Donald Trump won’t officially become president until January, but critics are already raising concerns that he is violating a constitutional clause meant to keep foreign countries from buying influence with U.S. officials.
The Emoluments Clause says U.S. officeholders cannot accept presents, gifts or fees from any “king, prince or foreign state.” Yet reports suggest that foreign diplomats have been encouraged to stay at Trump’s new hotel in Washington, D.C., where suites run up to $20,000 per night.
Could foreign states use such dealings to influence Trump’s behavior in office? Is the hotel pitch a sign Trump will use the Oval Office to further enrich himself and his family? Joel Mathis and Ben Boychuk debate the issue.
It looks like Donald Trump, as president, is going to be the same thin-skinned two-bit hustler he’s always been.
Let’s forget the specifics of the Constitution’s Emoluments Clause for a second, and just ask ourselves this: Should the president use the Oval Office to get rich? Or should the president use the office on behalf of the people who elected him?
Should there ever have to be a question?
Here’s what traditionally happens when a president takes office: He — it’s always been a he — puts his assets in a blind trust, outside his own control or the control of close relatives, so that he won’t know how his actions as president affect his own personal net worth. The idea? To make sure the president is always, always working on behalf of the people.
Trump refuses to play by the rules — something that was easy to see coming when he became the first majority party presidential nominee of the modern era to refuse to release his tax returns. Rules, it seems, are for other people.
“The law’s totally on my side, the president can’t have a conflict of interest,” Trump told New York Times editors and reporters on Tuesday.
He’s right that many anti-conflict-of-interest laws exempt the president — a nod to the Constitution’s separation of powers. But presidents don’t generally use that exemption to see what they can get away with. Instead, they hold themselves to the highest possible financial standards. Even Jimmy Carter put his peanut farm in a blind trust.
“In theory I could run my business perfectly and then run the country perfectly,” Trump told the Times. “There’s never been a case like this.”
He would be easier to believe, except that his Washington, D.C., hotel is suddenly seen as a way for diplomats to buy favor. It doesn’t help that, over last weekend, he settled a fraud lawsuit brought against his Trump University. Or that on Tuesday, it was reported his charitable foundation admitted breaking IRS rules in using its money to benefit Trump himself.
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Meet the new Trump. Same as the old Trump.
It’s tempting to resort to snark when considering the question of whether Donald Trump has violated his oath of office before even taking it.
After all, if the Constitution’s provision for an Electoral College is an antiquated and outmoded stricture, why couldn’t the Emoluments Clause be dismissed similarly? We live in a globalized world. Trump is a businessman with holdings all over the place. The new hotel is supposed to be pretty nice. What of it?
And if, as progressives never tire of reminding us, the Constitution is a “living, breathing document” that should “adapt to ever-changing circumstances,” then surely the Constitution can “adapt” to President Trump, just as it adapted to President Barack Obama’s unprecedented expansion of executive power.
Obama had “a pen and a phone” that he used to overcome a Congress that stubbornly refused to roll over for his policy agenda. Trump has hotels. Again, what of it?
Well, for one thing, we remain a nation of laws, not men, regardless of whoever happens to sit in the Oval Office at any given time.
So, does Trump have an Emoluments problem or not? I’m not an expert, but Seth Barrett Tillman is. He spent eight years of his career as a legal scholar studying the clause. Some of his writing on the subject appears on the National Constitution Center’s website.
His conclusion? The “foreign emoluments clause” doesn’t apply to the president. His reason? George Washington set the precedent.
“Traditionally, precedents established by President George Washington and his administration carry great weight,” Tillman writes. “President George Washington accepted and kept two diplomatic gifts, but he neither asked for nor received congressional consent. Washington’s conduct was widely reported in the press. So it would seem to indicate that he, his administration, Congress, and the public did not believe that the Clause applied to the presidency.”
Controversy over? No, not really. As Tillman pointed out in an interview with a legal affairs news site, Trump is still subject to various bribery laws and rules on gift-taking. But, Tillman said, Trump’s critics are “constitutionalizing an issue that should not be constitutionalized.”
President Trump will almost certainly have a constitutional crisis or two of his own. But the Emoluments brouhaha isn’t it.