In the summer of 2017, however, the relocation plan was canceled; in February 2018, it was announced that FBI headquarters would remain at the site, though the building would still be taken down. According to news website Axios, “[f]or months [in 2018], in meetings with White House officials and the Senate, [a House Appropriations subcommittee] intended to discuss big-picture spending priorities, [but] the president rants about the graceless” FBI building. In late August, the GSA’s inspector general issued a report indicating that a GSA official had delivered incomplete and possibly misleading testimony to Congress about the involvement of the president and the White House in the project but had also refused to answer any questions from the internal investigators about those meetings. If the federal government’s decision regarding the FBI building were intended to help President Trump’s DC Hotel, that could violate the emoluments clause. It might also be an abuse of power for the president to interfere with federal building plans in order to benefit his personal business interests.
The Emoluments Lawsuits Against President Trump
President Trump’s lawyers have spent considerable time in court and in legal briefs arguing that commercial transactions with foreign governments are not emoluments. The arguments not only defy common sense, but make light of the acute understanding of human nature that our Founders had: commercial transactions build ties of loyalty and gratitude. Our president should have only one loyalty: to the American people. He should not be flattered or influenced by foreign governments that spend money on him, whether at his hotels or by giving him gold medals. Centuries of presidential and official practice, the meaning of the emoluments clauses, and American history demonstrate that the president is violating the Constitution.
Three days after President Trump was sworn into office, he was sued for violating the emoluments clauses. Since then, two additional major lawsuits have been brought. Each has faced a different fate in court.
Citizens for Responsibility and Ethics in Washington v. Donald Trump was filed on January 23, 2017, in New York. Claiming violation of both emoluments clauses, the plaintiffs—collectively referred to by the acronym CREW—spoke both to the clauses’ history and to their current relevance:
As the Framers were aware, private financial interests can subtly sway even the most virtuous leaders, and entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic. The Foreign Emoluments Clause was forged of the Framers’ hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance.
CREW was joined in succeeding months by a number of plaintiffs claiming that their businesses face unfair competition from Trump properties, and amicus briefs were filed by legal historians, members of Congress, and national security officials. On December 21, 2017, a New York federal district court dismissed the lawsuit, stating that the plaintiffs did not have standing—that is, were not able to demonstrate a clear injury to themselves as a result of the defendant’s actions. The concept of standing, in effect, prohibits theoretical disputes between parties. CREW is appealing the decision.
The District of Columbia and the State of Maryland v. Donald Trump was filed on June 12, 2017, in Maryland. It was brought by the attorneys general of both states. They alleged:
President Trump’s continued ownership interest in a global business empire, which renders him deeply enmeshed with a legion of foreign and domestic government actors, violates the Constitution and calls into question the rule of law and the integrity of the country’s political system. … [I]rrespective of whether such benefits affect the President’s decision-making or shift his foreign or domestic policy, uncertainty about whether the President is acting in the best interests of the American people, or rather for his own ends or personal enrichment, inflicts lasting harm on our democracy.
As discussed elsewhere in this chapter, the district court allowed the lawsuit to proceed, holding that the plaintiffs had standing and that they had made a legal case that the payments by foreign governments at the Trump hotel in DC are emoluments.
Blumenthal v. Donald Trump was filed on June 15, 2017, in Washington, DC. It was brought by Senator Richard Blumenthal of Connecticut and 194 other senators and representatives. They alleged:
Because the Foreign Emoluments Clause requires the President to obtain “the Consent of the Congress” before accepting otherwise prohibited “Emolument[s],” Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President accepts any such “Emolument.…”
Because Defendant has failed to come to Congress and seek its consent for at least some foreign emoluments that have been the subject of public reporting, it is impossible to know whether Defendant has also accepted, or plans to accept, other foreign emoluments that have not yet been made public. By accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has thwarted the transparency that the “Consent of the Congress” provision was designed to provide.
The president filed a motion to dismiss the suit, which the district court rejected, deciding that the senator and his colleagues had the standing to bring it.
In each of these cases, the Department of Justice has represented President Trump. He has also hired private attorneys to represent him. The Justice Department lawyers are involved in the matter for one simple reason: they are obliged to defend presidents against lawsuits when they are sued in their official capacity. They are taking the president’s side against Congress because it is their job to do so.
The lawsuit that has proceeded furthest is The District of Columbia and the State of Maryland v. Donald Trump. Consequently, the filings by President Trump’s Department of Justice lawyers are the best explanation we have of why he thinks he is not violating the emoluments clauses.
According to his filings, “the Emoluments Clauses only prohibit the receipt of compensation for services rendered by an official in an official capacity or in an employment (or equivalent) relationship with a foreign government, and the receipt of honors and gifts by an officeholder from a foreign government.”
