The Emoluments Clause has never been tested in the courts, but most scholars seem to agree that if Trump doesn’t take the prophylactic approach to his conflicts, impeachment may be the only other remedy.
In 1785, when Benjamin Franklin, then the U.S. Ambassador to
France, was set to return home, King Louis XVI presented him with a snuffbox
decorated with a diamond-encrusted painting of the king. While gift-giving of
this sort was common in European diplomacy, the expensive present caused a
minor scandal in America. One of the corrupting practices that the founders
were trying to prevent from taking root was the European habit of subtly buying
off foreigners with gifts. Franklin, who fell in love with France during his
service there, was viewed by some of his American colleagues as an easy mark.
A few years later, at the Constitutional
Convention, Franklin’s snuffbox scandal was recalled when the framers drafted
what came to be called the Emoluments Clause, an ironclad prohibition against
receiving gifts: “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.”
Zephyr Teachout, whose book “Corruption in
America,” from 2014, tells the history of Franklin’s snuffbox, said that, far
from being an obscure provision, the gift ban was part of “the animating spirit
of the Constitutional Convention,” along with other core American legal
concepts such as federalism and separation of powers. “It goes to the heart of
the fears at the Convention,” Teachout, a law professor at Fordham University
who also ran a primary challenge to New York Governor Andrew Cuomo, in 2014,
said. “The framers were worried about foreign powers because they were so
strong and we were so weak. They were worried about corruption overwhelming the
new republic. The question was how do we protect against it?”
On Wednesday, Donald Trump is scheduled to hold a press conference in New York outlining his plan to deal with the myriad conflicts of interests raised by his stake in the Trump Organization, an international real-estate empire that accepts emoluments (cash) from foreign states in so many ways that his continued involvement with the company as President would make Franklin’s diamond snuffbox seem quaint.
A recent paper published by the Brookings Institution notes that President Trump would be violating the Constitution “whenever a foreign diplomat stays in a Trump hotel or hosts a reception in one; whenever foreign-owned banks offer loans to Mr. Trump’s businesses or pay rent for office space in his buildings; whenever projects are jump-started or expedited or licensed or otherwise advantaged because Mr. Trump is associated with them; whenever foreign prosecutors and regulators treat a Trump entity favorably; and whenever the Trump Organization makes a profit on a business transaction with any foreign state or foreign-owned entity.”
There are three ways in which Trump could handle his impending clash with the Emoluments Clause, but only one that would clearly avoid a constitutional crisis.
First, Trump could use a slippery legal argument that has gained some currency among a few scholars: that the Emoluments Clause simply doesn’t apply to the President. In this scenario, his lawyers might insist that the clause is meant to exclude the President because it targets a “Person holding any Office of Profit or Trust,” and that the framers would have used more specific language if they wanted to clearly include the President and Vice-President in the prohibition.
This argument would contradict decades of interpretation by the Justice Department, which has repeatedly offered legal opinions to the White House about whether various titles and gifts to Presidents violated the clause. In all of those opinions it was assumed by government lawyers that the clause clearly applies to the President.
One of the most prominent cases came in 2009, when Barack Obama’s lawyers were asked to determine whether he was allowed to receive the gold medal and the $1.4 million that accompanied the Nobel Peace Prize. “The President surely ‘hold[s] an[] Office of Profit or Trust,’ “ Justice lawyers wrote, quickly disregarding any debate about whether the Emoluments Clause applied to Obama. (Their opinion, which permitted the receipt of the prize money, which Obama gave to charity, turned on the question of whether the Norwegian Nobel Committee qualified as a “King, Prince, or foreign State.” Obama’s lawyers concluded that the gift was constitutional because the Committee was not controlled by any foreign government.)
Perhaps more controversially, if Trump keeps his interest in any businesses that receive income that can be traced to a foreign government, he could ask Congress to approve the transactions. The Emoluments Clause includes a role for the legislature, noting that foreign gifts are only prohibited “without the Consent of the Congress,” and previous Presidents have asked for permission to keep presents from foreign governments. (Andrew Jackson, for instance, asked Congress to let him have a gold medal he received from Simón Bolívar.) But telling Congress, as its first act under the new Administration, to endorse Trump’s mixing of business and Presidential responsibilities would be akin to a request for legalized corruption.
The third path, and the only one for Trump to avoid a constitutional crisis, is the one that ethics experts have been advocating for months: full divestiture of his business empire and placement of the assets in a truly independent blind trust. “I have a scorecard,” Norman Eisen, one of the authors of the Brookings report and the first ethics counsel in the Obama White House, said. “At the top is a clean break.” He said Trump should follow the path of his wealthy cabinet picks, such as Rex Tillerson, the nominee for Secretary of State, who recently submitted a detailed plan to fully separate himself from ExxonMobil, where he has served as the C.E.O. since 2006.
“It can’t just be separating from management but it has to be separating from ownership of Trump’s businesses,” Eisen said. “If he doesn’t do that he will be nakedly violating the Constitution, which doesn’t permit him to get foreign payments or benefits, and his company is sucking them in every day. We have never had a President who will be in violation of the Constitution from the moment he’s sworn in as President.”
And what if Trump doesn’t make a clean break? Teachout points out that there have historically been two ways that America has dealt with corruption. The Emoluments Clause was a prophylactic approach: if government officials never accept anything of value from foreigners, then there’s no ambiguity about whether such gifts are influencing them. The idea was that it’s better to simply prohibit gifts than it is to prosecute bribery or corruption later on, an insight that Eisen hopes Trump appreciates. “This is the time to address the conflicts, not when they ripen and then rot into scandal,” he said.
The Emoluments Clause has never been tested in the courts, but most scholars seem to agree that if Trump doesn’t take the prophylactic approach to his conflicts there is only one other anti-corruption clause in the Constitution available as a remedy: impeachment.
Asked on Monday by reporters at Trump Tower about disentangling himself from his business empire, Trump brushed off the question. “We’ll talk about it on Wednesday,” he said. “All I can say is it’s very simple, very easy.”
Comments
Post a Comment