The Constitution on Impeachment: What the experts are saying ...

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The Constitution on Impeachment: What the experts are saying ...

#1

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Politico Mag - Edward B. Foley

Edward B. Foley directs the Election Law program at the Ohio State University’s Moritz College of Law, where he also holds the Ebersold Chair in constitutional law.

Is It Ever OK for a President to Ask a Foreign Country to Investigate a Political Rival?

Sometimes, yes—which is why Donald Trump’s potential impeachment hinges on his motive in doing so. ...


Democrats seem to assume the answer is no, that this kind of request could never be proper, given the implications for our electoral system. “Smoking gun” is what they say about Trump’s urging Ukraine—and now also China—to investigate Joe and Hunter Biden. Republicans, meanwhile, contend that it is perfectly normal, and justified, for Trump as president to ask the Ukrainians to look into potential corruption that involves Americans and could, in theory, affect U.S. relations with that country.

“This is not about politics. This is about corruption,” Trump told reporters outside the White House on Friday.

But the real answer to this question is more complicated. History shows that a president sometimes might be justified in asking a foreign country to investigate a political rival, including a former vice president. So, the mere fact of Trump’s request for an investigation into the Bidens, without considering the circumstances of the request, is not enough to impeach him.

In order prove that Trump abused his presidential powers to the point that he no longer can be trusted in exercising them—the constitutional standard for impeachment—Congress must establish Trump’s intent in making the request. Was it done in good faith, with U.S. foreign or domestic interests in mind, or in bad faith, merely for Trump’s personal and political benefit? To prove the latter, Congress can’t rely on Trump’s words alone; it must show that the charges of corruption against the Bidens are baseless and that Trump’s request to Ukraine is part of a pattern of bad faith demonstrating that the nation no longer can tolerate his incumbency.

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Re: The Constitution on Impeachment: What the experts are saying ...

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Newsweek
Republicans Will Break With Donald Trump if Party Faces Losing 2020 Election, Political Scientist Says: 'It's a Slam Dunk Impeachment'

Only when Republicans believe they are going to lose the White House and both chambers of Congress in the 2020 election will they rescind their support of President Donald Trump, according to an American political scientist.

Dr. Brian Klaas, an assistant professor at University College London in England, described Trump's efforts to get Ukraine and China to open spurious investigations that would damage his Democratic rivals politically at the next election as a "massive conspiracy."

"If this isn't impeachable, nothing is. This is literally what the mechanism of removing a president was designed to prevent," Klaas tweeted, as damning texts released by the House exposed the backroom State Department dealings over the Ukraine investigations.

"Trump hatched a massive conspiracy to extort Ukraine into investigating his opponent using US national security as leverage and then tried to cover it up. Then he did the same thing today, on camera, with China. It's a slam dunk impeachment case for anyone who cares about facts. ...

Klaas, a Washington Post columnist, also tweeted: "Watergate looks like a couple of teenage kids shoplifting a pack of gum in comparison to this scandal...Every day, something that was previously unthinkable becomes routine. And that's how democracies eventually die."

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Re: The Constitution on Impeachment: What the experts are saying ...

#3

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LA Times - Doyle McManus
Trump should read the Constitution ...

Article II is the president’s job description. Like any job description, it spells out what he should do — and, by implication, what he shouldn’t.

It says that the president is commander in chief of the armed forces; that he has the power to appoint officials once Congress authorizes their positions; and, most important, that “he shall take care that the laws are faithfully executed.” ...

After trying out several explanations for his actions, Trump belatedly tried to cloak them in virtue by saying they were part of a hitherto undetected campaign against global corruption.

“I have an absolute right, perhaps even a duty” to investigate corruption, he tweeted, including asking “other countries to help us out.”

But no president’s rights are absolute. And if Trump had read the Founding Fathers, he would know they saw foreign governments meddling in American politics as a threat, not an opportunity.

“As often as elections happen, the danger of foreign influence recurs,” warned John Adams, who would become vice president under George Washington.

“This is basic stuff,” another future vice president said. “Foreign donors, and certainly foreign governments, cannot participate in the American political process.” That was Mike Pence in 2016.

Article II limits the president’s powers at home too. It doesn’t enable the president to order Congress to do his bidding, a feature that seems to have surprised Trump. “I find Congress more difficult, frankly, than many of the foreign leaders … because they have their own views,” he said in June.

