Trump ‘dictator’ comments raise questions about democracy. Here are 5 guardrails – if they hold
Riley Beggin and Angele Latham – January 5, 2024
As he seeks a second term in office, former President Donald Trump has indicated he plans to dramatically expand the power of the presidency and upturn democratic precedents.
Multiple American presidents of both parties have tested the bounds of executive power. But these pledges – and Trump’s unwillingness to acknowledge the valid results of the 2020 election, including saying the “termination” of the Constitution would be appropriate to overturn it − have experts in authoritarianism particularly on edge for what a second term would bring.
The United States government was built to withstand attempts to concentrate power in the hands of a single leader by vesting authority in Congress and the courts to check the president. There are also several agencies that operate independently of the president and decades of precedent that can create additional guardrails for democracy.
Experts who spoke with USA TODAY had varied opinions on the strength of those guardrails to stand up to potential abuses of power. Some said a widespread abandonment of democratic principles is unlikely; others suggested Trump has already proven they can be worn down.
Former President Donald Trump speaks after exiting the courtroom for a break at New York Supreme Court, Dec. 7, 2023, in New York.
In either case, they said, the strength of American democracy depends on how willing people are within the system to defend it in the face of retaliation.
“There is a possibility that the Constitution’s limits are exposed,” said Daniel Kiel, a professor of constitutional law at the University of Memphis. The Constitution sets rules to protect democracy, but it works only if people follow them, he said.
“If we don’t have voluntary adherence to the rules of the game, then it reveals that the Constitution on its own isn’t enough.”
Here’s more on five key guardrails at play in curbing potential abuses of executive power.
The courts
The judicial system, a co-equal branch of government, is a major arbiter of whether policies spearheaded by Congress or the president are legal.
“One of the guardrails against presidential dictatorship is the expectation that the other institutions will push back,” said Joel Goldstein, a law professor and constitutional expert at St. Louis University School of Law. “The Constitution requires every member of Congress, every member of the court, to take an oath to support the Constitution. And the premise behind that is that if you have a president who steps out of his or her lane, exceeds his or her power, as preventions to dictatorship the other institutions will push back.”
Trump has had a particularly significant influence on the court system: He appointed more than 200 federal judges in four years in office, only about 30% fewer than Presidents Barack Obama and George W. Bush, who each served two terms.
A relatively high proportion of those were in the higher ranks. For instance, he appointed 54 judges to the nation’s 13 powerful appeals courts (compared with 55 appointed by Obama and 62 by Bush). He also appointed three U.S. Supreme Court justices, more than any president since Ronald Reagan. That created the conservative supermajority now serving on the nation’s highest court.
Chief Justice of the United States John Roberts, Justice Clarence Thomas and Justice Samuel Alito attend a private ceremony for retired Supreme Court Justice Sandra Day O’Connor before public repose in the Great Hall at the Supreme Court in Washington, DC, on Dec. 18, 2023.
But that doesn’t mean the justices would allow a significant power grab. In fact, the Supreme Court has ruled against Trump in more cases than any president in modern history.
Trump and the Supreme Court would likely be on the same page about some disputes, said Philip Gorski, a political sociologist at Yale University, such as his plan to purge the civil service.
But “the real acid test would be around elections and presidential immunity,” he said.
The high court has already made one key decision in Trump’s favor: In late December, it declined special counsel Jack Smith’s request to take up Trump’s claim that he is immune from prosecution in the federal election interference case. The move is a boon for Trump in that it may delay the start of his March 4 trial, which is schedule a day before 16 states hold primary elections.
Congress
“One of the most important checks on executive power – the most obvious and the most powerful – is Congress,” said Sheri Berman, a political science professor at Barnard College.
Congress was built to be a co-equal branch of government with the president. But as the United States became a larger global player and the number of federal agencies expanded, presidents gained much more power to shape policy without the help of Congress.
Goldstein said that apart from a citizen’s initial vote, the role of Congress to uphold an equal separation of powers is one of the most vital to prevent extreme presidential overreach.
US House Speaker Mike Johnson, R-La., speaks to the press after meeting with Ukrainian President Volodymyr Zelensky on Capitol Hill in Washington, DC, on December 12, 2023.
The legislative branch has the power to rein in a president. They are the only branch with constitutional power to tax and spend, can pass laws limiting executive branch regulatory powers (especially with a president set on slashing regulation), and remain able to impeach, convict and remove a president from office – but only with enough support in the House and Senate.
But “one of the things that I think has made Trump so dangerous is that the Republican Party has pretty much fallen in behind him,” Berman said. Trump remains extraordinarily popular among the GOP base – and he doesn’t hesitate to go after members of his own party who publicly defy him – which can make it challenging for a Republican-controlled Congress to be a significant check on his power, she said.
The ‘power ministries’
Trump has claimed he is being targeted for political reasons by Smith, the nonpartisan special prosecutor, and pledged to use the Justice Department to “go after” President Joe Biden and other political adversaries if elected.
He also has said he would send the National Guard into cities with high crime rates “until law and order is restored” and to the southern border “to stop the invasion” of record numbers of migrants seeking asylum in the U.S. Trump and his top military leaders clashed over Trump’s suggestion of using military might to quell protests in the wake of George Floyd’s murder in Minneapolis in summer 2020.
“The real threat is if he is able to purge and co-opt the power ministries: law enforcement, defense, intelligence,” said Yale’s Gorski. “Failing that, he can’t really go beyond being a norm-defying president.”
FBI Director Christopher Wray, speaks with reporters during a news conference at the Department of Justice on Dec. 6, 2023, in Washington, as from left, Senior Official Performing the Duties of the Deputy Director Staci Barrera, of U.S. Immigration and Customs Enforcement, Assistant Attorney General Nicole M. Argentieri of the Criminal Division, Secretary of Homeland Security Alejandro Mayorkas and Attorney General Merrick Garland, look on.More
There are multiple reasons to believe those “power ministries” would stand firm, he said. The militaries of successful strongmen are often drawn from the region or ethnic group that has strong ties to the leader. “The fact that we have a really cross-class, multiracial, inclusive military is certainly a buttress,” he said.
Gorski and Berman said the defense communities are staffed with people who are largely nonpartisan, professional and committed to defending the Constitution.
“Because of the strong ethos within each of those agencies or branches of the government – I would still expect considerable pushback,” Gorski said.
Elections
Multiple experts noted there is an often-overlooked guardrail to protect democracy that can prevent concerns of overreach from the very beginning: voting.
“The first act of rejection of these anti-democratic proposals should be at the ballot,” said Frederico Finchelstein, a history professor at the New School for Social Research in New York.
“If that is not effective, the situation will be very problematic because then you will have a person who is supported by votes” to deliver on anti-democratic promises – a voter mandate that could bolster arguments for more authoritarian policies, he said.
