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According to experts, President Donald Trump’s continued ownership interest in the Trump Organization means that he is in violation of the U.S. Constitution’s Emoluments Clause, which prohibits the president from personally benefiting from actions taken by foreign governments and their agents. Will media hold Trump accountable for this impeachable offense or will they normalize his flagrant violation of the supreme law of the land?
The U.S. Constitution’s Emoluments Clause Prohibits The President From Financially Benefiting From Actions Taken By Foreign Governments
U.S. Constitution Prohibits The President From Accepting Emoluments From Foreign States Without The Consent Of Congress. The U.S. Constitution’s Article I, Section 9 contains a broad provision to prevent foreign governments from corrupting U.S. government by giving benefits to federal officeholders:
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. [U.S. Constitution via Cornell University Law School Legal Information Institute, accessed 1/19/17]
Merriam Webster Definition Of Emolument: “The Returns Arising From Office Or Employment Usually In The Form Of Compensation Or Perquisites.” [Merriam Webster, accessed 1/19/17]
Legal Ethics Experts: “The Best Reading Of The Clause Covers Even Ordinary, Fair Market Value Transactions That Result In Any Economic Profit Or Benefit To The Federal Officeholder.” The clause does not just cover “sweetheart deal[s]” because “emoluments are properly defined as including ‘profit’ from any employment, as well as ‘salary,” meaning “it is clear that even remuneration fairly earned in commerce can qualify,” according to an analysis published by the Brookings Institute. It was authored by legal ethics experts Norman Eisen, a former Obama administration ethics attorney and current chair of Citizens for Responsibility and Ethics in Washington; Richard Painter, a former Bush administration ethics attorney and current vice chair of Citizens for Responsibility and Ethics in Washington; and Laurence Tribe, a leading expert on constitutional law and professor at Harvard University Law School. [Brookings Institute, 12/16/16]
Violating The Emoluments Clause Is An Impeachable Offense. During the 1788 Virginia Ratifying Convention, Virginia Gov. Edmund Jennings Randolph, who later served as the United States’ first attorney general, said of a president who violates the clause, “If discovered he may be impeached”:
Virginia Governor Edmund Jennings Randolph addressed the issue directly during a Constitutional debate in June 1788, noting that a violation of the provision by the President would be grounds for impeachment. (Randolph was also a delegate to the Constitutional Convention.)
There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeached he may be displaced at the end of the four years. By the ninth section, of the first article, “No person holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the representatives of the people” … I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.” [ThinkProgress, 11/25/16]
The Framers Even Considered A Constitutional Amendment Mandating Loss Of Citizenship For Violators Of The Clause. Eisen, Painter, and Tribe explained in their Brookings report that “the Clause was seen as so important that the Eleventh Congress considered, as a proposed Thirteenth Amendment, a provision stating that a person would lose his or her citizenship by accepting an office or emolument from a foreign power” (citations removed):
More than any other constitutional provision, the Emoluments Clause reflects the Framers’ determined effort to ensure that no federal officeholder in the United States ever could be influenced by gifts of any kind from a foreign government. Indeed, the Clause was seen as so important that the Eleventh Congress considered, as a proposed Thirteenth Amendment, a provision stating that a person would lose his or her citizenship by accepting an office or emolument from a foreign power. The proposed amendment was, in a modified form, accepted by both Houses, and subsequently obtained the approval of all but one of the requisite number of States. The leading explanation for why this proposed amendment failed is that it was seen as unnecessary, given existing protections. [Brookings Institute, 12/16/16]
The Clause Doesn’t Just Prohibit Direct Payments From Foreign Governments, But Also Prohibits Receiving Emoluments From A Government’s Agents And Instrumentalities. Citing memoranda issued by the Department of Justice Office of Legal Counsel (OLC), the federal office that “provides authoritative legal advice to the President and all the Executive Branch agencies,” the Brookings report concludes that “it is settled that the Emoluments Clause reaches not only ‘foreign State[s],’ but also their agents and instrumentalities,” including “corporations owned or controlled by a foreign government”:
A final question concerns the meaning of “King, Prince, or foreign State.” There is a substantial body of OLC precedent addressing this question, which usefully catalogues the factors relevant to determining whether an actor qualifies as a “foreign State”:
[T]he factors we have considered in conducting such an assessment include whether a foreign government has an active role in the management of the decisionmaking entity; whether a foreign government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument; and whether a foreign government is a substantial source of funding for the entity. No one of these factors has been dispositive. We have looked to them in combination to assess the status of the decisionmaking entity for purposes of the Clause, keeping in mind the underlying purpose that the Clause serves.
