The Unconstitutionality of Donald Trump

As storm clouds of impeachment gather on the horizon of the presidency of Donald Trump, people on both sides of the issue feel they have sufficient evidence to either keep him in office or to remove him from that position by rule of law. But the question raised by both sides is whether or not there is sufficient cause to depose him from his elected station.

First, let’s take a look at the presidential oath of office, the affirmation each president of the United States has taken, as mandated by Article II, Section One, Clause 8 of the constitution: “I do solemnly swear (or affirm) that I will faithfully execute the office of

President of the United States, and will to the best of my ability, preserve,

protect and defend the Constitution of the United States.”

The salient question is whether or not Trump is/is not violating the presidential oath of office. Is he, “...faithfully executing the office of president of the United States…”? That portion of the oath is open to quite a bit of interpretation. But the next part - “...and will to the best of my ability preserve, protect and defend the Constitution of the United States.” - that part can be more specific if we look at his actions to find whether or not he is in alignment with this most important of all our historical documents.

So what are the conditions that merit impeachment? The Constitution is somewhat more specific in this case: A president can be impeached for…

...Treason

...Bribery

...High Crimes and Misdemeanors

Treason? His alleged pressuring of a foreign power to interfere with and control a U.S. election might be construed as such. Bribery? Attorney Richard Painter, who was chief White House ethics lawyer during the G. W. Bush administration, believes that Trump is committing felony bribery by giving Republican senators fundraising cash ahead of what will almost certainly be an impeachment trial in the Senate. Either of these would constitute impeachable offenses according to the Constitution.

The Constitution offers no definition for the third condition, “high crimes and misdemeanors”. In the American legal system, perjury is considered to be a serious offense, a felony, punishable by up to five years in prison; since felonies are considered to be more heinous crimes than misdemeanors, they should certainly qualify as “high crimes”. By legal definition, perjury is, “The criminal offense of lying under oath”; if he is willfully violating the terms of the Constitution then he would have committed perjury; he could not only be impeached for such an act but could, according to U.S. Code 1621, be subject to a fine and/or prison time, since presidential immunity does not extend to felony acts.

So the next in this long litany of questions is, “Is Trump violating the Constitution?”, the same Constitution that he swore to uphold and protect? Reading the Constitution top to bottom we find the following:

Article I, Section 1 - As soon as we step into the Constitution we immediately find an infraction on the part of Trump, when he instructed Secretary of Defense Patrick Shanahan to divert funds to construct a wall on the U.S.-Mexico border when those funds were approved by Congress to purchase a missile defense system. The president is a member of the Executive branch of our government; allocation of funds is determined by Congress, which is the Legislative branch.

Article I, Section 8 - This section states, among other things, that “The Congress shall have Power to lay and collect Taxes, Duties, Imposts (tariffs on foreign goods) and Excises…”. When Trump unilaterally decided to impose twenty-five percent tariffs on Chinese goods it was tantamount to levying a federal sales tax on American consumers, which the president does not have the power to impose under the Constitution. This section also assigns the regulation of commerce with foreign nations to Congress and, as such, would be the branch of government - not the Executive branch - to impose tariffs.

Additionally, by denying federal funds to ‘sanctuary cities’ the president is violating not only the allocation of expenditures as set forth in this section, but this action also conflicts with the principles of Federalism found in this portion of the Constitution.

Article I, Section 9 - This is the article and section of the Constitution that contains the “phony emoluments clause”, in Trump’s words. Considering the recent furor that has been raised over this portion of the Constitution it would be best to present it in full: “No Title of Nobility shall be granted by the United States: 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.”

With its current prominence in the news a lexical definition of the word ‘emolument’ might be in order; it is defined as, “Profit, salary, or fees from office or employment; compensation for services”.Many have argued that Trump is not subject to this section because he has turned over control of his business interests to a third party - which, in Trump’s case is his sons, hardly what might be considered a neutral third party. But only management of his vast array of businesses has been relinquished; ownership of those businesses still rests in his hands. He is, therefore, answerable to the Emoluments Clause of the Constitution, since it is he who is reaping the profits.

Trump also withheld $400 million in funds from Ukraine in an effort to enlist their help with the election. Since emoluments involve not just cash but any arrangement from which one might benefit, this too would be considered an emolument from a foreign power.

Article II, Section 1, Clause 8 - As much as the matter of foreign emoluments has been a talking point, little has been said about this clause of the Constitution, the part that deals with domestic emoluments, which also appears to be a point of contention with the current administration. Clause 8 of this section sets forth much the same rules as for foreign emoluments but denying a president from receiving payments at either the federal level (aside from his wage for holding that position) or from any state. To date, Trump has:

...Received payment from the federal government when an Air National Guard C-17

transport en route from the U.S. to Kuwait made an unexpected stopover at Donald

Trump’s Turnberry resort outside of Glasgow, Scotland. It also made another stop

on the way back.

