President-Elect Trump: The First Two Weeks

I would be interested in hearing from readers: do my recent political posts work for you? Are they a distraction? I am open to considering publishing them somewhere other than the front page of Letters Blogatory if you would prefer that I stick to my usual fare.

In the immediate aftermath of the election, I recommended giving President-elect Trump “a chance with a clean slate.” Mr. Trump doesn’t assume office for about two months, so I still want to try to reserve judgment. But a lot has happened in the last two weeks, so we can begin to make some judgments, and unfortunately what I see so far is distressing. I am not going to note all the issues I see, or even all the serious issues: I’m leaving aside the President-elect’s poor-quality nominations for important posts including Administrator of the EPA, National Security Advisor, and Attorney General, his apparent plans regarding tax reform, reform of the civil service laws, the possibility that he wants to privatize Medicare, his apparent intention to withdraw from the TPP (a position he shared with Mrs. Clinton), etc. Nor am I going to write about the troubling trends in foreign relations I see: our uneasy allies; moves by some Asian allies towards closer ties with China, and so forth. Instead, I’ll focus on a few hot-button issues: Nazis; the press; and conflicts of interest.

Nazis

Indiana Jones beating up a Nazi

President-elect Trump has not spoken out strongly against the Nazis emboldened by his election.

President-elect Trump has continued to denounce racism of any kind and he [got] elected because he will be a leader for every American,” Bryan Lanza, a spokesman for the Trump-Pence Transition said in a statement, according to CNN.

“To think otherwise is a complete misrepresentation of the movement that united Americans from all backgrounds.”

Pro tip: even if you are not a Nazi yourself, if the Nazis are hailing your victory, something has gone drastically wrong. At a conference over the weekend held in Washington, Richard Spencer, a Nazi, “railed against Jews, quoted Nazi propaganda and said that America belonged to white people.” After his speech, “several audience members gave a Nazi-like salute. ‘Heil the people! Heil victory,’ the people in the room shouted.” Yes, even Nazis can say what they please—it’s a free country. But I expect the President-elect, the one who has made these racists and bigots feel comfortable enough to say such things out loud by his use of anti-semitic dog whistles during the campaign, to do everything in his power to put a stop to this. He hasn’t so far. Anyone who says that these Nazis are just a fringe group that we can ignore hasn’t been paying attention, in my opinion. A significant part of Mr. Trump’s base, in ideological seriousness if not in numbers, are the so-called “alt-right” or white nationalists.

Trump and the Press

Contrary to precedent, the President-elect has not yet held a press conference. He has continued to try to speak over the head of the press using Twitter. His tweets have not inspired confidence: he continues to attack the “crooked” press, and indeed, to attack the satirical television show, Saturday Night Live for making fun of him, which is of course one of the main points of the show no matter who is in office.

But perhaps most troubling is this account of Mr. Trump’s meeting with leaders of the press.

Mr. Trump, whose antagonism toward the news media was unusual even for a modern presidential candidate, described the television networks as dishonest in their reporting and shortsighted in missing the signs of his upset victory. He criticized some in the room by name, including CNN’s president, Jeffrey A. Zucker, according to multiple people briefed on the meeting who were granted anonymity to describe confidential discussions.

It is not unusual for journalists to agree to off-the-record sessions with prominent politicians, including President Obama, as a way to gain insights and develop relationships.

But after details of Mr. Trump’s hectoring leaked on Monday in The New York Post, it seemed the meeting was being used as a political prop, especially after Trump-friendly news outlets trumpeted the session as a take-no-prisoners move by a brave president-elect.

“Trump Slams Media Elite, Face to Face,” blared the Drudge Report. “Trump Eats Press,” wrote Breitbart News.

We have to hope that the press has the fortitude to cover the new administration adversarially even in the face of bullying. I have my doubts, but we will see. The real journalists in our major news organizations will also have to have the fortitude to stand up to the “suits” when necessary to make sure that getting the news out takes priority over business considerations.

