Eisen's conclusions are shared by Harvard Law Professor Larry Tribe, one of the nation's preeminent constitutional scholars. Tribe told ThinkProgress that, after extensive research, he concluded that "Trump's ongoing business dealings around the world would make him the recipient of constitutionally prohibited 'Emoluments' from 'any King, Prince, or foreign State' -- in the original sense of payments and not necessarily presents or gifts -- from the very moment he takes the oath."
The only solution would be to divest completely from his businesses. Failing that, Tribe elaborated on the consequences:Trump would be knowingly breaking his oath of exclusive fealty (under Art. II, Sec.1) to a Constitution whose very first Article (Art. I, Sec. 9) -- an Article deliberately designed to prevent any U.S. official,especially the Chief Executive, from being indebted to, or otherwise the recipient of financial remuneration from, any foreign power or entity answerable to such a power -- he would be violating as he repeated the words recited by the Chief Justice.
Tribe said the violation would qualify as one of the "high Crimes and Misdemeanors" that would require Trump to be "removed from Office."
This is where the Electoral College comes in. Tribe notes that the Electoral College was "originally conceived by Framers like Alexander Hamilton as a vital safeguard against the assumption of the Presidency by an 'unfit character' or one incapable of serving faithfully to 'execute the Office of President of the United States [and] preserve, protect, and defend the Constitution of the United States.'"
"[T]o vote for Trump in the absence of such complete divestment... would represent an abdication of the solemn duties of the 538 Electors," Tribe said.
Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions -- most important, the electors themselves. [...]
Only twice in our past has the electoral college selected a president against the will of the people -- once in the 19th century and once on the cusp of the 21st. [...] In both cases, the result violated what has become one of the most important principles governing our democracy -- one person, one vote. In both cases, the votes of some weighed much more heavily than the votes of others. Today, the vote of a citizen in Wyoming is four times as powerful as the vote of a citizen in Michigan. The vote of a citizen in Vermont is three times as powerful as a vote in Missouri. This denies Americans the fundamental value of a representative democracy -- equal citizenship. Yet nothing in our Constitution compels this result.
Instead, if the electoral college is to control who becomes our president, we should take it seriously by understanding its purpose precisely. It is not meant to deny a reasonable judgment by the people. It is meant to be a circuit breaker -- just in case the people go crazy.
In this election, the people did not go crazy. The winner, by far, of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.
Yet that is not the question the electors must weigh as they decide how to cast their ballots. Instead, the question they must ask themselves is whether there is any good reason to veto the people's choice.
There is not. And indeed, there is an especially good reason for them not to nullify what the people have said -- the fundamental principle of one person, one vote. We are all citizens equally. Our votes should count equally. And since nothing in our Constitution compels a decision otherwise, the electors should respect the equal vote by the people by ratifying it on Dec. 19.
First, let's retire the nomenclature of "faithless electors" once and for all. Let's call electors who refuse to rubber-stamp the popular vote conscientious electors, and let's give them the resources and the protection to investigate and deliberate -- in short, to do their jobs.
Constitutional history makes clear that the founders had three main purposes in designing the Electoral College.
The first was to stop a demagogue from becoming president. At the Constitutional Convention, arguing in support of the Electoral College, Elbridge Gerry of Massachusetts said he was "against a popular election" for president because the people would be "misled by a few designing men." In Federalist No. 68, Alexander Hamilton wrote that the electors would prevent those with "Talents for low intrigue, and the little arts of popularity" from becoming president. They would also stop anyone who would "convulse the community with any extraordinary or violent movements."
The second goal was to stop foreign interference in election. In the founding period, the framers were extremely concerned about infiltration by rivals including Great Britain. In Federalist No. 68, Hamilton wrote that one major purpose of the Electoral College was to stop the "desire in foreign powers to gain an improper ascendant in our councils." He said that the college would "Guard against all danger of this sort ... with the most provident and judicious attention" from the electors.
The third goal was to prevent poor administration of government. This is a less well-known purpose of the Electoral College, but it is again expressly discussed in Federalist No. 68. Hamilton wrote that "the true test of a good government is its aptitude and tendency to produce a good administration," and for that reason, he said, the electors should be "able to estimate the share which the executive in every government must necessarily have in its good or ill administration."
Let's review: We have a president-elect who:
- Will end up having received around 2.5 million fewer votes than his main opponent.
- Whose campaign benefited, almost no one now disputes, from the help provided him by Russian intelligence agencies and other even more shadowy Russian actors -- which is to say that foreign agents, whether Russian or any nationality, sought to influence this election to an unprecedented degree.
- Who is so tied up in compromises and conflicts because of his business dealings that past White House ethics lawyers, including at least one Republican one, say he will be in violation of the Constitution from his first day in office and argue that the Electoral College must not seat him.
- Has already told the American people that, with respect to number 3, his attitude is precisely that of Richard Nixon, back when Nixon declared the president to be by the very nature of the office above the law. Trump said that the president "can't have a conflict of interest" -- meaning, presumably, that it can't happen simply because he's the president.
"Regardless if it was deliberate or accidental, this phone call will fundamentally change China's perceptions of Trump's strategic intentions for the negative," he said. "With this kind of move, Trump is setting a foundation of enduring mistrust and strategic competition for US-China relations." [...]
Ari Fleischer, the White House press secretary under George W. Bush, tweeted on Friday that he "wasn't even allowed to refer" to the government "of" Taiwan when serving in the Bush administration. "I could say government 'on' Taiwan," he noted. "China will go nuts."
Sen. Chris Murphy, a Democrat from Connecticut, tweeted that while "it's Trump's right to shift policy, alliances, strategy ... what has happened in the last 48 hours is not a shift. These are major pivots in foreign policy w/out any plan. That's how wars start. And if they aren't pivots -- just radical temporary deviations -- allies will walk if they have no clue what we stand for. Just as bad."