By then we may already have addressed the issue.
On Tuesday, The Washington Post reported on a detail from a defamation lawsuit filed by Melania Trump against the Daily Mail. The lawsuit alleges that Trump was harmed by an untrue report that she’d once worked as an escort. That harm extends beyond the damage to her reputation directly, Trump’s attorneys argue. It also harmed her ability to “launch a broad-based commercial brand” that could have resulted in multiple “multi-million dollar business relationships for a multi-year term during which [Trump] is one of the most photographed women in the world.”
That argument was filed this month. In other words, her attorneys are arguing that Trump’s ability to, say, partner with fashion brands to promote their products while going about her business as first lady was damaged, to her economic detriment.
After that initial report, representatives for Trump told The Post that she “has no intention” of profiting from her new position and that “any statements to the contrary are being misinterpreted.” As the Associated Press noted, though, Trump is still listed as the chief executive of Melania Marks Accessories Member Corp. and an affiliated limited-liability company, which manage royalties from sales of accessories she markets.
When the White House website was updated with information about its new tenants, Trump’s biography on the site mentioned her jewelry line specifically. “Melania is also a successful entrepreneur,” it read. “In April 2010, Melania Trump launched her own jewelry collection, ‘Melania™ Timepieces & Jewelry,’ on QVC.” After this was reported, that line was removed.
The broader question here is the Kardashian one. It’s clearly unusual to have a first lady who might figure out a side hustle while holding that position, and it’s clear that there are ethical questions as well. But are there any legal prohibitions from her doing so?
Laurence Tribe, professor of constitutional law at Harvard University, answered that question by email.
“If official White House functions are used to make money, whether through photographs at official events or through using the White House logo or image for advertising or in some other commercial way,” he said, “that risks violation of the Foreign Emoluments Clause of Article I and the Domestic Emoluments Clause of Article II.” These are the now-famous clauses of the Constitution prohibiting those holding public office from receiving compensation or gifts from foreign parties or the states.
Why would Melania Trump, a nonofficial, risk violating a prohibition established for public officials? “Unless strict limits are placed on all members of the First Family who might try to use President Trump’s public office for private gain,” Tribe explained, “the President himself will invariably share in the resulting gain.” The interplay of Trump’s family and his business — still murky, thanks to Trump’s reticence to open up his books — puts Trump at risk of violating the emoluments clause even when actions are taken by others.
Tribe noted that cracking down on Melania Trump might not be a political winner — it could “seem petty or partisan or cruel” — but that “the Constitution cannot give way to tact when something as basic as the Emoluments Clauses is at stake.”
Jordan Libowitz, communications director for Citizens for Responsibility and Ethics in Washington, called the prospect of Brand Melania “kind of unprecedented.”
“We haven’t really seen this before where a first lady tried to use her position for her personal benefit,” he said. “Obviously being a head of state is a position of significant prominence, that’s no question, but every other president has come from a background of public service, so we’ve never had to deal with issues like the first lady trying to monetize her position” — at least not while serving as first lady.
In an interview with the AP, former Barack Obama ethics counsel Norm Eisen put it another way.
“The Trumps are using the White House like the Kardashians used reality TV,” he said, “to build and vastly expand their overall business enterprises.”
Just wait until 2020.