...At Trump’s behest, the GSA turned a blind eye to the unconstitutionality of his lease

with the federal government regarding the Trump International Hotel. The GSA lease

prohibits federal officials from controlling the hotel.

...Trump has still not divested himself of his domestic interests and placed them in a

blind trust as had his predecessors when they took the reigns of the presidency. This is

also in violation of the domestic emoluments clause.

Article II, Section 2, Clause 1 - This clause of the Constitution addresses the scope of presidential pardon. According to a statement made by Trump in a June 4, 2018 tweet he has the “absolute right” to pardon himself. While he was specifically speaking in terms of impeachment, the conditions under which impeachment proceedings can be mounted - treason, bribery and high crimes and misdemeanors by a president - are at the federal level, and offenses against the United States can be pardoned by the president. The exception to this is… cases of impeachment, per this clause.

Yet another instance of Trump’s abuse of Constitutional authority is his declaration of an ‘emergency’ at the U.S/Mexican border. The Constitution grants no emergency powers to the POTUS; Harry Truman found that out when he attempted to enforce federal control of a steel mill during World War II in an effort to ensure continued steel production during this critical time. He was soundly shot down by the Supreme Court in the Youngstown Sheet & Tube v. Sawyer case of 1952.

Collectively, Articles I through III cover the partitioning among the Executive, Legislative, and Judicial branches of our government. By circumventing these provisions, Trump has also violated the Separation of Powers mandated by the Constitution. According to what James Madison wrote in Paper #47 of the Federalist Papers, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Article VI, Clause 2 - The second clause of this article states that not only the Constitution, but any treaties entered into by the United States, are to be considered to be the Supreme Law of the Land. In addition to thumbing his nose at those parts of the Constitution he finds inconvenient, he also unilaterally pulled out of the Intermediate-Range Nuclear Forces Treaty, which would be in clear violation of this portion of the Constitution.

The above covers the main body of the Constitution of the United States of America, but there are also the Amendments, some of which have also been violated by our Commander in Chief. Going by the numbers, here’s what we find:

Amendment I - This is the amendment that covers freedom of`religion, speech, and the press.

...By attempting to ban only Muslims from entering this country he was violating the religious considerations of this amendment.

...According to U.S. Court of Appeals for the 2nd Circuit, when Donald Trump blocks

users from his Twitter account, he is in violation of the free speech portion of the First

Amendment. The argument is sometimes mounted that any account holder on Twitter is

allowed to block anyone they wish without being in violation of this amendment - which is true… unless you’re a holder of public office and block someone for disagreeing with your political viewpoints.

Amendment V - On December 2, 2015 Trump said that the families of ISIS fighters should be killed along with the terrorists, a stance he has maintained into his presidency. Per the Fifth Amendment:

“...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor 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…”

Note the wording of the Constitution: It does not specify that this applies to citizens only - it says “...any person…”. The Founding Fathers knew a thing or two about tyranny and realized that its effects spread beyond our shores.

Amendment VIII - This amendment contains the words, “...nor cruel and unusual punishments inflicted.” Apparently this slipped the president’s mind when he said, ““I would bring back waterboarding, and I’d bring back a hell of a lot worse than waterboarding.” While the argument might be made that this only applies to citizens, that’s not entirely true. No mention of citizenship as a condition under which a person can be protected by this amendment is made.

Amendment XIV - Our president appears to be at odds with multiple provisions of the Fourteenth Amendment. One of his more blatant attacks on this portion of the Constitution is his desire to abolish birthright citizenship, a guarantee that is set forth in the very first section of this amendment.

Section 2 of this same amendment guarantees citizens equal protection under the law; Trump has skirted this section on at least two occasions:

...by denying LGBTQ citizens the right to enlist in the military.

...by not providing hurricane relief funds to the citizens of Puerto Rico. Puerto Rico

is a U.S. territory; while its citizens are not considered naturalized citizens of the United

States under the provisions of the Fourteenth Amendment, they do still have the right to

equal protection under the law and, as such, should have FEMA funds made available

to them. Should you dispute this fact, bear in mind that Puerto Rico regularly pays into

the FEMA relief fund, yet are being denied those funds in their hour of need.

In summary, Donald Trump’s experiences in the business world did not seem to translate well to the presidency. As the head of a corporation his word is by-and-large law; even his underlings would be reluctant to ignore his orders, lest they hear those words made famous during Trump’s stint on The Apprentice: “Your fired!”

Running a country - specifically the United States of America - is considerably different. Our Founding Fathers put a series of checks and balances in the Constitution to safeguard against any one person taking it upon themselves to declare war, impose taxes, allocate funds, or any of the numerous other functions that are necessary in the governance of a nation.