We have had smart presidents and dim ones, effective ones and incompetents, successful ones and unaccomplished ones. Until now, we have never had one for whom it was legitimate to question at the onset of his presidency whether he could fulfill his oath to “preserve, protect and defend the Constitution of the United States.”
As things stand now, President-elect Donald Trump has suggested he will not divest himself of a myriad of businesses around the globe that pose serious conflicts of interest, nor will he liquidate even foreign holdings, the proceeds of which would put him in violation of the emoluments clause of the Constitution.
In an academically sound and federal court brief quality paper, Norman Eisen, Richard Painter and Laurence Tribe conclude:
Careful review of the Emoluments Clause shows that the Clause unquestionably applies to the President of the United States; that it covers an exceptionally broad and diverse range of remunerative relationships (including fair market value transactions that confer profit on a federal officeholder); and that it reaches payments and emoluments from foreign states (including state-owned and state-controlled corporations).
In the context of Trump, they cite multiple sources of foreign revenue that on their face would, the moment Trump is inaugurated, put him in violation of the Constitution. They enumerate multiple instances in which he already improperly blurred private and public conduct. (For example: “Most troubling, Ivanka has participated in several meetings between Mr. Trump and foreign heads of state, including those from Turkey, Argentina, and Japan. Ivanka’s presence at Mr. Trump’s meeting with Prime Minister Shinzo Abe of Japan is especially striking, since Ivanka is currently in talks with Sanei International (whose largest shareholder is wholly owned by the Japanese government) to close a major and highly lucrative licensing deal.”) They then list multiple holdings that would provide prohibited revenue. (For example: “Trump International Hotel, a major new project in Washington, D.C. and a new hot spot for foreign diplomats”; “the Industrial and Commercial Bank of China—owned by the People’s Republic of China—is the single largest tenant in Trump Tower”; “even as debates rage over American/Russian relations and Russian cyberattacks on U.S. interests and even on the recent presidential election, it has been reported that Russian financiers play a significant (albeit concealed) role in Mr. Trump’s organization.”)
Trump’s refusal to release his tax returns means this may underestimate the extent of the problem:
These examples are but the tip of an iceberg of unknowable dimension. They suggest the remarkably wide range of situations in which a foreign power could seek to confer a benefit on Mr. Trump through his private interests. Wholly apart from any actual quid pro quo arrangements or demonstrable bribes or payoffs, the Emoluments Clause will be violated whenever a foreign diplomat stays in a Trump hotel or hosts a reception in one; whenever foreign-owned banks offer loans to Mr. Trump’s businesses or pay rent for office space in his buildings; whenever projects are jump-started or expedited or licensed or otherwise advantaged because Mr. Trump is associated with them; whenever foreign prosecutors and regulators treat a Trump entity favorably; and whenever the Trump Organization makes a profit on a business transaction with any foreign state or foreign owned entity.
Trump cannot solve this problem and thereby comply with the Constitution by letting his children (who have already improperly mixed business and government) run the businesses. “If Mr. Trump retains an ownership interest in the Trump Organization, then his personal bottom line is necessarily affected by everything that the business does, whether or not the decisions of that business are directed by, or even known to, Mr. Trump personally,” the authors write. “For purposes of the Emoluments Clause, it would be totally irrelevant that someone else may be calling the day-to-day shots, since everyone (including Mr. Trump) would know that the manner in which foreign powers interacted with the Trump Organization invariably affected Mr. Trump’s worth.”
What are potential solutions? The authors assert with great merit that “the Electoral College would be justified in concluding that he is unqualified for the Office of the Presidency.” That, however, will not occur Monday; he will become the next president. Alternatively, “if Mr. Trump enters office in what would obviously constitute a knowing and indeed intentional violation of the Emoluments Clause and then declines to cure that violation during his tenure, Congress would be well within its rights to impeach him for engaging in ‘high crimes and misdemeanors.’ ” And finally, Congress can act:
Invoking its powers and responsibilities under the Necessary & Proper Clause, the “Consent of Congress” language in the Emoluments Clause, and various Article I provisions relating to commerce, foreign affairs, and national security—might pass legislation imposing restrictions on continued presidential involvement in or ownership of businesses and assets that may receive foreign payments or emoluments. Indeed, on December 15, 2016, five Democratic Senators unveiled a bill that would require Mr. Trump to divest assets that risk of a conflict of interest—and to place the proceeds in a truly blind trust (among other ethics measures). Such legislation is plainly constitutional, and represents a proper and praiseworthy exercise of Congress’s oversight function.
Democrats should confront their colleagues with a choice: Sign onto the bill to require divestment or join Democrats in demanding Trump rectify his constitutional violation forthwith by other means (e.g., withhold confirmation of any Cabinet nominees until Trump divests). If not, Democrats in the House should be prepared, yes, to file articles of impeachment and let the voters decide in 2018 if they want a president who won’t follow the Constitution and won’t put country above his family fortune.