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5
December 2016
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TRUMP (The Total Investment & Insurance
Solutions)
Far
from ending with President-elect Trump's announcement that he will separate
himself from the management of his business empire, the constitutional debate
about the meaning of the Emoluments Clause — and whether Trump will be
violating it — is likely just beginning.
That's because the Emoluments Clause seems to
bar Trump's ownership of his business. It has little to do
with his management of it. Trump's tweets last Wednesday
said he would be "completely
out of business operations." The Total Investment & Insurance Solutions
But unless Trump sells or gives his business
to his children before taking office the Emoluments Clause would almost
certainly be violated. Even if he does sell or give it away, any retained
residual interest, or any sale payout based on the company's results, would
still give him a stake in its fortunes, again fairly clearly violating the
Constitution.
The Emoluments Clause bars U.S. officials,
including the president, from receiving payments from foreign governments or
foreign government entities unless the payments are specifically approved by
Congress. As ProPublica and others have detailed, Trump's business has ties with foreign
government entities ranging from loans and leases with the Bank of China to
what appear to be tax-supported hotel deals in India and elsewhere. The full
extent of such ties remains unknown, and Trump has refused to disclose them, or
to make public his tax returns, through which many such deals, if they exist,
would be revealed. Foreign government investments in Trump entities would also
be covered by the clause, as would foreign government officials paying to stay in Trump hotels,
so long as Trump stands to share in the revenues.
One misconception about the Emoluments Clause
in early press coverage of it in the wake of Trump's election is being
clarified as scholars look more closely at the provision's history. That was
the suggestion that it would not be a violation for the Trump Organization to
conduct business with foreign government entities if "fair market value" was received by the governments. The Total Investment & Insurance
Solutions
This view had been attributed to Professor
Richard Painter, a former official of the George W. Bush administration, and
privately by some others. But Professor Laurence Tribe, the author of the
leading treatise on constitutional law, and others said the Emoluments Clause
was more sweeping, and mandated a ban on such dealings without congressional
approval. Painter now largely agrees, telling ProPublica that no fair market
value test would apply to the sale of services (specifically including hotel
rooms), and such a test would apply only to the sale of goods. The Trump
Organization mostly sells services, such as hotel stays, golf memberships,
branding deals and management services.
The Total Investment & Insurance Solutions
The Emoluments Clause appears in Article I,
Section 9 of the Constitution. It bars any "person holding any office of
profit or trust under" the United States from accepting any present,
Emolument, Office, or Title, of any kind whatever, from any King, Prince, or
foreign state" "without the consent of the Congress." The word
"emolument" comes from the Latin emolumentum,
meaning profit or gain. The language of the clause was lifted in its entirety
from the Articles of Confederation which established the structure of the
government of the United States from 1781 until the ratification of the
Constitution in 1788-89. The clause was derivedfrom a Dutch rule dating to 1751. The Total Investment & Insurance
Solutions
The clause was added to the draft
Constitution at the Constitutional Convention on Aug. 23, 1787 on a motion by
Charles Pinckney of South Carolina. As Gov. Edmund Randolph of Virginia
explained to his state's ratification convention in 1788, Pinckney's motion was
occasioned by Benjamin Franklin, who had been given a snuffbox, adorned with
the royal portrait and encrusted with small diamonds, by Louis XVI while
serving as the Continental Congress's ambassador to France. As Randolph said, The Total Investment & Insurance
Solutions
"An accident which actually happened,
operated in producing the restriction. A box was presented to our ambassador by
the king of our allies. It was thought proper, in order to exclude corruption
and foreign influence, to prohibit any one in office from receiving emoluments
from foreign states." The Total
Investment & Insurance Solutions
The Continental Congress in 1786 had consented, after
a debate, to Franklin keeping the snuffbox, as it had earlier with a similar
gift to envoy Arthur Lee. At the same time, consent also was given to diplomat
John Jay receiving a horse from the King of Spain.