Lee Curran of Cherry Hill emerges from the voting booth after casting his vote at the Erlton Fire Company, district 25 in Cherry Hill, N.J. Tuesday, Nov. 8, 2022.
Goldstein expressed a similar sentiment.
“A democratic government is the antithesis of a dictatorship – and so the first guardrail against presidential dictatorship is not to elect somebody who has tendencies toward authoritarianism or dictatorial tendencies,” he said.
Though the right to vote is the first step in checking presidential power, Kiel warns that should Trump be duly elected in 2024, that electoral support might embolden him to push the limits of his presidential power.
“There was already a second reelection effort (by Trump) that failed, and so the voters have limited his power by voting him out of office,” Kiel said. Trump has been impeached twice − and acquitted twice in the Senate − and lost election once, he added: “If he were to be returned to office … I do think it’s a unique scenario in that one might feel more emboldened to test those limits of presidential power because those limits have proven already inadequate.”
The press
A primary guardrail of democracy, multiple experts noted, is also often the loudest one in the room: the press.
“The freedom of the press, the freedom of speech − our system depends upon a belief that the press and dissidents can speak against the government,” Goldstein said. “And that you as a citizen are not being unpatriotic by criticizing the government − it’s our patriotic duty to criticize the government when it acts improperly.”
But the attitude of a presidential administration toward the press can drastically affect the public’s trust in America’s oldest institution.
Trump has been a vocal critic, repeatedly claiming the press is intentionally peddling false information about him and his former administration. Kash Patel, a close ally who is likely to have a national security role in a second Trump administration, said that a new administration would “go out and find the conspirators” in the media.
TUCSON, ARIZONA – JULY 31: Kash Patel, a former chief of staff to then-acting Secretary of Defense Christopher Miller, speaks during a campaign event for Republican election candidates at the Whiskey Roads Restaurant & Bar on July 31, 2022 in Tucson, Arizona. With less than two days to go before the Arizona primary election, candidates continue campaigning across the state. (Photo by Brandon Bell/Getty Images)More
Patel’s statements reflect a growing gap among Americans regarding the trustworthiness and efficacy of reputable news organizations to provide that constitutional guardrail.
In 2020, the Pew Research Center found that the gap between Americans who view a number of notable news sources as “trustworthy” versus “untrustworthy” has widened significantly since 2014 – and almost entirely along political lines.
Indeed, another study found that the number of citizens who believed that news organizations’ criticism of elected leaders “(kept) them from doing things they shouldn’t” split dramatically after the first year of Trump’s presidency.
In January 2016, 75% of respondents believed news organizations protected from governmental overreach, and the gap between Republican-leaning respondents and Democrat-leaning respondents spanned 3 points. One year into Trump’s term, that gap widened to 47 points.
Looking forward
These five factors each have a role to play in protecting democracy in the United States, the experts who spoke with USA TODAY said. But their success hinges on the people inside each institution acting in the country’s best interest.
“Ultimately, any guardrail on presidential authoritarianism or dictatorship depends upon government officials and citizens valuing constitutional principle above short-term partisan advantage,” said Goldstein, of St. Louis University.
When people are more interested in “protecting their own team” than following the Constitution, he said, “then the system can unwind.”
“Unprofessional”: Experts blast Trump lawyer for saying Brett Kavanaugh “quid pro quo part out loud”
Igor Derysh – January 5, 2024
Alina Habba ANNA WATTS/POOL/AFP via Getty Images
Trump attorney Alina Habba on Thursday suggested that Supreme Court Justice Brett Kavanaugh would “step up” and rule in favor of the former president because he “fought for” him.
Trump on Wednesday asked the U.S. Supreme Court to overturn a Colorado Supreme Court ruling barring him from the presidential primary ballot under the Constitution’s “insurrectionist” clause. Trump has privately told people that he thinks the Supreme Court will “overwhelmingly” overturn the ruling but has also expressed concern that the conservative justices he appointed “will worry about being perceived as ‘political’ and may rule against him,” according to The New York Times.
Habba echoed Trump’s worries in an interview with Fox News.
“That’s a concern that he’s voiced to me, he’s voiced to everybody publicly, not privately. And I can tell you that his concern is a valid one,” she said. “They’re trying so hard to look neutral that sometimes they make the wrong call.”
But in a later appearance on the network with host Sean Hannity, Habba said the case should be a “slam dunk in the Supreme Court.”
“You know people like Kavanaugh ― who the president fought for, who the president went through hell to get into place ― he’ll step up,” she said. “Those people will step up. Not because they’re pro-Trump but because they’re pro-law. Because they’re pro-fairness, and the law on this is very clear.”
CNN host Phil Mattingly was taken aback as he played the clip on Friday.
“If a Democrat said that about the Justice Department or Merrick Garland or fill-in-the-blank here, there would be an absolute implosion. That’s bonkers,” he said.
“She’s saying the quiet part out loud,” replied panelist Jon Avlon. “She’s saying that Brett Kavanaugh will step up and side with the president because he appointed him. That goes against every basic idea of law and independence of the judiciary. And frankly, it puts Kavanaugh in a bit of a box.”
Legal experts skewered the lawyers’ Fox News remarks.
“That’s not how this works,” tweeted national security attorney Bradley Moss. “Imagine for a second if a lawyer for Clinton, Obama or Biden said this. It’d be a massive scandal at Fox,” he added.
“Alina Habba saying the quid pro quo part out loud here,” wrote MSNBC legal analyst Katie Phang.
“Yet another example of Habba demonstrating how unprofessional she is as an attorney,” national security lawyer Mark Zaid added.
US Supreme Court to hear Trump appeal of Colorado ballot disqualification
Andrew Chung and John Kruzel – January 5, 2024
FILE PHOTO: Republican presidential candidate and former U.S. President Trump campaigns in Reno
WASHINGTON (Reuters) -The U.S. Supreme Court on Friday agreed to hear Donald Trump‘s appeal of a judicial decision barring the former president from Colorado’s Republican primary ballot, taking up a politically explosive case with major implications for the 2024 presidential election.
At issue is the Colorado Supreme Court’s Dec. 19 ruling disqualifying Trump from the state’s primary ballot based on language in the U.S. Constitution’s 14th Amendment for engaging in insurrection, involving the Jan. 6, 2021, attack by his supporters on the U.S. Capitol.
The justices took up the case with unusual speed. Trump, the frontrunner for his party’s nomination to challenge Democratic President Joe Biden in the Nov. 5 U.S. election, filed his appeal on Wednesday. The justices indicated they would fast-track a decision, scheduling oral arguments for Feb. 8. The Colorado Republican primary is scheduled for March 5.
The state court, acting in a challenge to Trump by Republican and unaffiliated voters in Colorado, found him ineligible for the presidency under a constitutional provision that bars anyone who “engaged in insurrection or rebellion” from holding public office, barring him from the primary ballot.
The U.S. Supreme Court did not act on a separate appeal of the state court’s decision by the Colorado Republican Party.
