“It is possible that many transactions between foreign states and the Trump empire would involve no actual impropriety, but it is a virtual certainty that many would create the risk of divided or blurred loyalties that the Emoluments Clause was enacted to prohibit. And while
in some instances the threat might be readily apparent, the majority of potential conflicts would be cloaked in secrecy, buried in technicalities, or impossible to prove definitively. That is true both because Mr. Trump has declined to make many of his business dealings transparent, and because any president often acts overtly and on the basis of extremely complicated motives. Disentangling any potential improper influence resulting from special treatment of Mr. Trump’s business holdings by foreign states would be extremely difficult, at best. The American people would be condemned to uncertainty and innuendo, and our political discourse would be rife with unresolved and unresolvable accusations of corruption.”– Excerpt from a Brookings Institution white paper, issued December 16, on the Constitution’s Emoluments Clause, by two former White House ethics lawyers -- Norman J. Eisen and Richard W. Painter -- and Harvard law professor Laurence H. Tribe.
WE CHECKED THE CONSTITUTION, AND…
The founding generation was entirely familiar with a common practice among European royalty of doling out favors – financial and otherwise – to influence other governments. In writing the Constitution, that generation sought to make sure that this did not happen in the new American government. That is why they included the Emoluments Clause, barring foreign government gifts or anything of value to any officer of the U.S. government – unless Congress consented.
America is getting reacquainted with that Clause, in the broad debate now unfolding over how President-elect Donald Trump will separate himself – if he will – from his far-flung business interests in the Trump Organization. Three central questions have tended to dominate that debate: first, will Trump actually violate the Clause; second, if he is suspected of doing so, how will that be proved, and, third, who would enforce the Clause?
There is little history surrounding the Clause since it was inserted in the original Constitution in 1787, but what history there is suggests quite strongly that it would mainly be up to Congress to enforce its restriction on foreign largesse for an American president or other federal officials. And it also suggests that most of the time a president or other official initiates an inquiry to Congress about whether it will consent to accepting and keeping a particular valuable item. In 1833, for example, President Andrew Jackson asked Congress if he could keep a gold medal given to him by a foreign government, and Congress said no.
But what if no inquiry is sent to Congress? Then, it seems, a discovery of a potential violation would depend upon the diligence of the lawmakers in monitoring how a president who also has extensive financial interests deals with foreign governments. If Congress is controlled by the same political party as the White House, what would the incentive be to engage in such 1monitoring? Perhaps only if potential violations otherwise became public knowledge might the lawmakers take notice.
If Congress did take notice, it could veto the gift or other thing of value, but its only real enforcement power – aside from potential adverse publicity -- is the awesome authority to impeach a president.
There is considerable debate about the availability of another potential enforcement mechanism – that is, can any private citizen or private business (say, a competitor) sue? That would have to be tested, to be sure.
But, as the quotation above from the new Brookings Institution analysis illustrates, the biggest uncertainty about enforcing the Emoluments Clause is the question of proof of a violation. In the situation of a president who also is a business executive with wide holdings, and particularly one who does not make a full public disclosure of the extent and detail of those holdings, how can it be shown that the business benefited from a forbidden favor – and, in turn, how to show that the president benefitted?
Thus, the first question to be raised in monitoring what a President Trump might be doing that could raise concerns under the Emoluments Clause is how to find out when an arm of his business had dealings with a foreign government. How could that be probed by, say, investigative journalists? What kind of public reports, if any, might be revealing? Would the foreign government talk publicly about such a transaction?
The business, of course, would have to file U.S. tax returns, but would the Internal Revenue Service have any authority to investigate a potential violation of the Emoluments Clause? That is highly doubtful, especially if the company’s revenues from abroad appeared to be, or actually were, the result of normal business deals.
And, even a gesture as simple as a payment of money by a foreign government to one branch of the president’s business empire may get complicated by issues of motive – on both sides of the transaction – and benefit. If the payment were for goods or services of a normal kind, and the money was paid at usual market rates, what effect might that have on the business entity’s revenues, its profits, and the ongoing value of the business? Indeed, are profits for a business owned by a president even covered by the Emoluments Clause?
If the Emoluments Clause is thought of, fundamentally, as a check upon outright bribery or blatant favoritism, why would foreign actions in the normal course of business be a violation? And, even if the motive of the foreign donor were suspect, is the American business responsible, legally, for that?
What seems clear from even a cursory analysis of the constitutional problem is that fidelity to the Emoluments Clause may ultimately depend upon the good faith of the president as a businessman. The Constitution places enormous trust in the occupant of the White House and, in doing so, expresses an aspiration that the trust will not be abused.Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
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