How Donald Trump May Violate the Constitution the Second He's Sworn In
President-elect Donald Trump may be handing over the reins of his global
real estate empire to his sons Donald Trump Jr. and Eric Trump and to a
longtime business executive, but he still risks violating the U.S.
Constitution, some experts have warned.
Sheri Dillon, a partner at Morgan, Lewis & Bockius, the law firm she
said Donald Trump Sr. directed “to design a structure for his business
empire,” told reporters Wednesday that the financial trust Trump signed
would “completely isolate [Trump] from the management of the company.”
“The Constitution does not require President-elect Trump to do anything
here, but just like with conflicts of interest, he wants to do more than
what the Constitution requires,” she said. “He is going to voluntarily
donate all profits from foreign government payments made to his hotels
to the United States Treasury. This way it is the American people who
will profit.”
Legal experts, however, tell ABC News that the plan fails to comply with
the Constitution by not adequately separating the future president from
his myriad business interests.
Constitutional law expert and Harvard professor Laurence Tribe argues that Trump will be “a walking, tweeting violation” of the Constitution from the moment he takes office.
“His lawyer wouldn't get a passing grade in constitutional law,” Tribe
told ABC News. “From the very moment he takes the oath, he will be
violating a provision of the Constitution that he takes an oath to
uphold every minute of every day."
It all comes down to the emoluments clause of the Constitution, which
forbids elected officials, including the president, from accepting gifts
from a foreign government.
What Is the Emoluments Clause?
Article I, Section 9, Clause 8 of the Constitution reads, “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.”
“Emolument” is a fancy word that means compensation, profit or benefit.
With a business empire that spans the world and includes a network of
real estate properties and hotels that are patronized by representatives
of foreign governments, ethics experts say Trump needs to divest
himself from the company to be in compliance with the nation's laws.
“To satisfy the Constitution, he needs to make sure he does not own
companies that are accepting payments from foreign governments or
corporations owned by foreign governments,” Richard Painter, a former
ethics lawyer for President George W. Bush, told ABC News.
Steve Schooner, a government procurement law expert who teaches at
George Washington University, said the legal defense presented by
Trump’s lawyer was “too cute by half.”
He explained that Trump's hotels, especially the Trump International
Hotel in Washington, would have difficulty isolating the money spent by
foreign governments.
“The profits all get swallowed up in the bookkeeping somehow,” said
Schooner. “If there’s a low vacancy rate one month and a big foreign
delegation comes in and the hotel loses money that month but has a great
weekend, there’s no profit.”
He continued, “If the hotel is losing money and it loses less as a
result, that's an emolument. There are significant benefits to the Trump
business whether or not profits are recognized, not least of which is
you have foreign governments hosting events there, and that's free
advertising, which promotes further business with others who may want to
curry favor with the president."
One aspect of his business operations where Painter says Trump is safe
legally from a Constitutional perspective is where the business only
engages with U.S. citizens or private foreign clients. He offered the
example of an office building in which the tenants are only American
firms or privately owned foreign companies as a permissible business
venture.
Tribe goes further in his interpretation of the emoluments clause,
arguing that complete divestment is necessary to truly adhere to the
constitutional guideline set by the framers of the Constitution.
“The Constitution was deliberately written to forbid a U.S. official,
particularly a president, from accepting a profit from a foreign
government or from some entity representing a foreign government. The
reason for that was the long experience of European corruption,” Tribe
said.
“Every minute of every day, one of his hundreds of enterprises around
the world will be receiving benefits from foreign governments,” he
continued.
It’s a principle that Tribe argues extends to Trump’s adult sons, who
Trump announced will take over total control of the business operations
when he’s president.
“The whole history of European corruption that our founders were trying
to get away from was based on the understanding that the best way to get
to the king is to give benefits to the prince,” Tribe said. “The whole
point of the emoluments clause is to prevent foreign governments from
greasing the palm of an American official, and whether it’s his own palm
or the extended palm of his daughter or son doesn’t make the slightest
difference.”
Painter, in contrast, doesn’t believe the clause extends to Trump’s
adult children, even though he says “the appearances politically are
still very questionable,” should foreign payments continue to flow to
Trump’s children.
“Can we hold the officeholder in violation of the Constitution because
his grown children are doing business with foreign governments? I can’t
imagine that that would happen,” Painter said.
The problem, Painter says, arises with the appearance created by Trump’s
adult children sitting in on meetings with foreign leaders, because
there is no way to ensure that they are not “mixing Trump business with
government business.”
What Can Congress Do, and Is There a Risk of Impeachment?
There is one solution under which Trump can avoid the risk of violating
the emoluments clause altogether: Congress can give him permission to
maintain his business empire.
“The emoluments clause specifically says that Congress is in charge. It
can give the president permission to have what might otherwise look like
a conflict of interest,” Tribe said.
Painter suggests that it would be an “excellent solution” if Trump could
work out a deal with Congress in which it shrinks the application of
the emoluments clause and lays out the terms under which Trump may
continue owning businesses.
The big catch in that scenario, of course, is that Congress would have
to go along with it — a politically risky venture for Republicans who
may not want to be held responsible down the road.
Painter said that it is unlikely that Trump could be sued over the
matter. The enforceable body in the case of the emoluments clause is
Congress.
But without congressional sign-off, Painter cautions, Trump could find
himself facing a hugely risky — although highly unlikely — situation:
impeachment.
“It Congress doesn’t affirmatively give permission, he runs the risk
that the next Congress is going to come back and accuse him of
something,” Painter said. “It’s a big risk.”
And even though Trump may appear safe from impeachment with a
Republican-controlled Congress, Tribe doesn’t rule out the possibility
that Trump’s party could turn on him.
“We don’t know what Congress will do,” Tribe said. “If they decide Mike
Pence might be a safer president for them in terms of their re-election
prospects, they might well bring the sword down on Donald Trump.”
“The very fact that he’s in that day-to-day threat really distorts the
whole American system of government,” Tribe said. “He is a walking
impeachable offense.”
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