In the case of President Trump, his conduct regarding foreign monies and benefits is egregious, widespread and worsening. Senior fellow in the Democracy and Rule of Law program at the Carnegie Endowment for International Peace Sarah “Chayes, a former adviser to Chairman of the Joint Chiefs of Staff Admiral Mike Mullen, argues that emoluments clause violations can be much broader than just infrastructure improvements and include benefits such as donated public land, approved permits and eased regulations, which is occurring in every country Trump has a development,” McClatchy noted. “Trump, for example, applied for new trademarks for a variety of businesses from hotels to apparel in China in June 2016 when he was a presidential candidate. They were granted in the weeks after he became president.”
More than a year ago, Norman Eisen, Richard Painter and Laurence Tribe warned about precisely this problem in a detailed paper for the Brookings Institution on the emoluments clause:
Never in American history has a president-elect presented more conflict of interest questions and foreign entanglements than Donald Trump. Given the vast and global scope of Trump’s business interests, many of which remain shrouded in secrecy, we cannot predict the full gamut of legal and constitutional challenges that lie ahead. But one violation, of constitutional magnitude, will run from the instant that Mr. Trump swears he will “faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”1 While holding office, Mr. Trump will receive—by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities—a steady stream of monetary and other benefits from foreign powers and their agents. . . .The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents. Especially given Mr. Trump’s strong personal attachment to his business, it is easy to imagine situations in which he is affected—whether subtly or overtly—by perceptions of whether foreign nations have dealt fairly with the company that he built and still owns. In those circumstances, feelings of gratitude, affection, frustration, and anger inevitably bleed out in complex and hard-to-discern ways, muddling motives in respects that elude conscious awareness or public accountability. Foreign states, attuned to that basic truth of human psychology, will no doubt tread carefully around Mr. Trump’s private interests—seeking to avoid his wrath and induce his favor. The Emoluments Clause was put in place to avoid precisely that blending of public and private interest.
They strongly urged Trump and his children “to divest themselves of all ownership interests in the Trump business empire. That divestment process must be run by an independent third party, who can then turn the resulting assets over to a true blind trust. Even if, as some experts believe, there is nothing that Mr. Trump could do to avoid the significant tax consequences of divesting, fidelity to the Constitution, and to American foreign policy and national security interests, manifestly overcomes all such loss to Mr. Trump or his immediate family . . . That is the design of the Constitution, to which Mr. Trump is always subject.”
Trump’s failure to divest fully at the onset of his presidency and the fundamental failure of the GOP to enforce this basic constitutional protection against foreign corruption now hangs over the presidency and Congress — precisely as the Brookings authors predicted. Each day Trump benefits directly or indirectly by virtue of foreign largess he reduces the administration to the status of banana republic and makes a mockery of our efforts to expose corruption in foreign autocracies and international institutions.
There is no more vivid example of the GOP’s failure to uphold our constitutional system of checks and balances. The Constitution delegates to Congress the power to approve or disapprove of foreign emoluments. The GOP-controlled Congress has done nothing. For this reason alone, Republicans have lost the moral and political legitimacy to govern. Democrats should put to the voters a simple proposition in 2018: Do you want foreign corruption of our democracy to continue? Republican lawmakers have already given their answer.
Absent direct evidence of bribery or success of one of the emoluments clause lawsuits (a case brought by members of Congress might be the most viable) nothing short of a new Congress can put a stop to the egregious pattern of foreign-influence peddling. Only then, with the simple action of refusing to approve the receipt of foreign emoluments can Congress force the president to make a decision he should have made a year ago: Does he want to keep his companies or his presidency? He cannot be allowed to do both.