A new memorandum prepared by three law professors, two of whom served as White House ethics attorneys, warns that President-elect Trump is virtually guaranteed to violated the Constitution while in office, due to his international business dealings. They argue that the Emoluments Clause of the Constitution prohibits the President from accepting gifts or benefits from foreign leaders, and that this is all but certain to occur during a Trump presidency. As a result, they say, members of the Electoral College who are supposed to elect Trump would be justified in changing their votes.
The academic article was written by Prof. Norman L. Eisen, Chief White House Ethics Lawyer from 2009-2011, Prof. Richard W. Painter, who held the same position from 2005-2007, and Harvard Constitutional Law Professor Laurence H. Tribe, and was published by the Brookings Institution. It discusses the nature of the Emoluments Clause, its application to Trump’s business, and what can be done about it.
The Emoluments Clause says, “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.” The article discusses its history and how they believe it absolutely applies to the President, as well as other federal officials. It cites examples of how past Presidents Andrew Jackson, John Tyler, and Martin Van Buren asked Congress about keeping gifts that they received from foreign officials. In Jackson’s case, Congress said no to a gold medal from Simon Bolivar.
The reasoning behind the Emoluments Clause, the article says, is that a government official who accepts anything of value from another country “can be imperceptibly induced to compromise what the Constitution insists be his exclusive loyalty: the best interest of the United States of America.”
There is some debate over whether the Clause applies to the President, but Eisen, Painter, and Tribe write that “it would require extraordinary legal and linguistic gymnastics to explain how the President is excluded from the Emoluments Clause.” As LawNewz.com has reported, Seth Barrett Tillman of Maynooth University believes that the Clause does not apply to Presidents, and cites George Washington himself as an example of a President who took “diplomatic gifts” without consent of Congress.
Despite this, Eisen, Painter, and Tribe say that not only does the Emoluments Clause apply to the President, but that it “is an easy question.” They refer to a 2009 memo by the Justice Department’s Office of Legal Counsel that considered whether President Barack Obama‘s Nobel Peace Prize violated the Clause. While the OLC determined that it did not, the reason was due to the nature of the institution awarding the prize, and not because the Clause doesn’t apply to Presidents. In fact, the OLC memo recognizes that the “President surely ‘hold[s] an Office of Profit or Trust,'” as described in the Emoluments Clause.
“No prior president has come anywhere close to Mr. Trump in the scale of possible violations,” the article states. The reason, of course, is Trump’s international business empire, of which he will apparently remain owner while in office, even if he does intend to remove himself from business operations.
One of the biggest concerns appears to be Trump’s new hotel in Washington, D.C. If foreign leaders visit and choose to stay there, Trump benefits. Even if his children are running the show, money would still go to the President’s pockets. And while Trump may not be pushing foreign officials to stay at his hotel, a former Mexican ambassador has said that there will be a “temptation” for some to stay there just to tell Trump they’re at his hotel. The King of Bahrain has also decided to host a reception there, the article says.
There is also evidence that business ties can influence political decisions, and vice versa. The article cites an instance where Turkey’s President Erdoğan ordered that Trump’s name be taken down from Istanbul’s Trump Towers after Trump proposed a ban on Muslim immigration, but then backed off after Trump sided with Erdoğan in his handling of dissidents. As further evidence of the possibility of a future violation of the Emoluments Clause, the article cites a radio interview, where Trump addressed his relationship with Turkey by saying, ““I have a little conflict of interest because I have a major, major building in Istanbul.”
Due to these and other reasons, the professors argue that “it is a virtual certainty that [Trump’s business] would create the risk of divided or blurred loyalties that the Clause was enacted to prohibit.”
So what can be done about this? Well, to prevent any Constitutional violation, Trump and his children could divest themselves from the business, letting an “independent third party … turn the resulting assets over to a true blind trust.” That, the professors say, is “the only true solution.”
That being said, they say that members of the Electoral College should be able to take this into account when they cast their votes on Monday. “[I]ndividual electors must be considered free to decline to cast votes for Mr. Trump,” given the evidence that his Presidency will likely pose Constitutional concerns, the article states.
Of course, this is highly unlikely, at least to the degree that would be necessary to keep Trump out of the White House. But once Trump becomes President, there is always the option of impeachment. The article states that violating the Emoluments Clause would rise to the level of “high crimes and misdemeanors” necessary for Congress to impeach.
Whether or not Congress agrees that violating the Emoluments Clause is an impeachable offense, or if Trump’s business even violates it at all, are questions that could very well be raised early and often in Trump’s presidency. What the answers would ultimately be, however, given the Republican-led House and Senate, are anyone’s guess.
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