Trump Presidency, Day 3: Possible Constitutional Violation?

With all the criticism surrounding Trump prior to his inauguration, it doesn’t come as a surprise that it only took a matter of days before a lawsuit against him was filed.  The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against Trump claiming payments received by foreign organizations violate the constitution; more specifically, the Emoluments Clause.

Remember when we discussed the issue of why a blind trust was so important?  It all comes down to conflict of interest issues.  CREW is a nonprofit, nonpartisan organization aimed at reducing the influence of money in politics in order to foster an ethical and accountable government.  The concern is that the conflicts of interests created from Trump’s business portfolio are too great.

Can Trump represent the interests of the people of the United States impartially while continuing to profit from his business portfolio?

You Can’t Profit from Power

What is the Foreign Emolument Clause?  In short, governmental officials can’t take money or other nonmonetary benefits stemming from their position in power.  Specifically, the Clause says,

“no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

An emolument is a salary, fee, or profit from employment or office.  Notice the Clause doesn’t just preclude emoluments, but prevents one from receiving “presents” as well.    Historically, it was standard diplomatic practice to give expensive gifts, but when the drafters of the Constitution got together at the Philadelphia Convention to debate what would be the framework of our country, they decided to include a provision aimed at preventing corruption.

The Constitution does also include a Domestic Emoluments Clause, which has the same general concept, but allows the president to receive compensation for his services in office.  No other emoluments are to be received from the U.S. or any individual state, though.

How Is Trump Violating the Emoluments Clause?

Trump’s attorney has eluded to the fact that the Emoluments Clause doesn’t apply to him, stating “…fair value exchanges …have absolutely nothing to do with an office holder”.  CREW urges otherwise, arguing it’s widely acknowledged the clause does in fact include the president.

What actions does the lawsuit claim violate the Constitution then?  CREW claims that Trump has violated and “…is poised to do so continually” the Emoluments Clause in a number of ways:

• leases held by foreign-government-owned entities in New York’s Trump Tower;
• room reservations and the use of venues and other services and goods by foreign governments and diplomats at Trump’s Washington D.C. hotel;
• hotel stays, property leases, and other business transactions tied to foreign governments at domestic and international establishments owned by Trump;
• payments from foreign-government-owned broadcasters related to foreign versions of the television program “The Apprentice” and its spinoffs; and
• property interests or other business dealings tied to foreign governments in numerous other countries, including current projects in China, India, United Arab Emirates, Indonesia, Turkey, Scotland, Philippines, Russia, Saudi Arabia, and Taiwan.

What’s the short version?  Basically, any payments (not just profits) received that come from a foreign state (or its agent) violate the Emoluments Clause because it creates too great of a conflict of interest, not allowing Trump to be impartial in the decisions he inevitably has to make as president.  Trump’s plan to have his sons take over the leadership and management, without relinquishing ownership or establishing a blind trust, without receiving consent from Congress, is, according to the organization, inadequate.

As far as the Domestic Emoluments Clause goes, CREW argues payments and/or benefits received from domestic governments through Trump’s numerous properties and businesses are a violation as well.

Will CREW Win Their Case?

The Emoluments Clause isn’t an area that’s been widely litigated.  Traditionally, past presidents have chosen to divest themselves from interests that create conflicts.  Earning profits from an established business that happens to be a hotel with foreign diplomats as guests doesn’t equate to profiting from a government-held position.  These profits were all there before Trump was even elected.  Does it create a conflict of interest, though?  Absolutely, yes.  Does it risk a greater chance of corruption by foreign influence?  It certainly could.

The purpose behind including the Emoluments Clause in the Constitution was to prevent corruption.  Just as CREW points out in their lawsuit, Trump’s business interests create unprecedented conflicts of interests and unprecedented risks of influence by foreign governments.  So while the profits may not have originated from Trump’s political influence as president, Trump’s business portfolio certainly has the capacity to create future conflicts.

Imagine, for example, hotel stays by foreign government officials skyrocket in the hopes of getting a more favored political outcome from the owner of said hotel.  Even the most honest-intended person would have trouble making decisions that affect their personal financial interests.  Even so, while Trump’s vast business portfolio definitely creates numerous conflict of interest issues, I imagine, even if found unconstitutional, it wouldn’t be too hard for him to get Congressional approval since the GOP controls by majority.