Three days after President Trump was inaugurated, the Washington Post ran a lengthy piece on the so-called emoluments clause to the Constitution. At issue was whether or not President Trump would divest himself from his businesses so that foreign powers could not seek favor with him by playing at his golf courses or staying at his hotels. Here’s how they explained the issue:
1. What, exactly, is the Emoluments Clause?
It is 49 words in Article I of the Constitution.
“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.”
In this instance, the words that matter most are the ones we have placed in italics.
According to legal scholars, these words were added out of a concern from the 1700s that American ambassadors, on the far side of the ocean, might be corrupted by gifts from rich European powers.
Benjamin Franklin, for instance, had accepted a snuffbox festooned with 408 diamonds from the King of France. John Jay accepted a horse from the King of Spain.
After that, the Emoluments Clause rarely came up again. It’s never been the subject of a major court case and never been taken up by the Supreme Court, leaving great uncertainty about what it means — and to whom, exactly, it applies — in the 21st century.
Of course, Trump agreed to have his sons take over the day-to-day management of his businesses, but he refused to divest from them. This led very predictably to a law suit. Last Wednesday, a federal judge ruled that a case charging Trump with violating the emoluments clause could go forward.
There’s actually a domestic emoluments clause in the Constitution that isn’t mentioned in that Washington Post article:
The Foreign Emoluments Clause — specifically, Article I, Section 9, Clause 8 of the Constitution — declares 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.” The Domestic Emoluments Clause — Article II, Section 1, Clause 7 — states that “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 should make clear that a condition of being president was that opportunities for personal enrichment would have to be put aside. The president was to receive a defined level of compensation for the duration of his terms in office, and was not to receive things of value on the side from the federal government, the state governments or any kings, princes or officers of foreign governments.
Now, watch carefully:
The general manager of the Trump International Hotel in Manhattan had a rare bit of good news to report to investors this spring: After two years of decline, revenue from room rentals went up 13 percent in the first three months of 2018.
What caused the uptick at President Trump’s flagship hotel in New York? One major factor: “a last-minute visit to New York by the Crown Prince of Saudi Arabia,” wrote general manager Prince A. Sanders in a May 15 letter, which was obtained by The Washington Post.
Neither Crown Prince Mohammed bin Salman nor members of the royal family stayed at Trump’s hotel, Sanders said: He said the Trump hotel didn’t have suites big enough to accommodate them. But “due to our close industry relationships,” he wrote, “we were able to accommodate many of the accompanying travelers.”
Because the Crown Prince of Saudi Arabia travels with such a large entourage, the Trump International Hotel in Manhattan actually made a killing on this trip. It actually may have made the difference between showing a profit and a loss in the first quarter of this year. In other words, a “Prince” of a “foreign state” provided an emolument to President Trump. This is explicitly banned by the Constitution. Visiting foreign dignitaries understand that putting money into Trump properties will make the president more inclined to hear them favorably, and giving the same money to his competitors will have the opposite effect.
The way to avoid these kinds of behaviors is to eliminate the conflict of interest, and that is why people called on Trump to unwind his hospitality businesses (at a minimum) if he wanted to serve as president.
If someone wants to argue that these clauses should not be in the Constitution, that’s fine. I have some clauses I’d like to see stricken from the Constitution, too. But as long as they are present and in force, they should be obeyed and punishment should follow if they are not.
Problem is those darned high-minded “founder” dudes thought that just writing down The Rules would be enough to make people follow them, without any other incentive.
They should have included a “punishment” to go along with the rule.
Just like the 12th Amendment, blatantly violated by Bush/Cheney.
Since The Constitution is the HIGHEST LAW of the land, violation by officials should receive the HIGHEST PUNISHMENT possible.
Crucify ’em.
Well, it’s a philosophical argument more than anything else, but I don’t think constitutions should be used that way. Keep it general, let the legislature and the people deal with specifics.
And don’t treat constitutions like Holy Writ, either.
Things change, and also good intentions sometimes lead to bad results.
The Founder dudes didn’t count on people being so corrupted by money and captured by greed to the extent that they would dare to not put fealty to country above self as leadership roles require. Baked into their theories about democracy underpinning the Constitution was a baseline level of intellect and integrity that is naive at best by today’s reality. There was no accounting for the impact of “political contributions” which is legalized bribery, which led wholesale corruption, normalized as acceptable practice. I don’t think the Founders could have imagined the level of venality we see in political leaders today.
I find it difficult to believe the Founder dudes were that naive. They were used to the politics of dealing with monarchs and the aristocracy, after all. I would expect them to have a thorough knowledge of just how effectively bribery could grease the slide of guineas into pockets.
They may have been naive about how complacent future Americans would become about their elected representatives profiting from bribes, however.
They were “corrupt” themselves, some of them!
For instance John Hancock was thought to be a smuggler and/or pirate (who knows – could be British propaganda).
It might have been the enlightenment but they were no strangers to finagling.
. . . since the final syllable of his oath of office faded to silence.
Banana Republicans, in clear violation of their oaths of office? Eh? So what? Got our court-packing. Got our tax cuts for the rich. Got our voter suppression. It’s all good.
Trump basically thumbed his nose at those calling for his and his family’s divestment. And like the true con man he is, treated them like naive marks when he said they’d divest. Having gotten away with not sharing his tax returns, why not give this a shot, knowing you’re dealing with either a bunch of lame suckers or those seeking their share of the grift?
Besides the lawsuit brought by the DC and MD AGs, there’s been no serious pushback from the DC political establishment, democrat or republican. Given that, why should he divest then, when the net effect of the relatively (imagine if Obama or Bill Clinton did this upon election) weak outcry virtually invited him to enrich himself and his family off the presidency. And that’s what they continue to do. Everything from the loans for the Kushner family’s boondoggle 666 Fifth Avenue, to Ivanka’s China patents; its all good.
