“If Discovered, He May Be Impeached”: President Trump and the Foreign Emoluments Clause

February 2, 2017
Guest Post

*Disclosure: The author is the Legal Director for Free Speech For People.  On Jan. 20, 2017, Free Speech for People jointly launched with RootsAction the national impeachment campaign at ImpeachDonaldTrumpNow.org.

by Ron Fein, Legal Director, Free Speech for People

Recently, President Trump’s ongoing violation of the Foreign Emoluments Clause has received significant attention. There is no need to repeat here the case-in-chief that President Trump is in violation of the Foreign Emoluments Clause. That argument has been made in careful detail in a December 2016 Brookings Institution white paper by Norman Eisen, Richard Painter and Laurence Tribe, amplified by a January 2017 essay by Joshua Matz and Laurence Tribe posted on the ACS web site, as well as in the federal court litigation by the nonprofit organization Citizens for Responsibility and Ethics in Washington.

Let us take as given that President Trump has violated, and continues to violate, the Foreign Emoluments Clause. (We can reserve for another time the Domestic Emoluments Clause, as well as any potential violations arising from the executive order on immigration and possible defiance of federal court orders.) The present question is: is this an impeachable offense? The answer is clearly yes.  

1.    The standard for impeachment                                                                                              

According to Article II of the Constitution, “[t]he 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 phrase “other High crimes and Misdemeanors” is hardly precise. But it is not infinitely elastic. Most scholars disagree with then-Representative (later President) Gerald Ford’s statement that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” (To be fair to Ford, that statement had nothing to do with President Nixon or any other Article II official; it came in the context of Ford’s unsuccessful attempt to impeach Supreme Court Justice William O. Douglas in 1970.)

To the contrary, not all violations of the Constitution are impeachable. For example, no one suggests that recess appointments to the National Labor Relations Board members, later found by the Supreme Court to be unconstitutional because the Senate was not actually in recess when the appointments were made, are grounds for impeachment. Yet while some full-fledged constitutional violations are not impeachable, some conduct that is not even criminal can constitute impeachable “high crimes and misdemeanors.”

The key is that the phrase “high crimes and misdemeanors” is not interpreted in a vacuum, because it was a term of art that the Framers understood from English history. Unlike “petit” crimes, “high” crimes refer to crimes committed against the state by public officials. Justice Joseph Story summarized impeachable offenses as offenses “committed by public men in violation of their public trust and duties.” Professor Tribe, in testimony given to the House Judiciary Committee during the Clinton impeachment proceedings, defined high crimes and misdemeanors as “major offenses against our very system of government, or serious abuses of the governmental power with which a public official has been entrusted . . ., or grave wrongs in pursuit of governmental power.”

2.    Violating the Foreign Emoluments Clause is grounds for impeachment

The best evidence that violating the Foreign Emoluments Clause is impeachable comes from the Framers themselves. At the Constitutional Convention in July 1787, during debate about impeachment, Gouverneur Morris of Pennsylvania (known as the “Penman of the Constitution”) observed that “no one would say that we ought to expose ourselves to the danger of seeing the first magistrate [the president] in foreign pay, without being able to guard against it by displacing him.”

Similarly, at the Virginia Ratifying Convention in June 1788, Edmund Jennings Randolph (governor of Virginia, a delegate to the Constitutional Convention and later the first attorney general of the United States and second secretary of state) responded to a concern about influence over the president by stating:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached. . . . . By the 9th section of the 1st article, “no person, holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the representatives of the people;” . . . I consider, therefore, that he is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption.

This is consistent with the views of other Framers, including Alexander Hamilton of New York, who described impeachable offenses as arising from “the misconduct of public men, or in other words from the abuse or violation of some public trust,” and future Supreme Court Justice James Iredell of North Carolina, who described impeachable conduct as including instances where the president “acted from some corrupt motive,” giving the example of a president receiving “a bribe . . . from a foreign power, and under the influence of that bribe . . . [getting Senate] consent to a pernicious treaty.”

Finally, this is consistent with historical practice. At least six impeachments have alleged “the use of office for personal gain or the appearance of financial impropriety while in office.” For example, in 1912, Judge Robert W. Archbald was charged with “using his office to secure business favors from litigants and potential litigants before his court”; three other federal judges were charged with “misusing their power to appoint and set the fees of bankruptcy receivers for personal profit.” These have been described under the heading of “Using the Office for an Improper Purpose or Personal Gain.”

Unfortunately, President Trump has been unwilling to separate his presidential duty from his business interests, with the result that he receives payments from foreign governments in violation of the Foreign Emoluments Clause. President Trump’s conduct has the effect of undermining the integrity of the presidency and disregarding his constitutional oath to “faithfully execute the office of the president of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” His ongoing receipt of this foreign government income and other financial benefits through his businesses disregards his constitutional oath to “preserve . . . the Constitution of the United States,” undermines the integrity of the executive branch and abuses the public trust.

To paraphrase Edmund Jennings Randolph: it has been discovered, and he may be impeached.