Constitutional clause may put Donald Trump at risk

Credit: Gage Skidmore

President-elect Donald Trump has a constitutional problem and it's bad for business.

An obscure clause in the Constitution, one you probably never heard of, could be a death knell for Donald Trump the businessman, as he takes the office of the President.

The so-called "emoluments clause" basically prohibits federal officials from doing business with or accepting gifts from foreign governments without congressional approval.

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Here's the wording of Article I, Section 9 of the Constitution:

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.

There's logic behind the clause: It plain and simply protects government from being influenced by other governments. In Federalist No. 22, Alexander Hamilton stated, "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."

Emolument in this context means profiting from public office. And Donald Trump, who has business dealing across the globe, stands to be put under scrutiny under this clause, which is why many have advocated for him to liquidate all his business positions.

This from an editorial in the notably conservative and Rupert Murdoch-owned Wall Street Journal:

“One reason 60 million voters elected Donald Trump is because he promised to change Washington’s culture of self-dealing, and if he wants to succeed he’s going to have to make a sacrifice and lead by example.

If Mr. Trump doesn’t liquidate, he will be accused of a pecuniary motive any time he takes a policy position. Mixing money and politics could undermine his pledge to ‘drain the swamp’ In Washington.”

It's already started. Last week, Trump reportedly met with three Indian business partners who are building a Trump-branded luxury apartment complex south of Mumbai.

Here's Twitter proof of the meeting:

Trump also just opened his lavish hotel in Washington, D.C., which recently hosted some 100 foreign diplomats, who "sipped on Trump-branded champagne, dined on sliders and heard a sales pitch about the U.S. president-elect’s newest hotel," The Washington Post wrote.

On Trump.com, nine international properties are listed under real estate portfolio, while two international hotels are listed, with two more coming soon.

Richard Painter, the former chief White House ethics lawyer for President George W. Bush, has been making the rounds on cable TV excoriating Trump and making it clear he believes Trump's businesses and assets create a conflict of interest. Regarding the news of the diplomats visiting Trump's D.C. hotels, Painter said it created a sure conflict.

In The Washington Post story, one unnamed Asian diplomat was quoted thusly: "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!'"

Painter told ThinkProgress that this could constitute a gift.


Back in June, Mother Jones had a story that put Trump's foreign assets and debts under the microscope. Here's a snippet:

"Donald Trump notes he has billions of dollars in assets. But the presumptive GOP nominee also has a tremendous load of debt that includes five loans each over $50 million. (The disclosure form, which presidential candidates must submit, does not compel candidates to reveal the specific amount of any loans that exceed $50 million, and Trump has chosen not to provide details.) Two of those megaloans are held by Deutsche Bank, which is based in Germany but has US subsidiaries. And this prompts a question that no other major American presidential candidate has had to face: What are the implications of the chief executive of the US government being in hock for $100 million (or more) to a foreign entity that has tried to evade laws aimed at curtailing risky financial shenanigans, that was recently caught manipulating markets around the world, and that attempts to influence the US government?"

Said Painter in the story:

There have been wealthy presidents and vice presidents, Painter notes, pointing to John Kennedy, Franklin Roosevelt, and Nelson Rockefeller, but none were as heavily leveraged as Trump. "They had large assets and usually diversified assets. They weren't in a situation where someone could put pressure on them to do what they want," Painter remarks. "Whereas having a president who owes a lot of money to banks, particularly when it's on negotiable terms—it puts them at the mercy of the banks and the banks are at the mercy of regulators." Painter adds: "In real estate, the prevailing business model is to own a lot but also owe a lot, and that is a potentially very troublesome business model for someone in public office."

Team Trump has stayed relatively quiet. Reince Priebus, Donald Trump's incoming chief of staff, has said that White House counsel "will be tasked with making sure there are no conflicts of interest with the real estate mogul's business empire."

The instrument of setting up a blind trust, a financial arrangement in which a person in public office gives the administration of private business interests to an independent trust in order to prevent conflict of interest, has been floated. Trump has mentioned that he'd be agreeable to a blind trust, but that he'd relinquish his business to his children, who could also have some government clearance, which would make the trust far from blind.

How Trump handles the office of President and his business office is still anyone's guess, but one thing is certain: No one, not even the man or woman holding the highest public office in the U.S., is above the Constitution.

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