Faithless Electors: Former Bush Counsel Says Electoral College Can Not Vote Trump If He’s Violated Constitution [Opinion]

More and more people are calling on the Electoral College to become faithless electors on December 19, when it comes time to cast their vote for the next president of the United States. The two most recent high-ranking members of the public that have done so are former Bush counsel Richard Painter, reports Mediaite, and Harvard Law professor and Democrat Lawrence Lessig, who once was a candidate in the Democratic presidential primary and wrote an opinion column about it in the Washington Post.

Former counsel to President George W. Bush Richard Painter says, according to Mediaite, Trump’s business conflicts of interests could be a violation of the Constitution, a scenario in which under no certain circumstances should the Electoral College vote for Donald Trump come December 19. While Painter has not formally used the term “faithless elector,” that is what it is called when electors do not vote for the person their state party asks them to vote for.

Lawrence Lessig has a different perspective, and has written an opinion piece for the Washington Post to say the Electoral College is constitutionally duty-bound to ensure that the “sense of the people” prevails when voting for the next president of the United States.

Slate Magazine reports that this week, President-elect Donald Trump met with the New York Times, and in that interview, Donald Trump said, “The law is on my side” and that it’s possible for him to have a conflict of interest between his business and his role as president. What Donald Trump meant by that was, “As President, I can do whatever I want, I am exempt from conflict of interest matters.” This is not entirely true.

Slate, as well as a lot of people, says that “This should trouble everyone who thinks America is a country of laws.”

Richard Painter appeared on CNN this week about the topic, and said that if Donald Trump is in violation of the emolument clause of the Constitution, the members of the Electoral College are duty-bound not to vote for him. The only consequence Congress has available to them when the emolument clause is violated, after someone takes the oath of office, is impeachment.

Richard Painter says there are some laws that enable Trump to perform some business while in office, but there are some tricky ethical concerns. Mediaite reports that Painter spoke to Kellyanne Conway about the emolument clause. The New York Times did as well, and she told the newspaper they were “being negative.”

The actual emolument clause states that,

“No person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, Emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state.”

Mediaite reports that Trump does not want to find himself in a position that he “doesn’t care if he ignores this.” If that were the case, Painter says the Electoral College would “need to take action.”

The only action available to the Electoral College is to become a faithless elector, and not vote for Donald Trump. Painter said,

“He needs to comply with the Constitution at a bare minimum. And either recognize the problem and address it. And if he doesn’t do that before the Electoral College meets, I don’t think the Electoral College can vote for someone to become president if he’s going to be in violation of the Constitution on day one and hasn’t assured us he’s not in violation.”

Numerous conflict of interest concerns have arisen since Donald Trump became president-elect. Members of the public, even Trump supporters, have concerns.

Slate Magazine reports that Trump recently had Indian officials stay at Trump Tower. That means if they paid for their rooms, Trump profited. Pictures began to surface online of the meeting, but when conflict of interest talk arose, they were quickly deleted.

Ivanka Trump, Donald Trump’s daughter, is supposed to be running the “blind trust” part of the Trump Organization. But she has been very present in foreign meetings and dealings as a member of the Trump transition team. She appeared at a meeting with Japanese officials, to public outrage, and also on a call with Argentina.

After the call with Argentina, which many say was simply congratulatory to Donald Trump, a permit in Argentina that Donald Trump had been seeking for years on a stalled project was approved. That project is now reportedly set to begin in 2017, reports Slate Magazine.

Slate reports that Donald Trump also asked “Brexit Champion” to oppose offshore windfarms because they would impact the view of Trump’s Scottish golf courses.

In his interview with the New York Times, Donald Trump said, “I may have brought it up.” He also has reportedly bragged about how well his hotel in Washington has been doing since the election.

Trump also said in the interview, “My company’s so unimportant to me relative to what I’m doing.”

Richard Painter also told the Washington Post,

“There are so many diplomatic, political, even national security risks in having the president own a whole bunch of properties all over the world. If we’ve got to talk to a foreign government about their behavior, or negotiate a treaty, or some country asks us to send our troops in to defend someone else, we’ve got to make a decision. And the question becomes: Are we going in out of our national interest, or because there’s a Trump casino around?”

