A constitutional crisis?

I am constantly asked, "are we in a constitutional crisis?" Speaker of the House of Representatives Nancy Pelosi recently used that phrase and it is constantly uttered by commentators. Yet, I have resisted that terminology. I worried that if we use it now, what will we call it if President Donald Trump chooses to defy a judicial order or, as Michael Cohen and Nancy Pelosi have speculated, Trump refuses to leave office even if he loses his reelection bid in 2020?

On reflection, I realize that we are in a constitutional crisis right now, even if there could be more grave problems in the future. There is no precise definition of "constitutional crisis" or of when the line is crossed from a matter of constitutional concern to it being a constitutional crisis. But I would suggest that there is a constitutional crisis when the rule of law is subverted. The basic precept of the rule of law is that no one, not even the president, is above the law.

Right now, though, we have a president who has clearly broken the law and is resisting all efforts at accountability. That is a constitutional crisis.

To begin with, since the day he was sworn into office, President Trump has been violating the emoluments clauses of the Constitution. Article I, Section 9 of the Constitution prohibits any person holding a position of trust in the federal government from receiving any present or emolument from a foreign state. The framers of the Constitution were deeply afraid of foreign influence over their fledgling nation. The Constitution broadly prohibits receiving any benefit from a foreign government. Yet, President Trump constantly is receiving economic benefits from foreign countries. For example, China granted the president valuable trademarks after denying them to him for years. Within days after receiving these, President Trump reversed course on a key issue affecting China, shifting from entertaining a pro-Taiwan policy to supporting a "one China" policy. The foreign emoluments clause was designed to prevent government officials from receiving this kind of benefit from foreign governments precisely because it could influence policy choices.

Article II, Section 1 of the Constitution says that while in office, the president shall receive compensation for serving, but shall not receive "any other emolument from the United States." This provision was meant to keep a president from using his position to receive other benefits from the federal government. Yet, President Trump is constantly doing just that, as buildings he owns are renting space to the federal government. In fact, Trump International Hotel, on the site of the Old Post Office in Washington, is 76 percent owned in the name of Donald Trump. Its lease explicitly prohibits the owner from holding a position in the federal government. President Trump is simultaneously landlord and tenant, in clear violation of the lease's terms. The General Services Administration, which ultimately reports to President Trump, has decided to look the other way. But constitutional violations cannot be excused by ignoring them.

Three lawsuits have been filed challenging the violations of the emoluments clauses: one on behalf of a public interest organization and hotels and restaurants (I am co-counsel), one on behalf of over 200 members of Congress, and one on behalf of some state governments. The first has been dismissed and the dismissal is on appeal, while in the other two cases motions to dismiss were denied. The cases are being litigated, but it seems a long time before any decision on the merits in any of the cases.

Entirely apart from this, the Mueller report clearly documents conduct constituting obstruction of justice by President Trump. The Mueller report simply said that it would offer no conclusion about obstruction of justice because under Department of Justice rules there could not be an indictment of a sitting president.

Eight hundred former federal United States attorneys -- including appointees by Republican and Democratic presidents -- signed a letter explaining that Trump's actions to impede the investigation into Russian election meddling, as described in the Mueller report, amount to "overwhelming" evidence of obstruction. The prosecutors' letter says that if he were anyone else -- literally any other American citizen -- Trump's conduct would have resulted in "multiple felony charges for obstruction of justice." The letter declares: "The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming."

But no one is going to indict the president and Democrats are not going to bring impeachment proceedings because they do not see any chance of getting a two-thirds vote for removal in the Senate. In other words, the president is violating the Constitution and federal criminal laws and nothing is going to be done about it.

At the same time, President Trump is resisting any efforts at congressional oversight in a manner unprecedented in American history. Certainly, there have been fights between Congress and other presidents about access to information. What is different is that no other president ever has expressed such defiance of all forms of congressional scrutiny.

Many of Trump's legal arguments for refusing to cooperate with Congress are weak or even frivolous. For example, there is no basis for President Trump's invocation of executive privilege for the entire Mueller report. To be sure, there are arguments that some of the redactions are justified. Under federal law, grand jury material is kept secret and apparently that accounts for some of the material that has not been disclosed.

But executive privilege for the entire report is unfounded. Executive privilege is the authority of the president to keep secret conversations with or memoranda from advisors.

The Mueller report, though, cannot possibly be characterized as communications with President Trump from his advisors. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court recognized that presidents have executive privilege, but said that it is not absolute and must yield to overriding government interests. The need for Congress to investigate possible illegal presidential activities -- long recognized as a core and essential congressional power -- justifies disclosure of the Mueller report.

Similarly, there is no basis for the Treasury Department's decision to withhold the president's tax returns from the House Ways and Means Committee. The law is clear: "Upon written request from the chairman of the Committee on Ways and Means ... the Secretary shall furnish such committee with any return or return information specified in such request."

But if Congress cannot check the president and the courts won't in an expeditious manner, who will hold the president accountable? If no one, can we really claim to be a nation under the rule of law? Isn't that, by any definition, a constitutional crisis?