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Re: The Constitution on Impeachment: What the experts are saying ...

#4

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Benedict Donald doesn’t think foreign leaders have their own views? :roll:
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Re: The Constitution on Impeachment: What the experts are saying ...

#5

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RoadScholar wrote:
Sun Oct 06, 2019 9:39 pm
Benedict Donald doesn’t think foreign leaders have their own views? :roll:
They are shining on him and he is incapable of figuring it out.

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Re: The Constitution on Impeachment: What the experts are saying ...

#6

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Raw Story
Historians demolish John Yoo for claim Founding Fathers wouldn't want Trump impeached in an election

According to Yoo, Democrats are getting it all wrong when they say the Constitution compels them to hold impeachment proceedings against Trump just one year before the election.

“I’m glad they’re reading the Constitution and citing the framers for once but they’ve got it exactly backwards,” Yoo asserted. “What the framers thought was the American people would judge a president at the time of an election, they would have never wanted an impeachment within a year of an election, it’s up to the American people.”

According to Cal historian Brain Delay, the lawyer is dead wrong.

“My colleague John Yoo teaches in the Law School and absolutely doesn’t understand what the founders would and wouldn’t have wanted re: impeachment,” he tweeted while attaching a clip of Yoo’s appearance. ...

Oregon State University historian Christopher Nichols joined the pile-on by tweeting, “If only we could know what the founders thought about this & if they would confirm John Yoo’s view. Oh wait, we do! July 20, 1787 they discussed this and EXPLICITLY rejected Yoo’s view, including some who once held such an opinion reversing course.”

With that, it was on as Nichols provided a multitude of links on the country’s founders’ views on impeachment based upon their own writings — all of which effectively debunked Yoo’s unscholarly opinion.

You can see them below ...

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Re: The Constitution on Impeachment: What the experts are saying ...

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Post by Orlylicious »

Thank you for starting this topic! xx
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Re: The Constitution on Impeachment: What the experts are saying ...

#8

Post by Sam the Centipede »

Addie wrote:
Thu Oct 17, 2019 11:58 am
Raw Story
Constitution and citing the framers for once but they’ve got it exactly backwards,” Yoo asserted. “What the framers thought was the American people would judge a president at the time of an election, they would have never wanted an impeachment within a year of an election, it’s up to the American people.”
Let's investigate the hypotheticals.

If there is an election coming soon, there should not be an impeachment (John Yoo's suggestion) because the electorate will choose.
If there has recently been an election, the electorate has chosen and their choice must be respected for at least a similar period.
Impeachment must be dealt with in a careful and considered manner, taking due time in both houses of Congress, which probably takes a year or so.
By then we're approaching the pre-election "no impeachment zone".

So there should never be impeachment. So the framers clearly designed impeachment with the intention that it should never be available. What fools! No, what wise men! Oh, who knows?!

Oh, except to harass Democrat Presidents. Impeachment is always available for that. It's what the founding fathers (and god) would have wanted. Ask any RWNJ Constipational Liar.

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Re: The Constitution on Impeachment: What the experts are saying ...

#9

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Someone came out of a deposition yesterday and said it looks like we are dealing with an ongoing crime, and that is why they are limiting scope and moving at a deliberate pace. The arguments about waiting a year for an election are gonna have a hard time against that.

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Re: The Constitution on Impeachment: What the experts are saying ...

#10

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What I want to know, is where in my expanded and enlarged copy of the Constitution it says any of what he's claiming. The Constitution is curiously vague generally about what you can do, but quite succinct and to the point about what you can't. Perhaps Mr Yoo needs basic grammar and sentence structure classes as well as some on reading comprehension, since he obviously skipped those along the way.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: The Constitution on Impeachment: What the experts are saying ...

#11

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The (Harvard) Crimson February 5, 1999 - Steve Tidrick: The Senate Should Vote in Secret

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Re: The Constitution on Impeachment: What the experts are saying ...

#12

Post by Jim »

Addie wrote:
Fri Oct 18, 2019 3:29 pm
The (Harvard) Crimson February 5, 1999 - Steve Tidrick: The Senate Should Vote in Secret
https://www.thecrimson.com/article/1999 ... in-secret/

I think a lot of pub senators would love that. :D

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Re: The Constitution on Impeachment: What the experts are saying ...

