Truthdig
Trump Almost Certainly Will Violate the Constitution if He Continues to Own
His Businesses
http://www.truthdig.com/report/item/trump_would_almost_certainly_be_violatin
g_the_constitution_20161204/
AddThis Sharing Buttons
Share to FacebookShare to TwitterShare to More2.4K
Posted on Dec 4, 2016
By Richard Tofel / ProPublica
(https://www.propublica.org/article/trump-would-be-violating-constitution-if
-he-continues-to-own-his-businesses)
Jim Peake (https://www.flickr.com/photos/mysuccessgatewaycom/) / CC BY 2.0
(https://creativecommons.org/licenses/by/2.0/)
Far from ending with President-elect Trump's announcement that he will
separate himself from the management of his business empire, the
constitutional debate about the meaning of the Emoluments Clause - and
whether Trump will be violating it - is likely just beginning.
That's because the Emoluments Clause seems to bar Trump's ownership of his
business. It has little to do with his management of it. Trump's tweets last
Wednesday said he would be "completely out of business operations."
(https://twitter.com/realDonaldTrump/status/803931490514075648)
But unless Trump sells or gives his business to his children before taking
office the Emoluments Clause would almost certainly be violated. Even if he
does sell or give it away, any retained residual interest, or any sale
payout based on the company's results, would still give him a stake in its
fortunes, again fairly clearly violating the Constitution.
The Emoluments Clause bars U.S. officials, including the president, from
receiving payments from foreign governments or foreign government entities
unless the payments are specifically approved by Congress. As ProPublica
(https://www.propublica.org/article/we-may-not-know-if-trumps-foreign-busine
ss-deals-violate-the-constitution) and others
(http://www.nytimes.com/2016/11/21/us/politics/donald-trump-conflict-of-inte
rest.html?_r=0) have detailed
(http://www.bloomberg.com/graphics/tracking-trumps-web-of-conflicts/#foreign
_properties) , Trump's business has ties with foreign government entities
ranging from loans and leases with the Bank of China to what appear to be
tax-supported hotel deals in India and elsewhere. The full extent of such
ties remains unknown, and Trump has refused to disclose them, or to make
public his tax returns, through which many such deals, if they exist, would
be revealed. Foreign government investments in Trump entities would also be
covered by the clause, as would foreign government officials paying to stay
in Trump hotels
(https://www.washingtonpost.com/news/digger/wp/2016/11/21/the-constitution-m
ay-have-something-to-say-about-how-trump-runs-his-d-c-hotel/?utm_term=.c9b97
223e75c) , so long as Trump stands to share in the revenues.
One misconception about the Emoluments Clause in early press coverage of it
in the wake of Trump's election is being clarified as scholars look more
closely at the provision's history. That was the suggestion that it would
not be a violation for the Trump Organization to conduct business with
foreign government entities if "fair market value
(http://www.vox.com/policy-and-politics/2016/11/23/13715150/donald-trump-emo
luments-clause-constitution) " was received by the governments.
This view had been attributed to Professor Richard Painter, a former
official of the George W. Bush administration, and privately by some others.
But Professor Laurence Tribe, the author of the leading treatise on
constitutional law, and others said the Emoluments Clause was more sweeping,
and mandated a ban on such dealings without congressional approval. Painter
now largely agrees, telling ProPublica that no fair market value test would
apply to the sale of services (specifically including hotel rooms), and such
a test would apply only to the sale of goods. The Trump Organization mostly
sells services, such as hotel stays, golf memberships, branding deals and
management services.
The Emoluments Clause appears in Article I, Section 9 of the Constitution.
It bars any "person holding any office of profit or trust under" the United
States from accepting any present, Emolument, Office, or Title, of any kind
whatever, from any King, Prince, or foreign state" "without the consent of
the Congress." The word "emolument" comes from the Latin emolumentum,
meaning profit or gain. The language of the clause was lifted in its
entirety from the Articles of Confederation which established the structure
of the government of the United States from 1781 until the ratification of
the Constitution in 1788-89. The clause was derived
(http://www.hup.harvard.edu/catalog.php?isbn=9780674659988&content=reviews)
from a Dutch rule dating to 1751.
The clause was added to the draft Constitution at the Constitutional
Convention on Aug. 23, 1787 on a motion by Charles Pinckney of South
Carolina. As Gov. Edmund Randolph of Virginia explained to his state's
ratification convention in 1788, Pinckney's motion was occasioned by
Benjamin Franklin, who had been given a snuffbox, adorned with the royal
portrait and encrusted with small diamonds, by Louis XVI while serving as
the Continental Congress's ambassador to France. As Randolph said
(https://www.justice.gov/sites/default/files/olc/opinions/1986/06/31/op-olc-
v010-p0096.pdf) ,
An accident which actually happened, operated in producing the restriction.
A box was presented to our ambassador by the king of our allies. It was
thought proper, in order to exclude corruption and foreign influence, to
prohibit any one in office from receiving emoluments from foreign states.
