But if the public has grown wearily conditioned to expect Trump’s use of the government as an instrument of self-enrichment, we should also remember that the framers of the U.S. Constitution foresaw the potential for this kind of abuse of public office for private gain and did everything in their power to prevent it.
Alexander Hamilton, in the Federalist No. 72, warned that a day might come when a president treated the government as a get-rich-quick opportunity: “An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted.”
The framers wrote the foreign emoluments clause — the original and true “America First” policy — in Article I, Section 9, Clause 8 of the Constitution, to prevent the president and other federal officials from accepting, without congressional consent, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And they wrote the domestic emoluments clause in Article II, Section 1, Clause 7, which authorizes a fixed presidential salary that may be neither increased nor reduced by Congress during a president’s term, and which specifies that the president “shall not receive within that Period any other Emolument from the United States, or any of them.”
A G-7 summit at Trump Doral would violate both clauses, as it would mean huge payments to a Trump resort from both foreign government guests attending and participating federal agencies.
Trump’s ongoing use of the presidency as a for-profit enterprise contrasts sharply with the understanding of his predecessors. Take, for example, one of Trump’s heroes, President Andrew Jackson, one model for Trump’s vindictive brand of nationalism. When the government of Colombia presented Jackson with a ceremonial gold medallion, he described the gift as “most gratifying,” but understood that he could not keep it without congressional consent and promptly turned it over to Congress, which directed him to deposit it with the State Department.
In 1840, President Martin Van Buren reported a gift from the imam of Muscat (later Oman) of two Arabian horses and saddles, four cashmere shawls, a case of rose oil, a Persian carpet and a box of pearls; Congress made him deposit these objects with the National Institute Gallery and sell the horses. President Abraham Lincoln took care to disclose gifts of two elephant tusks and a sword from the king of Siam (later Thailand), which Congress directed him to deposit with the Interior Department.
These presidents joined all the others in internalizing the basic logic of the foreign emoluments clause: that in a nation that fought a revolution to break free of foreign domination by monarchical power, and whose Constitution commits us to the sovereignty of “We the People,” our elected officials are prohibited from pocketing payments, big or small, of any kind, from foreign rulers seeking political influence and leverage with our government.
It is only Trump — the president who dusted off “America First,” the mantra of anti-Semites and isolationists in the 20th century, and redeployed it for immigrant-bashing and impetuous trade wars in the 21st — who refuses to accept the honest-to-goodness America-first policy spelled out in our Constitution by American revolutionaries in the 18th. He has reaped hundreds of thousands, if not millions, from foreign governments patronizing his properties. Yet he has never asked for Congress’s consent for any of it, as the Constitution requires.
The framers wanted to guarantee that the president would conduct government business with undivided loyalty to the American people and only in pursuit of the national good. And it is Congress’s prerogative to decide that a particular gift or payment poses no threat of corruption, and to allow it. (If Danish Prime Minister Mette Frederiksen sent Trump a book about the history of Greenland, I might be persuaded to vote to let him keep it.) But that choice, in all cases, belongs to the representatives of the people, not the president — as James Madison insisted in the Federalist No. 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
Since taking office, Trump has continuously pocketed large sums of money, not mere trinkets, including from foreign states and monarchs. Ever since his inauguration, when he chose not to divest himself of his business interests and the Trump Organization hired a “director of diplomatic sales” to recruit foreign government contracts for its hotels, dignitaries have been spending freely at Trump properties. Foreign governments have also handed out lucrative regulatory benefits to Trump business entities abroad. In 2017, the Associated Press reported that the Chinese government “granted preliminary approval for 38 new Trump trademarks” shortly after Trump was inaugurated.
According to one report, when an organization linked to Saudi Arabian lobbying interests spent about $270,000 at the Trump hotel in Washington early in his administration, Trump didn’t report it. In 2018, a delegation accompanying Saudi Crown Prince Mohammed bin Salman stayed at the Trump International Hotel in New York City, and the hotel’s quarterly revenue got a sudden boost. There’s no official accounting of these payments, but Trump’s 2015 campaign remark is instructive: “Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40 million, $50 million. Am I supposed to dislike them?”
Given human nature, I doubt Hamilton would have been surprised at all by Trump’s subsequent determination to aggressively resist the U.S. intelligence community’s finding, and all the supporting evidence, that Salman was almost certainly involved in the brutal assassination of Washington Post journalist Jamal Khashoggi.
Paradoxically, it’s almost certain that Trump knows he’s violating the Constitution because he has essentially admitted it. He gave away the game when the Trump Organization sent checks this year and last, totaling about $343,000, to disgorge what are described as profits from foreign government spending at Trump hotels.
He clearly seeks our absolution in return for this honor-system emolument rebate to the government, but it all amounts to sleight of hand: The Constitution doesn’t prevent the president only from taking profits from foreign government payments, it prevents him from taking any foreign government payments unless he obtains Congress’s consent first. He has not obtained congressional permission to keep either the net profits or the gross proceeds collected from various governments that have paid for Trump hotel stays and thrown parties at his clubs and restaurants. Nor has he accounted for what he has received and from whom, an act of omission that advertises his contempt for Congress and keeps us in the dark about the extent of his moneymaking while he’s clocked in as president. As Reuters recently reported, “The governments of Iraq, Kuwait, Malaysia, Saudi Arabia, Slovakia, Thailand and the European Union got the green light” from the State Department “to rent a combined eight units in Trump World Tower and followed through with leases” without congressional approval.
The president’s lawyers say the emoluments clause applies only to gifts or compensation in exchange for official acts, not to private business transactions, arguing that the clause “is not a blanket prohibition on commercial transactions with foreign governments by businesses in which the official has a financial interest.” But this pinched interpretation clashes with the text of the Constitution, executive branch norms and judicial analysis. In a 1993 opinion, the Justice Department’s Office of Legal Counsel emphasized that “the language of the emoluments clause is both sweeping and unqualified,” and cited a 1970 Government Accountability Office decision that stated that the Constitution’s drafters “intended the prohibition” on accepting emoluments “to have the broadest possible scope and applicability.” In an April opinion, Federal Judge Emmet G. Sullivan analyzed the “text, structure, adoption, historical interpretation, and purpose of the Clause, as well as Executive Branch practice,” and rejected the claim that it does not apply to business payments to the president.
The issue, in any event, is the president’s appalling self-dealing. And it is Congress, which has ultimate authority over emoluments, and which must act to redeem and restore the constitutional design. The framers sought to sweep away the corruption inherent in monarchy and feudalism, systems of personal privilege for the few and inequality for the many. The same section of Article I containing the foreign emoluments clause provides that the United States shall grant “No Title of Nobility.” We have no royals here, and our elected officials must always remain the faithful servants of the people, not the agents of tyrants from nations still hungry for their own democratic revolutions; nor should elected officials, including and especially the president, use their position to line their own pockets with foreign tribute or taxpayer money. The framers gave us the America-first policy we need. Trump is shredding it.