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  • Josh Blackman and Seth Barrett Tillman: The ‘Resistance’ vs. George Washington

    Posted by Jonathan on October 16th, 2017 (All posts by )

    The conclusion of Seth’s brief piece:

    But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
     
    We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.

    (The full column is behind a pay wall but is worth reading if you have access.)

     

    7 Responses to “Josh Blackman and Seth Barrett Tillman: The ‘Resistance’ vs. George Washington

    1. Grurray Says:

      Even though in 2009 the White House Legal Counsel argued the President is subject to the Emoluments Clause, Obama’s lawyers somewhat ironically argued in that paper that prizes and gifts from the Nobel Peace Prize Committee aren’t subject to it.

      The Nobel Committee may not be a “King, Prince or foreign State,” but their members are political appointments by the Norwegian Parliament. The Chairman of the committee in 2009 was Thorbjørn Jagland, former Norwegian Prime Minister, former head of the Labour Party, and head of the Council of Europe, a supranational foreign organization with quasi-sovereign powers.

      Not only does the Trump Administration need to throw out the 2009 opinion because of Seth’s stated reasons but also to end the charade that the International Community isn’t a foreign entity. It is, and it must be treated as such to maintain American sovereignty and the integrity of our political system.

    2. Brian Says:

      Obama’s Nobel Peace Prize is still completely hilarious. The notion that anyone should care about these jokers is absurd. Bob Dylan had it right when he blew them off, sending the message that they are non-entities, but unfortunately he caved in the end.

      My theory has always been that the Swedes were completely positive that The One’s election was going to herald a new era of peace and prosperity all across the world, and by 2017 they could give him a historic second award. What a bunch of maroons.

    3. Jonathan Says:

      What a bunch of maroons.

      There’s a lot of that going around.

    4. dearieme Says:

      “Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.” And why not? They were politicians, for heaven’s sake.

    5. Grurray Says:

      Speaking of maroons, what about the UN Security Council members expressing their shock that Trump is withdrawing from the Iran nuclear deal? If they know so little about how the American political system works, I wonder what they are all overlooking about Iran? The Iran deal isn’t a treaty, it’s a deal. It’s a political deal only approved by one party. Once that party leaves power, so do their deals.

    6. Jonathan Says:

      The Iran deal isn’t a treaty, it’s a deal.

      Even if it were a properly ratified treaty we could get out of it if we changed our mind. Treaties generally include provisions allowing either side to withdraw after giving notice. When a democracy cuts a deal with a dictatorship the dictatorship is usually betting that political inertia will make it difficult for the democracy to withdraw or even to invoke the deal’s penalty provisions when the dictatorship cheats. In the case of the Iran deal there isn’t much political inertia on our side, Obama pushed the deal through by assertions of executive authority that many voters consider illegitimate, and Trump opposes the deal and is not inclined to defer to the Washington establishment that has been keeping it alive. Politically, UN opposition to our withdrawal from the deal might even make our withdrawal more likely. Good times.

    7. Grurray Says:

      True, but the way things have gone for Trump this year I’m sure even a treaty with robust provisions (which we could never expect from Obama) would face many legal and political challenges if he tried to withdraw.

      We thankfully don’t have to worry about that. The deal isn’t legally binding. Trump is now de-certifying under the law passed by Congress, with unusual prescience, specifically meant to bolster our sovereignty and stop a bad deal, which this undoubtedly is. I agree it will be a blow to the UN and International Community. It’s also a winner for Trump because he and Congress are finally on the same page on this issue.