January 9, 2017

Private: Donald Trump and the Emoluments Clause

Donald Trump, Erwin Chemerinsky

by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

From the first moments of his presidency, Donald Trump risks violating an important constitutional provision: the emoluments clause, which prevents a government official from benefiting from a foreign government. Article I, section 9, of the Constitution 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.”           

This provision was meant to restrict the ability of foreign governments to influence American office-holders, a matter of great concern to a fledgling nation. Also, it helps to prevent conflicts of interests. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.” The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from receiving anything of value from a foreign country.         

The emoluments clause has received virtually no attention through most of American history because few issues have arisen concerning it. But Trump’s extensive foreign business holdings mean that this clause is likely to have great significance in the months and years ahead. It is easy to imagine countless ways that Trump’s businesses can benefit from the actions of foreign governments. This is especially so because Trump has yet to act in a way that will reduce the conflicts of interest that are sure to arise because of his many businesses. In fact, Trump has declared: “I can be president of the United States and run my business 100 percent, sign checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have a conflict of interest.” That, of course, is simply false, including because of the emoluments clause.           

The emoluments clause applies to all who hold “office” in the United States government. The Office of Legal Counsel of the Department of Justice explicitly has declared that this includes the president of the United States. The clause is broad in what it prohibits. A recent report issued by the Brookings Institution, authored by Norman Eisen, Richard Painter and Laurence Tribe, explained: “The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction ‘of any kind whatever.’”           

Trump’s international business holdings mean that foreign governments frequently may provide them benefits – whether out of a desire to curry favor with the president of the United States or otherwise – which will violate the emoluments clause. Just since his election, there have been instances of Trump and his children engaged in business negotiations with foreign governments, including India, Philippines, Japan and Scotland. For example, it was widely reported that Trump lobbied a British political ally to oppose wind farms because he they might ruin the view from his golf course in Aberdeen, Scotland. As the Brookings Institution report concluded:  “The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents.”           

The question is sure to arise, and arise quickly, as to how the emoluments clause can be enforced. One issue will be who, if anyone, has standing to sue to enforce it. Although there never have been decisions addressing this, there is an important case involving another constitutional provision that uses the term “emoluments.” Article I, §6, of the Constitution states that “[n]o Senator shall during the time for which he was elected, be appointed to any civil office the emoluments whereof shall have increased during such time.” Hugo Black, a senator from Alabama, was appointed to the Supreme Court after having voted to increase the retirement benefits of justices, in seeming clear violation of this provision. Ex parte Levitt, in 1937, involved a citizen’s suit to have Black’s appointment to the Supreme Court declared unconstitutional. The Supreme Court, however, held that the plaintiff lacked standing because “it is not sufficient [for standing] that he has merely a general interest common to all members of the public.”

Thus, citizens will not have standing to sue President Trump for violating the emoluments clause. But those who can show economic harm by Trump’s actions, perhaps business competitors, would have standing to sue. It is unclear what remedy would be available. In Nixon v. Fitzgerald, in 1982, the Court held that a president cannot be sued for money damages for actions taken while in office in carrying out the presidency. But it is uncertain whether this would apply to business deals by the president and his family. Also, no case has limited the ability to sue a sitting president for injunctive or declaratory relief.           

A second possibility will be criminal prosecutions if Trump’s actions violate federal criminal statutes concerning conflicts of interest. An unresolved question, though, is whether a sitting president can be criminally prosecuted or whether impeachment is the only remedy. For instance, in 1974, the Watergate grand jury named President Richard Nixon an unindicted co-conspirator because it was uncertain as to whether it could indict a sitting president.           

Finally, of course, there is the possibility of impeachment. Violations of the emoluments clause certainly could be deemed “high crimes and misdemeanors,” which refers to serious abuses of trust and power. But impeachment is an extreme remedy and it is uncertain what would be needed to convince Congress, especially a Republican controlled Congress, to impeach and remove a president for violating the emoluments clause.  

Ultimately, this is an area of great legal uncertainly because it involves a constitutional provision that rarely has been relevant and an unprecedented situation of a president with extensive economic holdings. Enforcing the emoluments clause will be made more difficulty by the lack of transparency surrounding Trump’s holdings and business deals. But as Trump assumes office and governs, great attention must be paid to the possibility of conflicts of interest, including whether the new president is violating the emoluments clause.