In short, President Trump believes he would violate the emoluments clauses only if he accepted money from a foreign government in a direct exchange for an official act as president (in other words, a bribe)—or if he were employed by a foreign government, a point that is not relevant here. By that standard, a foreign government could chose to rent out the Trump International Hotel ballroom for $1 million, take out an ad in the Washington Post advertising the event, and pay President Trump to make a personal speech there—and yet it would not trigger the foreign emoluments clause. Why? Because the clause “does not reach benefits arising from commercial transactions engaged in by businesses in which the President has a financial interest,” the president’s legal brief asserted.
President Trump’s flawed argument can be boiled down to two simple points.
First, only outright bribery—the most egregious and offensive corruption—is prohibited by the clauses. His brief notes, “[f]or example, a federal official would receive an emolument if he or she was paid by a foreign government to take certain official actions.” The president claimed that nothing more can be construed as an emolument.
This argument, which flies in the face of the historical record and makes a mockery of a key provision in the Constitution, simply cannot be taken seriously. As the court noted in rejecting it, the president’s position “is tantamount to defining the transaction [that is, an emolument] as nothing less than one of federal bribery.” But think of it. The foreign emoluments clause allows Congress to approve a foreign emolument or not approve it. So, if an emolument is basically a bribe, the president wants us to believe that the Constitution allows a federal official, in effect, to be bribed as long as Congress okays it. That is patently absurd.
The pre
sident’s second argument is that his commercial enterprises are complicated—too complicated for him to try to comply with the Constitution and too complicated for a court to deal with. His brief complains: “Plaintiffs challenge everything from a single diplomat’s payment for hospitality services to any trademarks, permits, licenses, and approvals that may be granted by foreign governments in connection with the commercial activities of the President’s business organization in numerous countries.”
While the brief is right—the plaintiffs do raise concerns about many transactions because all of them are potentially emoluments—this line of reasoning from the president is simply not credible. He is a sophisticated businessman. He presumably has created compliance systems at his numerous properties and businesses dealing with global labor, banking, construction, and environmental regulations, to name a few. He has managed to create a business with more than five hundred separate operating legal entities. He runs complex hotel systems that can itemize every customer transaction from the moment of reservation to the moment that peanuts are taken out of a minibar. Does he really expect us to believe that he can’t build a system that will comply with the Constitution?
The district court in Maryland rejected the president’s position. It held “that the term ‘emolument’ in both Clauses extends to any profit, gain, or advantage [emphasis mine] of more than de minimis value, received by him, directly or indirectly, from foreign, the federal, or domestic governments. This includes profits from private transactions, even those involving services given at fair market value.”
Recently, another federal official, besides President Trump, failed to take the foreign emoluments clause seriously. For more than a decade, Guam’s delegate to the House of Representatives, Madeleine Z. Bordallo, has been renting a home in Guam to the Japanese consul. In June 2017, the Office of Congressional Ethics voted to refer her for investigation for violating House ethics rules. (Bordallo is a nonvoting member of the House of Representatives). While admittedly applying to members of Congress and not a president, the House Ethics Manual addresses emoluments. Defining an emolument as any “profit, gain, or compensation for services rendered,” the manual stipulates: “Members and employees may not therefore receive any payment for services rendered to official foreign interests, such as ambassadors, embassies, or agencies of a foreign government.”
In the almost 230 years since the Constitution was adopted, numerous presidents, members of Congress, and others holding high federal office all have made meticulous efforts to check whether they are complying with the emoluments clauses and have made necessary business arrangements to avoid violating them.
The emoluments clauses are not abstract or obscure provisions, even though they are not widely known by the public at large. Before President Trump, American presidents and high-ranking federal officials took the provisions seriously.
In 1840, when the sultan of Oman sent President Martin Van Buren two Arabian horses, a rug, a sword, pearls, and a shawl, he declined them. The president, the secretary of state, and the consul based in Oman all persistently tried to turn down the valuable goods. They spent almost a year trying to avoid taking an emolument. The president wrote to the sultan that “a fundamental law of the Republic” barred such presents. After it was clear that something had to be done with the items, Van Buren wrote to Congress and asked permission to accept them: “I deem it my duty to lay the proposition before Congress for such disposition as they may think fit to make of it.”
A few years later, President John Tyler was given two horses from the sultan of Oman, then called Muscat and Oman. As with his predecessor, he followed the rules laid out by the Constitution and reported the gifts to Congress. Congress directed him to auction off the horses and give the proceeds to the Treasury.
