Tag Archives: impeachment

Adapting Anticorruption Enforcement to an Age of Populism and Polarization

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Shortly after the U.S. Senate acquitted President Clinton in 1999, he apologized for triggering the impeachment process. President Trump, in contrast, declared that his acquittal called for “a day of celebration,” and immediately started firing White House employees who had testified before the House of Representatives. In 2008, then-Israeli Prime Minister Olmert resigned shortly after the police recommended that he should be indicted on corruption charges. In contrast, after Prime Minister Netanyahu was indicted on multiple bribery charges, he infamously said that Israeli citizens should “investigate the investigators,” and even with the trial approaching, Netanyahu shows no signs of considering resignation. Instead, he is currently fiercely promoting legislation to amend several of the Israeli Constitutional Basic Laws in ways that will allow him to remain in office for years to come. These troubling examples illustrate how the resurgence of populism, coupled with increasing polarization, are making it easier for corrupt politicians to evade accountability, even in countries with functional legal and judicial systems. Deep political divisions and strong partisan loyalty are not new, but in the past, it seems there was a degree of overlapping consensus on minimum standards of integrity and propriety, and enough citizens were willing to enforce these standards on a non-partisan basis that leaders would be restrained by political checks—enforced through things like elections and internal party discipline—that could complement judicial processes.

Moreover, leaders like Trump and Netanyahu have acted aggressively to undermine the institutions of justice in order to protect themselves. Both leaders have cavalierly attacked the professionalism and integrity of their country’s law enforcement agencies by suggesting that investigations targeting the leader or his associates are politically motivated “witch hunts.” And both have taken more concrete action to undermine the ordinary operation of the machinery of justice. In the U.S., after his Senate trial acquittal, President Trump intervened to help allies who had been found guilty in cases related to investigations of impropriety by Trump’s 2016 campaign. For example, Trump’s Attorney General ordered the Department of Justice to seek a more lenient sentence for Trump’s former consultant Roger Stone, and Trump pardoned or commuted the sentences of several others in a short and unorthodox process. Netanyahu has been even more aggressive in trying to weaken legal institutions in order to protect himself. After being indicted, Netanyahu fired the Minister of Justice and appointed in her place a low-ranking member of his party with no prior ministerial experience. The new Minister’s first action was to appoint a new Solicitor General—the immediate superior of the prosecution team in Netanyahu’s case–through an irregular process and against the recommendation of the non-partisan Attorney General. (Due to the political deadlock, the Minister is part of a caretaker government and could therefore appoint an interim Solicitor General without the approval of the public committee that the law would otherwise require.) On the eve of Israel’s third round of elections, the new Solicitor General decided—against the opinion of the Attorney General and many others—to launch a police investigation into a firm in which Netanyahu’s chief rival Benny Gantz served as a director (obscuring the fact that Gantz himself is not a suspect). More recently, the Minister of Justice gave the unprecedented order to freeze all non-urgent judicial procedures due to the Covid-19 outbreak—a move that indefinitely postpones Netanyahu’s trial. While the Covid-19 outbreak has disrupted or delayed judicial proceedings in many countries, there was no expert opinion supporting such drastic measures in Israel, especially given that Israel has more per capita testing and ventilators capacity than nearly any country on earth. Even now, when newly detected cases are close to zero, a new date for the trial has yet to be set. Moreover, to avoid a fourth round of elections, given the continued deadlock, Netanyahu is now fiercely and unprecedently promoting legislative amendments to Israel’s Constitutional Basic Laws that would allow him to hold onto office for years to come.

When professional, and traditionally non-partisan, law enforcement agencies find themselves under attack by corrupt populists, these agencies often do not respond, presumably due to the belief that the only way to maintain integrity, legitimacy, and professionalism in the face of such attacks is to refrain from commenting on unfounded claims meant to disparage state attorneys and police investigators. There is much to be said for that approach, but at the same time, the institutions of justice can and should do more to counter the attempts of corrupt populists to undermine those institutions in order to remain in power.

