Has The Emoluments Clause Ever Been Used? Donald Trump's Business Dealings Could Be Unconstitutional

NEW YORK, NY - NOVEMBER 22: President-elect Donald Trump walks through the lobby of the New York Times following a meeting with editors at the paper on November 22, 2016 in New York City. Trump, who has held meetings with media executives over the last few days, has often had a tense relationship with many mainstream media outlets. (Photo by Spencer Platt/Getty Images)
Source: Spencer Platt/Getty Images News/Getty Images

Donald Trump has only been the president-elect for a couple of weeks, but he is already facing the possibility of violating the U.S. Constitution when he takes office. More specifically, Trump's business empire may breach the Emoluments Clause of the Constitution, which states that government officials may not accept gifts of any kind from foreign states, kings, or princes:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

According to Vox, several scholars and lawyers report that Trump is on track to violate this restriction. As Richard Painter, George W. Bush's former ethics lawyer, explained to ThinkProgress: If Trump's business were ever to sell anything to a foreign government at a price exceeding "fair market value," for example, the payment could be considered a gift and therefore unconstitutional.

Earlier this week, NPR took a look at how Trump's international business dealings might violate the Emoluments Clause, and subsequently highlighted something very important. Previous presidents have gone to great lengths to avoid perceived violations of this restriction, but they also did not have Trump's massive business network to contend with. President Obama, for instance, decided to liquidate his assets and turn them into Treasury bills when he took office. The four presidents who preceded him placed their assets in a blind trust. This is the main option facing Trump right now — the path he once promised to pursue — but he does not seem nearly as concerned about the conflict of interest as those who came before him despite coming much closer to a potential breach of the Emoluments Clause than his predecessors.

Even if Trump follows through and places his company in a blind trust, he has said that his three oldest children would run it, which makes it quite impossible to maintain a blind trust. This is especially true given that it's still unclear what role his children will play in his administration. But there's also something else at play that could contribute to a constitutional violation. Given the public visibility of the Trump brand, the president-elect would have minimal difficulty determining whether or not foreign governments are helping his company.

Indeed, the possibility that foreign governments would attempt to curry favor with Trump by supporting his businesses is becoming more likely. Last week, The Washington Post reported that a number of foreign diplomats had gathered at the Trump International Hotel to hear a sales pitch. The Post then quoted one diplomat from an Asian country as saying, “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’ ”

For now, the most we can probably expect once Trump assumes the presidency are some lawsuits on the grounds of a constitutional violation, but New York Magazine's Eric Levitz recently pointed out that the Emoluments Clause is not a particularly effective way to get Trump booted from the White House. For one thing, Levitz reminds readers that presidents are exempt from conflict-of-interest laws, so whoever pursues legal action against a President Trump would have to prove that the clause was meant to apply to the president, rather than just appointed officials. This could be difficult, given that George Washington himself appears to have accepted foreign gifts. What's more, Paul Ryan does not seem as though he is poised to lead impeachment proceedings against Trump, which means the Democrats would have to take Congress back in 2018 to ensure any real change. 

There is not much precedence for what we are seeing with Trump, but while he is certainly running the risk of violating the Emoluments Clause, it also seems less and less likely that he will face the appropriate consequences for doing so. 

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