In all circumstances, however, it is settled that the Emoluments Clause reaches not only “foreign State[s],” but also their agents and instrumentalities. Accordingly, and as is most relevant here, OLC has determined that “corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause.” [Brookings Institute, 12/16/16, Department of Justice Office of Legal Counsel, accessed 1/19/17]
Experts Say Trump Must Fully Divest From His Business Interests To Avoid Violating The Emoluments Clause
Legal Ethics Experts: “The Only True Solution Is For Mr. Trump And His Children To Divest Themselves Of All Ownership Interests In The Trump Business Empire.” Painter, Eisen, and Tribe concluded in their report that the Emoluments Clause requires a total divestment in business interests by Trump and his children, with the divestment process conducted by “an independent third party, who can then turn the resulting assets over to a true blind trust.” Their analysis also explains that Trump turning over his business operations to his children would not constitute a blind trust:
Thus, under the text and purpose of the Emoluments Clause, a “blind trust” in which Mr. Trump’s children manage his assets and run the business is wholly deficient. Payments made (and benefits conferred) by foreign states and their agents would still qualify as “any present, Emolument, Office, or Title, of any kind whatever.” And all of the concerns about blurred loyalties animating the Clause would remain fully implicated. Blindness in this context works only if neither side can reasonably conclude that the seemingly opaque “wall” is actually a one-way mirror that the other side can see through.
Commentators have proposed a dizzying array of possible solutions to Mr. Trump’s oncoming Emoluments Clause violation. But 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. Even if, as some experts believe, there is nothing that Mr. Trump could do to avoid the significant tax consequences of divesting, fidelity to the Constitution, and to American foreign policy and national security interests, manifestly overcomes all such loss to Mr. Trump or his immediate family (who will remain extremely wealthy, in all events). [Brookings Institute, 12/16/16]
NY Times: According To Eisen And Painter, “Every President In The Past Four Decades … Has Taken Personal Holdings He Had Before Being Elected And Put Them Into A Blind Trust In Which The Assets Were Controlled By An Independent Party.” [The New York Times, 11/30/16]
The Business Plan Trump Announced Places Him In Violation Of The Emoluments Clause The Moment He Is Sworn Into Office
Trump Announced He Will Retain An Ownership Interest In The Trump Organization While He Serves At President. Trump announced at a January 11 press conference that he would transfer control of The Trump Organization to a trust controlled by his eldest sons, Donald Jr. and Eric, and Trump Organization CFO Allen Weisselberg, but that he would still retain an ownership interest in the business and receive reports on its finances. Trump’s attorney said the company would also appoint an in-house ethics consultant to review future actions and cancel pending foreign deals. Ethics experts later said these measures were insufficient to resolve conflict of interest concerns. [Forbes, 1/11/17; CNN Money, 1/11/17; The New York Times, 1/12/17]
Government Ethics Expert Kathleen Clark: Under Plan, Trump “Will Receive Money From Foreign Governments, That Is What’s Prohibited.” In an interview with Media Matters, Kathleen Clark, a law professor at Washington University School of Law, and legal ethics expert, raised the Emoluments Clause in criticizing Trump’s business plan as “prohibited”:
Kathleen Clark, a Washington University School of Law professor and government ethics expert, said Trump needs to “remove not just his management activities, but remove himself from having a financial interest in the firm. He’s retaining a financial interest in the company -- that hasn’t changed.
“He’ll still be financially benefiting from them. I didn’t see any indication that he is giving up an ownership interest at all.”
She added: “There is the conflict of interest concern, an ethical concern even though the Congress has exempted the president from the conflict. But he will be in a position where he can use government office to enrich The Trump Organization and enrich himself.”