The Colorado case thrusts the Supreme Court – whose 6-3 conservative majority includes three justices appointed by Trump – into the unprecedented and politically fraught effort by his detractors to invalidate his campaign to reclaim the White House.
Trump’s spokesperson Steven Cheung praised the court’s decision to hear the case, characterizing the disqualification efforts as “part of a well-funded effort by left-wing political activists hell-bent on stopping the lawful re-election of President Trump this November, even if it means disenfranchising voters.”
Colorado Secretary of State Jena Griswold said people in her state and around the United States “deserve clarity on whether someone who engaged in insurrection may run for the country’s highest office.”
Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, a watchdog group representing the challengers to Trump, added, “We’re glad that the Supreme Court will definitively decide whether Donald Trump can be on the ballot. We look forward to presenting our case and ensuring the Constitution is upheld.”
Many Republicans have decried the disqualification drive as election interference, while proponents of disqualification have said holding Trump constitutionally accountable for an insurrection supports democratic values. Trump faces criminal charges in two cases related to his efforts to overturn his 2020 loss to Biden.
Trump also has appealed to a Maine state court a decision by that state’s top election official barring him from the primary ballot under the same constitutional provision at issue in Colorado.
HIGH STAKES FOR SUPREME COURT
While the Colorado case could hamper Trump’s bid to win back the presidency, it also has major implications for the justices. Given the political nature of the dispute, they run the risk of appearing partisan whichever way they lean.
Their action will shape a wider effort to disqualify Trump from other state ballots. Colorado and Maine are Democratic-leaning states. Nonpartisan political analysts forecast that both are unlikely to back a Republican presidential candidate in the general election. But there are efforts underway in other states – including highly competitive Michigan – that could shape the election’s outcome.
The Colorado ruling marked the first time that Section 3 of the 14th Amendment – the so-called disqualification clause – was used to deem a presidential candidate ineligible. Section 3 bars from holding office any “officer of the United States” who took an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The amendment was ratified in the aftermath of the American Civil War of 1861-1865 in which Southern states that allowed the practice of slavery rebelled in a bid for secession.
Among other arguments, Trump’s lawyers have said that Section 3 does not apply to U.S. presidents, that the question of presidential eligibility is reserved to Congress, and that he did not participate in an insurrection.
The Colorado court’s decision marked “the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate,” Trump’s appeal stated.
The Republican and unaffiliated voters who sued to disqualify Trump from the ballot disagreed. In a filing on Thursday, they emphasized the lower court’s findings that Trump’s intentional “mobilizing, inciting, and encouraging” of an armed mob to attack the Capitol meets the legal definition in Section 3.
“This attack was an ‘insurrection’ against the Constitution by any standard,” they said in the filing.
Trump’s supporters attacked the Capitol in a bid to prevent Congress from certifying Biden’s election victory. Trump gave an incendiary speech before the attack, repeating his false claims of widespread voting fraud.
Biden in a speech in Pennsylvania on Friday cast Trump as a threat to American democracy, one of the themes of his re-election campaign. Biden specifically made reference to Trump’s speech before the Capitol riot, whose three-year anniversary is on Saturday.
(Reporting by John Kruzel in Washington and Andrew Chung in New York; Editing by Will Dunham)
“No shame. No decency”: Experts shocked at “weakness” of Trump’s bizarre Supreme Court ballot appeal
Igor Derysh – January 4, 2024
Donald Trump Scott Olson/Getty Images
Former President Donald Trump on Wednesday appealed the Colorado ruling barring him from the state’s primary ballot to the Supreme Court.
The Colorado Supreme Court last month found that Trump engaged in an insurrection on Jan. 6 and was barred from appearing on the ballot under Section 3 of the 14th Amendment — a post-Civil War provision barring insurrectionists from office.
Trump’s lawyers in a filing asked the U.S. Supreme Court to put his name back on the ballot, arguing it would “mark the first time in the history of the United States that the judiciary has prevented voters from casting ballots for the leading major-party presidential candidate.”
Trump’s team called on the court to “return the right to vote for their candidate of choice to the voters,” arguing that only Congress has the authority to determine who is eligible for the presidency.
Trump’s team also disputed that he engaged in insurrection, citing a “long history of political protests that have turned violent.”
Legal experts criticized Trump’s filing starting with the very first line, which noted that it is a “fundamental principle” of the Constitution that “the people should choose whom they please to govern them.”
“No shame. No decency,” tweeted former U.S. Attorney Joyce Vance, alluding to Trump’s own efforts to disenfranchise voters after his 2020 loss.
“The sort of gall that the brief represents, it’s really, I think, shocking,” former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller’s team, told MSNBC. “It’s really sort of beyond the pale and legally wrong.”
“Donald Trump is charged with, essentially, disenfranchising, trying to disenfranchise 80 million people,” Weissmann said.
Conservative attorney George Conway went through the indictment on MSNBC’s “Morning Joe” on Thursday.
“This is a bizarre document, and I think it reflects the weakness of Trump’s position,” he said.
“He is throwing stuff up at the wall, or throwing stuff up in a zoo cage, and seeing what would stick,” Conway said, noting that Trump lacks “real appellate advocates” on his legal team and that the filing is effectively “channeling Trump’s narcissism.”
“The third reason, I think, is the fundamental weakness of his position. The fifth point in this brief, point five, Roman numeral five, is he didn’t engage in insurrection. It is not number one. The reason is, it’s because his arguments are very, very weak. If you look at the question in terms of President Trump should be removed from the ballot, it’s kind of a shocking notion to those of us who haven’t lived, until now, in an era where public officials engage in insurrection. But it was familiar to the people who enacted the 14th amendment,” he said.
“When you go through the issues one by one by one, the way lawyers are supposed to, his case looks terrible,” he added.
CNN legal analyst Elie Honig, a former federal prosecutor, noted that Trump’s argument that he did not engage in insurrection is a “weak argument.”
“First on the facts but second, the Supreme Court’s not going to touch that,” he said. “They’re not a fact-finder, they don’t do trials. They generally won’t make that kind of finding.”
Honig said it is unclear how the court might look at Trump’s arguments that the matter should be left to Congress or that he was not given due process in the Colorado case.
“And then the fourth argument is this claim that the term ‘officers,’ as it’s used in the insurrection clause, doesn’t include the president. I tend to side with Colorado and [the plaintiffs] on that one. You can carve that up linguistically either way but just [on] common sense, how could it not apply to the president?” Honig questioned. “All of this is new… whatever happens here, we’re all going to learn together.”
How Rep. Andy Biggs proves House Speaker Mike Johnson’s Texas border bonanza was bogus
EJ Montini, Arizona Republic – January 4, 2024
Arizona Rep. Andy Biggs was at the border community of Eagle Pass, Texas, on Wednesday, part of a group of 60-plus Republicans led by House Speaker Mike Johnson, all of whom made the trip to make speeches, make the news, make (perhaps) some campaign cash, and accomplish … nothing.
