January 10, 2017

Private: Why it May Be Illegal For President-Elect Trump to Take The Oath

Donald Trump, Emoluments Clause, Mark Kende

by Mark S. Kende, James Madison Chair Professor of Constitutional Law and Director of the Drake University Constitutional Law Center

President-elect Trump is supposed to take the Oath of office on Jan. 20, 2017 but such an act would likely be illegal. Indeed, Chief Justice Roberts of the Supreme Court would even probably be an inappropriate accessory. Article II Section One Clause 8 of the U.S Constitution requires the president to "swear that I will faithfully execute the Office of President of the United States, and...to the best of my ability, preserve, protect and defend the Constitution of the United States." Yet President Trump would likely be violating the Emoluments Clause of the Constitution at that exact time. He would be personally prospering as president or at least lining his business's pockets, because of his continuing acceptance of financial benefits from foreign governments and businesses. Indeed, his being president would almost certainly increase his business success. 

The Emoluments Clause asserts in Article I, Section 9, Clause 8 that, "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."

Scholars such as Fordham Law Professor Zephyr Teachout and sources such as the Federalist Papers, have shown the Clause covers the president and was designed to prevent improper foreign influences. It was an essential anti-corruption provision enacted to prevent federal officials from looking to profit from office rather than to act in the nation's interest.

Yet President-elect Trump is a multi-billionaire with numerous foreign financial agreements and properties which enable him to profit in the U.S. and in dozens of other nations including from their governments and officials. Moreover, he has not placed his assets in a truly blind trust or sold his assets and there is no convincing evidence he will do that by Jan. 20 in a satisfactory way, despite some vague statements to the contrary. Yet he has built a new hotel in D.C. that foreign diplomats rave about. Newspaper investigations also show he has an important relationship with the Bank of China, with Indonesia, Dubai and many other countries, etc. The purpose of his businesses is to make money.

There is an unpersuasive minority view that the Emoluments Clause does not cover the president. This defies common sense and historical sources. The Clause would have little value if the president was omitted. Thus, it appears that President-elect Trump cannot confidently take the Oath in good faith. Now if he takes the Oath anyway, he would likely be committing an impeachable offense -- swearing a false Oath. If the Republicans can impeach President Clinton for arguably trying to hide an affair and protect his marriage, the Trump scenario seems far worse. Moreover, he has not released his tax returns like every other president in recent memory. This suggests he has something to hide. 

The only obvious way for Trump to avoid this problem is either to immediately produce evidence that he has solved this problem, or not accept the presidency. Neither action is likely, so impeachment should be on the table. Some Republicans said they would put this issue on the table had Hillary Clinton been elected due to Benghazi and the e-mail controversy. Ironically Trump often referred to crooked Hillary. But perhaps the shoe is on the other foot.