First Keynote Address.

AuthorRaskin, Jamie

Professor Bowman, what a pleasure. What an honor it is to be with you and with the Missouri Law Review, and to be part of your symposium.

Thank you for all of your remarkable contributions to our public life, to our constitutional discourse and specifically to our understanding and knowledge of the impeachment process historically and today.

So, I have not yet written systematically about the impeachment trial in a law review context. Although, in my book, Unthinkable, which is out now, I do spend several chapters talking about some of the critical decisions that we made. I'm going to venture some thoughts here. Some of which appear in Unthinkable, some of which are not part of it, but some of which I'm hoping to be able to whip into shape as part of your symposium. So, I thank you for the opportunity to think through some of the reflections I'm going to offer here.

One thing is actually about the first impeachment, because I have a profound critique. Not of the Republicans, but of the Democrats here because I think that the majority failed. Here I'm not referring to Jerry Nadler, the Chair of the Judiciary Committee, or Adam Schiff, who ended up being the lead impeachment manager, or anyone involved with impeachment. But I say collectively we failed, and I would probably blame myself the most because I was in the best position to counter this. But we really fell down on the job in not placing the then president's profound and continuing violations of the Foreign and the Domestic Emoluments Clauses at the very center of that impeachment.

I believe that violation of the Emoluments Clauses was the original sin of the Trump Administration, and it began essentially on the first day of Trump in office when he said he was not going to give up his more than 150 businesses. He was not going to stop doing business with foreign governments, and he was not taking any pledge about refusing to take money from the federal government. The Foreign Emoluments Clause states that no president, no federal official, may accept presents or emoluments - which are payments - offices or titles of any kind whatsoever from a foreign government without the consent of the Congress. And yet Donald Trump immediately began taking at the Trump Hotel in Washington, which I call the Washington Emolument, and at other hotels, and at the golf courses and in other business ventures around the world, all kinds of money from foreign governments. Hundreds of thousands of dollars, millions of dollars began to pour in from Saudi Arabia, the United Arab Emirates, from China, from a whole bunch of governments around the world. Because this was such a flagrant departure from U.S. history, we were unprepared to deal with it. We didn't have a process for dealing with it. I'm afraid a lot of the Democrats felt it was too complicated for people to understand. Some of it was even just the word "emoluments," which is multi-syllabic, and I think we foolishly succumb to the idea that it was too complicated for people to understand. When most Americans can understand a good scam and a good grift when they see it.

The Domestic Emoluments Clause limits the President to his salary while in office and says that the president may accept no other money from the federal government or from the states. Yet again, immediately, the Trump Hotels and other business ventures owned by Donald Trump and his family were collecting all kinds of money from government agencies, from the FBI, from the Secret Service, from the Department of Defense, on and on and on, which were either voluntarily signing up or being told by the President to sign up to do various events at various Trump properties, and so on. Donald Trump went around saying, "I don't even accept my salary. I'm not going to accept my $400,000 salary." So presumably, hey, it's okay to take millions of dollars from the federal government. Your salary is the only thing you are allowed to take as the President of the United States. You're not allowed to take the other stuff. None of that money was allowable.

In fact, it's categorically forbidden and proscribed. You can't do it. At least with the foreign emoluments, there is the out that you can accept it if the Congress consents. There's a long history of presidents going to Congress to ask for consent to keep this or that trinket or item that they got from a foreign government. Abraham Lincoln was given an elephant tusk by the king of Siam and wanted to keep it, and in the middle of the Civil War, went to the pains of writing to the Congress to ask if it was okay. The answer comes back from Congress, "No, you may not keep that." Compare that to Donald Trump, who is simply pocketing millions of dollars from foreign governments. Now, it is true that when public objections were raised, Trump decided that he was going to make voluntary repayments for what he described as "the profits" he was making from foreign governments. Then, he paid several hundred thousand here, several hundred thousand there. There was no accounting of it. There was no definition of where it was coming from...

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