One of the weak sides of the republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.[1]
The Emoluments Clause to the United States Constitution frequents the news these days, but what is it and why did the founders include it in the Constitution? The clause states, “No Title of Nobility shall be granted by the United States: And 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.”[2] When the Constitutional Convention met to draft the United States Constitution it was important to the drafters that their new nation leave behind and protect against the corruption they had experienced in some European practices.[3] The brand new Americans wanted to avoid corruption resulting from royalty giving gifts and money to politicians, diplomats, legislators, etc. in order to gain influence.[4] The founders saw this danger in the U.S.’s growing relationship with France and in U.S. generals’ acceptance of money from foreign states during the Revolutionary War.[5]
The Emoluments Clause addresses the threat “that private financial interests can subtly sway even the most virtuous leaders.”[6] This threat hasn’t been so pressing since the founding of this country as it is today because never has there been an American president with as many conflicts of interest and “foreign entanglements” as President Donald Trump.[7] Some of the President’s conflicts of interest include: (1) ten labor practices cases currently before the National Labor Relations Board, a board for which President Trump stands to fill two vacancies; (2) a current IRS audit of the President, who will choose the IRS’s new chief; (3) President Trump owes millions to banks, meanwhile, as President, he will select the next Secretary of the Treasury; and (4) the lack of transparency in President Trump’s business dealings.[8] While it is possible that many of President Trump’s business transactions with foreign nations aren’t improper, it will be close to impossible to be sure, and that alone creates the kind of questionable loyalty against which the Emoluments Clause was designed to protect.[9] The risk that foreign leaders can, or believe they can, influence President Trump by doing business with the Trump Organization is supported by President Trump’s own comments and actions, particularly his refusal to separate “Trump the Businessman” from Trump the President.[10]
Recently, a group filed a lawsuit claiming President Trump is in violation of the Emoluments Clause; a lawsuit which President Trump claimed is “totally without merit.”[11] It appears that the clause has yet to be interpreted by a court, however, it has been discussed in opinions by the attorney general and the comptroller general.[12] The Justice Department issued an opinion in 1994 that stated: “the language of Emoluments Clause is both sweeping and unqualified.”[13] So what is the solution where a president violates the Emoluments Clause? The Electoral College could have chosen not to cast their vote for President Trump, determining him unqualified to hold office due to his violation of the clause, but that time has come and gone.[14] Congress could choose to initiate impeachment proceedings for knowingly and intentionally entered the presidency in violation of the constitution and failing to address said violation.[15] The lack of commitment to the ethical obligations of the Office of the President shown by President Trump is deeply troubling and only time will tell how Congress chooses to address or ignore this constitutional violation.
[1] The Federalist No. 22 (Alexander Hamilton).
[2] U.S. Const. art. I , § 9, cl. 8.
[3] Paul Blumenthal, What is the Emoluments Clause and How Does it Apply to Donald Trump, The Huffington Post (Dec. 1, 2016), http://www.huffingtonpost.com/entry/donald-trump-emoluments_us_58409e01e4b017f37fe3c0ca [http://perma.cc/MJD5-EWA6].
[4] See id.; Norman L. Eisen et al., The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, The Brookings Institute, 5-6 (Dec. 16, 2016), https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf [http://perma.cc/G2RV-KBDV].
[5] See Blumenthal, supra note 3.
[6] Eisen et al., supra note 4, at 2.
[7] See id.
[8] See id. at 3 (explaining choosing next Treasury Secretary may influence interest rate policy).
[9] See id. at 13.
[10] Eisen et al., supra note 4, at 13-15 (highlighting examples of competing business and presidential interests). For instance, reports indicate that President Trump has vocally opposed wind farms because he thinks they ruin the view at his golf course in Scotland and he recently openly lobbied for a British politician to oppose wind farms in the U.K. even though it’s a stance that appears to be irrelevant to U.S. foreign policy. See id. at 15. In addition, President Duerte of the Philippines recently assigned one of Trump’s business partners as a special envoy to the U.S; and President Trump has acknowledged that he brings up business issues on calls to foreign officials, which may be responsible for the recent restart of Trump Organization business projects that had been delayed. See id.
[11] David A. Fahrenthold & Jonathan O’Connell, What is the ‘Emoluments Clause?’ Does it Apply to President Trump?, Washington Post (Jan. 23, 2017), https://www.washingtonpost.com/politics/what-is-the-emoluments-clause-does-it-apply-to-president-trump/2017/01/23/12aa7808-e185-11e6-a547-5fb9411d332c_story.html?utm_term=.b0698d628613 [http://perma.cc/72NC-TNUS].
[12] Richard Tofel, Why Trump Would Almost Certainly Be Violating the Constitution if he Continues to Own his Businesses, ProPublica (Dec. 2, 2016), https://www.propublica.org/article/trump-would-be-violating-constitution-if-he-continues-to-own-his-businesses [http://perma.cc/7AVM-94CM].
[13] See id.
[14] Eisen et al., supra note 4, at 21.
[15] See id. at 22.