Trump v. the Law: How Four Types of Lawsuits will do the Job Congress Should be Doing

“It’s good to be the king” as Mel Brooks once exclaimed, for kings are above the law.  But US

presidents are not kings because they are subject to the law.  Donald Trump is increasingly confronting this reality, with the fate of his presidency resting in four types of law suits that are gradually  grinding he and his administration to a halt.  The latest is a Maryland judge allowing for a suit against Trump alleging that foreign governments doing business with him violates the Constitution’s Emoluments  Clause.
Presidents are not kings, and they are not like Captain Picard from Star Trek declaring “Make it so” and it will happen.  The US Constitution and America’s laws–both civic and criminal–limit presidential power.  Presidents have no inherent power to do whatever they want–all of their authority must come from the Constitution or delegation from Congress.  Trump has never understood this.  He thinks he is the CEO of the federal government, beyond reproach and accountable to no one. 
Yet the defining trait of his first 15 months in office has been his and his administration’s woeful ineptness, driven in part but collective inability to act in accordance with the law, whether it be regulating conflict of interest, immigration, or criminal matters.  The Republican Congress has proven unwilling and able to check Trump, botching the Russian investigation and failing to use its checks to hold him accountable out of fear that they will alienate their base.  Yet there are four different legal nooses tightening around Trump’s neck, dictating the fate of the 2018 elections and the future of the Trump presidency.
The first and most famous is special prosecutor Bob Mueller’s investigation into Russian involvement in the 2016 election and what, if any collusive activity did Trump and his campaign have.  The investigation includes not just the question of whether there was collusion but also has the Trump administration obstructed justice, hindered prosecution, committed perjury, or engaged in any other activities to impede the Mueller investigation.  Already the special prosecutor  has netted several indictments and guilty pleas, and at any time many expect Jared Kushner, Donald Trump, Jr., Ivanka Trump, and maybe the president himself to be indicted for something.  The Justice Department along with much of the Trump Administration is self-destructing under the weight of this investigation and with future trials and indictments certain, this issue is not going away before the 2018 elections.
Second, one already saw multiple lawsuits in 2017 challenging Trump executive orders when it came to immigration and sanctuary cities.  With this administration ready to roll out a ton of new  administration regulations, look to see a range of environment and public interest groups as well as states challenge them in court.  Trump may eventually win, but look to see more injunctions, stays, and delays to these rules and orders.
Third, already there are three lawsuits surrounding sexual harassment and women claiming they were paid hush money about affairs.  Gloria Allred–perhaps the best sexual harassment lawyer in the nation–is already representing one alleged victim.  Expect more lawsuits this year.  Thanks to Bill Clinton and the Supreme Court decision that allowed Paula Jones to sue him as president, these cases will multiple and proceed against Trump.  One will see subpoenas and depositions that Trump cannot suppress, forcing Trump in some cases to give testimony under oath and penalty of perjury.
Finally there is the Emolument clause.  The Framers put it in the Constitution out of fear that foreign governments would try to give gifts or other valuables to our federal offices in order to influence them.  The suit that a federal judge just allowed to proceed alleges that the business that foreign governments with the Trump business empire constitute emoluments.  Whether an appeals  court will allow the suit to continue and if it does whether a court agrees that there is a constitutional violation are good questions.  If it proceeds, it may force Trump to release his tax records and open up his private business to legal and public scrutiny.
Taken together, these four sets of legal challenges are doing the work that Congress should be doing but cannot or will not.  With the exception of the Mueller criminal investigation, the other three cannot be derailed by presidential pardoning power, claims of executive privilege, or firing someone.  Should they succeed–even if politically to flip one or two houses of Congress–they will  determine the fate of the Trump presidency. A flipped House or Senate means impeachment or other hearings, or a halt to judicial nominations.  It will also enhance gridlock even beyond what it is now, and it may lead the Congressional Republicans abandoning him where to all surprise–they might actually find it in their interest to do their job and go after him.

