Here’s How It Held Up

(Bloomberg) — In his four years in the White House, Donald Trump gave the U.S. Constitution an unprecedented workout, challenging norms and laws in ways that left few parts of America’s foundational legal document untouched.

The president throughout his term faced suspicion of colluding with a foreign government, worries that his business might create conflicts of interest and fears that his temperament and conduct would violate the norms of the nation’s highest office. Trump responded to almost all of these concerns with defiance —  rejecting most Congressional oversight, stonewalling law enforcement, issuing executive orders by the seat of his pants and, in his final act, refusing to accept the results of a democratic election.

Many of his actions inevitably landed in the courts.

“Trump is unique in being the maelstrom of all the things one might have worried about in thinking — well, does any president have the ability to wreak havoc on the nation, at least in the sense of stability of our democratic institutions,” said Elizabeth Joh, a law professor at the University of California at Davis and co-host of the podcast “What Trump Can Teach Us About Con Law.”

Some provisions held fast, others were shown to perhaps be weaker than the Constitution’s framers may have intended. Many of the infirmities are likely to be debated by legal scholars and lawmakers for years after Trump leaves offices. One silver lining, says Joh, is that the public is also likely to be more engaged with those debates than before.

“Maybe the past four years, as hard as it’s been in many ways for lots of people, has been a giant civic education project for us,” she said. 

Here are some of the constitutional provisions that were tested by Trump and where they stand now:

What happened: It had long been assumed that the loser of a presidential election would acknowledge defeat once the outcome was clear. But Trump and his allies launched an unprecedented legal campaign to try to overturn the 2020 results through dozens of lawsuits, essentially asking for votes from Democratic-leaning pools in battleground states to be invalidated or for all votes to be tossed in favor of state legislatures picking the winner. Scores of Republican members of Congress voted against certifying the state electoral college votes for Biden, and Trump pressed Vice President Mike Pence to use his role overseeing the tally to overturn Biden’s win.

What the issues were: Trump and his allies claimed the constitutional equal protection and due process rights of their supporters were violated by potential fraud among Democrats, particularly in large cities. Many of their suits also argued that changes in voting rules, especially those expanding mail-in voting in response to the pandemic, were unconstitutional because they were instituted by state election officials or courts instead of legislatures. Republican members of Congress asserted a right to “audit” state-certified election results, with some claiming Pence had a constitutional right to reject electoral votes for Biden and hand victory to Trump.

How it was resolved: Courts uniformly rejected Trump’s claims, with many judges pointing out that the suits were seeking the unprecedented remedy of invalidating millions of votes without any real evidence of fraud. Pence consulted with conservative constitutional law scholars who told him his role was limited to tallying the electoral votes, which he did after Congress reconvened following the Capitol riot. But though the Constitution held firm against Trump’s claims, widespread belief among his supporters that the presidential election was fraudulent raises concerns about future support for democratic elections and the rule of law.

What happened: The two constitutional provisions for removing the president have become familiar to many Americans for the first time during the Trump presidency. He’s been impeached twice by the Democratic-controlled House, first in December 2019 for asking the Ukrainian president to launch an investigation designed to politically damage Biden and again on Jan. 13 for inciting the Capitol riot one week earlier. The Senate acquitted him over the Ukraine call and and is expected to begin a trial over the second impeachment shortly after Biden’s inauguration. Ahead of its impeachment vote, the House passed a resolution asking Pence to invoke the 25th Amendment, which allows the vice president and a majority of the cabinet to temporarily remove a president who is “unable to discharge the powers and duties of his office.”

What the issues are: Pence refused to act, arguing the 25th Amendment should only be used when a president is medically incapacitated. Many Republicans argued against both impeachments on the ground that Trump’s actions didn’t meet the Constitution’s “high crimes and misdemeanors” standard, saying his Ukraine call wasn’t a federal crime and his Jan. 6 speech was merely inappropriate. Others, pointing out that Trump will be gone from office before the Senate trial commences, have argued that continuing with impeachment proceedings against a former  president is constitutionally impermissible. Democrats have argued that it’s still important to hold Trump accountable and ensure that he can’t run for office again in the future.

How it was resolved: We’re still waiting for the outcome of the Senate trial, as well as a possible legal challenge down the line if Trump is convicted. For all the legal arguments, removing a president is largely a partisan political affair. That hasn’t always been the case — President Richard Nixon resigned after Republican lawmakers told him he faced certain impeachment by both parties over the Watergate scandal. The party-line fights over impeachment during the Trump years have raised concern that this once-rare step will become a routine tool of political warfare — Representative Marjorie Taylor Greene, a Georgia Republican and QAnon adherent, has already vowed to introduce articles of impeachment against Biden on Jan. 21.

What happened: Trump has been unique in modern times in entering the presidency while maintaining ownership of a substantial international business. Federal ethics laws that prevent officials from benefiting from their positions don’t apply to the president, but the Constitution’s so-called emoluments clauses limit the president’s ability to receive payments, gifts or other things of value from foreign governments or domestic office-holders. Several lawsuits were filed seeking to bar Trump from profiting from spending by foreign diplomats at his properties, particularly the Trump International Hotel in downtown Washington, and require him to divest his holdings.

What the issues were: Trump argued that normal commercial transactions, such as hotel bills, rent payments and golf club fees aren’t prohibited by the emoluments clauses. He also challenged the legal standing of the groups suing him, which included Democratic members of Congress, saying they could not demonstrate that they were directly injured by his acceptance of spending at his properties. 

How was it resolved: The legal back-and-forth over standing prevented the courts from reaching any definitive ruling on whether the president violated the emoluments clauses, and the cases may be thrown out as moot soon after Trump leaves office. Trump’s ability to evade the issue may make it easier for future presidents to mix their interests with the nation’s.

What happened: Trump was under scrutiny by federal law enforcement even before he took office over comments and associations that hinted at ties with Russians trying to help him win the 2016 election. Special Counsel Robert Mueller’s team ultimately detailed instances in which Trump may have obstructed its probe of Russian interference but also cited the Justice Department’s policy against indicting a sitting president.  That policy may also have shielded Trump from the federal campaign-finance charges to which his former lawyer and fixer, Michael Cohen, pleaded guilty for arranging hush-money payments to women who said they had sex with Trump years before he became president. Cohen said Trump directed the payments, and the president was described by federal prosecutors in court papers as “Individual 1.” New York state prosecutors launched an investigation into how Trump’s business handled those payments, and served a subpoena on the president’s accountants at Mazars USA seeking tax and financial records.

What the issues were: Trump challenged the Mazars subpoena by Manhattan District Attorney Cyrus Vance, arguing the presidency also grants him absolute immunity from state criminal investigation. Echoing Trump’s boast during the 2016 campaign that he could shoot someone on Fifth Avenue without losing any supporters, his lawyers argued that, if the president committed such a crime, he couldn’t be investigated, much less charged and arrested, until his term was over.

How it got resolved: The case went to the Supreme Court, which ruled 7-2 in July that presidents aren’t immune from state criminal investigations and that prosecutors don’t have to meet a stricter standard when seeking evidence from the occupant of the Oval Office. Vance’s probe has since broadened and is seen as perhaps the most dire legal threat Trump will face in his post-presidency.

What happened: Unlike his predecessors, Trump largely rejected the idea of congressional oversight, and his administration routinely denied legislators’ requests for information. House committees subpoenaed Trump’s taxes and financial records from his accountants and bankers as part of what lawmakers said were various congressional probes. House committees also subpoenaed Trump’s taxes from Treasury…