Accomplishing nothing is something Biggs has proven to be very good (?) at.
“No more money for this bureaucracy of his (President Joe Biden’s) government until you’ve brought this border under control,” Biggs is quoted as saying in The New York Times. “Shut the border down or shut the government down.”
The congressman made the same threat on X, formerly Twitter.
”Shut the border down, or we’ll shut the government down,” he posted, standing with three other Republicans, including Arizona Rep. Eli Crane, who appears to have spent his time in Congress being tutored by Biggs on how to get zero done.
Some make progress. Biggs make noise
U.S. House Speaker Mike Johnson, center left, and Texas Department of Public Safety chief Steve McCraw, center right, lead a group of Republican members of Congress during a tour of the Texas-Mexico border, Wednesday, Jan. 3, 2024, in Eagle Pass, Texas.
There are two groups of elected officials operating in Washington, D.C.
There is a very small collective who want to make progress. And there is an overwhelming majority who want to make noise. You can guess which group Biggs, Speaker Johnson and the other Texas tinhorns belong to.
Meantime, back at the Capitol, there is a small working group of senators, including Arizona’s independent Sen. Kyrsten Sinema, Oklahoma Republican Sen. James Lankford and Democratic Sen. Chris Murphy of Connecticut, who are trying to hammer out a bipartisan agreement on border measures.
Sinema told The Arizona Republic, “We’re dealing with very, very difficult, complex issues. Drafting is very technical. It must be done incredibly precise and to avoid unintended consequences and decades of litigation. And so this is really hard. But everyone is working in good faith to solve this crisis.”
Not everyone.
Border isn’t a crisis, it’s a GOP gold mine
Republicans already are using the border crisis as their primary campaign argument for the 2024 election. It’s how they hope to help Donald Trump get back to the White House.
The worst thing that could happen to them, politically, would be for Republicans and Democrats of good faith to reach a bipartisan deal on the border.
Speaker Johnson, like Biggs and Arizona Republican Rep. Paul Gosar, was among those who tried to stage a nonviolent coup to keep Trump in office after he lost the election in 2020.
The bogus bonanza in Texas on Wednesday wasn’t about the border. It was about Trump.
Congress can solve this, but will it?
It wasn’t even the first time Biggs threatened a government shutdown.
He did that last year when he and some Republican cronies were trying to strongarm then Speaker Kevin McCarthy.
On Wednesday, Democratic Sen. Chuck Schumer in Washington said of the Republicans and their Texas two-step, “It’s very nice that they have a trip to the border, but the only way to solve this is here, working in a bipartisan way with Senate Republicans, Senate Democrats and House Democrats to get it done, period.
“I hope the speaker will realize that if he wants to solve the problem on the border.”
Trump’s businesses received millions from foreign entities during his presidency, House report says
Will Steakin – January 4, 2024
Former President Donald Trump’s businesses received millions of dollars from foreign entities located in 20 different countries during his presidency, according to a new report released Thursday by Democrats on the House Oversight committee.
The top Democrat on the Oversight Committee, Rep. Jamie Raskin, released the report and provided documents from Trump’s former accounting firm that show that 20 governments, including China and Saudi Arabia, paid at least $7.8 million during Trump’s presidency to business entities that included Trump International Hotels in Washington, D.C., and Las Vegas, and Trump Towers in New York.
The 156-page report by House Democrats is entitled “White House For Sale.”
In the forward to the report, Raskin wrote, “By elevating his personal financial interests and the policy priorities of corrupt foreign powers over the American public interest, former President Trump violated both the clear commands of the Constitution and the careful precedent set and observed by every previous commander in chief.”
The reports says that, according to “limited records” obtained by the committee, Saudi Arabia likely paid Trump-owned business at least $615,422 during Trump’s first term in office.
“While the Kingdom of Saudi Arabia was making these payments, President Trump chose Saudi Arabia as the destination of his first overseas trip — a choice that was unprecedented among U.S. presidents,” the report says.
PHOTO: Republican presidential candidate and former President Donald Trump attends a campaign event in Waterloo, Iowa, Dec. 19, 2023. (Scott Morgan/Reuters, FILE)
The report claims that the payments violated the Constitution’s foreign emoluments clause, a rule that bars the president and other federal officials from accepting money or gifts from foreign governments without Congressional approval.
In 2021, the U.S. Supreme Court dismissed lawsuits accusing Trump of profiting from his presidency, on the grounds that he is no longer in office.
“Through entities he owned and controlled, President Trump accepted, at a minimum, millions of dollars in foreign emoluments in violation of the United States Constitution,” Democrats write in the report. “The documents obtained from former President Trump’s accounting firm demonstrate that four Trump-owned properties together collected, at the least, millions of dollars in payments from foreign governments and officials that violated the Constitution’s prohibition on emoluments ‘of any kind whatever’ from foreign governments.”
ABC News has reached out to Trump’s representatives for comment on the report.
Related:
AFP
Foreign govts paid Trump firms millions while president: report
AFP – January 4, 2024
A Chinese embassy delegation spent $19,391 at the Trump International Hotel in Washington, DC (CHIP SOMODEVILLA)
Former US president Donald Trump‘s businesses received at least $7.8 million from foreign governments including China during his time in the White House, a congressional report claimed Thursday.
Officials from Saudi Arabia, India, Turkey and Democratic Republic of Congo were among some 20 countries’ representatives who paid money to Trump’s hotel and real estate businesses during his presidency, Democrats on the House Oversight Committee wrote in their report.
The authors claim that such revenues from overseas governments violated a constitutional ban on “foreign emoluments.”
“As President, Donald Trump accepted more than $7.8 million in payments from foreign states and their leaders, including some of the world’s most unsavory regimes,” said the report titled “White House for Sale.”
“We know about only some of the payments that passed into former President Trump’s hands during just two years of his presidency from just 20 of the more than 190 nations in the world through just four of his more than 500 businesses.”
– ‘Prohibited emoluments’ –
In the case of China, the report alleged that Beijing as well as businesses including ICBC bank and Hainan Airlines spent $5.5 million at Trump-owned properties.
“Former President Trump violated the Constitution when the businesses he owned accepted these emoluments paid by (Beijing) without the consent of Congress,” the report said.
The authors say that the full amount could be higher as the $5.5 million figure is based only on limited disclosures from Trump’s accountants Mazars and filings with the American financial regulator, the SEC.
In one expenditure dated August 27, 2017, a Chinese embassy delegation spent $19,391 at the Trump International Hotel in Washington.
The report also claims that “Saudi Arabia paid at least $615,422 in prohibited emoluments to former President Trump’s businesses over the course of his term in office from just (the Trump World Tower) and the March 2018 stay at the Trump International Hotel in Washington, DC.”