Abandon Trump? The Republican Party Dilemma

No question more perplexes political pundits, the news media, and Democrats than “When will
Republicans abandon Trump?  The simple answer is that the odds of Republicans–both those in Congress and his base–abandoning Trump is like waiting for Godot.  In both cases, one can hope that Godot appears or the Republicans will flee from Trump and impeach him, team up with Democrats, or do something else, but the reality is that it just may not happen.
Now nearly six months into the Trump era the carnage of his presidency persists.  This week the Russian connection revelations continued to mount, depicting  patterns of illegal or unethical collusion between Trump campaign officials and family and Russian nationals if not the government.  Revelations of Trump family conflicts of interest intensify, Trump embarrasses himself and the USA across the world, his travel ban takes another court hit, and his policy agenda including efforts to repeal Obamacare look like one mistake after another.  Allegations  of obstruction of justice engulf the administration as the FBI probe continues, and to many, Trump tweets and alternative facts simply add to a narrative of a largely failed presidency unable to get anything done.  With the Republicans tasting policy victory last fall and only to see it slipping out of the fingers now and facing a potentially fatal 2018 election, why haven’t Republicans abandoned Trump?
Many look to the lessons of Watergate as hope that the GOP will reject Trump.  Back when Nixon was president his resignation was the product of not just political pressure by Democrats but also by notable Republicans in the House and Senate calling for his impeachment or resignation.  Public opinion support for Nixon also eroded, and he could not count on his base to support him in sufficient numbers to prop up his presidency.  Even his own Supreme Court abandoned him in U.S. v. Nixon and the mainstream media was nearly of one voice in going after Nixon. Surely, some assert, this should be Trump’s fate any day.  Not necessarily.
The 1970s is a different era from today.  Most significantly, the level and strength of partisanship today is far more powerful today than then.  Back in the 1970s about one-third of the members of Congress came from swing districts, those which were capable of flipping from one party to another.  The percentage of swing voters–those who split tickets voted or switched from one party to another when voting was about 15% of the electorate.  The Republican and Democratic parties were ideologically more mixed and straight party-line votes the exception and not the rule.
Today, there are fewer than 20 or so seats in the House of Representatives that are swing.  The number of seats  where Clinton won the presidency but a Republican in Congress is very small.  Party-line voting is the norm and not the exception in Congress and the Republicans and Democrats are so polarized such that the most liberal Republican in Congress still votes more conservatively than the most conservative Democrat in Congress.  The percentage of swing voters has dropped to about 5%, with swing meaning now swinging into votes or not voting, and not split ticket voting.  Partisan preferences have hardened, especially at the presidential or national level, and political scientists now note how individuals will change their policy preferences to conform with their party identification, and not vice versa.
Why is all this important?  Despite all of Trump’s problems, partisanship is more powerful than presidential performance.  Republicans have embraced Trump as their president, flaws and all.  This was no different from what the Democrats did with Clinton in 2016.  Despite all the clear warning signs that Clinton was a flawed candidate, Democrats stuck with her no matter what.  Democrats went down with Clinton as the captain of their ship, Republicans may do the same here.
Don’t count on Republicans abandoning Trump.  They still support many of his policy objectives and see a better chance of getting what they want if they are with as opposed to him. They still want to repeal Obamacare and may still succeed.  Consider some one such as Senator Susan Collins.  Depicted as a moderate, yet whenever push comes to shove, she votes the Republican line.  The same might be said of John McCain.  Right now they oppose the yet again revised version of the Senate health care bill and it looks doomed, but the same was said a few months ago about the House bill.
Moreover, don’t count on fear of what could happen in the 2018 elections as a motivating  factor for Republicans.   The latest public opinion polls (Gallup)  still show that 38% of the voters support Trump.  This percentage has not varied much in two months. His core base is still with him.   The Democrats are defending 25 Senate seats in 2018 (23 Democrats and two independents) than Republicans at eight, and there does not seem to be too many swing seats for Democrats to pick up in the House.  Trump’s core base is concentrated in enough congressional seats such that fleeing him there would invite Republican primary challenges from the right.  Finally, Democrats lack a narrative, plan, and strategy for 2018, they are still counting on Trump’s unpopularity to the springboard to victory.  This is Clinton’s 2016 mistake all over again.  Finally, the news media is not universal in  its condemnation of Trump; Fox national news provides alternative facts to the Trump base that reinforces partisan support.
It is possible that the Republicans will abandon Trump, but it is equally possible they will not.  Hoping it will happen is simply like waiting for Godot.