Will Trump be Allowed to Defy the Constitution?

February 15, 2017
Guest Post

*This piece originally appeared in Newsweek.

by Ben Clements, Attorney, Clements and Pineault LLP and Chair of the Board, Free Speech for People and Ron Fein, Legal Director, Free Speech for People

Patriotic Americans disagree on many things. But one thing almost all of us can agree on is that we are nation of laws and that no man or woman is above the law.

And in our system of government, the supreme law that stands above all else is our founding charter, the Constitution of the United States.

No president in our history has openly taken the position that he stands above and need not comply with the requirements of our law, especially the supreme law enshrined in our Constitution.

Until now.

Since the moment he took the Oath of Office and swore to uphold our Constitution, President Trump has been in direct and willful violation of these clauses.

The Foreign Emoluments Clause states that “no person holding any Office of Profit or Trust under [the United States], 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.”

The United States Department of Justice and other legal experts have consistently recognized that this provision applies to the president and prohibits federal officials, including the president, from receiving income, compensation or other things of value from any foreign government, without the express consent of Congress.

No president in our history has ever claimed an entitlement to defy this provision and receive proceeds or other benefits from foreign governments while serving as president.

Until now.

Mr. Trump’s business, the Trump Organization, has financial dealings with foreign governments and government-owned foreign companies all over the world, generating a steady stream of monetary and other benefits from foreign powers to Mr. Trump and his family. As a result, his continued ownership interest in the Trump Organization while serving as president represents a blatant ongoing constitutional violation.

Indeed, the magnitude and scope of Mr. Trump’s international business interests is so great and the duties of the president in international affairs so comprehensive, that no one could reasonably anticipate all the ways in which his judgment as president may be compromised by his own and his family’s personal financial interests.   

The same goes for the Domestic Emoluments Clause, which states that the President shall receive a fixed salary during his four-year term, “and he shall not receive within that Period any other Emolument from the United States, or any of them.”

President Trump has chosen to continue owning businesses, including luxury apartments, hotels and office buildings, that receive government subsidies, tax breaks and in some cases favorable regulatory treatment from the government.

Indeed, given his real estate empire’s reliance on federal and state government tax and other benefits, he is in a position to profit from the presidency (or, in legal terms, receive unconstitutional domestic emoluments) by the subtlest of gestures from the Oval Office.

Mr. Trump has been warned repeatedly since the November 2016 election that he needed to fully divest from his business interests in order to comply with the Constitution.

But given the opportunity of ten full weeks between the election and the inauguration to divest his business interests, Mr. Trump chose instead to announce, just nine days before inauguration, a wholly inadequate plan to turn the operations of the Trump Organization over to his children, while keeping his ownership and income stream.

Rather than comply with the Constitution, Mr. Trump has chosen to profit from the presidency at public expense. Mr. Trump apparently believes that the law does not apply to him, claiming, “I can be president of the United States and run my business 100 percent, sign checks on my business,” and “the president can’t have a conflict of interest.”       

Recognizing the dangers presented by financial temptation or influence over the president or any other federal official, the Framers were not content to rely on bribery laws to protect us from those dangers. Instead, they included the Emoluments Clauses in the Constitution as a permanent bulwark against not just outright bribes, but even the more subtle and sometimes harder to detect danger of a president’s personal financial interest influencing his official decision making.

They regarded the threat as sufficiently serious to justify impeachment for a violation. As Edmund Jennings Randolph, the Governor of Virginia, a delegate to the Constitutional Convention, and later first Attorney General of the United States, explained at the Virginia Ratifying Convention: “There is another provision against the danger . . . of the president receiving emoluments from foreign powers. If discovered he may be impeached.”

As concerned as the Framers were with corruption in the eighteenth century, the danger they sought to address with the Emoluments Clauses – the president (or other federal officials) corruptly enriching themselves by taking money from foreign governments, the federal government itself, or state governments with their own agendas – is far more profound today.

Our economy, our welfare and our national security has never been as interconnected with the global economy and global security than it is today; nor has our national security ever been as dependent on our relationships and interactions with foreign powers.

And we are now faced with overwhelming evidence that a foreign power, Russia, has intentionally meddled in our electoral process for the specific purpose of helping then-candidate Trump and harming his opponent and, not incidentally, currying favor with and attempting to influence now-President Trump and his administration.

In this context, strict adherence to the requirements of the Emoluments Clause has never been as important as it is today.  

This is not a partisan issue. It is a constitutional issue and it is an American issue.

All Americans, regardless of their party, ideology or beliefs, should be concerned at the danger presented by the persistent conflicts of interest that Mr. Trump has created for himself by refusing to comply with the Constitution.

Congress need not and should not wait for definitive proof that the stream of foreign and domestic emoluments flowing to Mr. Trump and his family has resulted in a presidential decision that harms our security – proof the Framers recognized would be difficult to obtain until it was too late.

Instead, the House of Representatives should begin an investigation now into whether Mr. Trump’s violations of the Constitution require that he be impeached.