Diving Deep: Article 1, Section 9 and Electoral Responsibility

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I’ve tried really hard to not let myself get caught up in the optimism of the current recount efforts happening, largely because I have conflicting feelings about Jill Stein’s motivations and what would happen if it shows the election is rigged. Would that be the end of the democratic process as we know it — would we go back to paper ballots? would we be able to trust the validity of future elections? would Russia really do this? — and I don’t really know how to reconcile these feelings.

(Side note: I think Donald Trump may secretly be hoping that the recount ends in a Clinton victory. I have no basis for this.)

The reason for the rush about the recounts is truly all about the Electoral College, maybe one of the most misunderstood aspects of the American experiment and one that is getting an unexpected amount of press this year.

There’s a movement to have electors become “faithless” or to switch their votes to Hillary Clinton “just because.” An elector in Texas resigned his post because voting for Trump violated his personal beliefs. There is a recount being mounted in three of the closest states to get HRC over 270.

It may not be necessary, though.

One of the provisions of Article I, Section 9 of the U.S. Constitution reads: 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.

Hmm. Why would you include something like that in the U.S. Constitution? Let’s travel back in time to the Constitutional Convention in 1788. At that point, the United States was barely United — it was a loose confederation, trying to come together under one federal system (and George Washington). The U.S. had been greatly helped by France during the Revolutionary War, and there was still “New France” on the border of the former colonies. Not to mention, diplomatic relations had barely been restored with Britain and were just being established with the rest of Europe.

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One thing that’s often overlooked about the Founders is how afraid they were of the ills and free will of the “people” — it’s why the electoral college exists, and it’s why there are provisions like Article I, Section 9. The excerpt above is from Edmund Randolph, then-governor of the Commonwealth of Virginia and delegate to the Constitutional convention. The part that I want to touch on specifically is “If discovered, he may be impeached.”

“If discovered, he may be impeached.”

There is no deep dive into discovering the potential payments Donald Trump will be taking from foreign governments — it’s evident at even a cursory level. Any time that a foreign dignitary stays at any one of the Trump properties, I feel like he’s violating the Constitution. That’s already happening — The Washington Post recently wrote a story entitled “For foreign diplomats, Trump hotel is place to be.” 

The Congressional Research Service found that “there is no current legal requirement that would compel the President to relinquish financial interests because of a conflict of interest,” but I think that this would be more than a conflict of interest. It isn’t a conflict of interest, defined legally as “a situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary.” While there are undoubtedly conflicts of interest that exist between Trump Corporation and Trump the President, there is more than that than we need to be worried about.

There is a solution to this. Trump can sell his companies and put the proceeds in a blind trust before he’s inaugurated. I think there’s little chance of that happening, simply by looking at what’s happening within his Transition team and how he’s elevating his children to advisory roles (another ethics violation for another day). The Electors could insist upon this as a condition of their casting their votes on December 19, but I don’t think that’s going to happen either.

I don’t know if this is another nuanced, circular legal argument, but it is without precedent that we would have someone that is sworn to uphold the Constitution violate it daily — and take no effort to mitigate it. I’m sure that someone will file Articles of Impeachment, but will a Republican House fulfill its’ Constitutional obligation? Will they give Trump an “all-clear” to establish a virtual kleptocracy from 1600 Pennsylvania Avenue?

Article II, Section 4 provides that “the President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” This may not reach the level of bribery (I think it does), but it is certainly a high crime or misdemeanor that is forbidden.

Psst: I’m not the only one that thinks about this. Laurence Tribe agrees with me, as do the top ethics officers for both George W. Bush and Barack Obama. 

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