“Former President Trump has also boasted about the continued willingness of the Saudis to do business on terms highly favorable to him,” the report stated.
Trump’s Washington hotel was sold in 2022 to a private investor group and rebranded under the luxury Waldorf Astoria line.
The frontrunner for the 2024 Republican presidential nomination, Trump separately faces a civil fraud trial in New York over claims that his real estate businesses fraudulently inflated the value of their assets.
He is to go on trial in Washington in March for conspiring to overturn the results of the 2020 election, and in Florida in May on charges of mishandling top secret government documents.
The twice-impeached former president also faces racketeering charges in Georgia for allegedly conspiring to upend the election results in the southern state after his 2020 defeat by Democrat Joe Biden.
Related:
CNN
China spent over $5.5 million at Trump properties while he was in office, documents show
Zachary Cohen and Kara Scannell, CNN – January 4, 2024
Gabriella Demczuk/Getty Images
The Chinese government and its state-controlled entities spent over $5.5 million at properties owned by Donald Trump while he was in office, the largest total of payments made by any single foreign country known to date, according to financial documents cited in a report from House Democrats released Thursday.
Those payments collectively included millions of dollars from China’s Embassy in the United States, a state-owned Chinese bank accused by the US Justice Department of helping North Korea evade sanctions and a state-owned Chinese air transit company. Accounting records from Trump’s former accounting firm, Mazars USA, were obtained by Democrats on the House Oversight Committee.
China is one of 20 countries that made at least $7.8 million in total payments to Trump-owned businesses and properties during the former president’s stint in the White House, including his hotels in Washington DC, New York and Las Vegas, the report states.
The documents offer additional evidence of the rare practice of foreign governments spending money directly with businesses owned by a sitting president but are not a complete record of all foreign payments made to Trump’s businesses during his time in the White House.
At the time, Trump’s lawyer said the former president planned to donate foreign profits from his hotels to the US Treasury Department. However, the amount reportedly donated by the Trump Organization in 2017 and 2018 falls well short of estimated foreign payments that were made to its properties.
Trump refused to divest himself of corporate assets and properties prior to taking office, meaning he could still profit from his various businesses with little transparency.
Democrats say the additional accounting records raise new questions about possible efforts to influence Trump through his companies while he was in the White House.
As an example, committee Democrats point to the fact that Trump declined to impose sanctions on the Industrial and Commercial Bank of China (ICBC), a state-owned entity that leased property at Trump Tower in New York.
A Securities and Exchange Commission filing from 2012 shows that the Chinese bank’s base rent paid was $1.9 million and documents produced by Mazars confirm the bank stayed in Trump Tower through 2019 at least.
In 2016, the Justice Department accused the bank of conspiring with a North Korean bank to evade US sanctions.
But upon taking office, Trump did not sanction ICBC despite calls from Republican members of Congress to “apply maximum financial and diplomatic pressure” by “targeting more Chinese banks that do business with North Korea,” House Oversight Committee Democrats wrote in a report summarizing the contents of the Mazars USA records.
Asked about China’s payments to Trump-owned properties, Chinese Embassy spokesperson Liu Pengyu told CNN, “China adheres to the principle of non-interference in internal affairs and does not comment on issues related to US domestic politics.”
“At the same time, I want to stress that the Chinese government always requires Chinese companies to operate overseas in accordance with local laws and regulations. China-US economic and trade cooperation is mutually beneficial. China opposes the US politicizing China-US economic and trade issues,” Pengyu added.
The Trump Organization says it donated over $450,000 in estimated profits from foreign government patronage to the US Treasury over the time of Trump’s term. The company also worked to track all foreign government business across its entire portfolio and did not make new business investments overseas while Trump was in office.
In a statement, Eric Trump said that the former president was tough on China regardless of any business interests.
“There is no President in United States history who was tougher on China than Donald Trump … a President who introduced billions and billions of dollars worth of tariffs on their goods and services,” Eric Trump said.
Democrats also argue that the Mazar documents show Trump repeatedly violated the US Constitution’s Emoluments Clause, which prohibits a president from receiving an “emolument,” or profit, from any “King, Prince, or foreign State” unless Congress consents. Yet despite ethical concerns that have been raised about Trump’s lack of adherence to constitutional norms that were embraced by his predecessors, legislation to enforce the Emoluments Clause has gone nowhere in Congress.
The committee, which has investigated Trump’s businesses and his lease of the Old Post Office in Washington from the US government that housed his hotel, was provided the records following a years-long court battle that ended in a settlement in 2022.
Many of the documents in the subset released Thursday have not been previously made public.
“These countries spent – often lavishly – on apartments and hotel stays at Donald Trump’s properties – personally enriching President Trump while he made foreign policy decisions connected to their policy agendas with far-reaching ramifications for the United States,” Democrats wrote in their report.
Saudi Arabia, for example, spent roughly $600,000 at Trump-owned properties during his time in office and was making significant payments in May 2017 when it signed a massive arms deal with the Trump administration.
The Trump administration agreed to the controversial arms deal, worth over $100 billion, despite bipartisan concerns about civilian casualties resulting from Saudi Arabia’s military intervention in Yemen.
The report produced by House Democrats also highlighted comments made by Trump during a 2015 campaign rally regarding his view of Saudi Arabia.
“Saudi Arabia, I get along great with all of them. They buy apartments from me. They spend $40 million, $50 million.” He continued, “Am I supposed to dislike them? I like them very much!” Trump said at the time.
Committee Democrats have previously released some of the accounting records, but those documents only accounted for a fraction of the foreign payments to Trump-owned businesses during the years he occupied the White House.
Foreign spending at Trump World Tower
A sizable percentage of foreign spending disclosed in the latest report comes from leases or common charge payments countries made for apartments their diplomatic missions rent or own at Trump World Tower, an apartment building across the street from the United Nations.
Many of the countries bought properties years before Trump ran for office, but they continued to make payments to the Trump Organization during the presidency.
Saudi Arabia, India, Qatar, Kuwait, Afghanistan, and a Chinese-government linked petroleum company each owned or rented apartments at Trump World Tower and combined paid the Trump Organization an estimated $1.7 million in charges and fees, according to House Democrats.
The figure is based on records the Democrats received from Mazars for the year 2018 – the only year Mazars gave to the committee – and then an extrapolation based on the assumptions the charges remain the same during the course of Trump’s presidency.
The biggest payment to the UN property came from Saudi Arabia, which owns the 45th floor of the apartment tower. Democrats estimate the Saudi government paid $537,080 during Trump’s presidency – out of a total $615,422 in emoluments. The remainder came from payments to Trump’s hotel in Washington DC.
Qatar paid an estimated $465,744 for the properties it owned during Trump’s presidency; India paid at least $264,184; Afghanistan spent an estimated $153,208 for its unit; and Kuwait paid Trump’s company $152,664 for the Trump World Tower.