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The Resignation of Brazilian Justice Minister Sérgio Moro: Reflections on How Key Players Should Handle This Political Crisis

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If a global pandemic and a mounting economic crisis weren’t enough, Brazil now faces a political crisis. Last Friday (April 24), Sérgio Moro, the former judge in the Car Wash anticorruption operation who had become Minister of Justice in the administration of far-right President Jair Bolsonaro, resigned his ministerial post and accused President Bolsonaro of multiple improprieties having to do with apparent interference with ongoing federal criminal investigations. In particular, Moro stated that Bolsonaro fired the head of the Federal Police, Maurício Valexio, without Moro’s necessary approval (and, indeed, had forged Moro’s electronic signature on the dismissal papers), because—according to Moro—Bolsonaro “was concerned about investigations underway in the Federal Supreme Court,” which many interpreted as an allusion to ongoing investigations into corruption allegations against President Bolsonaro’s sons. This was not the first time President Bolsonaro had meddled in the  Ministry of Justice—notwithstanding his promise that Moro would have full autonomy—but the firing of Valexio seems to have been the final straw for Moro. In his resignation speech, Moro emphasized his reluctance to resign in the midst of a public health crisis, but declared that Bolsonaro’s actions were beyond the pale. “I could not,” Moro explained, “set aside my commitment to the rule of law.”

It’s hard to exaggerate the significance of Moro’s resignation for Brazilian politics, and for the future of Brazil’s fight against systemic corruption. The resignation of a senior minister on grounds of alleged presidential interference in an investigation would be an enormous scandal under any circumstances, but to appreciate the significance of Moro’s resignation from the Bolsonaro government, one must know a bit more about the larger context. Moro became a nationally prominent figure due to his role in presiding over some of the most high-profile investigations and trials in the Car Wash anticorruption investigation, including the trial of former President Lula of the left-wing Worker’s Party (the PT); the Car Wash investigation also led to the impeachment and removal of Lula’s successor, Dilma Rousseff, though Judge Moro was not directly involved in that political process. Lula’s conviction meant that he was disqualified from running in the 2019 presidential election, which many observers believe he would have won. Thus, while Judge Moro was heralded as a hero by many Brazilian’s for his role in the Car Wash Operation, others—especially those affiliated with the PT—accused him of political bias against the left.

Lula’s disqualification, and the taint of corruption that attached to the PT due to the Car Wash Operation, created a window of opportunity for Jair Bolsonaro in the 2019 presidential election. Bolsonaro, a far-right politician who had long been considered a marginal figure at best, ran on an anticorruption platform, claiming that only he could clean up the corrupt Brazilian political system. This appeal worked: Many Brazilian voters who did not share Bolsonaro’s radical right-wing ideology nevertheless concluded that they couldn’t stomach another presidency with the “corrupt” PT. After Bolsonaro won the election, he appointed Moro to be his Minister of Justice—a move that many saw as intended to bolster Bolsonaro’s claims to be committed to ushering in a new era of anticorruption reform in Brazil. Bolsonaro made explicit and extravagant promises that Moro—an anticorruption hero in the eyes of most Brazilians, including many skeptical of Bolsonaro himself—would have a free hand to run his Ministry without presidential interference. But Moro’s acceptance of a senior position in the Bolsonaro administration drew criticism from the Brazilian left, a line of criticism that only intensified after a series of media stories last summer that suggested, based on leaked text messages, that while Moro was the presiding Judge in the Car Wash cases he may have inappropriately coordinated with prosecutors or exhibited bias against Lula. While some disputed this interpretation of the text messages, they fed into the narrative that Moro was partisan and Car Wash was a witch hunt. Even some of Moro’s supporters expressed concern about the content of the leaks, and about his acceptance of a position in the Bolsonaro government.

Moro’s resignation is a shocking new twist to this ongoing drama. Until recently, he was condemned by the far-left as Lula’s jailer; now he’s condemned by the far-right as a traitor. With some Brazilians, he’s still a popular anticorruption standard-bearer. It’s understandable that there’s considerable speculation both about Moro’s future and about the immediate ramifications of his dramatic resignation for the Bolsonaro government. There are questions about the longer-term impact of these developments on Brazilian politics and the future of anticorruption reform.

How should the various actors in this drama handle the situation going forward? In the remainder of this post, I advance some tentative advice for three principal players—the Brazilian Congress, the investigative agencies (especially the Federal Police), and Moro himself. How these players handle this volatile situation over the coming weeks and months will have far-reaching implications for Brazilian politics and institutions.

