Dramatic Irony

After flipping through the pages of A Matter of interpretation, a name caught my eye: Laurence H. Tribe. This name was briefly mentioned in class last week regarding his involvement in efforts to sue President Trump for not properly divesting himself from the Trump organization. In all honesty, I have never heard of this man before, but after spending some time research I now understand the significance of his legal career, and him joining the legal fight against President Trump.

I will spare you having to read a full-fledged biography on Tribe, but if you are curious, I found a good one here. The more notable aspects of Tribe’s life include his current tenure as a professor of constitutional law at Harvard Law School. In addition to co-founding the American Constitution Society and arguing before the Supreme Court over thirty times.

The American Constitution Society sits as a progressive legal organization with goals of promoting individual rights, equality, social justice and democracy. Most notably, the ACS aided Al Gore in Bush v. Gore in 2001.

Now, along with other prominent attorneys (including former White House ethics lawyer) Tribe has filed a lawsuit against President Donald Trump for violating the United States Constitution. These attorneys claim that Trump has not properly divested his ownership of the Trump Organization which would the Emoluments Clause.

In an interview with the Harvard Crimson, Tribe described the basis for their suit:

“The Emoluments Clause has nothing to do with how busy you are managing, it’s about whether you own something,” Tribe said. “As long as he maintains ownership of this vast business empire that can be benefited financially in dozens and hundreds of ways by many countries that want to gain his favor, he hasn’t avoided the Emoluments Clause.” (Halper 2)

The lawsuit, which was filed in a federal court on January 23rd cites that alleges that transactions between foreign governments and Trump’s business holdings, including hotel room purchases and leases in Trump’s towers, violate the Emoluments Clause of the Constitution. The clause prevents individuals holding offices of “Profit or Trust” from accepting ‘any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.’” (Halper 1).

Tribe and his team are effectively taking a page from Antonin Scalia’s practice of textualism. While the case has not been heard in a court yet, it is expected that they will rely on the language of the document to argue for their case. It seems almost poetic that a progressive lawyer and team of lawyers are using the practice set by a hero of the political right to argue their case.

Looking deeper in “A Matter of Interpretation” Tribe comments on Scalia’s work. Although he does take some issue with him on “cherry-picking” at times, Tribe and Scalia’s opinion do overlap more than once.

Although nobody know what the future holds for this lawsuit, or any other that might be filed against the President. However, Tribe has opened the doors to fight back against President Trump on the legal avenue, rather than a political one.

*Other legal groups, such as the ACLU are in the process of filing similar lawsuits regarding how Trump has divested himself.

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4 Responses to Dramatic Irony

  1. Ryan Wadding says:

    I am thoroughly happy you looked into Lawrence Tribe. I had also not heard the name before we read Scalia’s piece. People like Mr. Tribe are the sole reason I refuse to accept the notion that lawyers are inherently bad people. I may be biased in favor of any legal action against Trump but it does not take a progressive bias to see the courage that it requires to legally challenge the President of the United States, Republican or Democrat, Trump or not. I especially liked your mention of the link between textualism, Scalia, and Tribe because I have made it known I find myself in the dilemma of being a progressive but also falling to the textualist side of the legal interpretation spectrum. I feel comfortable that the language of the text will be in Tribe’s favor and that gives me hope. Again, I admit I am biased against Trump so anyone reading this can give my statement whatever level of merit they choose but the ‘Emoluments Clause’ specifically prohibits any office holders “accept[ing] of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” If Trump will not properly divest himself from his international business empire, then I think their argument is solid and all they have to do is point to the language of the text. It will be interesting to see how this lawsuit plays out but if it is successful maybe the inherent value of textualism I see will become more apparent to others. Anyway, great job. Cheers.

    Cited:
    U.S. Constitution. Art. I, Sec. 9.

    • brendanfoley1 says:

      I also agree that President Trump should be held accountable for violating the Emoluments Clause. Not only is he in clear violation of the clause on the basis of the text as you have pointed out, but he is also in violation of the spirit of the law. The clause is present in order to prevent Federal officials from exploiting their office for personal gain, and to ensure that politicians do not make foreign policy decisions based on personal relationships. By maintaining ownership of his business he has failed to divest his personal interests from his political office and stands to personally benefit from the decisions he makes in regards to policy.
      On a relatively unrelated note, I believe I understand your dilemma with progressivism and textualism. I don’t think there is any fundamental conflict between the two ideologies, but most of the issues arise when applying them to the United States. The problem stems from the fact that many of the legal documents used in cases today were written in the 18th and 19th century; a time with much more conservative principles than those present in today’s political climate. Because of the relatively slow and ineffective Legislative branch, and the trend of society becoming more progressive over time, there becomes a distinct divide between the written law and the ideologies of the American people. As a result, a textualist approach to interpretation often results in a conservative stance when ruling on a case.

      • Ryan Wadding says:

        After reading the Levninson text I think I fully understand your point. You are completely correct in saying that textualism and progressiveism are not inherently incompatible but when applied to the constitution it is nearly impossible to secure the rights that progressives believe in solely based on the written constitution and that is why a texualist approach to constitutional interpretation is almost always the conservative approach. Thus, I believe in the abstract the texualist approach is superior, but in a practical sense when it comes to interpretation of the U.S. Constitution, our increasingly progressive society, and the current inability of the legislature to work effectively it is necessary to take ‘living constitution’ approach of interpretation. Anyway, well said. Cheers!

  2. thoughtful32 says:

    It’s great that you were able to make a connection between the reading and a current issue with Laurence H. Tribe. His biography is quite remarkable and having had argued before the Supreme Court over thirty times, I believe has given him some decent practice to take on this lawsuit against Trump. I think instructors hold a special place in education because they themselves are educated and they also witness knowledge evolve and being understood in different ways through their students and with time as I’m sure Tribe does with his students at Harvard Law. With the great legal minds on his team, including the ACLU who I know is also preparing a lawsuit against him, there has to be a momentum that is built from the resistance of these powerful and intelligent attorneys combining forces. With this being said, it is intriguing to me that Tribe has decided to sue under the violation of the Emolument Clause with Trump violating so many ethical principles and human rights of people. It seems that there are plenty of arguments, perhaps more meaningful, and the one chosen is emolument. On the other hand, this could have been done exactly due to the reason you mentioned, which is textualism. In order for Tribe and his team to bring down someone at such a high position, possibly the most revered of the nation, there must be an explicitly stated clause that is being violated so it can be argued undoubtedly in court. I am curious to see what this legal avenue will look like for Trump because I know there are more people preparing their suits right now.
    -Sonia

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