The Continental Congress in 1786 had consented
(https://www.justice.gov/sites/default/files/olc/opinions/1994/03/31/op-olc-
v018-p0013.pdf) , after a debate, to Franklin keeping the snuffbox, as it
had earlier with a similar gift to envoy Arthur Lee. At the same time,
consent also was given to diplomat John Jay receiving a horse from the King
of Spain.
The clause was part of the basis for Alexander Hamilton's defense of the
Constitution, in Federalist 22
(http://www.constitution.org/fed/federa22.htm) , as addressing "one of the
weak sides of republics": "that they afford too easy an inlet to foreign
corruption."
There is no question that the Emoluments Clause applies to the president.
President Obama's counsel sought an opinion in 2009 on whether it barred him
from accepting the Nobel Peace Prize. The Justice Department concluded that
it did not, in part based on historical precedent (the Prize had also been
awarded to Presidents Theodore Roosevelt and Woodrow Wilson, Vice President
Charles Dawes and Secretary of State Henry Kissinger), but primarily because
the Norwegian group that awards the prize was not deemed a governmental
entity.
The clause does not seem ever to have been interpreted by a court, but it
has been the subject of a number of opinions, over the years, of the
attorney general and the comptroller general.
Nearly all of these opinions have concluded that the clause is definitive.
In 1902, an attorney general's opinion said it is "directed against every
kind of influence by foreign governments upon officers of the United
States." In 1970, a comptroller general opinion declared that the clause's
"drafters intended the prohibition to have the broadest possible scope and
applicability." A 1994 Justice Department opinion said "the language of
Emoluments Clause is both sweeping and unqualified." Among the ties deemed
to violate the clause was a Nuclear Regulatory Commission employee
undertaking consultant work for a firm retained by the government of Mexico.
Congress has passed one law giving blanket approval to a set of payments
from foreign government entities. Known as the Foreign Gifts and Decorations
Act (https://www.law.cornell.edu/uscode/text/5/7342) , it is limited to
gifts of "minimal value" (set as of 1981 at $100), educational scholarships
and medical treatment, travel entirely outside the country "consistent with
the interests of the United States," or "when it appears that to refuse the
gift would likely cause offense or embarrassment or otherwise adversely
affect the foreign relations of the United States." The specificity of these
few exceptions reinforces the notion that other dealings with foreign
government entities is forbidden without congressional approval.
One attorney-general opinion
(https://www.justice.gov/sites/default/files/olc/opinions/1981/06/31/op-olc-
v005-p0187.pdf) from the Reagan administration offers the possibility of a
more permissive interpretation of the Emoluments Clause, indicating it could
be limited to "payments which have a potential of influencing or corrupting
the recipient." But whatever the meaning of this, it was the same Reagan
Justice Department that banned the NRC employee from the Mexican-funded
consultancy a year later.
Ironically, an "originalist" reading of the clause - usually favored these
days by conservatives as exemplified by the late Justice Antonin Scalia and
current Justice Clarence Thomas - would seem to bind Trump more stringently,
while a "living constitution" approach - exemplified by liberals such as the
late Justices Louis Brandeis and Thurgood Marshall - might offer him greater
latitude.
Clearly, deciding what the Emoluments Clause means in a specific case is a
complicated legal question. (The opinion
(https://www.justice.gov/sites/default/files/olc/opinions/2009/12/31/emolume
nts-nobel-peace.pdf) on Obama's acceptance of the Nobel Prize runs to 13
printed pages.) But just as clearly, the judges of its meaning with respect
to President Trump will be politicians rather than the Supreme Court.
The controversies that swirled around Presidents Richard Nixon
(http://www.hup.harvard.edu/catalog.php?isbn=9780674444782) and Bill
Clinton (https://supreme.justia.com/cases/federal/us/520/681/case.html)
established a number of key points. Among them are that the sole remedy for
a violation of the Constitution by a president in office is impeachment, and
that the House of Representatives is the sole judge of what constitutes an
impeachable offense, while the Senate is the sole judge of whether such an
alleged violation warrants removal from office. (Impeachments are very rare:
articles of impeachment have been voted against only two presidents, Andrew
Johnson and Clinton, both of whom were acquitted by the Senate, while Nixon
resigned ahead of likely impeachment. Fifteen federal judges have also been
impeached, and eight removed, while four resigned.)
The arguments of scholars and lawyers on the meaning of the Emoluments
Clause may influence the public, and their elected representatives. But if
Trump decides not to dispose of his business, it will be up to Congress to
decide whether to do anything about his apparent violation of the
Constitution.
ProPublica is a Pulitzer Prize-winning investigative newsroom.
The Coming War on China (Video)
Scenes of Celebration at Standing Rock
Obama and the Supreme Court Just Made it Easier for the FBI to Hack Your
Computer
Publish, Punish and Pardon: How Obama Could Reveal the Nature of the
National Security State
Truthdig: Drilling Beneath the Headlines
C 2016 Truthdig, LLC. All rights reserved.
Signup for Truthdig's newsletter
