Emoluments: Trump’s coming ethics trouble

Richard W. Painter, Laurence H. Tribe, Norman L. Eisen, and Joshua Matz write: Last week, President-elect Donald Trump’s lawyers issued a brief, largely unnoticed memo defending Trump’s plan to “separate” himself from his businesses. We believe that memo arbitrarily limits itself to a small portion of the conflicts it purports to address, and even there, presents claims that depart from precedent and common sense. Trump can convince a lot of people of a lot of things—but neither he nor his lawyers can explain away the ethics train wreck that will soon crash into the Oval Office.

It’s been widely acknowledged that, when Trump swears the Oath of Office, he will stand in violation of the Constitution’s foreign-emoluments clause. The emoluments clause forbids any “Person holding any Office of Profit or Trust under [the United States]” from accepting any “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” (unless Congress explicitly consents).

By “emolument,” this provision means any benefit derived from dealing with a foreign government. It is well-settled that receipt of such emoluments is strictly prohibited for persons holding positions of trust with the U.S. government. A U.S. official need not also have an “office” with a foreign government in order to receive an emolument from it.

The Framers included this provision in the Constitution to guarantee that private entanglements with foreign states would not blur the loyalties of federal officials, above all the president. Yet that lesson seems lost on Trump, whose continued significant ownership stake in the Trump Organization forges an unbreakable bond between Trump and a global empire that will benefit or suffer in innumerable ways from its dealings with foreign governments. Trump’s actions in office will thus be haunted by the specter (and perhaps reality) of divided interests.

As we have argued, the only adequate solution to this and other conflicts of interest, taken by presidents of both parties for the past four decades, is divestiture into a truly blind trust or the equivalent. [Continue reading…]

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