She also cited the Emoluments Clause of the U.S. Constitution that bars federal officeholders from profiting from foreign governments or their agents: “The problem is that The Trump Organization and Donald Trump will receive and he will receive money from foreign governments, that is what’s prohibited. He says he will donate the profits, the Emoluments Clause is concerned with payments, not just profits. Who gets to define what the profits are?” [Media Matters, 1/11/17; Washington University School of Law, accessed 1/18/17]
Eisen To NY Times: Trump’s Plan Is Not “Sufficient To Cure His Emoluments Problem.” Addressing the claim at Trump’s press conference that foreign government profits his hotel receives will be donated to the Department of Treasury, Eisen told The New York Times, “It is not my view, nor the view of any of the bipartisan experts that have spoken out today, that the announced Trump plan is sufficient to cure his emoluments problem”:
“It is not my view, nor the view of any of the bipartisan experts that have spoken out today, that the announced Trump plan is sufficient to cure his emoluments problem. Even if it were possible to peal out the profits only from the hotel, the emoluments clause is not written to say that all emoluments are permitted except for Trump hotel profits.” [The New York Times, 1/12/17]
Painter To NY Times: “These Emoluments, These Payments From Foreign Governments, Have To Be Out Of The Trump Business Empire On Jan. 20 Or He Will Be In Violation Of The Law.” Painter indicated that Trump’s plan as a whole will violate the Emoluments Clause unless it is modified before Trump takes office:
“The plan we heard today does not comply with the law. He is not in violation of the law as of today, but he has nine days to fix it. And these emoluments, these payments from foreign governments, have to be out of the Trump business empire on Jan. 20 or he will be in violation of the law. It is not an obscure provision of the Constitution. It was intended to preserve the independence of the United States from foreign powers meddling in our system.” [The New York Times, 1/12/17]
Tribe To LawNewz: “The Whole Phony Setup Would Make President Trump A Living, Walking, Talking, Tweeting Violation Of The Emoluments Clause.” Tribe told LawNewz that Trump’s plan would violate the Emoluments Clause because foreign governments would still have myriad ways to enrich the Trump Organization, and Trump is retaining an ownership interest in the organization:
Prof. Tribe called the Trump “scheme” simply a “deceptive web of mumbo-jumbo rather than a serious way to comply with his constitutional oath.”
The Prof. also addressed the Emoluments Clause criticisms directly, saying that it is important to “stress that the ‘ethics officer’ [Trump] proposes to install wouldn’t have true independence, and anyway it’s not only that particular transactions would be unethical; it’s that the whole phony setup would make President Trump a living, walking, talking, tweeting violation of the Emoluments Clause each time banks or funds linked to foreign sovereigns are allowed to take steps that Trump will necessarily know are enriching the total value of his family’s mega-business.” [LawNewz, 1/11/17]
Attorney Joshua Matz: Trump’s Plan Means He “Will Remain In Violation Of The Emoluments Clause.” Matz, a former U.S. Supreme Court clerk and current appellate litigator, explained in The Guardian that Trump’s “continued ownership interest in the Trump Organization” and that fact that Trump “generally will know exactly what assets the company holds and how they will be helped or hindered by his actions” means that foreign powers “will act with awareness (or at least suspicion) that benefits conferred on Trump enterprises – if not in the form of deals, then in a thousand other forms – may elicit favor or wrath from President Trump.” According to Matz, “[f]or these and other reasons, Trump will remain in violation of the emoluments clause even if he adheres to this plan”:
But Trump’s new plan falls woefully short. His continued ownership interest in the Trump Organization will keep his financial welfare tied to the business. And nobody seriously believes that the affairs of the company will truly become mysterious to Trump.
To the contrary, he generally will know exactly what assets the company holds and how they will be helped or hindered by his actions. Foreign powers, too, will act with awareness (or at least suspicion) that benefits conferred on Trump enterprises – if not in the form of deals, then in a thousand other forms – may elicit favor or wrath from President Trump.
Notably, the Trump Organization simply cannot turn over to the US treasury all profit from interactions with foreign powers. For example, consider the significant benefit conferred by a foreign state that decides to host a series of widely advertised functions at a local Trump hotel, greatly increasing the property’s cultural cachet and thus markedly boosting its profit margins and those of other properties branded “Trump”.
For these and other reasons, Trump will remain in violation of the emoluments clause even if he adheres to this plan. While his lawyer denied that the clause applies to “fair value exchanges” – presumably as distinguished from sweetheart deals – that conclusion defies common sense. [The Guardian, 1/12/17]
Eisen, Painter, Tribe, And Matz: Post-Press Conference Memo Issued By Trump’s Lawyers Does Not Rectify His Violation Of The Emoluments Clause. In an Atlantic article, Eisen, Painter, Tribe, and Matz analyze the three-page memo released by Trump’s law firm after the press conference, finding that its argument is based on the “proposition that the president may engage in arms-length, fair-market-value exchanges with foreign powers--on the theory that the phrase ‘emolument’ covers only ‘payment or other benefit received as a consequence of discharging the duties of an office,’” ” which they say is “wrong on its merits” and doesn’t account for other ways he will violate the clause:
Several hours later, the law firm Morgan Lewis issued a memo entitled “Conflicts of Interest and the President.” In three short pages, this memo outlined why Trump’s plan purportedly complies with the Foreign Emoluments Clause.
