On January 20, 2017, Donald Trump will take the oath of office and become the 45th president of the United States. That oath states:
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.
The moment Trump takes that oath, he will violate it. This is because Donald Trump has refused to divest himself of his business, both domestic and foreign and will receive, as a result, on January 20, 2017, emoluments from foreign sources and domestic governments, federal, state and local.
Article 2 of the Constitution provides, in pertinent part:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
This provision states, in unmistakable terms that the president of the United States can receive only his salary as an “emolument” and is expressly barred from receiving any other compensation from the federal government and the States (which necessarily comprises local governments as well as they are creatures of State creation).
Article 1, Section 9 of the Constitution provides, in pertinent part, that:
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.
What is an Emolument? Merriam-Webster defines it as follows:
the returns arising from office or employment usually in the form of compensation or perquisites
The Collins Dictionary of Law defines it as:
all salaries, fees, wages, perquisites and profits whatsoever.
In an excellent article on the Emoluments clauses by Professor Lawrence Tribe and ethics experts Norm Eisen and Richard Painter, they describe what qualifies as an emolument:
The word “Emolument” is not self-defining—though the Clause, by referring to “any kind whatever,” instructs that it be given a broad construction. As OLC has concluded, and as the Oxford English Dictionary teaches, the word “emolument” is defined as “profit or gain arising from station, office, or employment: reward, remuneration, salary.” The word also has an older meaning of “advantage, benefit, comfort.” Around the time of Ratification, “emolument” was often used as a catch-all for many species of improper remuneration; thus, when James Madison criticized Alexander Hamilton, he warned that Hamilton sought to conduct government through “the pageantry of rank, the influence of money and emoluments, and the terror of military force.”44
The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, 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. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction “of any kind whatever.”
(My emphasis.)
To me even this broad reading of the term as used in the Constitution is under inclusive and the authors agree. They further write:
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. To start, the text supports this conclusion; since emoluments are properly defined as including “profit” from any employment, as well as “salary,” even remuneration fairly earned in commerce can qualify . . . it is clear that it would be absurd to imagine that an otherwise forbidden emolument in the form of a foreign government’s payment to the American President could be cured if the President were to give that foreign government its money’s worth (or more) in services advancing that government’s interests, which might well be contrary to our own.
(My emphasis).
So do the Emoluments clauses apply to the president? There can be no argument that the domestic emoluments clause of Article 2 apply to the president—it does so in express terms. Does the foreign emoluments clause apply to the president? Of course it does. The foreign emoluments clause applies to all “Person[s] holding any Office of Profit or Trust.” This of course includes the president of the United States. If someone wants to argue the other side on this, just laugh in their face. In any event, the Office of Legal Counsel has already determined that it does apply to the president, in an opinion issued regarding President Obama’s acceptance of the Nobel Peace Prize:
The President surely “hold[s] an Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.” U.S. Const. art I, § 9, cl. 8.
So we know without legitimate dispute that (1) the Emoluments clauses apply to the president and (2) any remuneration, advantage or benefit conferred on the president by a foreign state, the federal government or any state or local government, violates the Emoluments clause. If you want a law professor acting foolish on this question here is Will Baude.
While we can not know for certain the extent of Donald Trump’s dealing with foreign states, the federal government and state and local governments because he refuses to release his tax returns, we do know he purports to be the owner of holdings and interests all over the world and all over the nation. Each of these holdings is in fact dependent on “emoluments” from foreign states, the federal government and state and local governments. For a limited list of known foreign holdings, see this Atlantic article. On the domestic emoluments issue, you need look no further than the hotel that bears Trump’s name on Pennsylvania Avenue in Washington, D.C., but we of course are aware of many more.
Donald Trump will be in violation of the Emoluments Clauses on January 20, 2017, upon taking the oath of office for president of the United States. There simply is no escaping this fact. The exact moment Donald Trump is sworn in as president of the United States he will be in violation of the United States Constitution despite taking an oath to protect and defend it to the best of his ability.
