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Was Pelosi correct in saying that Trump has ripped up the Constitution?

By Curt Anderson
February 6, 2020 12:36 pm
Category: Law

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Elsewhere on this site I quoted Speaker Nancy Pelosi who, when criticized for ripping up her copy of Trump's State of the Union address, said figuratively, "Trump has already ripped up the Constitution."

Somebody challenged me to "Cite the laws he broke. Not just your 'feelings' about him like all the other mindless sheep."

To be clear, the US Constitution is not a list of laws that you and I as citizens must not break. The Constitution places restraints on the government, especially in the Amendments: "the government shall make no law...", "the government shall not infringe...", "the government shall not establish..." and so forth. So the challenge to "cite the laws he broke" is a non sequitur.

Trump's case is unique. As a citizen he is capable of breaking laws since theoretically nobody is above the law. I say "theoretically" because a president is entitled to absolute immunity from liability for civil damages based on his official acts. However, the president is not immune from criminal charges stemming from his official (or unofficial) acts while in office. Furthermore, Trump has the protection of a cadre of private and government-paid lawyers.

As part of the government he is also capable of violating the Constitution. In the times he was thwarted in his efforts to violate the Constitution, it wasn't for a lack of trying on his part.

Citing some of the laws Trump broke
Illegally soliciting campaign help from a foreign government
The most obvious way in which Trump violated the law is by soliciting material campaign aid from a foreign government, which expressly violates the Federal Election Campaign Act of 1971.

Extortion and attempted extortion
Read the transcript (see cbsnews.com link below) of the infamous phone call with the Ukrainian president including the following excerpts.

Zelensky: We are ready to continue to cooperate for the next steps specifically we are almost ready to buy more Javelins from the United States for defense purposes.

Trump: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike ... I guess you have one of your wealthy people... The server, they say Ukraine has it.

Zelensky: I also plan to surround myself with great people and in addition to that investigation, I guarantee as the President of Ukraine that all the investigations will be done openly and candidly. That I can assure you.

Trump: The other thing, There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it...It sounds horrible to me.

Trump had Zelensky over a barrel. Zelensky needed and wanted those Javelins. When Trump asks for "a favor though", is it realistic to expect Zelensky to say "no"?

18 U.S. Code § 872 says: "Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both."

Violating the Impoundment Control Act
The Government Accountability Office, a nonpartisan public auditor, reported that President Trump violated the Impoundment Control Act by unilaterally withholding $214 million of legislatively appropriated Defense Department aid for Ukraine without obtaining authorization from Congress. “Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law,” the Government Accountability Office concluded.

Trump's conduct with Ukraine isn't the first time he's been accused of violating campaign finance laws to help him win an election. He was named as an unindicted co-conspirator, listed as Individual-1 in court documents, in the case against his former personal attorney Michael Cohen.

Citing some Trump's constitutional violations
Emoluments Clause of the US Constitution
"And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

President Trump's extensive global business empire prompted several lawsuits brought by various litigants arguing that Trump's business holdings violate the Foreign or Domestic Emoluments Clauses. These lawsuits have alleged that the President has violated the Clauses due to his failure to divest his business holdings in Trump hotels and other private enterprises.

President Trump treated the G7 summit like a commercial for his businesses, inviting foreign governments to line his pockets next year and hold their next meeting at his Doral, Florida, golf course.

The Fifth and Sixth Amendments
Trump tweeted that undocumented immigrants should be immediately returned "from where they came" with "no Judges or Court Cases." Trump signed a proclamation that stopped the government from considering requests for asylum from anyone who crossed the US southern border illegally.

The Fifth Amendment states that "no person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." In the ruling, Justice Antonin Scalia wrote "it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."

The Sixth Amendment states that "In all criminal prosecutions, the accused shall…have the assistance of counsel for his defense." The Supreme Court ruled in the 1963 case Gideon v Wainwright that if a person is too poor to hire an attorney, the government must appoint one.

Article II of the Constitution
Trump proclaimed recently, that Article II of the Constitution gives him "the right to do whatever I want as president."

As anybody who took a sixth grade social studies class could guess, Article II of the Constitution does not give Trump or any president a king's right "to do whatever I want".

Article II of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article II vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.

The 14th Amendment
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits," Mr. Trump told Axios making a false claim. "It's ridiculous. It's ridiculous. And it has to end." In fact, at least 30 other countries grant automatic birthright citizenship.

The Emoluments Clause also forbids office holders from accepting gifts--including re-election help.
"And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

George Washington, in his farewell address at the end of his presidency, argued that one of the greatest dangers to the United States involved the "insidious wiles" of foreign powers and their multiple avenues to improperly influence our political system. Washington urged Americans "to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government."



Cited and related links:

  1. cbsnews.com
  2. uscode.house.gov

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