Hey, America. We’ve got a constitutional crisis on our hands.
The U.S. Supreme Court has never considered the full scope of the Emoluments Clause of the Constitution, the provision that forbids bribes and gifts to elected officials. Nor has it fully considered the “compensation clause,” which directs how the president and members of Congress are to get paid. But despite the fact that President Donald Trump has purportedly handed over control of his sprawling and sometimes obscured business dealings to his sons, unless he sells them off, the Court may have no choice but to take a new, hard look at the two anti-corruption clauses in the Constitution—assuming a case challenging Trump on corruption can get there to begin with.
The Emoluments Clause—found in Article 1, Section 9, Clause 8—is commonly referred to as the “foreign gifts” clause.
That provision says “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.” Emoluments are fees, salaries, or any profit a person earns from either their jobs—including private sector employment and elected positions—or governmental appointments.
“The foreign gifts clause goes beyond forbidding bribes, to forbidding an exchange of any kind of gift whatsoever,” Vermont Law School professor Jennifer Taub explained in an interview with Rewire. “And that’s to prevent even the appearance of favoritism or a quid-pro-quo.”
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In other words, the foreign gifts clause prohibits bribes to U.S. elected officials or governmental appointments from foreign leaders or governments, as well as anything that looks like a bribe.
Trump claims he has handed over the day-to-day operations of his business interests—many of which have overseas involvement—to his children via a blind trust. But he still maintains the ownership interests, which means he will still profit even if he is, theoretically or actually, not involved in the day-to-day management of those businesses. That is a conflict of interest: exactly the kind the foreign gifts clause prohibits. His daughter Ivanka sat in on a meeting with Japanese prime minister Shinzō Abe. She is not a political adviser. She is allegedly running her father’s business interests. At a minimum, this creates the appearance of leveraging political power for personal financial gain. And again, it is exactly the kind of behavior the Constitution prohibits by the president.
These are just a few quick examples. The New York Times has this fantastic deep dive into the dozens of other conflicts poised to launch Trump and this country into a constitutional crisis the moment he is sworn in. Read the whole thing. The Huffington Post had a good one too. Read that one as well.
Trump has one constitutional get-out-of-jail free card here, though. Trump can keep both his international business dealings and the presidency, if he can get Congress to consent to the deals.
What would congressional consent to that myriad of conflicts look like? We don’t really know, because this is unchartered territory. Never before has this country elected a president with the sprawling business interests Trump has, combined with his utter disdain for transparency as well as a total disregard for basic business ethics.
Taub feels that such an approval would have to include full disclosure of the holdings to the public. “I think it has to be a fully informed consent where the public sees all of the details,” Taub said.
Otherwise, Taub noted, “What is it going to say of members of Congress who would go ahead and vote to approve this?”
It’s difficult to imagine Trump going along with a demand for such disclosures, given the fact he has never released his tax returns. And it is even more difficult to imagine congressional Republicans really doing anything to insist that Trump to do so.
That leaves the Democrats in the minority who, to their credit, have been making noise demanding hearings on Trump’s holdings and these conflicts of interest. But the reality is congressional Democrats have little, if any power, to force hearings, let alone to demand Trump divest his holdings. And those Democrats can certainly vote not to approve the holdings, but as we’re already witnessing, more than one Democratic member of Congress has suggested a willingness to work with Trump.
But what if Trump doesn’t seek congressional approval of these conflicts of interests, or if Congress refuses and he ignores them? Then what? Impeachment, that’s what—at least in theory, for willful violation of the Constitution’s corruption clauses. That means members of the House of Representatives must draft up Articles of Impeachment, the document stating the crimes Congress hopes to convict Trump of, and remove him from office. Once drafted, Congress holds hearings, and a super-majority of the Senate must approve in order to convict.
Again: It’s hard to see how the impeachment scenario becomes an impeachment reality. But these are the pathways.
Wait, though. There’s more.
Article 2, Section 1, Clause 7 sets out the guidelines for the president’s salary. It doesn’t state the amount, but it makes clear that presidents can’t moonlight and bring in income from other sources. “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,” the clause says.
Trump recently announced his plans to have his wife Melania and their son Barron stay in their New York City home rather than the White House. To accommodate his family Trump is reportedly considering renting out a floor to the Secret Service. Of his own property. Which means he will profit from this arrangement. Going rent rates put that arrangement around $3 million—paid directly to Trump and his business holdings. And the fact that Trump has promised to donate any “profits” from his hotel doesn’t matter a bit. This is a man who has yet to release his tax returns and is entering office under audit by the Internal Revenue Service. As a candidate, Trump trademarked “Make America Great Again” then had his lawyers send cease-and-desist letters to rivals Wisconsin Gov. Scott Walker (R) and Texas Sen. Ted Cruz (R) when they used the phrase at their own campaign stops.
We are supposed to take at his word that he doesn’t plan on using the presidency for his own personal gain?
“Trump is trying to run this presidency for profit,” Taub argued. “When he said he was going to run the government like his own businesses, he meant it. And that means lining his own pockets at the expense of everyone else.”
These are very real constitutional problems Trump’s presidency present. And they just begin to touch the surface. Congressional Republicans are readying new anti-choice measures designed to create another test case for the durability of abortion rights and Roe v. Wade. Sen. Jeff Sessions (R-AL) is likely to be confirmed as attorney general and all but promised in his confirmation hearing an assault on voting rights and immigrant due process, priorities Trump himself identified as a candidate. Sessions also suggested journalists could be jailed under the Trump administration, the same day Trump and his campaign went after a CNN reporter for asking about Trump’s political and business ties to Russia and Vladimir Putin.
Trump’s other cabinet nominees, such as Betsy DeVos for the U.S. Department of Education and Rep. Tom Price (R-GA) for U.S. Department of Health and Human Services, revealed a total lack of understanding in their congressional testimonies about how equal protection under the law works. DeVos, for example, would leave enforcement of many protections for students with disabilities up to states or local school districts. Such a plan guarantees unequal access to education for those students, a premise that violates the 14th Amendment. Price, meanwhile, would work with Congress to cut comprehensive reproductive health-care services out of Medicaid entirely, thereby leaving recipients with unequal access to health-care services and the inability to choose their own qualified health-care provider. That, too, is unconstitutional.
In fact, if there’s been one consistency in the Trump transition, it is that he and his cabinet intend to push the limits of the Constitution as far as Congress, the press, and the public will let them. And then probably further still.