Kuwait also spent roughly $150,000 to the Washington hotel for National Day events held by its embassy in 2017 and 2018, according to Mazars records.
The national day event was also held at the hotel in 2019, but the Democrats said they did not receive records from Mazars related to the cost. The events were attended by Trump administration officials, the Democrats said citing press releases from the Kuwaiti embassy.
This story has been updated with additional details.
Related:
BBC News
Trump companies got millions from foreign governments, Democrats say
Natalie Sherman – BBC News – January 4, 2024
Trump International Hotel opened in 2016 in Washington
Donald Trump‘s hotels and other businesses accepted more than $7.8m (£6.1m) from foreign governments during his presidency, according to a new report from Democrats in Congress.
They found that China was responsible for more than $5.5m of those payments, which Mr Trump is accused of accepting in violation of the US constitution.
The report is based on documents released by Mr Trump’s former accounting firm after a court battle.
Mr Trump did not immediately comment.
The US constitution bars presidents from accepting gifts or other benefits derived from their position without express permission from Congress.
The former businessman, who made his name as a hotel and property developer, has been dogged by questions about his firms’ dealings since he entered the White House in January 2017.
At the time, he placed his sons in charge of the companies’ day-to-day operations but maintained ownership of the businesses, which included the Trump International Hotel in Washington, which became a known haunt for lobbyists, foreign delegations and others.
Mr Trump, who is currently campaigning for a second term, faced numerous lawsuits alleging conflicts-of-interest.
In 2021, America’s highest court threw out the cases, saying they were moot after he lost the 2020 election.
Representative Jamie Raskin, the top Democrat on the House Oversight Committee, said the investigation showed Mr Trump “put lining his pockets with cash from foreign governments seeking policy favors over the interests of the American people”.
“The report’s detailed findings make clear that we don’t have the laws in place to deal with a president who is willing to brazenly convert the presidency into a business for self-enrichment and wealth maximization with the collusive participation of foreign state,” he wrote in the introduction to the report.
Democrats said their investigation showed that Mr Trump’s loyalties were split by the payments, which came from at least 20 governments many of which had sensitive or politically charged matters before the US.
They cite as an example that Mr Trump supported arms sales to Saudi Arabia that were opposed by Congress due to fears the weapons would be used against civilians.
The report also notes he cast doubt on US intelligence assessments that the Crown Prince Mohammad bin Salman had ordered the murder of Washington Post journalist Jamal Khashoggi.
After China, Saudi Arabia and its royal family was the second biggest patron of the Trump businesses, spending more than $600,000 at his properties, according to the report.
Qatar, Kuwait and India rounded out the top five list.
Democrats said that the findings reflect just the first two years of his presidency and only four of his properties, claiming it likely represented just a fraction of the money Mr Trump’s businesses made from foreign governments during his time as president.
In 2022, Democrats lost control of Congress and could no longer compel release of documents, cutting short the investigation.
Republican James Comer, who is leading an inquiry into the business dealings of President Joe Biden’s son, Hunter, during his father’s vice presidency, dismissed the findings.
“It is beyond parody that Democrats continue their obsession with former President Trump,” he said in a statement. “Former President Trump has legitimate businesses but the Bidens do not.”
Mr Trump’s tax records, released in 2022, revealed significant business losses during his presidency and he has scaled back his business.
The Trump Organization sold the Washington hotel to an investment group for $375m in 2022.
Related:
CBS News
Trump businesses got millions in foreign payments while he was president, Dems say
Kathryn Watson, Stefan Becket – January 4, 2024
Washington — Donald Trump‘s businesses received at least $7.8 million in payments from foreign governments and government-backed entities from 20 countries while he was in the White House, according to a new report by House Democrats.
Drawing upon 451 pages of documents received from Trump’s longtime accounting firm Mazars and a federal agency, Democratic staffers on the House Oversight Committee on Thursday issued their 156-page report entitled “White House for Sale: How Princes, Prime Ministers, and Premiers Paid Off President Trump.”
The records, the report said, “demonstrate that four Trump-owned properties together collected, at the least, millions of dollars in payments from foreign governments and officials.” The Democrats alleged these payments violated what’s known as the Constitution’s Foreign Emoluments Clause, which prohibits federal officials from accepting gifts or other benefits from foreign countries without congressional approval.
“This report sets forth the records showing foreign government money — and all the spoils from royals we can find — pouring into hotels and buildings that the President continued to own during his presidency, all in direct violation of the Constitutional prohibition,” said Rep. Jamie Raskin of Maryland, the top Democrat on the committee.
The Democrats noted that they had access to a limited number of financial documents and that “the foreign payments to President Trump identified in this report are likely only a small fraction of the total amount of such payments he received during his presidency.”
Where the payments came from
The Democratic report focuses on payments to four Trump-controlled businesses: the Trump hotels in Washington, Las Vegas and New York, and Trump Tower in Manhattan.
While Trump turned over day-to-day operations of his businesses to his sons when he entered the White House in 2017, he declined to divest his assets and retained “personal ownership and control of all his businesses, as well as the ability to draw funds from them without any outside disclosure,” the report alleged. This arrangement, Democrats said, “reinforced (rather than severed) his ties to his businesses and enabled him to prioritize his personal interests over those of the nation.”
During his presidency, the Trump International Hotel in Washington attracted many foreign diplomats and dignitaries hoping to mingle with Trump allies and administration officials. According to Trump’s financial disclosure reports from when he was president, he earned more than $40 million from the D.C. hotel in 2017, and $40.8 million the following year.
A view of the Trump International Hotel in Washington, D.C., on Oct. 18, 2021. / Credit: Yasin Ozturk/Anadolu Agency via Getty Images
Despite Trump’s frequent criticism of China and insistence that the country was taking advantage of the U.S., the majority of foreign payments included in Thursday’s report came from the Chinese government and two state-owned entities.
The payments totaled nearly $5.6 million at properties including Trump Tower, and the Trump International Hotels in Washington and Las Vegas, the report found. The bulk of the payments came from the state-owned Industrial and Commercial Bank of China, which paid $5.35 million in rent for space in Trump Tower from February 2017 to October 2019.
The nation that spent the second-most at the Trump properties, according to the report, was Saudi Arabia. The Saudi government spent more than $615,000 at Trump World Tower in New York and the Trump hotel in Washington from 2017 to 2020.
The report noted that Trump praised Saudi Arabia and mentioned “his transactional relationships” with the kingdom before taking office. During an August 21, 2015, rally in Alabama, Trump said Saudi nationals had spent millions of dollars on his apartments.
“Saudi Arabia, I get along great with all of them. They buy apartments from me. They spend $40 million, $50 million,” he said. “Am I supposed to dislike them? I like them very much!”