#13

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Tidrick now practices law in Berkeley. And he was a Hilary Clinton supporter in 2016.

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Re: The Constitution on Impeachment: What the experts are saying ...

#14

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Addie wrote:
Thu Oct 17, 2019 11:58 am
Raw Story
Historians demolish John Yoo for claim Founding Fathers wouldn't want Trump impeached in an election

According to Yoo, Democrats are getting it all wrong when they say the Constitution compels them to hold impeachment proceedings against Trump just one year before the election.

“I’m glad they’re reading the Constitution and citing the framers for once but they’ve got it exactly backwards,” Yoo asserted. “What the framers thought was the American people would judge a president at the time of an election, they would have never wanted an impeachment within a year of an election, it’s up to the American people.”

According to Cal historian Brain Delay, the lawyer is dead wrong.

“My colleague John Yoo teaches in the Law School and absolutely doesn’t understand what the founders would and wouldn’t have wanted re: impeachment,” he tweeted while attaching a clip of Yoo’s appearance. ...

Oregon State University historian Christopher Nichols joined the pile-on by tweeting, “If only we could know what the founders thought about this & if they would confirm John Yoo’s view. Oh wait, we do! July 20, 1787 they discussed this and EXPLICITLY rejected Yoo’s view, including some who once held such an opinion reversing course.”

With that, it was on as Nichols provided a multitude of links on the country’s founders’ views on impeachment based upon their own writings — all of which effectively debunked Yoo’s unscholarly opinion.

You can see them below ...
For those who have forgotten the infamous name:
John Choon Yoo (born July 10, 1967)[4] is a Korean-American attorney, law professor, former government official, and author. Yoo is currently the Emanuel S. Heller Professor of Law at the University of California, Berkeley, School of Law.[1] Previously, he served as the Deputy Assistant U.S. Attorney General in the Office of Legal Counsel (OLC) of the Department of Justice, during the George W. Bush administration. He is best known for his opinions concerning the Geneva Conventions that attempted to legitimize the War on Terror by the United States. He also authored the so-called Torture Memos, which concerned the use of what the Central Intelligence Agency called enhanced interrogation techniques including waterboarding.
https://en.m.wikipedia.org/wiki/John_Yoo
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Re: The Constitution on Impeachment: What the experts are saying ...

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Sterngard Friegen wrote:
Fri Oct 18, 2019 5:07 pm
Tidrick now practices law in Berkeley.
:fingerwag:

Oakland. And is a double Hahhhvard grad (who worked for the Big Dog).

He wrote that '99 article when he was a 3L.
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Re: The Constitution on Impeachment: What the experts are saying ...

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WaPo - Ari Melber: ‘Bribery’ is right there in the Constitution. Trump could be impeached for that.

Why wrestle with the meaning of “high Crimes and Misdemeanors”? The president can be accused of an offense that’s already well-defined.

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Re: The Constitution on Impeachment: What the experts are saying ...

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Lawfare - David Priess: Impeachment, Elections and Bad History

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Re: The Constitution on Impeachment: What the experts are saying ...

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WaPo - Ron Chernow
Hamilton pushed for impeachment powers. Trump is what he had in mind.

He wanted a strong president — and a way to get rid of the demagogic ones.


President Trump has described the impeachment proceedings as a “coup,” and his White House counsel has termed them “unconstitutional.” This would come as a surprise to Alexander Hamilton, who wrote not only the 11 essays in “The Federalist” outlining and defending the powers of the presidency, but also the two essays devoted to impeachment.

There seems little doubt, given his writings on the presidency, that Hamilton would have been aghast at Trump’s behavior and appalled by his invitation to foreign actors to meddle in our elections. As a result, he would most certainly have endorsed the current impeachment inquiry. It’s not an exaggeration to say that Trump embodies Hamilton’s worst fears about the kind of person who might someday head the government.

Among our founders, Hamilton’s views count heavily because he was the foremost proponent of a robust presidency, yet he also harbored an abiding fear that a brazen demagogue could seize the office. That worry helps to explain why he analyzed impeachment in such detail: He viewed it as a crucial instrument to curb possible abuses arising from the enlarged powers he otherwise championed. ...