The “blind trust” with the children of Trump is also concerning to many. Senior editor for Newsweek Kurt Eichenwald spells out the blind trust, and how this particular one isn’t really blind.

Many members of Congress have already made formal and public calls for a deeper look into Donald Trump’s finances and taxes, in an effort to determine if there are indeed conflicts of interest. GOP Senator Lindsey Graham and Democrat Elizabeth Warren have made a call regarding some financial concerns, as has ranking House Oversight Committee member Elijah Cummings.

The public can voice their concerns as well.

The public can rest assured there is a lot of oversight in place in the event that Donald Trump’s business does conflict with the business of the country, even if he thinks that it can’t. Congressional members on both sides of the aisle are already watching, and it almost seems like they are collecting evidence in the event that “hearings” do arise on the matter.

Watch Richard Painter’s interview on CNN about it right here.

A Democrat and former presidential candidate who is also a professor at Harvard Law, Lawrence Lessig wrote an opinion in the Washington Post beseeching the Electoral College to do the right thing, and follow the laws of the Constitution and their duty. He wrote,

“The Electoral College requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers.”

Lessig reminds the Electoral College that to vote Trump is “compelled by nothing in our Constitution.” He says that notion should be rejected by anyone that understands the tradition of the presidency and democracy. He also reminds the Electoral College what its founder, Alexander Hamilton, wanted when he created the Electoral College.

“The sense of the people should operate in the choice of the president.”

He calls the Electoral College a “safety valve” like when a jury returns a verdict that a judge doesn’t agree with. The judge can change it. So too can the Electoral College if the people have returned a verdict the Electoral College does not agree with. In fact, that is the duty of the Electoral College, to correct any mistakes of the electorate, in the event that someone unfit for office, or a threat to the Constitution, gets the vote.

Lessig says electors are duty bound to apply “a judicious combination of all the reasons and inducements which were proper to govern their choice.”

Lessig says there is nothing in the Constitution that dictates “Winner take all” and that the electors should not be constrained. He writes that the duty of the college is to overrule the people if someone eminently unqualified is selected, and cautions against being “cogs in the wheel” of their party.

Lessig says that a democracy is about “one person, one vote” and that with the Electoral College system, Vermont’s vote is three times more powerful than one in Missouri, and a Wyoming vote is four times more powerful than one in Michigan. He says this denies the everyday American the power of their one person, one vote, and the electoral college has the power to change that.

Lessig is referring to the Electoral College choosing the person who won the most votes in this election, and has also won the third-highest number of votes in American history, Hillary Clinton. He says,

“The winner by far of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her qualifications. Choosing her is thus plainly within the bounds of reasonable judgement by the people.”

The tradition of the electors in the Electoral College is to vote with the party that wins the popular vote in their state. Electors of the Electoral College are generally the most active members of their party in the state, which is how they get voted into the position. Their party expects them to vote with the popular vote.

To not do so, and to vote otherwise, is called becoming a faithless elector. If the electors feel that what former White House counsel Richard Painter is saying is true, that they can not vote for someone who has violated the Constitution, and they believe that Donald Trump violated the Constitution, they vote for someone else in a process known as becoming a faithless elector. It’s called faithless because you tell your party you have lost faith in their selection.

There are penalties in some states to becoming a faithless elector. But some, like the group known as Hamilton Electors, feel that the penalties to the country of putting the wrong person in office are much greater. Lessig is telling the electors in the Electoral College in his opinion piece that the Constitution does not require them to vote with their party, that “the framers left the electors free to choose.”

Hillary Clinton will get some votes from the Electoral College on December 19. So will Donald Trump. And, if what the Hamilton Electors say is true, some faithless electors will be casting votes for a third person. Whoever reaches 270 will become the next president of the United States. If nobody does, the top three names that obtained votes from the Electoral College go to Congress to make the decision.

[Featured Image by Onur Ersin/Thinkstock]