One Big Conflict Of Interest

Where to begin. The President-elect has refused to put his business interests in the hands of an independent trustee of a blind trust, as is customary to avoid conflicts of interest. I won’t repeat all the news reports about Trump apparently acting to advance his own business interests, for example, in India, in the UK, in Argentina. Perhaps the most galling story so far is the sales pitch Mr. Trump’s people gave to foreign diplomats encouraging them to stay in his new Washington hotel:

Friday evening, the Washington Post reported that about 100 foreign diplomats gathered at President-elect Donald Trump’s hotel in Washington, DC to “to sip Trump-branded champagne, dine on sliders and hear a sales pitch about the U.S. president-elect’s newest hotel.” The tour included a look at the hotel’s $20,000 a night “town house” suite. The Post also quoted some of the diplomats saying they intended to stay at the hotel in order to ingratiate themselves to the incoming president.

If the issue were less serious, I would point out that like everything Mr. Trump touches, the tackiness and tasteless of this event is hard to fathom. On a more somber note: I won’t claim to be an expert in the Emoluments Clause, 1 but I’ll point out that George W. Bush’s chief ethics lawyer has opined that Mr. Trump is violating the Clause even before taking office:

In an exclusive exchange with ThinkProgress, Richard Painter, a University of Minnesota law professor who previously served as chief ethics counsel to President George W. Bush, says that Trump’s efforts to do business with these diplomats is at odds with a provision of the Constitution intended to prevent foreign states from effectively buying influence with federal officials.

The Constitution’s “Emoluments Clause,” provides that “no person holding any office of profit or trust under” the United States “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.”

The diplomats’ efforts in seek Trump’s favor by staying in his hotel “looks like a gift,” Painter told ThinkProgress in an email, and thus is the very kind of favor the Constitution seeks to prevent.

What makes all of this overt corruption so galling is its hypocrisy, given the focus of Mr. Trump’s campaign against Hillary Clinton, and also Mr. Trump’s apparent decision to try to brazen it out rather than to address the issue seriously:

Who is advising him on the ethics of this? Anyone?

So Where Do We Stand?

I’m an optimistic guy by nature. But these first two weeks of transition give us very little to be optimistic about. The public and the press must continue to speak out about the dangers posed by Mr. Trump’s Nazi and racist supporters, his unacceptable relationship to the press, and his conflicts of interest. Perhaps public pressure will force some change.

Notes:

  1. “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”

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

9 thoughts on “President-Elect Trump: The First Two Weeks

  1. I enjoy the political stuff. People tend to want to look the other way. Particularly with this President-Elect, I think that would be irresponsible.

    1. Thanks Carolyn. My two concerns are, first, not to annoy people who come here to keep up with the case law, and second, not to make people who voted for the other candidate to feel unwelcome.

  2. “[D]o my recent political posts work for you? Are they a distraction?”

    Yes, they work. No, they aren’t a distraction. They’re critical to civil discourse.

    God knows the Fourth Estate has completely abdicated its duty of criticism since 9/11. And it’s not likely to stand up now that it gets a daily ass-chewing from the President-elect.

    We lawyers would be derelict in our duty if we don’t have the discussion.

  3. Keep these posts coming! DER SPIEGEL had a piece recently, asking whether Trump qualified as a fascist, by applying the criteria Umberto Eco suggested in a 1995 article in the New York Review of Books. The SPIEGEL article (in German) takes Robert Kagan’s “This is how fascism comes to America” in the Washington Post as a starting Point and concludes that Trump meets eight out of Eco’s 14 criteria.

    1. Thanks PB! I will certainly keep them coming! It may just be that I keep them coming on a related webpage: I am considering politics.blogatory.com. All of the comments folks have posted have taken your view, but I have gotten some offline comments suggesting that the political posts be separated from the regular posts.

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