Saturday, November 26, 2016

Will the Emoluments Clause be Trump's Undoing?

The Founding Fathers were very suspicious of potential efforts of foreign powers to influence the new nation's leaders, especially the president. As a result, they wrote the so-called emoluments clause into the United Sates Constitution which provides in relevant part as follows:
"no Person holding any Office of Profit or Trust under [the United States] shall, without Consent of Congress, accept ... any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

The goal was to prevent bribery of government officials and office holders and to seek to ensure that the best interest of the nation rather than personal financial gain was the guiding motivation for decisions made by office holders.  Up until now, there has been little focus on the Emoluments Clause because (i) most office holders were not in positions to be easily bribed or influenced by financial benefits and (ii) for decades Presidents have liquidated assets and placed them in blind trusts to avoid even the appearance of out right conflict of interest.  With the election of Donald Trump - a man obsessed with enriching himself and satiating his unrestrained narcissism - suddenly the Emoluments Clause is looming large. Indeed, it could be what leads to Trump's impeachment early on during his term.  A piece in NPR looks at the likely coming scandals and controversies.  Here are highlights:
Donald Trump's extensive business dealings around the globe have focused attention on an obscure provision of the Constitution most law professors barely look at — the Emoluments Clause. Now, one of the hottest legal debates around is whether the president-elect is going to violate the Constitution if he continues doing business with companies controlled by foreign governments.
Emolument is defined by Merriam-Webster as "the returns arising from office or employment usually in the form of compensation or perquisites."
The Foreign Emoluments Clause can be found in Article I, Section 9 of the Constitution. It provides that "no Person holding any Office of Profit or Trust under [the United States] shall, without Consent of Congress, accept ... any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."
The clause has been interpreted as an anti-bribery provision by constitutional scholars.
"The underlying concern of the clause is divided loyalties," said Erik Jensen, a law professor at Case Western Reserve University. "The founders wanted U.S. officials not to have any arrangements under which there could be questions about whether they were acting in the best interests of the United States, or in the interests of a foreign state."
Trump's companies do deal with businesses that are controlled or influenced by foreign government officials. Legal experts say the potential for constitutional violations is high.
Take the Bank of China, for example. It's a lender for one of Trump's buildings in Midtown Manhattan. If the Bank of China were to offer Trump a lower interest rate on that loan after he takes office, it might raise an Emoluments Clause issue. Some legal scholars say it could be perceived as an attempt to curry favor with the president or influence policy.
Not only have prior presidents been careful to steer clear of any perceived violations of the clause, there's never been a president like Trump, whose companies have such vast global reach. And Trump hasn't fully disclosed the full extent of his global business dealings.
"The services theory would be along the lines of, 'Well, if Donald Trump himself as president could not perform services for the foreign government, he can't have his hired help people who work for him in that hotel — provide those services, and then he receives the payment.' That would be an end-run around the prohibition on any type of emolument," said Painter.
The issue of whether a U.S. government official is violating the Emoluments Clause for services rendered actually does comes up in real life, says Ken Gross, a government ethics lawyer in Washington, D.C. Sometimes government officials go on a foreign detail or sabbatical and want to earn compensation for teaching at a government-funded university in that foreign country. In those cases, Gross said, U.S. government officials have had to forego pay to avoid violations of the clause.
Legal standing depends on how you articulate the injury. Here's one theory of injury: Trump is enriching himself at the expense of companies that can't compete for business the way the president of the United States can. So maybe a company that's lost business because of some financial transaction between Trump Organization and a foreign government could articulate a legal claim.
Or, the perceived harm could be more nebulous. Here's another theory: Trump is opening himself up to attempts by foreign governments that want to influence U.S. policy. But who would have standing to bring a legal claim in that case? Legal experts say it's not clear.
[T]he best option for Trump is to simply liquidate his stake in his company — that is, take the company public, sell off all his shares and put the cash proceeds in a blind trust. That way, if there are any entanglements between the Trump Organization and foreign countries — he'll be cleared of any conflicts.
But nobody's holding their breath for that to happen anytime soon.
Given Trump's documented history of shady business dealings and selling others down the river financially so as to benefit himself, it is, in my opinion, a pretty safe bet that Trump will put his personal finances ahead of the interest of the nation.  This is why a greed driven narcissist should never be elected to high political office.

No comments: