Sunday, January 22, 2017

Everything You Always Wanted To Know About The Emoluments Clause But Were Afraid To Ask

Wholly apart from any quid pro quo arrangements of demonstrable bribes or payoffs, the Emoluments Clause will be violated 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. -- Eisen, Painter & Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump.
Republicans, when it is convenient, favor an originalist interpretation of the Constitution.  They believe that the Constitution should be interpreted based on what the Founding Fathers intended -- or as the late Justice Scalia put it: "It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."  This is helpful to them when they are trying to restrict rights that the Founders had likely not contemplated, like a woman's right to have an abortion or same sex marriage.  It is less helpful to them when determining whether the new resident of the White House is in violation of Article 1, Section 9, Clause 8 of the United States Constitution, i.e., the “Emoluments Clause.”

The formerly obscure Emoluments 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.”

Emoluments are defined as "the returns arising from office or employment usually in the form of compensation or perquisites."  This Clause, importantly, it isn't limited to profit but is broadly construed (particularly given the phrase "of any kind whatever") to include
money, items of value, or services from a foreign state.

The Founders were obviously concerned with foreign influence on government officials.  As Harvard Law Professor Noah Feldman explains, the reasoning behind the clause is obvious: "If federal officials can be compensated by foreign governments, they can be bought."  And we don't need to take Professor Feldman's word for it.  Alexander Hamilton in Federalist 22 made it pretty clear:
One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption....In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments."
Trump refused to divest himself of a business empire that includes more than 500 companies that span the globe.  He failed to create a blind trust but has simply handed management of his businesses to members of his family.  He promised that the Trump Organization will not pursue any new deals but never explained what was meant by "new deals." For example, is expanding a current business a new deal or an addendum to an old deal?  In any event, he will continue to receive an unknown but presumably substantial amount of money from foreign governments and their representatives from ongoing deals. 

In fact, Trump's lawyer admitted that Trump will continue to accept payments from foreign governments while in office.  She claimed, however, that this did not violate the Emoluments Clause because Trump would donate the profits.  This is a creative but not very satisfactory interpretation, one rejected by most Constitutional scholars and ethics experts.

Particularly given that so many of Trump's business arrangements are cloaked in secrecy and complexity, the public will have no way of knowing when foreign governments are providing benefits to Trump's businesses and whether this will induce Trump in some way to compromise his loyalty to the United States and his duty to act in its best interest.  This is what the Emoluments Clause was designed to prevent.

Last month Norman Eisen (Obama's ethics adviser), Richard Painter (Bush's ethics adviser), and Laurence Tribe (Harvard University law professor) published “The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump.”  In their considered view, the Emoluments Clause " unquestionably applies to the President of the United States and covers an exceptionally broad and diverse range of remunerative relationships.

Their conclusions are damning as they are thorough:
Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents. Especially given Mr. Trump’s strong personal attachment to his business, it is easy to imagine situations in which he is affected—whether subtly or overtly—by perceptions of whether foreign nations have dealt fairly with the company that he built and still owns. In those circumstances, feelings of gratitude, affection, frustration, and anger inevitably bleed out in complex and hard-to-discern ways, muddling motives in respects that elude conscious awareness or public accountability. Foreign states, attuned to that basic truth of human psychology, will no doubt tread carefully around Mr. Trump’s private interests—seeking to avoid his wrath and induce his favor. The Emoluments Clause was put in place to avoid precisely that blending of public and private interest.
A lawsuit was filed today by Eisen, Painter, Tribe and other scholars and Supreme Court litigators on behalf of Citizens for Responsibility and Ethics ("CREW"), seeking an order to stop Trump from taking payments from foreign governments.  As The New York Times describes, the suit alleges that such payments "include those from patrons at Trump hotels and golf courses; loans for his office buildings from certain banks controlled by foreign governments; and leases with tenants like the Abu Dhabi tourism office, a government enterprise." 

This is the first, but surely not the last legal action that is going to be brought against Trump while he is in office.  I would venture to predict that before he's through, Trump will engage in several "high crimes and misdemeanors" that will provide strong grounds -- not just for lawsuits -- but for impeachment.  While the Republicans control Congress and continue to be unperturbed by Trump's financial self-dealing and unfathomable lack of ethics, courts of law and of public opinion will have to suffice.  But it is clear that Trump's blatant violation of the Emoluments Clause is already enough to let the impeachment proceedings begin.


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