Before Donald Trump got elected, few Americans had heard of or paid much attention to the Emoluments Clause, a previously obscure-to-most-of-us provision in Article I of the Constitution dealing with corruption and curry-favoring at the hands of foreign governments. In the wake of his election, though, a growing chorus of voices, many of them legal experts, began debating about whether the wording of the clause could render Trump impeachable, more or less from the moment he is sworn in.
This conversation has ramped up in large part because Trump himself has insisted that should he choose to take office without divesting from his extensive, tangled business holdings — and that certainly appears to be his plan at the moment — it won't be a problem. "I can be president of the United States and run my business 100 percent, sign checks on my business," Trump famously told the New York Times last month. "The law is totally on my side, meaning, the president can't have a conflict of interest."
The Emoluments Clause is an important Yeah, but … response: Yes, some legal experts have argued, the president is exempt from certain federal conflict-of-interest laws that apply to other public servants. But he isn't exempt from the Emoluments Clause — if he doesn't divest, he'll be violating that and could be impeached. Now, this isn't a unanimous view. Last month, for example, Maynooth University law professor Seth Barrett Tillman argued that it isn't clear the Emoluments Clause applies to elected officials like the president, as opposed to appointed ones. He also pointed out an instance in which George Washington apparently received foreign gifts without much protest from even his enemies, and, "As Professor Akhil Amar has reminded us, the precedents set by President Washington and his administration deserve special deference in regard to both foreign affairs and presidential etiquette."
Last Friday, the Brookings Institute released a very helpful 23-page paper that serves as a rather forceful rebuttal to Tillman's interpretation. The authors argue that a common-sense reading of the Constitution and the relevant legal theory and history all lead to the conclusion that Trump is, in fact, subject to the Emoluments Clause, and could therefore be walking into an unusual sort of constitutional danger zone. The paper was written by a bipartisan trio of legal experts who have been active in this discussion: Norman L. Eisen, a Brookings fellow, the chair of Citizens for Responsibility and Ethics, and a former chief White House ethics lawyer under Obama; Richard Painter, a vice-chair at CREW and former chief White House lawyer under George W. Bush; and Laurence Tribe, a constitutional-law professor at Harvard.
The Emoluments Clause is found in Article I, Section 9 of the Constitution, and it reads, "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." Eisen, Painter, and Tribe devote the first half of their paper to unpacking this loaded sentence, translating it into modern-speak to establish that it indeed applies to president-elect Trump and his business dealings.The first key question is whether the clause applies to the president or, as Tillman argued, only to appointed officials. In a footnote, the authors criticize Tillman's view that it doesn't, explaining that it is an "idiosyncratic suggestion [that] is at best supported by ambiguous founding-era historical materials, [that] rests upon a strained and counterintuitive textual analysis, and [that] is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice." In the main body, they argue that this is actually an "easy question," given that the Office of Legal Counsel — the president's lawyers — wrote in 2009 that the "Office of Profit or Trust" language "surely" applies to POTUS, and that in past instances the office has ruled similarly. To Eisen, Painter, and Tribe's knowledge, they write, every time the OLC has publicly released an opinion on the question of whether the clause applies to the president, it has affirmed that, yes, it does. Plus, throughout the rest of the Constitution, the framers refer to the presidency as an "office" in the same way they do in the Emoluments Clause.
The authors then move on to the question of what qualifies as an emolument. Drawing on historical evidence, they explain that in the 1790s, the clause's words "were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements." So today, they write, the clause "unquestionably reaches any situation in which a federal officeholder receives money, items of value, or services from a foreign state." And "foreign state" is defined broadly — in 1994, the OLC defined the term as encompassing not only the states themselves, "but also their agents and instrumentalities," and in 2009 it determined that "corporations owned or controlled by a foreign government are presumptively foreign statements under the Emoluments Clause."
In short, the Emoluments Clause covers just about any situation in which a public official profits in any way from a foreign state or such a state's "agents and instrumentalities." This broadness is by design: The authors argue that the entire point of the Emoluments Clause is for it to be read broadly (contra Tillman's interpretation). The framers didn't want there to be situations where the public or Congress would have to decide, on a case-by-case basis, whether a given instance in which the president or another powerful official profiting from a foreign entity was, in fact, bribery or favor-currying. That's no way to run a government: As long as such questions exist, they corrode the system and sap public confidence in government.
Which brings us to Trump. The authors write that the sorts of concerns the Emoluments Clause is designed to head off "may be exacerbated in Mr. Trump's case" because of how closely he has linked Donald Trump, president, to Donald Trump, magnate, during the campaign and his period as president-elect. There have already been numerous examples of Trump openly leveraging his new title in an attempt to benefit his businesses, from his wind-farm chat with Nigel Farage and his pals to a conversation with President Erdogan of Turkey (Ivanka was on it, too) in which Trump reportedly said nice things about Mehmet Ali Yalcindag, a Trump business associate in Istanbul. And just about anywhere around the world Trump is involved in business, the Brookings authors write, there is a potential Emoluments Clause violation.Trump has been a bit all over the place in terms of his claims about what steps he'll take to address these issues — recall that he was scheduled to have a press conference laying out a plan last week, but then rescheduled it. One idea floating around is that he could get himself out of potential constitutional trouble by fully handing his business — both operations and ownership stakes — off to his children. While it's important to note that Trump hasn't even offered to do this (the closest he's come is talk of transferring day-to-day operations and management responsibilities), Eisen, Painter, and Tribe argue this wouldn't pass muster anyway. "The Framers were familiar with the peril that could arise from lavishing benefits on the prince to win gratitude and loyalty from the King," they write. (That said, they acknowledge that the legal landscape here is foggier.)
In light of all of this, write Eisen, Painter, and Tribe, "the only true solution is for Mr. Trump and his children to divest themselves of all ownership interests in the Trump business empire. That divestment process must be run by an independent third party, who can then turn the resulting assets over to a true blind trust." At this point, of course, there is zero reason to believe this will happen — even if he wanted to, it's unclear whether it would even be possiblefor Trump to unload his sprawling, opaque empire between now and inauguration. But, even if he refuses, Congress could force his hand by passing a law requiring the president to divest from his business interests. Various parties might also be able to file lawsuits claiming that Trump's presidential/business practices put their businesses at an unfair disadvantage by forcing them to compete with POTUS. Just yesterday, for example, ThinkProgress reported that a few days after Trump's victory, the Kuwaiti embassy in D.C. canceled an event at the Four Seasons, "citing political pressure to hold its National Day celebration at the Trump International Hotel instead" — pressure that came from the Trump Organization itself.
Here's the big Emoluments Clause remedy, though:
[I]f Mr. Trump enters office in what would obviously constitute a knowing and indeed intentional violation of the Emoluments Clause and then declines to cure that violation during his tenure, Congress would be well within its rights to impeach him for engaging in "high crimes and misdemeanors." This would not require any evidence of provable bribes or other specific malfeasance, since the whole aim and theory of the Emoluments Clause is that the President (among others) is not lawfully permitted to order his private dealings with foreign powers such that they are vulnerable to systemic, invidious, undetectable corruption. So long as Mr. Trump persists in doing so, Congress would have a plainly valid basis under the Constitution for concluding he cannot serve in office—both as a matter of first principles and given evidence that at least one prominent leader in the ratification process [Edmund Jennings Randolph] saw violations of this Clause as grounds for impeachment.
Of course, that doesn't mean Trump will be impeached. Republicans control Congress now, and, barring some very unusual events, they will have zero incentive to engage in the please-primary-me-now exercise of impeaching a president their party's base voted into power. But still, you never know: Should Trump's popularity slip low enough, or should some new scandal engulf him, maybe the political calculus will change, too.
But even if that never happens, Trump's potential impeachability will make for a very strange dynamic. "When this guillotine might fall is a matter of political more than legal calculation, and is thus beyond the scope of our analysis," write the authors. "Likewise, just how the ongoing prospect of such an ignominious end to a Trump presidency would embolden his political adversaries at home and abroad, and undermine his legitimacy in the eyes of the American public and global community, is impossible to predict." If their legal analysis is correct, we appear headed toward an unpresidented situation.
By Jesse Singal, reprinted from New York magazine, December 20, 2016
December 29, 201