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Dershowitz is Wrong: What Trump Did Was a Crime

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Desperate to acquit Donald Trump of impeachment charges, Senate Republicans have seized on Harvard Law Professor Alan Dershowitz’ two part defense. That conviction requires Trump to have committed a crime and that it was no crime for Trump to condition aid to Ukraine and a meeting with its president on Ukraine investigating Trump political rival Joseph Biden.  There is but one flaw in Dershowitz’ argument.  It is flat wrong.  Section 201 of title 18 of the United States Code makes it a crime for a public official to solicit a bribe.  And that is exactly what Trump did. Continue reading →

In Pressuring Ukraine To Open Criminal Investigations, Trump’s Associates May Have Committed Many Crimes. But Violating the Foreign Corrupt Practices Act Probably Wasn’t One of Them.

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Right now, the biggest corruption story in the U.S., and probably the world, concerns efforts by President Trump and his associates, both inside and outside the U.S. government, threaten to withhold U.S. military aid from Ukraine in order to pressure the Ukrainian government into opening investigations that would help Trump politically. It’s clear at this point, except perhaps to the most rabid partisans, that there was indeed a “quid pro quo,” and the discussion has now turned to the question whether, with respect to President Trump specifically, he should be impeached for his conduct related to this episode (the issue that Rick focused on in yesterday’s post), and, with respect to whether Trump, his private lawyer Rudy Giuliani, or anyone else committed any crimes.

On that second question, commentators have suggested a whole range of criminal laws that some or all of the parties involved might have broken, including:

  • The section of the campaign finance laws that prohibits the “solicit[ation” from a foreign national of a “contribution or donation” to an election campaign of any “thing of value”;
  • The federal anti-bribery statute’s prohibition on any federal public official “directly or indirectly, corruptly demand[ing or] seek[ing] … anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act”;
  • The anti-extortion provision of the Hobbs Act, which prohibits “the obtaining of property for another … under color of official right” (as well as the attempt or conspiracy to do so);
  • The wire fraud statute, which prohibits the devising of any “scheme or artifice to defraud” that involves use of any interstate (or international) wire communication (such as a phone call), where the term “scheme or artifice to defraud” is specifically defined elsewhere in the statute as including a scheme “to deprive another of the intangible right of honest services.” (This may seem a bit opaque to readers unfamiliar with this corner of U.S. law, but in a nutshell, so-called “honest services fraud” is a theory that when a public official, or some other person in a position of trust, engages in a corrupt scheme to, say, solicit bribes, that individual defrauds her principals by depriving them of her honest services. For an explanation of how this could apply to Trump in the Ukraine case, see here.)
  • In the case of Mr. Giuliani and other parties who do not work for the U.S. government, the Logan Act, which prohibits private citizens from corresponding with any foreign government or foreign government official “with the intent to influence the measures or conduct of any foreign government …. in relation to any disputes or controversies with the United States.”
  • Various provisions of Ukrainian law.

In addition to all of these possibilities, which strike me as at least facially plausible given the evidence that has come to light so far, some commentators have suggested that President Trump’s associates, such as Mr. Giuliani, may have violated the Foreign Corrupt Practices Act (FCPA) (see here and here). This argument hasn’t gotten much traction, in my view for good reason. Even for someone like me, who generally has a more expansive view of the FCPA than do some other commentators, it’s hard to see how the evidence we have so far would suggest a plausible FCPA violation. There are two main reasons for this: Continue reading →

Can A “Fudgy” Adverb Save Trump From Impeachment?

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For weeks President Trump’s defenders have claimed he did not demand Ukraine investigate the Bidens in return for approving the delivery of weapons to Ukraine. In legal terms, the argument was that there was no exchange of one for the other, no quid pro quo, the cornerstone of the crime of bribery.  That defense has now collapsed (here and here). The evidence that Trump sought a “quo,” a personal favor in the form of an investigation of the Bidens, in return for a “quid,” weapons, is overwhelming (here).  His defenders have thus now fallen back to a secondary defensive line: there was a quid pro quo but it was merely an “inappropriate” one. It was not, defenders insist, an impeachable quid pro quo.