What can Trump do? What presidents have always done—divest himself of his holdings. It’s not a complex analysis.
Can he do something else? Will a blind trust place him in compliance with the Emoluments Clause? No it will not. The problem is not just that Trump will know about his emoluments (and let’s face it, Trump can’t unknow what he holds anyway), it is that he will receive them. If Trump wants to be president and not violate the Constitution, he has to divest.
But let’s be realistic, Trump doesn’t care about the Constitution or the United States. He cares about Trump. So he will do whatever he can get away with. Can anyone stop him from violating the Constitution?
There are some remedies for a constitutional violation of the Emoluments Clause by the president of the United States. Like the president be impeached for deliberately violating the Emoluments clauses?
Article 2, Section 4 of the Constitution provides that:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The question presented is does deliberate violation of the presidential oath and the Constitution constitute “high Crimes and Misdemeanors?” My response is if it doesn’t, then what does? But of course until Democrats get control of the Congress, this is a theoretical discussion only. Probably even then.
Can a lawsuit be filed and maintained to enforce the emoluments clauses? If you are familiar with my work, you know the deep contempt I hold for the Supreme Court’s jurisprudence on standing—it is utterly disingenuous at best, dishonest at worst. Standing is a device the court will use when it does not want to hear a case and an issue it will ignore when it wants to hear a case.
Taxpayer suits are not recognized in federal courts. See Lujan v. Defenders of Wildlife. It is worth noting that state courts have concurrent jurisdiction over federal questions so a valiant state court system could actually be the avenue for testing these theories.
Nonetheless, it seems clear that the domestic emoluments clause does not easily lend itself to a private right of action. The best scenario for maintaining such an action would be a competitor to Trump claiming it was harmed in its business by the failure to enforce the domestic emoluments clause. Let’s play one scenario out—the Trump Hotel in Washington, D.C.:
Among Donald Trump's many potential conflicts of interest, one stands out: His organization's lease with the federal government to redevelop and run a luxury hotel in the iconic Old Post Office building on Pennsylvania Avenue between the White House and the Capitol. […]
Two federal procurement experts are arguing that not only will Trump have an ethics challenge — he will be in violation of the terms of the lease as soon as he takes the oath of office. Steven L. Schooner, a professor of government procurement law at the George Washington University Law School, and Daniel I. Gordon, a senior advisor to GW's Government Procurement Law Program (and President Obama's first administrator for federal procurement policy) pointed out this week in Government Executive magazine that a provision in Trump's lease with the General Services Administration states that "No ... elected official of the Government of the United States ... shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom..."
At this point, NOT canceling the lease constitutes an Emolument for Trump provided by the federal government. But who can sue? I believe the other bidders for the hotel lease or any interested party who would like to acquire the lease SHOULD have standing to challenge Trump’s continued possession of these leasehold rights. Not canceling the lease is a emolument from the federal government to Trump, as the lease clearly provides that Trump’s becoming president puts him in breach of the lease. The other interested parties are harmed by this constitutional violation which should give them standing to sue.
Would anyone sue? Who knows, but there is a solid case for standing here.
What about the foreign emoluments clauses? It is harder to identify a party with standing here but an even tougher hurdle is justiciability. Since these holdings are foreign and involve foreign states, it is hard to argue that a party has suffered harm. But even more difficult is arguing the matter is justiciable in an American court.
Of course if some level of corruption can be evidenced, it could be a matter of application of the Foreign Corrupt Practices Act, which certainly can be used against The Trump Organization, if not Trump himself.
The theory would go like this—the Trump Organization, through President Trump, is bribing foreign officials for business favors. President Trump would be providing the “bribes”—by favored U.S. government treatment in exchange for business favors for the Trump Organization. It will require a very brave United States attorney to pursue such a theory.
In the end, the Constitution only works if the nation demands it be respected. In that sense, we’re off to a terrible start. Absent a material change in the current attitudes, it will take very courageous persons to challenge these new “norms.”
But that is the history of our country, right? The need for courage in the face of accepted injustice. Here is just another example.