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Trump’s Constitutional Stump: A Non-Partisan View of the Emoluments Clause of the Constitution

June 16th, 2017 by David Minces

Put down the boxing gloves, the Huffington Post article, and the TV remote and get ready for a no-nonsense explanation of the latest controversy surrounding America’s President. On Monday, June 12th, Maryland and the District of Columbia’s attorneys general filed a lawsuit on behalf of their states against President Trump. Within 24 hours almost 200 Congress members filed a nearly identical lawsuit with the same allegations against Mr. Trump. While almost everyone has an opinion on the current state of the nation’s political affairs, not many know the underlying basis of these lawsuits.

A clause built from custom

As far back as the 1300s foreign diplomats would visit different lands and when they did they would not arrive empty handed. Lavish gifts like gold, silver, and rare spices were given to hosting royalty and politicians for hundreds of years. The practice became a custom, and the custom was one the Founding Fathers did not want to have in their new country. The Articles of the Confederation, America’s first iteration of a constitution, had a provision to ensure that leaders could not be bribed by those bearing gifts. “[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State.” This concept has also permeated the private sector and is evident in many of the conflict of interest policies that are adopted by publicly-traded and even privately-held companies.

Easier said than done

Not accepting gifts was easier said than done. One of the first examples occurred when Benjamin Franklin was given a diamond encrusted box for tobacco by the King of France. Understandably, Franklin wanted to keep the box, and was eventually allowed to. As the Constitution was drafted, instances like Mr. Franklin’s were brought up and it did not seem like a similar provision would be adopted by the new law of the land. However, at the very end of the convention, Mr. Charles Pinckney described the importance of isolating American politicians from “external influence.” This argument resonated, and Mr. Pinckney’s plea became Article I, Section 9, Clause 8 of the Constitution of the United States of America, also known as the Emoluments Clause.

A few important details

While the Foreign Emoluments Clause drafted into the Constitution seemed identical to its predecessor, there were two details that changed its scope and proper application. The new provision read as follows: “[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], 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.”

The first change allowed for gifts to be accepted if the consent of Congress was obtained. Thus, a common practice under the Articles was codified. The second change narrowed the scope of those subject to the restriction. Thus, while the Articles’ version applied to the “Offices of profit or trust under the United States” and any state, the Constitution’s rendition applies only to “Offices of profit or trust under them [the United States].” This exempts state officials from the clause’s reach.

Why the clause is important

The Framers did not just want to prevent politicians from keeping really neat tobacco boxes. Rather, they enacted the clause to prevent corruption of our system from bribes and benefits by outside powers. While some believe political corruption will always be present, laws like these that provide isolation from outside influence can do their part in preserving democracy.

Well…what gift did Trump accept?

As far as we know, President Trump has yet to receive a golden iPad from the Prince of Denmark or a platinum putter from the Emir of Qatar. So what is all the fuss about? The problem, according to the attorneys general and 196 members of Congress, is that Mr. Trump continues to maintain control and/or ownership of very significant businesses that benefit directly and indirectly from foreign royalty.

One example: While in Washington, D.C., the Kuwaiti Embassy held an event at the Trump hotel, after a very public departure from the Four Seasons. The rooms, meals, and extras resulted in payment of more than a quarter of a million dollars to entities in which the President has an interest. Other examples: an Ambassador of Georgia dropped in for a stay in April, and diplomats from Turkey slept at the famed hotel in May. They paid for those stays, and President Trump was present to greet several foreign guests during their visits.

Is this another party-line fueled action or the real deal?

Many contend this issue is bigger than mere ideological differences. Thus, while press secretary Sean Spicer has predictably dismissed the action as a motivation of “partisan politics,” representatives from Maryland and D.C. argue that the lawsuit is necessary because Congress has failed to implement the required checks and balances on President Trump and has in turn given him a “total pass on his business entanglements.”

Like the Trump Grill’s tuna nicoise, Emolument Clause lawsuits are rare

Legal experts have been hesitant to predict the outcomes of these challenges as American politics have been exceedingly unpredictable in recent months. While early lawsuits against Trump that were similar in nature have failed, the acumen, resources and outright power of those initiating the recent lawsuits warrants pause, and it is not out of the question to think they may actually reach at least the discovery phase of litigation. Thus, while Emolument Clause actions are extremely rare, the outcome here is difficult to predict. For example, some experts are guessing this is what will finally allow the public to see Mr. Trump’s tax returns.

Stay tuned. Regardless of the outcome, these are historic times, and we are about to hear phrases such as “Framers’ intent” more than ever before. Whether you want it or not, you should brace yourself for a fusion of U.S. History and partisan politics that is almost as interesting as the Mar-a-Lago Club Sandwich at the Trump Grill.

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