Why Trump Would Almost Certainly Be Violating the Constitution If He Continues to Own His Businesses
The clause was part of the basis for Alexander Hamilton’s defense of the Constitution, in Federalist 22, 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, 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.
We May Not Know If Trump's Foreign Business Deals Violate the Constitution
President-elect Donald Trump doesn't have to detail his business holdings in federal financial disclosures until May 2018. Read the story.
One attorney-general opinion 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 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 and Bill Clinton 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.
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