First, it’s worth noting a critical concession in the memo. While some commentators have taken the extreme view that the emoluments clause doesn’t apply to the president—a claim that doesn’t withstand scrutiny—Trump’s lawyers did not rely on that position. In fact, they squarely rejected it, stating that the president’s “obligations under the Constitution” include “the obligations created by the … Foreign Emoluments Clause.”
From this promising start, however, the memo goes badly awry. It bases its defense of Trump exclusively on the proposition that the president may engage in arms-length, fair-market-value exchanges with foreign powers—on the theory that the phrase “emolument” covers only “payment or other benefit received as a consequence of discharging the duties of an office.”
There are two specific problems with this defense: First, it utterly fails to account for the many other ways in which Trump will still violate the foreign emoluments clause; and second, it is wrong on its merits. [The Atlantic, 1/18/17]
Law Professor Steven Schooner: Trump Plan Doesn’t Address “The Concern Of The Drafters Of The Constitution.” George Washington University Law School professor Steven Schooner told Media Matters reporter Joe Strupp in an interview that “so long as foreign states, lobbyists and special interest groups have reason to believe that spending money at Trump properties curries favor with the president, then the concern of the drafters of the Constitution and the underlying justification for the government’s conflict of interest prohibitions remains”:
The only thing that we’ve heard is that he is planning on turning over his business operations to his sons. He has not addressed ownership, which is the key conflict. Whether or not the hotel makes a profit based on a foreign guest is not the issue. The concern is whether foreign governments, lobbyists, and special interest groups are willing to lavishly spend their money and pay premium prices for events, food, drink and possibly stays at Trump hotels because the president appreciates their patronage. So long as foreign states, lobbyists and special interest groups have reason to believe that spending money at Trump properties curries favor with the president, then the concern of the drafters of the Constitution and the underlying justification for the government’s conflict of interest prohibitions remains. [Comments to Media Matters, 1/19/17]
Law Professor Jay Wexler: Trump Plan “Doesn’t Solve The Problem At All.” Boston University School of Law professor Jay Wexler told Media Matters’ Strupp that “the question is whether [Trump] might be influenced in his actions as president by the fact that some foreign country might do something that would economically benefit him.” He added that “if he stands to financially benefit in anyway from the arrangement, then he is always at risk that foreign governments take some action to favor his business in order to influence his policy decisions to benefit a foreign nation. That is the whole point of the Emoluments Clause. This doesn’t solve the problem at all.” [Comments to Media Matters, 1/19/17]
Emoluments Clause Expert Zephyr Teachout: “Every President Has Gone Out Of His Way To Not Even Come Close To The Emoluments Clause. This Is A Pretty Direct Violation.” Zephyr Teachout, an associate law professor at Fordham University and author of Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United, told Media Matters that Trump’s plan is “a pretty direct violation” of the clause:
The basic issue is he still owns the company, the emoluments clause says you can’t take payments from foreign countries. An emolument is a payment. … The reason is pretty clear because the framers were pretty worried about foreign governments using gifts and payments to influence foreign policy. ...Every president has gone out of his way to not even come close to the emoluments clause, this is a pretty direct violation. [Comments to Media Matters, 1/19/17]
The Media “Might Just Be Our Last, Best Hope To Stop The President From Becoming The World’s Most Popular Business Partner” And Running “Roughshod Over The Constitution”
Huff Post.: The Press “Might Just Be Our Last, Best Hope To Stop The President From Becoming The World’s Most Popular Business Partner.” In an article previewing Trump’s Emoluments Clause violations and other instances of conflicts of interest, Huffington Post media writer Jason Linkins and White House reporter Christina Wilkie described how media scrutiny contributed to the cancelation of two deals where Trump could have profited from a foreign government. But they warned, “But if reporters are the last, best hope, we’ve got to do a much better job than we’ve been doing these past few weeks. Case in point: Given the opportunity to probe the president-elect and his attorney on foreign business dealings at this week’s press conference, only one reporter opted to do so, weakly inquiring, ‘What is your response to your critics who say not only you, but also your Cabinet is filled with conflicts of interest?’”: