless and until it is convenient for Republicans to say the opposite.  The point about rich people's satiation was ...

by Michael Dorf In explaining his intention to absent himself from Trump's inauguration civil rights hero and Congressman John Lewis said that he did not regard Trump as a legitimate president. That statement inspired a typically childish and mendacious  Twitter response  from Trump. As noted in the story just linked, there is some debate among those who oppose Trump over whether his impending presidency will be illegitimate or merely despicable, with David Axelrod disagreeing with Lewis on the legitimacy question. I don't have a strong view about this question, which strikes me as mostly a semantic debate about the meaning of the word "legitimate," rather than a substantive debate about anything that matters. We agree about the facts that, depending on one's definition, could call into question Trump's legitimacy: that he received 3 million fewer votes than Clinton; that he ran a campaign appealing to people's basest instincts; that he benefited from ...

by Neil H. Buchanan Donald Trump has now made clear that he has no intention of eliminating his conflicts of interest -- saying, in essence, that he is keen to cash in on the " corruption premium ."  Meanwhile, the rush by Senate Republicans to confirm Trump's cabinet nominees without adequate vetting continues on its shameless path. Trump's apologists have come up with an amazing defense of this spectacle, which is that people like Trump and his cabinet of billionaires are too rich to be corrupt.  As Paul Krugman recently pointed out , this argument is completely at odds with the usual conservative line about how rich people think, amounting in fact to a repudiation of the logic of trickle-down economics. Think back to any argument that you have heard against progressive taxation, whether it be higher taxes on business profits, taxes on large concentrations of wealth (especially the estate tax), or even the notion of having an income tax at all.  The core cons...

by Michael Dorf During the presidential election campaign, criticism of Donald Trump's proposal to build a wall at the southern border and make Mexico pay for it took various forms. These included: skepticism about the cost; doubts about efficacy (given the possibility of going over the wall via ladders and ropes, under it via tunnels, etc); and doubts about the ability of Trump to require Mexico to pay, especially after Trump's meeting with Mexican President Peña Nieto, when the latter announced that he flatly told Trump that Mexico would not pay for the wall. The last question--about payment--was revived recently when Trump sought funding for the wall from Congress. When critics objected that this was contrary to his campaign rhetoric, Trump took to Twitter (of course) to explain that Congress would, in effect, be providing mere bridge funding until Mexico reimburses the U.S. That tweet in turn restarted the debate about how Trump would extract billions of dollars fro...