Less than twenty years later, President Abraham Lincoln notified Congress when the king of Siam sent him a sword, two elephant tusks, and some pictures. Congress directed him to consign the items to the Interior Department.
President Benjamin Harrison asked Congress about medals presented to him by Brazil and Spain. Congress authorized him to keep them in 1896.
In 1981, President Ronald Reagan was concerned that accepting his pension from the State of California might violate the domestic emoluments clause. He sought guidance from the Department of Justice and the comptroller general, who heads the Government Accountability Office, an arm of Congress. They both concluded that it was not an emolument, since the pension was a “vested right” rather than a “gratuity which the State is free to withdraw.” The distinction was important because there was no risk that the state might use the financial relationship for influence, and there was no possibility that President Reagan would feel any sense of dependency on the state.
In 2009, when President Barack Obama was due to accept the Nobel Peace Prize and its award money, he sought guidance from the Department of Justice, as well. It concluded, as we have seen, that the prize was not an emolument because the money did not come from a foreign government.
The Impeachability of President Trump’s Alleged Emoluments Violations
Under normal circumstances, accepting a single small emolument might not warrant impeachment. But President Trump appears to have received multiple emoluments, has made an effort to cover them up, and has even seemed actively to seek and revel in emoluments. He has crafted a patently absurd justification for accepting them that shows contempt for constitutional restrictions on being influenced by business opportunities and profiting from office. Given the frequency and scale of the emoluments, and his refusal to seek the congressional approval for foreign emoluments that is constitutionally mandated before accepting them, his actions should be viewed as a systematic attempt to subvert the Constitution.
President Trump had many options for dealing with the emoluments he receives. He could have divested. He could have sold his businesses. He could have created an accounting and billing system to avoid accepting payments from foreign governments. He could have asked Congress for permission under the foreign emoluments clause, which requires congressional approval before an emolument may be received. By requiring approval, the Founders sought to ensure transparency and honesty about potential monetary entanglements between officeholders and foreign governments, and to permit a neutral evaluation of the potential impact. And does anyone doubt that a Congress controlled by members of his party would have allowed him to accept appropriate commercial foreign emoluments? Had he chosen simply to ask for permission as laid out in the Constitution, and received it, there would be no question of impeachment.
He is currently the defendant in three lawsuits attempting to hold him to account for violating the clauses, and the General Services Administration inspector general is still investigating whether the agency’s decision to allow him to maintain the lease of the Trump International Hotel in Washington was properly made. American taxpayers are footing the bill for at least ten government lawyers and support staff arguing in support of his private business interests.
We do not know whether President Trump is aware of each individual emolument he has received. But he does not need to be for impeachment. He is well aware of the constitutional mandate and has orchestrated a full-scale battle against it, involving lawsuits, feeble proposed workarounds (donating estimated profits to the Treasury), and meaningless solutions (a trust he can revoke at any time).
This behavior:
reveals a disrespect for a core constitutional provision designed to prevent corruption or its appearance in the presidency;
has a corrosive effect on public confidence in the integrity of the decisions made by President Trump and his administration; and
opens American foreign policy up to the scorn of nations, many of which have come to believe that presidential policy decisions can be obtained by offering business deals or other monetary benefits to the president.
For these reasons, President Trump’s many and constant apparent violations of the emoluments clauses shou
ld be seen as likely high crimes and misdemeanors.
Our Founders certainly would have thought so. During the Constitutional Convention in Philadelphia, Gouverneur Morris—no friend of the impeachment clause—explained why he had changed his mind and come to support it. He feared the president “may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard agst. it by displacing him.”
During the Virginia ratification debates, George Mason, the framer most responsible for the impeachment clause as it was finally drafted, warned that “the great powers of Europe” might corrupt the president the way Russia had corrupted Poland. “Will not the great powers of Europe, as France and Great Britain, be interested in having a friend in the President of the United States?” Mason asked. “It is not many years ago—since the revolution—that a foreign power offered emoluments to persons holding offices under our government. It will, moreover, be difficult to know whether he receives emoluments from foreign powers or not,” he continued.
“There is [a] provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers,” future attorney general Edmund Randolph answered. “If discovered, he may be impeached.”
We know that the framers intended the remedy of impeachment for violations of the emoluments clauses. Given the evidence of President Trump’s systematic and ongoing receipt of emoluments, both domestic and foreign, and the danger it creates for the United States, the case for an inquiry into whether the president should be impeached is clear-cut.
6
Other Possibly Impeachable Acts
The preceding chapters regarding election interference, obstruction of justice, and emoluments represent what I consider the three strongest potential grounds for impeaching President Trump. Three other possibilities for impeachment have been raised:
The Case for Impeaching Trump Page 13