The report said that Trump “oversaw several highly consequential decisions on a range of issues involving U.S. policy towards Saudi Arabia” while his businesses were receiving payments from the Saudi government. The Democrats noted Trump’s response to the 2018 death of Washington Post columnist and Saudi dissident Jamaal Khashoggi, in which he publicly doubted the conclusion of the intelligence community that the Saudi crown prince had ordered his killing.
Qatar follows Saudi Arabia’s spending, with $465,744 spent at Trump World Tower. Nearly all of the remaining payments, from countries including Kuwait, India, Malaysia, Afghanistan, the Philippines and the United Arab Emirates, occurred at the Trump International Hotel in Washington.
The fight over emoluments
Trump’s business dealings as president were the subject of three major court cases while he was in office, the first of which was filed in 2017. The cases, brought by Democratic lawmakers, several states and an oversight group, were the first legal battles over the Emoluments Clause, but failed to resolve questions about the definition of an “emolument” or the scope of constitutional provision. The Supreme Court dismissed two of them once Trump left office and declined to review the third.
The Trump campaign didn’t immediately respond to a request for comment on the new report. Trump dismissed the “phony Emoluments Clause” and concerns about his business dealings in 2019.
The Trump Organization has said it voluntarily donated proceeds from foreign governments to the U.S. Treasury every year from 2018 to 2021. In 2017, the Trump Organization said it would rely on foreign representatives to self-report if they were paying a Trump company for something in their official capacity.
The company said it donated $191,538 in foreign payments in 2019, $105,465 in 2020 and $10,577 in 2021.
Biden’s first 2024 ad focuses on ‘extremist’ threat to democracy
AFP – January 4, 2024
Trump supporters clash with police and security forces as they storm the US Capitol in Washington, DC on January 6, 2021 (Olivier DOULIERY)
President Joe Biden‘s campaign released its first television ad for the 2024 election on Thursday, warning of an “extremist” threat to democracy over images of the January 6, 2021 attack on the US Capitol.
The advertisement, entitled “Cause,” will get its first network showing on Saturday, the third anniversary of the historic assault by Donald Trump supporters which left five people dead.
“All of us are being asked right now, what will we do to maintain our democracy?” the 81-year-old Democrat says in a passage lifted from a speech he gave in Arizona last year.
“There’s something dangerous happening in America. There’s an extremist movement that does not share the basic beliefs in our democracy,” says the ad, released early on social media.
During the one-minute ad, Biden does not mention by name former president Trump — the clear frontrunner for the Republican nomination and the man he beat in 2020.
But over swelling, dramatic music, the ad features repeated images of pro-Trump signs held by the January 6 rioters, as well as a hangman’s noose brought by the protesters to the Capitol.
It also includes pictures of torch-bearing white supremacists at a rally in Charlottesville in 2017.
The Biden campaign is increasingly painting the election as a fight for American democracy against Trump, with the president set to give a speech on similar lines in Pennsylvania on Friday.
Polls show Biden and Trump neck and neck despite the populist Republican tycoon, 77, facing multiple criminal trials, including one linked to the January 6 riot.
Biden campaign manager Julie Chavez Rodriguez said Republicans had “doubled down” on threats to undermine elections.
“This ad serves as a very real reminder that this election could very well determine the very fate of American democracy,” she said in a statement.
Letters to the Editor: I immigrated to the U.S. in 1971. I’ll leave if Trump is reelected
Los Angeles Times Opinion – January 4, 2024
An immigrant holds a flag and the Oath of Allegiance during a naturalization ceremony in Los Angeles in 2021. (Luis Sinco / Los Angeles Times)
To the editor: After I immigrated to the U.S. in 1971, my introduction to national politics was the Watergate hearings, which I followed closely on TV. The role that prominent members of the Republican Party played in the downfall of President Nixon was expected and commendable. (“Is 2024 the year you’ll become an American expat?” Opinion, Jan. 1)
Forty-five years later, I watched Trump get elected and left the country in horror. Unfortunately, my American family was unable to join me in Switzerland due to job obligations, so after three months I returned to suffer for four years watching the principles of my beloved adopted country being systematically dismantled.
If former President Trump gets reelected, I will once again move to Europe, unwilling to spend another four years experiencing the deterioration of our country at home, and being a laughingstock abroad.
The complicity of Republicans in Trump’s ego-driven schemes reminds me too much of the developments leading to World War II, and I abhor the mindless adherence of Trump supporters to his amoral behavior. They will still be around long after Trump is a nightmarish memory.
Isabelle H. Meyer, Glendale
..
To the editor: In “The Dawn of Everything,” the book Virginia Heffernan mentions in her op-ed article, authors David Graeber and David Wengrow mention three freedoms. Heffernan focuses only on one — the right to move.
Why does she not discuss options for people who are rich enough to leave the United States? What about exhorting her readers to disobey and change society, the two other freedoms, before abandoning the country?
Abcarian: Really, young voters? You want to teach Democrats a lesson by letting Trump back into the White House?
Robin Abcarian – January 3, 2024
President Biden poses with Students Demand Action in Connecticut in June. In 2020, the youngest American voters were squarely in his corner. Not now, according to polls. (Susan Walsh / Associated Press)
I almost spit out my Geritol the other day when I read what one young voter in Philadelphia told NBC News about why she is disillusioned about the upcoming presidential election.
“I don’t think the presidency has too much of an effect on what happens in my day-to-day life,” said Pru Carmichael, who supported Biden in 2020 but says she will not vote for president at all this year if she has to choose between the disappointing incumbent and former President Trump.
Seriously?
Maybe she believes she will never have an unintended, unwanted pregnancy. (However, if she does, she is lucky enough to live in Pennsylvania, where abortion is still legal.)
But how can she not appreciate the profound changes the Trump presidency inflicted on this country? Had there been no President Trump, there would be no ultraconservative majority on the Supreme Court, no Dobbs decision overturning nearly half a century of reproductive rights, no outright abortion bans in 13 states and no suffering by people like Kate Cox of Texas, who was forced to seek abortion care in another state after the Texas Supreme Court said she could not abort her severely compromised fetus, who suffered a condition that was incompatible with life.
In 2020, the youngest American voters were squarely in Biden’s corner. According to exit polls, 65% of those 18 to 24 years old chose him, the largest percentage of any age group. And yet, if recent national polls are to be believed, voters up to age 34 have grown disenchanted with the president. Perhaps this is a reflection on the impatience of youth, or, worse, a fundamentally weak grasp on how government operates.
Listen to what younger voters told NBC News they’re upset about: the country’s slow pace on reversing climate change, Biden’s failure to fully cancel student loan debt, his inability to federally codify the right to abortion and, perhaps most starkly, his handling of Israel’s war against Hamas and the humanitarian crisis in Gaza.
“I mean, he made a lot of really big promises in his campaign and virtually none of them were followed through on,” one poll respondent, Austin Kapp, 25, of Colorado, told NBC News.
He did try to codify Roe, but was unable to marshal the 60 votes needed to overcome a filibuster by Senate Republicans.