Whether this new defense will carry the day remains to be seen.  No American president has ever faced impeachment for soliciting a bribe.  There is thus no standard jurors in a Trump impeachment trial, the 100 members of the United States Senate, can consult in deciding whether Trump’s attempt to use the power of the presidency to obtain a personal benefit is impeachable. But as Senators construct a standard, they might consider the one a 12-person jury of lay people in a criminal trial must use when a public servant is accused of soliciting a bribe. Continue reading →

Quid Pro Quo: A Primer

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Thanks to the Trump impeachment imbroglio, Americans are brushing up on Latin.  Or at least on the Latin phrase quid pro quo. Though Trump’s partisans and opponents are at each other’s throats about virtually everything, a consensus has emerged that if his dealings with Ukraine involved a quid pro quo, he is in trouble. The reason: the U.S. Supreme Court has repeatedly held (examples here and here) that the touchstone of the American federal crime of bribery is the presence of a quid pro quo. If the impeachment investigation were to uncover one in his Ukraine dealings, Trump would be guilty of bribery, one of three crimes, along with treason and high crimes and misdemeanors, for which he can be removed from office under Article II of the U.S. Constitution.

Quid pro quo means “this for that,” the archetypal example being someone who provides “this money” for “that action” by a public official. But the translation misleads by its simplicity, glossing over critical questions which Congress will have to answer in deciding whether Trump should be removed from office for his actions involving Ukraine:

Must the “this for that” be in the form of an explicit agreement?  Must, that is, there be a meeting of the minds between the two?

Or is a promise enough? That the payer or the recipient merely asked for something – a payment, the performance of an official act — from the other.

Must the terms of the agreement or promise be express? Stated clearly, leaving nor room for doubt. Explicit? Put into words whether written or not.

The Supreme Court, the lower courts, and academic commentators have wrestled with these questions for decades, and while not bound by their answers in an impeachment proceeding, Congress should surely pay heed to them. The federal judiciary arrived at them not during a white-hot partisan debate, with one eye on the effect of one’s chances for reelection. Instead, the answers were reached after deliberate, studied attention to the facts, to answers reached in previous cases, and to the consequences the answers would have on public servants’ future conduct.

Members of the House and Senate are not the only ones that would profit from a study of the American law of quid pro quo. Prosecutors, judges, and legislators in other nations would as well, for the quid pro quo requirement is part of all nations’ antibribery statutes (expressly stated in article VIII of the InterAmerican Convention Against Corruption and article IV of African Union Convention on Preventing and Combatting Corruption and following directly from the texts of the United Nations Convention Against Corruption (article 15), the Council of Europe Criminal Law Convention on Corruption (article 2) and the OECD Antibribery Convention (article 1)).  The United States is not the only nation with a bribery jurisprudence (here and here), but thanks to its size, aggressive law enforcement, and quality of its judiciary, its case law applying the quid pro quo standard is surely richer than most if not all.

A primer on it is below. Continue reading →

Band-Aids Don’t Fix Bullet Holes: The West Virginia Supreme Court Needs To Address Its Corruption Problem

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The headlines wrote themselves: a $32,000 couch (complete with $1,000 worth of throw pillows). A $10,000 payment to a private attorney to “ghostwrite” a court opinion. Illegal overpayments to former colleagues in the hundreds of thousands of dollars. Public outcry erupted in late 2017 when news broke that the justices on the West Virginia Supreme Court of Appeals (the highest court in the state) had spent lavishly on office renovations. Further investigations revealed that some justices had used state-owned vehicles and government credit cards for personal use. Three of the justices were accused of scheming to overpay retired judges who were contracted by the judiciary to fill in on the trial courts in times of vacancy or high caseloads. But the most brazen allegations were leveled against Chief Justice Allen Loughry, who was convicted of wire fraud and obstructing an investigation into his enriching himself at taxpayer expense—despite the modest fame and fortune he (ironically) earned as the author of a book on political corruption in West Virginia.

The pervasiveness and diversity of the misdeeds on the West Virginia Supreme Court of Appeals over the past few years suggest that the corruption was in many ways a cultural problem. But it’s worth noting that the most serious allegations of corruption were likely not actually criminal. A quirk in West Virginia’s law gave the Supreme Court near-total control over its own budget, paving the way for the unchecked spending. Likewise, the intentional overpayments to retired judges reeked of cronyism but may or may not have been illegal; while a statute capped payments to part-time judges, the judiciary still arguably retained ultimate control how and how much to spend.