The clause was part of the basis for
Alexander Hamilton's defense of the Constitution, in Federalist 22, as
addressing "one of the weak sides of republics": "that they
afford too easy an inlet to foreign corruption." The Total Investment & Insurance Solutions
There is no question that the Emoluments
Clause applies to the president. President Obama's counsel sought an opinion in
2009 on whether it barred him from accepting the Nobel Peace Prize. The Justice
Department concluded that it did not, in part based on historical precedent
(the Prize had also been awarded to Presidents Theodore Roosevelt and Woodrow
Wilson, Vice President Charles Dawes and Secretary of State Henry Kissinger),
but primarily because the Norwegian group that awards the prize was not deemed
a governmental entity.
The clause does not seem ever to have been
interpreted by a court, but it has been the subject of a number of opinions,
over the years, of the attorney general and the comptroller general.
Nearly all of these opinions have concluded
that the clause is definitive. In 1902, an attorney general's opinion said it
is "directed against every kind of influence by foreign governments upon
officers of the United States." In 1970, a comptroller general opinion
declared that the clause's "drafters intended the prohibition to have the
broadest possible scope and applicability." A 1994 Justice Department
opinion said "the language of Emoluments Clause is both sweeping and
unqualified." Among the ties deemed to violate the clause was a Nuclear
Regulatory Commission employee undertaking consultant work for a firm retained
by the government of Mexico. The Total
Investment & Insurance Solutions
Congress has passed one law giving blanket
approval to a set of payments from foreign government entities. Known as the Foreign Gifts and Decorations
Act, it is limited to gifts of "minimal value" (set as
of 1981 at $100), educational scholarships and medical treatment, travel
entirely outside the country "consistent with the interests of the United
States," or "when it appears that to refuse the gift would likely
cause offense or embarrassment or otherwise adversely affect the foreign
relations of the United States." The specificity of these few exceptions
reinforces the notion that other dealings with foreign government entities is
forbidden without congressional approval. The Total Investment & Insurance Solutions
One attorney-general
opinion from the
Reagan administration offers the possibility of a more permissive
interpretation of the Emoluments Clause, indicating it could be limited to
"payments which have a potential of influencing or corrupting the
recipient." But whatever the meaning of this, it was the same Reagan
Justice Department that banned the NRC employee from the Mexican-funded
consultancy a year later. The Total
Investment & Insurance Solutions
Ironically, an "originalist"
reading of the clause — usually favored these days by conservatives as
exemplified by the late Justice Antonin Scalia and current Justice Clarence
Thomas — would seem to bind Trump more stringently, while a "living constitution"
approach — exemplified by liberals such as the late Justices Louis Brandeis and
Thurgood Marshall — might offer him greater latitude. The Total Investment & Insurance Solutions
Clearly, deciding what the Emoluments Clause
means in a specific case is a complicated legal question. (The opinion on Obama's acceptance of the Nobel
Prize runs to 13 printed pages.) But just as clearly, the judges of its meaning
with respect to President Trump will be politicians rather than the Supreme
Court. The Total Investment &
Insurance Solutions
The controversies that swirled around
Presidents Richard Nixon and Bill Clinton established a number of key points.
Among them are that the sole remedy for a violation of the Constitution by a
president in office is impeachment, and that the House of Representatives is
the sole judge of what constitutes an impeachable offense, while the Senate is
the sole judge of whether such an alleged violation warrants removal from
office. (Impeachments are very rare: articles of impeachment have been voted
against only two presidents, Andrew Johnson and Clinton, both of whom were
acquitted by the Senate, while Nixon resigned ahead of likely impeachment.
Fifteen federal judges have also been impeached, and eight removed, while four
resigned.)
The arguments of scholars and lawyers on the
meaning of the Emoluments Clause may influence the public, and their elected
representatives. But if Trump decides not to dispose of his business, it will
be up to Congress to decide whether to do anything about his apparent violation
of the Constitution.The Total
Investment & Insurance Solutions
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