From the outset, Hamilton feared an unholy trinity of traits in a future president — ambition, avarice and vanity. “When avarice takes the lead in a State, it is commonly the forerunner of its fall,” he wrote as early as the Revolutionary War. He dreaded most the advent of a populist demagogue who would profess friendship for the people and pander to their prejudices while secretly betraying them. Such a false prophet would foment political frenzy and try to feed off the confusion.

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Re: The Constitution on Impeachment: What the experts are saying ...

#19

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Bloomberg - Noah Feldman
Trump’s Quid Pro Quo Is Unconstitutional

An emerging White House argument against the impeachment inquiry should be refuted before it gets off the ground. ...


Regardless of whether the reversal succeeds, Mulvaney’s initial admission signals what looks to become a new direction for defending the president: Admit there was a quid pro quo with Ukraine, but claim the president has the constitutional authority to do such deals with foreign countries.

This is a defense that Democrats in charge of the impeachment inquiry should confront head on — sooner rather than later. It’s not enough simply to state that Trump abused his power when he offered Ukraine aid or a White House visit in return for investigating what Trump wanted investigated. The Democrats are going to have to explain why pressuring a foreign power to investigate political rivals subverts the very nature of republican self-government.

Start by taking the new Trump argument on its own terms. It’s a version of the idea that William Barr put forth in a memo to the Trump administration before he became attorney general last winter. ...

The inherent-power defense refutes that assumption by asserting that motive and effect don’t matter.

To counteract this claim, the Democrats will need to make explicit to the public why a quid pro quo to advance Trump’s partisan self-interest is worthy of impeachment. They must make the case that republican self-government — the goal of our democratic Constitution — depends on having a fair fight between candidates for election. When a president urges a foreign state to find evidence against his opponent, he violates this fairness. He takes advantage of his official power to manipulate the system — power his opponent lacks. This exploits the advantage of incumbency to undermine the possibility of a fair election. ...

Trump’s supporters are already struggling mightily to defend him. Contradictions in their efforts are to be expected, as in Mulvaney’s pullback from his initial statement. When the facts are clear and damning, however, Trump can be expected to attempt a constitutional defense. The Democrats should block this argument before it gains traction by reminding the public that a republic can’t survive if the leader can manipulate his powers to get himself re-elected.

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Re: The Constitution on Impeachment: What the experts are saying ...

#20

Post by Sterngard Friegen »

Meh. A quid pro quo wasn't required. Just the asking was sufficient. On the other hand, there was the "other face of bribery" -- extortion. And it was our money that Ukraine desperately needed to fight the Russians that Trump and his entire Administration conspired to withhold, firing those who wouldn't go along with the illegal plan.

It should be stated in both of those terms and sufficiently simply so that the 51% of the American public whose IQs are less than 100 can understand it.

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Re: The Constitution on Impeachment: What the experts are saying ...

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Law & Crime: The President of the United States Just Called the Emoluments Clause of the Constitution ‘Phony’
Concord Monitor: 3-Minute Civics: An impeachment primer

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Re: The Constitution on Impeachment: What the experts are saying ...

#22

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Lawfare - Benjamin Schwartz
The Recommendations Clause as a Tool of Executive Power ...

It works like this:

Because the president has unique access to policy information as the one in charge of executing the law, particularly in areas under great executive control, such as foreign affairs and national security, Congress often passes laws requiring the administration to provide it with legislative recommendations on particular policy topics.

I call these “triggering laws” because they trigger a recommendation from the executive branch on a particular policy topic, without dictating the content of that recommendation. For example, the Iraq and Syria Genocide Relief and Accountability Act, which President Trump signed into law in December 2018, requires that the secretary of state submit to Congress a report assessing “the feasibility and advisability of prosecuting ISIS members for whom credible evidence exists of having committed genocide, crimes against humanity, or war crimes in Iraq” and including “recommendations for legislative remedies and administrative actions to facilitate the implementation of this Act.”

That Congress would benefit from the opinions of the executive in making new laws is not an exotic idea. In fact, it was specifically contemplated by the Framers. They included the Recommendations Clause in Article II, Section 3, which specifies that the president “shall ... recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient.” Early drafts of the Constitution originally provided only that the president “may” recommend “matters” to Congress. By changing the language to make it the president’s constitutional duty to recommend formed legislative measures to Congress, the Framers demonstrated a clear intention that the president play a substantive role in congressional lawmaking.

In an interesting twist, however, presidents going back to Reagan have interpreted the positive duty to recommend measures to Congress to entail negative power to block Congress’s ability to seek recommendations through triggering laws like the Iraq and Syria Genocide Relief and Accountability Act. Indeed, on signing that bill into law, President Trump issued a statement declaring his administration’s intent to treat the section requiring the report to Congress as optional, based on its interpretation of the Recommendations Clause.

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Re: The Constitution on Impeachment: What the experts are saying ...

#23

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The Bulwark - Kim Wehle
Impeachment and the ‘Due Process’ Canard

By treating the House impeachment inquiry as illegitimate, the president only risks creating new problems for himself.


In signaling his readiness for an impeachment trial, Senate Majority Leader Mitch McConnell seems to have conceded the weakness of the Republicans’ primary procedural objections to the House impeachment inquiry—i.e., that the inquiry isn’t proceeding pursuant to a formal House vote. Nonetheless, it’s worth clearing the legal air here, particularly as the executive branch’s stonewalling of House subpoenas may end up in the federal courts.

As we’ve heard ad nauseam by now, impeachment is a political process—not a judicial one—and the Constitution itself contains scant detail regarding how the process must unfold, save for the requirements that the House has the “sole Power” to impeach for “Treason, Bribery, or other high Crimes and Misdemeanors”; that the Chief Justice of the United States presides over a trial in the Senate; and that conviction requires a two-thirds majority of the Senate “Members present.” The rest of the process is up to the majority parties in the respective houses of Congress.

In an October 8 letter to Congress, White House counsel Pat Cipollone made a specious argument that categorically renounced the impeachment inquiry as unconstitutional on the rationale that Donald Trump’s due process rights are being violated.

Not so.

Due process protects regular people from an overbearing, arbitrary hand of government that attempts to deprive individuals of “life, liberty, or property” without notice and an opportunity to be heard first. The Fifth Amendment’s Due Process Clause (the one that binds the federal government) is not intended to protect officeholders—such as the individual who heads the entire federal criminal and military apparatus—from political investigation or a House impeachment trial. Moreover, while a criminal defendant might be sentenced to a fine or imprisonment, a conviction in the Senate means that the president only loses his job. Even targets of grand jury investigations don’t get the panoply of “rights” that Cipollone wrongly claims the president deserves under the Constitution at the House stage of the impeachment proceedings—namely, the right to call and cross-examine witnesses, to have counsel present during each stage of the process, to have access to the evidence, to get transcripts of the testimony, and “many other basic rights guaranteed to all Americans.”

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Re: The Constitution on Impeachment: What the experts are saying ...

#24

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The Constitution is pretty explicit as far as it goes, the House investigates, as the Grand Jury, in what ever haphazard, half assed in some cases, way and eventually, maybe, comes to a conclusion, and maybe, gets around to voting out an indictment, the Impeachment, and sends it along to the Senate to act as the court and try the matter, in whatever way and method they decide to do with the CJ presiding, unless he is the guest of honour. The Senate either convicts or fails to convict. THAT IS THE DUE PROCESS involved in an Impeachment. Nothing more, nothing less. The Supreme Courts involvement begins and ends with the CJ presiding at the Senate trial. Not terribly complicated but fairly messy in some instances.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: The Constitution on Impeachment: What the experts are saying ...

#25

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Newsweek - Robert Reich
Robert Reich: Should Emoluments Scandals See Trump Sued, Impeached or Voted Out? All Three ...

How does Trump get away with this?

Presidents of the United States are exempt from the federal conflict-of-interest statutes – a glaring omission that was never a problem before Trump exploited this loophole. To make matters worse, Trump has refused to put his assets into a blind trust, so he knows exactly how much he gains from these transactions.

Theoretically, the public is protected from Trump's avarice by the Constitution, which strictly limits the "emoluments"—that is, a payment of money or anything else of value—a president can receive.

Article II, Section 1 says a president receives a salary while in office and "shall not receive within that Period any other Emolument from the United States." Trump violates this clause every time taxpayer money finds its way into his pockets.

And then there's Article I, Section 9, which states that no federal officeholder can receive any "Emolument" from any foreign state. Trump violates this clause whenever he makes money off a foreign government.

The reason the Framers of the Constitution included these provisions wasn't just to prevent a president from being bribed. It was also to prevent the appearance of bribes, and thereby maintain public trust in the presidency.

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