8
« on: November 30, 2018, 06:48:22 PM »
I will opine that the emoluments clause is like getting a fed conviction for fraud. The elements for a fed fraud are quite high, which is why it is so rare. Sadly, a huge mistake was made with the RICO laws which have been badly abused. But - they came out of frustration with inability to prove a fraud. Emoluments is such a wickedly gray area that it is one part of law, rife for partisan dis-ingenuity.
5 Elements of Fraud
a false representation of fact. an element of fraud.
knowledge of the falsity by party making false representation. an element of fraud.
intent to deceive the party by making false representation. an element of fraud.
reasonable reliance by the innocent party. an element of fraud.
actual loss suffered by the innocent party.
Having said that, given the extensive use made of Trump properties by people doing business with this admin, it would be interesting to see how it all falls out. I will guess(but pretty sure) that an emolument must have actual cash value, and must be directly affecting the person(s) which gain financially. If those are the elements, then we would need to see a cash/equivalent payment made directly to Trump, or a fiduciary which is under the control of Trump. As he has given fiduciary completely to his family while in office, this is an impossible bar to reach. Even with liberal judges allowing civil lawsuits to proceed. They will reach a list of standards for a civil award that will be impossible to meet. Again, sadly, if it stays within a liberal court there is the possibility that it could go to trial, and a preponderance is enough for 7 votes to find for the plaintiff, all due to partisan dislike of this prez. Then - it would be appealed, and eventually overturned, but by then the civil damage is done. Ingenious, if a bit underhanded.