From the day he was elected, Trump displayed the attitude, tone and actions of someone who felt enriching himself and his family off the presidency was his due for winning. That was clear, yet no one took him aside and told him it was a bridge too far. This isn’t a question of having the balls to do it, its just a matter of the invitation he got.
You write regarding Trump’s refusal to divest or share his tax returns:
Of course not. Why not? Because the highest levels of DC political establishment…as you say, Democratic or Republican…are one way or another playing the same graft games as is Trump. “Contributions.” Off shore hidey holes. The works. No sense trying to shine a light under the graft rock when it eventually will also illuminate the actions of yourself and your allies.
Plus…Trump is never averse to telling the truth if it harms his enemies. One major turning point of his primary run…and his eventual presidential win…was when he publicly announced that he could essentially demand that Bill and Hillary Clinton attend his daughter’s wedding due to the size of his contributions to their various foundations and other political fronts, etc. Every con job needs to have some truth in it. The con artist’s skill lies in perverting and then using that “truth” to run the game.
Trump’s one major talent is taking the weak spots of his opponents and using them as weapons.
He’s very good at it.
So was Roy Cohn.
People in positions of real power are being very careful of him.
He can hurt them if he chooses to do so.
Bet on it.
Later…
AG
You’re probably right about that – in that there are probably other examples of this behavior running, not that everyone’s doing it.
I think there are some other factors –
You write:
I suspect that your are too forgiving, nasruddin.
At the highest levels of government? There is almost no way to successfully ascend to those positions without showing your loyalty to the kakistocracy by playing the “donations” game.
Witness the Clintonite DNC’s vicious dumping of Bernie Sanders in 2016 for all you need to know on that account. It’s a closed shop, nasruddin. Kinda like a crooked police precinct, only bigger.
Like dat.
Bet on it.
AG
Business receipts aren’t presents. The intent of the clause is clear. You weaken your case against Trump with these wild stretches. It’s like “I want to see the long form birth certificate”.
I certainly do agree that he should put his holdings in a blind trust. AFAIK, every modern President has done this. Not certain if Jefferson put Monticello in a trust or if he sold cotton to Europe.
Bush and Cheney certainly knew that their “blind” trusts still invested in oil, but at least they had the fig leaf.
Influence peddling isn’t usually an open activity. Using a business transaction to legitimize the exchange (i.e. money laundering) is usually how it’s done.
Hmm. I’ve been looking at eg what Hamilton says about this, and some of the Federalist papers. I am pretty sure you are not only mistaken, but have made a straw man argument in focusing only on “presents”.
F 22 (Hamilton): “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….”
F 73 mentions it in passing and seems somewhat similar, also Hamilton’s.
The clauses do not specifically use words like bribery, or describe cozy business relationships, and both concepts would have been very familiar to the 18th century writers. Many of the colonies themselves had been established by “cozy business relationships” with the crown. Why it was not spelled out more fully is a question for a better scholar than me.
Emolument: profit from office. (Webster’s New Collegiate (1949))
Voice, you are giving an unreasonably narrow reading to the clause to ignore the very word emolument. The clause doesn’t simply list “present”, it lists a number of items beyond a mere present or gift—notably, “emolument”: profits from office.
Since the clause apparently has had no prior interpretation (think about that), it will be interesting to see if the courts ever get to the merits and have to define the meaning of the term and what the obvious corruption being pulled by Trumper’s Saudi princes amounts to. But a simple reading of the clause makes clear it was intended to extend far beyond “presents”, else the clause’s laundry list would have ended with that term.
(I’m sure others are aware that Der Trumper has also been sued for his (clear and intentional) failure to “take Care that the Laws be faithfully executed” in violation of Art. II, sec. 3. Thankfully for the lawbreaking Trumper, he has Roberts’ Repubs in his back pocket and will never be held accountable, but these various constitutional claims are certainly not baseless or specious.)
It has taken the Republic over 200 years to “elect” a conman unqualified, unvirtuous and egregious enough to generate a case raising a possible violation of the emoluments clause. Another “first” for the incompetent white electorate, circa 2016. That the (white) citizenry cannot be made to care about this executive’s abuse of office is what would most dismay the Founder Dudes, who would be so disgusted with TrumpAmerica and their failed constitution they likely would ask whether George III could reassert royal control, haha.
Doesn’t it feel like the doanld is just frantic for cash. The way Manafort was after he ran through 60 million and was broke by 2016.
Booman writes:
I need a definition.
If a multinational corporation or one of its heavy hitters (one of its “princes”) gives money to a politician or campaign…are they not essentially “foreign” states and princes?
I mean…who’s to say?
Is it in their own interests to do so?
Assuredly, or they would not do so.
Do their own interests align with those of the United States?
Again…who’s to say?
Hmmmmm…
AG
Lock him up and throw away the key. There is a special punishment for kidnappers, too. I wish all the forces of hell to be leashed on this cruel, inhumane creature and his cruel and inhumane supporters.
If someone wants to argue that these clauses should not be in the Constitution …
There isn’t the slightest doubt in my mind that they should be.
The only reason this has never been adjudicated until now is this: Throughout the history of this country, many of our presidents have been assholes to some degree or other. But not until Trump was there such an asshole ocupying this nation’s highest office, that they were prepared to flagrantly violate this constitutional principle, precisely because the reason for it it is so glaringly obvious. The emoluments clause is one of those things that marks the difference between the United States, even at its worst, and a tinpot banana republic. Its violation is an invitation to pay-to-play of the highest order, and an open doorway to treason.