In response to the revelations of corruption, West Virginia’s government settled on two aggressive solutions. First, in August 2018 the West Virginia House of Delegates approved 11 articles of impeachment against the four justices still on the court and scheduled trials for each of them before the State Senate to determine if they should be removed from office. (The normally five-member court was already down a justice, who resigned in July a few weeks before pleading guilty to federal fraud charges.) The impeachment proceedings were met with outrage by some commentators (see here, here, and here), who saw them as a partisan power grab. Questionable motives aside, the results of the impeachment charges were still a mixed bag: one justice resigned from the Supreme Court before her trial. Another was acquitted of all charges but formally censured by the State Senate in a lopsided vote. The other two justices escaped any impeachment trial after an interim slate of state Supreme Court justices threw out the impeachment charges against their fellow justices on technical grounds. Chief Justice Loughry resigned following conviction in federal court (that makes three resignations overall, if you’re keeping count), and the legislature backed down from further impeachments. Second, after the impeachments, West Virginia’s voters overwhelmingly approved a constitutional amendment that wrested control over the judiciary’s budget away from the Supreme Court, giving the legislature the power to cap the judiciary’s annual spending, so long as the total amount is no less than 85% of the previous year’s budget.

But even if these measures work precisely as planned, the problem in West Virginia is far from solved. The damage to the judiciary’s legitimacy has been severe. A common refrain states that judges “like Caesar’s wife, must not only be virtuous but above suspicion.” And Chief Justice Loughry—of all people—echoed this same bold claim in his book: “Of all the criminal politicians in West Virginia, the group that shatters the confidence of the people the most is a corrupt judiciary…. It is essential that people have the absolute confidence in the integrity and impartiality of our system of justice.”

Unfortunately, the remedies implemented thus far serve only the short-sighted goals of stopping yesterday’s corruption. What is missing in the aftermath of the West Virginia scandals is a concerted effort on rebuilding trust in the judiciary. As previous scandals in the public and private sectors suggest, regaining trust in the judiciary requires public remedial actions by the judiciary itself. Replacing certain justices and adding high level legislative oversight may have been appropriate, even essential, measures, but they don’t necessarily help the court restore its integrity and repair its tarnished reputation. Moreover, focusing exclusively on these externally-imposed remedies may send a signal that the judiciary can’t be trusted to handle its own affairs. This makes it all the more imperative that the judiciary take the initiative in addressing its cultural problem and rebuilding public trust in the courts. A willingness to accept responsibility for past mistakes and engage in transparent self-evaluation will be critical as the West Virginia Supreme Court begins its new term this month. In particular, there are two steps the Court could take that would be helpful: Continue reading →

Depoliticizing the Removal of Heads of Anticorruption Agencies

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In December 2017, a civil society organization that aligns itself with Philippine President Rodrigo Duterte made good on its threat to submit an impeachment complaint against Conchita Carpio Morales, head of the Philippines’ independent anticorruption agency (ACA), known as the Office of the Ombudsman. This came after President Duterte himself called for the impeachment of Ombudsman Morales, publicly accusing her of engaging in “selective justice” and of being part of a “conspiracy” to oust him. Notably, President Duterte leveled these accusations at a time when the Office of the Ombudsman had opened an investigation into the Duterte family’s alleged hidden wealth, and into a multi-billion peso illegal drug trafficking case that implicates President Duterte’s son. This is hardly a unique case. In Nigeria, Nepal and Ukraine, among other places, conflicts between politicians and ACA heads have resulted in the latter’s actual or threatened removal.

Unfortunately, most countries place the decision whether to remove an ACA head in the hands of their politicians (see here and here). The Chief Executive often plays a key role in removals—sometimes on his or her sole authority (as in Afghanistan, Brazil, Botswana, South Korea, Mexico, Singapore, and Tanzania), or in conjunction with the legislature (as in Uganda and Lithuania) or a judicial body (as in Ghana and Kenya). In most other cases, the power of removal is exercised by parliament or any of its members or ministers, often through an “impeachment” process of some kind. Only Barbados, Bangladesh, and Yemen have removal procedures for ACA heads that are strictly and purely judicial in nature.

While there are, at present, no universally-accepted standards against which ACAs are measured, the non-binding 2012 Jakarta Statement on Principles for Anti-Corruption Agencies lays out principles for states to follow in establishing or maintaining effective ACAs. The Jakarta Statement’s position on appropriate procedures for removing an ACA head may be influential in shaping how at least some countries address this issue. And because the Jakarta Statement is currently being revisited (see here and here), now is an opportune time to consider revising its provision regarding the removal of ACA heads.

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State-Level Responses to Trump’s Business Conflicts: A More Promising Line of Attack?

