39signed

Under the authority of the new President, reports indicate a number of agencies received orders to stop all communications with the public, the press and members of Congress until further guidelines are issued. This offers an opportunity to consider the freedom of the press which is, in many ways, dependent on access to information by and about the government.

Amendment I

Congress shall make no law…abridging the freedom of speech, or of the press;

This phrase seems straightforward yet controversies have arisen. In today’s situation, where no “law” has been created by Congress, only regulations within Federal agencies under the administration of the Executive Branch, it would be hard to say the letter of the Constitution has been violated. Yet a free press depends on being able to speak with, write to and generally communicate with government employees or spokespeople. Is it reasonable for an agency to identify a single person to speak on the agency’s behalf? Does that restrict the press in meaningful ways?

Some insight as to the values underlying the notion of a free press as intended by the framers of the Constitution come from An Appeal to the Inhabitants of Quebec, written in 1774 by the Continental Congress. Among many points made to the people of Quebec, they write:

The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs. (Emphasis added. For full text see: Mintz, S., & McNeil, S. (2016). An Appeal to the Inhabitants of Quebec. Digital History. Retrieved January, 2017 from
http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=4104)

This excerpt suggests one of the values underlying a free press was its role in impacting the behavior of government officials which can only be accomplished by knowing about their behavior and publicizing it. This requires access of the press to government actors and the ability to publish the information gleaned.

Virtually every administration has worked to manage the flow of information to the press through a variety of means and most scandals grew under cover and protection from the press’s knowledge. The current administration’s current policies may not overtly contradict the Constitution but they certainly strike at the spirit and values embedded in the freedom of the press.

President-elect Trump’s unique financial situation highlights the many layers of regulation and authority which define and confine the office of the President. The Constitution, laws passed by Congress and private contracts all are part of the forced swirling about the question of Mr. Trump’s possible conflicts of interest.

President-elect Trump outlined a reorganization of his businesses and his roles in his companies at yesterday’s news conference. Mr. Trump said, “But I have a no conflict of interest provision as president. It was many, many years old. This is for presidents because they don’t want presidents getting — I understand, they don’t want presidents getting tangled in minutiae. They want a president to run the country. So I could actually run my business. I could actually run my business and run government at the same time. I don’t like the way that looks, but I would be able to do that, if I wanted to. I would be the only one that would be able to do that. You can’t do that in any other capacity, but as a president, I could run the Trump Organization — great, great company — and I could run the country.” (From transcript published by CNBC) This is true and the President and Vice-President are not covered under federal conflict of interest laws.

His attorney, Sheri Dillon, spoke directly to the Emoluments Clause in the Constitution, (Article I, Section 9, clause 8) saying, “The so-called Emoluments Clause has never been interpreted, however, to apply to fair value exchanges that have absolutely nothing to do with an office holder.” While this is true, it is misleading. The Supreme Court has not interpreted the foreign Emoluments Clause or the domestic Emoluments Clause (Article II, Section I, clause 7). Interpretations have come from sitting Presidents and Department of Justice officials but none seem definitive. While Ms. Dillon offers one interpretation of how fees paid to Mr. Trump’s businesses, for hotel stays and rounds of golf for example, would be treated under the clauses, there really is no clear support for this position, nor clear contradiction.

Finally, Mr. Trump, through contracts his business has entered into, may have other responsibilities and conflicts. The most reported one relates to his hotel in Washington D.C., in the old Post Office Building. The contract states that, “No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom; provided, however, that this provision shall not be construed as extending to any Person who may be a shareholder or other beneficial owener of any publicly held corporation or other entity, if this Lease is for the general benefit of such corporation or other entity.” (GSA Contract, clause 37.19) There may be other contracts or agreements, with banks or other entities that have lent his businesses money, for example, that contain clauses impacted by his becoming President.

The Atlantic has a nice piece looking at the complexity of Mr. Trump’s situation.

Each layer of regulation is enforced or investigated differently with different paths for interpretation and resolution. The Constitutional questions that may arise under the Emoluments clauses will need a party to sue the President over an alleged violation which is not so easy. Who can sue the President?

39signed

Thinking about the Constitution of the United States

Freedom of the Press

Presidential Conflicts of Interest: The Layers of Trump’s Situation