And what has Trump been doing about abortion, besides taking credit for the overturning of Roe vs. Wade? He’s urging Republicans to mislead voters: “In order to win in 2024, Republicans must learn how to properly talk about abortion,” he told a group of Iowa supporters in September. “This issue cost us unnecessarily but dearly in the midterms.”
We now know, thanks to the horrific experience of Cox and other women who have brought suit in Texas, that the idea of an “exception” to abortion bans for cases of rape, incest, fetal anomalies or the health of the pregnant person is nothing more than a shimmering lie, a mirage to make abortion bans slightly more palatable to the majority of Americans who support a woman’s right to choose.
As for the Middle East crisis, even if you agree that Biden’s handling of the situation has been uneven, why would anyone think Trump, an outspoken supporter of Israeli Prime Minister Benjamin Netanyahu, would handle it better, particularly if your sympathies lie more with the Palestinians caught in the violence than the Israeli government’s response to the Oct. 7 Hamas attack?
On the campaign trail, Trump has signaled a lack of engagement in the conflict, suggesting that he would “let this play out.” His one concrete suggestion? In an interview with Univision in November, he said that Israel needed to “do a better job of public relations, frankly, because the other side is beating them at the public relations front.”
He has also pledged to “revoke the student visas of radical anti-American and antisemitic foreigners at our colleges and universities, and we will send them straight back home.” (Muslim ban, anyone?) Does that sound like an appealing counter-message for the 70% of voters under 35 who told NBC News pollsters they disapprove of the way Biden has handled the war?
With 2024 upon us, and the first contests of the Republican presidential primaries set to take place on Jan. 15 in Iowa and on Jan. 23 in New Hampshire, barring some unforeseen development it could become clear very quickly that the much-indicted Trump is bound for the November ballot as the Republican presidential nominee.
A Suffolk University/USA Today poll released on New Year’s Day showed that Trump is out-polling Biden among groups the pollsters described as “stalwarts of the Democratic base,” that is, Hispanics and younger voters. Biden’s support among Black Americans has also slipped significantly, though he still leads Trump.
This is alarming, not catastrophic. Biden, and Democrats, have time to make their case. I remain skeptical that the Democratic base will not come home by November, particularly as Trump continues to embrace his inner dictator on the campaign trail.
“A Republican getting elected isn’t the end. It is the beginning of a much larger fight,” a 23-year-old Wisconsin Starbucks worker and union organizer who is considering withholding his vote from Biden told NBC News. “I want to show the Democratic Party as a young person that you still need to earn our vote and if you don’t, the consequences will be your career.”
Teach Democrats a lesson by electing a democracy-destroying authoritarian?
My mother used to call that cutting off your nose to spite your face.
This surprise argument could derail Trump’s effort to delay the Jan. 6 trial
Harry Litman – January 3, 2024
A sketch of former President Trump conferring with one of his lawyers at the federal courthouse in Washington last summer. (Dana Verkouteren / Associated Press)
As all eyes watched every word filed by Donald Trump and federal prosecutors ahead of next week’s crucial arguments on immunity, a third party slipped in the side door with a brief that may dramatically foil the former president’s efforts to leverage the issue for maximum delay.
The watchdog organization American Oversight, which is not a party to the case, successfully petitioned the U.S. Court of Appeals for the D.C. Circuit to accept its friend-of-the-court brief on the ground that it provides a “unique perspective.”
Indeed it does. The brief makes the apparently compelling argument that the court shouldn’t be hearing this appeal at all because it lacks jurisdiction — that is, the power to consider it in the first place. If the court agrees, it would mean dismissing the appeal and returning the case to U.S. District Judge Tanya Chutkan, abruptly aborting Trump’s best opportunity to delay the federal Jan. 6 trial.
Trump’s argument is that he is entitled to avoid trial because the Constitution prohibits indicting him for conduct he undertook as president, at least if it was within the “outer perimeter” of his official duties. Most observers, including me, think Trump will lose the claim on the merits, but it’s likely that the U.S. Supreme Court will have to make that pivotal determination. The question is when — before trial, putting the case on ice, or afterward.
Chutkan has decided that she can’t go forward with the trial until that’s settled, reasoning that immunity is a right not to go to trial in the first place. That suggests that even if Trump is bound to lose his claim, he will be able to string out the process for at least a couple of months, bumping back the start of probably the most important of the four criminal trials he faces. Originally scheduled for March, the trial is thereby being delayed deeper into Trump’s campaign to return to the White House.
Enter the American Oversight brief, written by lawyers with the Washington-based firm Arnold & Porter. The brief relies on a unanimous 1989 Supreme Court opinion, Midland Asphalt Corp. vs. United States, written by the late Justice Antonin Scalia. The defendant in the criminal case, Midland Asphalt, had moved unsuccessfully for a dismissal of the charges based on the prosecution’s alleged violation of grand jury rules.
The Supreme Court held that neither it nor the circuit court had the power to hear the case on “interlocutory appeal,” or before trial. As with the vast majority of issues that may arise at trial, the court ruled, this one could be considered only after a conviction.
The court emphasized that in criminal cases, the compelling interest in prompt trials demands that courts apply the interlocutory appeal doctrine “with utmost strictness.” Federal courts have jurisdiction over such appeals, the justices found, only if they are brought under a constitutional or statutory provision that expressly gives the defendant a right not to go to trial.
Since the Midland Asphalt opinion, the court has identified only three categories of motions that may be considered before trial in criminal cases: motions to reduce bail and those concerning the double jeopardy clause in the Constitution’s 5th Amendment, and the speech or debate clause, which protects legislators from being “questioned” — that is, tried — at all.
Trump’s immunity argument therefore doesn’t seem to fit within Midland Asphalt’s exceptions. It doesn’t rest on any explicit constitutional guarantee. And the D.C. Circuit Court previously held that a right based on constitutional principles such as the separation of powers doesn’t cut it.
The Justice Department and Trump had been assuming the D.C. Circuit Court has jurisdiction based on Nixon vs. Fitzgerald, which established broad but not endless immunity from lawsuits over a president’s conduct while in office. But that civil case was not subject to the “utmost strictness” standard the Supreme Court has applied to criminal trials. It also predated the Midland Asphalt opinion, which the Justice Department somewhat bafflingly failed to mention.
There may be a reason the Midland Asphalt doctrine doesn’t apply here, but I can’t think of one.
Jurisdiction is an issue that courts take extremely seriously, and I think the D.C. Circuit Court should and probably will consider the argument that it lacks jurisdiction very carefully. It’s already ordered the parties to address American Oversight’s position at oral argument Tuesday, when it’s likely to be a subject of intense questioning.
If the argument succeeds, it will be an appellate version of the sort of Perry Mason moment that rarely happens in a real courtroom. With a wave of a jurisdictional wand, Trump would be back in the district court preparing for an only slightly delayed trial.