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It is genuinely alarming how much Donald Trump seems intent—in true kleptocratic/crony capitalist style—on using his position as President to advance the commercial and financial interests of himself, his immediate family members, and their various business enterprises. As I’ve written before, this approach to governance (if you can call it that) has plenty of precedents elsewhere in the world, but it’s a new experience for Americans. One hopes the U.S. electorate will come to its senses and throw the bum out in four years, but that’s a long way away. In the meantime, the hope that the President might be impeached over his possibly unconstitutional conflicts of interest seems profoundly unrealistic: Republicans control both the House and the Senate, and most Republicans actually seem quite happy to accommodate themselves to a Trump Administration if it enables them to advance their policy goals. Even those Republicans who find Trump’s conduct inexcusable are far more worried about a primary challenge supported by Trump’s rabid supporters than they are about the general electorate. For the same reason, proposals for new federal legislation that would strengthen ethical restraints on the President, whatever their symbolic value, are likely dead-on-arrival as practical proposals. Perhaps understandably, some anticorruption advocates have placed their hopes in the federal courts, most notably through lawsuits alleging that the Trump Organization’s business dealings with foreign governments violate the U.S. Constitution’s Foreign Emoluments Clause, though for reasons I have explained in previous posts (see here and here), I’m doubtful that such lawsuits have much chance of success.

This is all very depressing, and I acknowledge that in the short term there’s relatively little that can be done; the ultimate remedy will have to be through the electoral process. Nonetheless, I do think that the ideas of enacting new legislation and pursuing certain forms of litigation do hold some promise as means to impose significant constraints on Trumpian corruption. The problem with the proposals I noted above is that they involve proposed responses at the federal level, and for the most part they target the President himself. There’s an alternative, though: Litigation and legislation at the state level, targeting Trump’s business interests and their potential commercial partners. Though hardly a complete solution, there may be a number of things to do at the state level to constrain at least some of the abuses associated with politically-connected business interests that seek to leverage those political connections for commercial advantage, or to facilitate corrupt or otherwise unlawful conduct. To illustrate, let me note a couple of ideas that other experts have floated about how aggressive state attorneys general (or perhaps private litigants) might make use of existing state laws to target Trumpian corruption: Continue reading →

Donald Trump Will Probably Violate the Foreign Emoluments Clause. So What?

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Those of us who are still reeling from the shock and horror of Donald Trump’s election are going through many of the typical stages of grief: denial, anger, depression, etc. To these I’d add an additional stage of (political) grief, which seems to disproportionately afflict my fellow law professors: the desperate concoction of legally plausible but politically dead-on-arrival constitutional theories designed to stop Trump from becoming President (or stop him from doing lots of the things he wants to do).

Enter the Foreign Emoluments Clause of the U.S. Constitution (Article I, Section 9, Clause 8), which provides that “no person holding any office [of the United States government] … 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.” Many legal scholars, including my colleague Larry Tribe, as well as a number of legal ethics experts, have argued (persuasively, in my view) that Donald Trump’s global business dealings may well put him in violation of this Clause: If any foreign state pays above-market-value for any goods or services provided by the Trump business empire, or does any other favor (with a cash value) designed to benefit President Trump’s businesses, that could well be deemed a “present … of any kind.” The wording of the Emoluments Clause is broad: It does not require a quid pro quo, it does not require a showing that the gift was intended to influence a decision or an expression of gratitude for a decision already made. In contrast to the conflict-of-interest statutes, there is no explicit exemption from the Foreign Emoluments Clause for the President (though some scholars have sought to argue that the President is not covered, for reasons I don’t find all that persuasive). Furthermore, the “of any kind” modifier would seem to defeat many of the otherwise-plausible claims that the terms “present” and “emolument” should be read narrowly. (I imagine that there might still be a “de minimis” exception from the Emoluments Clause, allowing for ceremonial gifts of various kinds, but that’s not really what we’re talking about in the Trump case.) Though I’m no expert, based on what I’ve read thus far I’m prepared to accept the claim that should foreign governments provide benefits to the Trump Organization while Donald Trump is President—including paying above-market-rates, or steering business to Trump’s companies—then President Trump would be in violation of the Foreign Emoluments Clause.

The question is: So what? What’s the remedy for this constitutional violation?

There are three possibilities—a judicial remedy, an “elite” political remedy, and a public opinion remedy. None of them seems especially promising. Continue reading →