David Cole in the NY Review of Books: “Trump Is Violating the Constitution”
David Cole writes:
When Barack Obama became the forty-fourth president of the United States in 2009, he appointed Norman Eisen, a “special counsel for ethics and government,” to ensure that he violated no prohibitions on conflicts of interest. Before he was replaced in 2011, Eisen, later an ambassador to the Czech Republic and a lawyer who specialized in cases involving fraud, addressed a wide range of questions, including such matters as whether President Obama, a basketball fan, could accept tickets to see the Washington Wizards or the Georgetown Hoyas play.
When Obama was awarded the Nobel Peace Prize, he sought a formal opinion from the Justice Department’s Office of Legal Counsel on whether he could accept the award without violating a constitutional prohibition on the president or any other federal officer accepting “emoluments,” essentially any payment or benefit, from a foreign state. (The office concluded that he could, only because the Nobel Prize Committee is a private entity with no foreign government involvement.) Like every president to precede him in the last four decades, President Obama placed all his investments in a blind trust, so that he would be unaware of his interests and therefore free of conflicts of interest with respect to the many decisions he might make that could affect his own personal wealth. President Obama, again following the precedents of his predecessors, also released his tax returns, both during his campaign for office and as president. Obama, in short, was punctilious about ethics, and his administration was almost entirely free of ethics scandals.
Donald J. Trump, who became the forty-fifth president on January 20, has taken a different approach. He comes to office having repeatedly refused to release his tax returns, even after a leak indicated that he may have paid no taxes for eighteen years. He has cited an ongoing IRS audit as his reason for not disclosing his returns, but the IRS itself has refuted that claim, saying that “nothing prevents individuals from sharing their own tax information.”
Two days after inauguration, his administration announced that Trump would not release the returns even if an audit were complete. Trump has somewhat gleefully asserted that the conflict-of-interest rules don’t apply to the president. He mixed together personal business and official diplomacy during several meetings and conversations with foreign officials during the transition. And despite his widespread private holdings in commercial real estate, condominiums, hotels, and golf courses here and around the world, he has refused to follow the lead of his predecessors by selling his assets and placing the proceeds in a blind trust. Instead, he has transferred management, but not ownership, of the Trump Organization. He retains his ownership in full. And he has assigned operational responsibility not to an independent arm’s-length trustee, but to his sons, Eric and Donald Jr.
As a result, President Trump almost certainly began violating the Constitution the moment he took the oath of office. It’s true that conflict-of-interest statutes don’t cover the president—not because we don’t care about compromised presidents, but because such statutes generally require officeholders to recuse themselves from decisions in which they have a personal financial stake, and in the president’s case, recusal is rarely a workable option, since there is no alternative decision-maker.
But the Constitution subjects the president to a conflict-of-interest law: the so-called “emoluments” clause. That clause provides that no federal officeholder may, absent express approval by Congress, accept “any present, Emolument,…of any kind whatever, from any King, Prince, or foreign State.” It is designed to ensure that federal officials, from the president on down, serve only the interest of the American public, and are not compromised by foreign influence. In 1787, Charles Pinckney of Virginia proposed the provision at the Constitutional Convention, urging “the necessity of preserving foreign Ministers & other officers of the US independent of external influence.”1 At the Virginia convention to ratify the Constitution, Edmund Jennings Randolph explained that the clause was “provided to prevent corruption.”2
The emoluments clause is a categorical bar against a president receiving payments from foreign states. Recognizing that divided loyalties are difficult to discern, that self-interest is an extremely powerful motivator, and that foreign states may seek to buy influence, the Framers chose to ban all presents or “emoluments…of any kind whatever.”
The sole exception was where Congress expressly authorized a transaction, presumably on the theory that such a public and transparent accounting would reduce the risk of corruption and undue influence. According to the Justice Department’s Office of Legal Counsel in 1981, an “emolument” is any “profit or gain arising from station, office, or employment: reward, remuneration, salary.”3 As the reference to “salary” or “gain” suggests, the prohibition is not limited to outright gifts, but includes payments for services rendered or profit from ordinary business transactions.
What does this mean for Donald Trump? . . .