Is White House vs. Trump Tower really a Constitutional conflict?
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These days, you can’t open a newspaper, watch TV or surf the web without confronting four syllables strung together to form one long, somewhat unfamiliar word: “emolument.”

Two facts account for this development.

First, Donald Trump owns (along with his family) a very successful business with operations around the world. Secondly, Article I, Section 9 of the U.S. Constitution states: “[N]o person holding any office of profit or trust under [the United States] 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.”

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Put those two together, and there could be problems.

 

Laurence Tribe, a renowned professor of constitutional law at Harvard, is convinced that there indeed are problems that cannot ever be resolved. In fact, in a recent article for The Guardian, he wrote that, in the very act of taking the presidential oath of office, Trump “will be committing a violation of constitutional magnitude.”

There has never been a Supreme Court case interpreting the emoluments clause, and certainly none has considered the application of that clause to a sitting president. But that does not stop Tribe from being certain that, in his words, “the clause covers even ordinary, fair market value transactions with foreign states and their agents that result in any profit or benefit.”

Of course, if the framers of the Constitution wanted to bar an office-holder from engaging in “ordinary, fair market value transactions with foreign states,” they could have used just those exact words. Instead, they barred the acceptance of an “emolument.” One should therefore begin, I believe, with the definition of the word — after all, it’s not one most of us encounter every day.

Merriam-Webster defines the word as follows: “The returns arising from office or employment usually in the form of compensation or perquisites.” The Oxford English Dictionary is very similar: “Profit or gain arising from station, office, or employment.”

These definitions imply that, regardless of his sense of certainty, Tribe is plainly wrong in thinking that the emoluments clause covers ordinary, fair-market transactions that are entirely unrelated to any office of the U.S. government.

For example, Donald Trump receives income from a golf course his company owns in Scotland. He has been receiving that income for a substantial period of time, and he would continue to receive that same income in the future whether or not he becomes president. When he takes his oath of office, does that income automatically become an emolument within the meaning of the emoluments clause?

I would say the answer is “no,” because the income stream cannot fairly be said to be a return arising from his office or employment as president — an essential part of the definition. It arises from previous business that had nothing to do with his campaigning to be or becoming president.

Therefore, even if the continuing approval of the Scottish government were necessary to the operation of the golf course (so that the income could be said in a sense to come “from” a foreign state), I would say, with all due respect to Professor Tribe, that Trump would not have violated the Emoluments Clause on taking the oath of office.

That is certainly not to say, however, that the president-elect’s far-flung business interests do not create potential conflicts of interest that should be very closely scrutinized once he takes office. They do, and they should. It is always possible that Trump, as president, will put his company’s or family’s business interests before the interest of the United States. Both Congress and the news media have obligations to be vigilant and probing in monitoring Trump business activities while he is president. But, again, it does not follow that he will have violated the Emoluments Clause upon taking the oath of office.

It is worth noting that the Emoluments Clause applies to a secretary of State just as much as to a president. When Hillary ClintonHillary Diane Rodham ClintonRussian interference reports rock Capitol Hill Judge dismisses Nunes' lawsuit against Fusion GPS The Hill's Campaign Report: What to watch for in Nevada MORE occupied the former office, her and her family’s interests in the Clinton Foundation created potential conflicts of interest that were of the same kind as those that Trump will face. That is a key reason why so many people were troubled when tens of thousands of emails sent and received when she was at State were erased from her own personal server. Those emails might have disclosed “pay to play” schemes that may have violated the emoluments clause and other federal anti-corruption provisions. I’m not aware that Tribe wrote any articles about the emoluments clause when Clinton was secretary.

If Trump, as president, were to sacrifice the interests of the United States in order to benefit his businesses or his family, he would be liable to impeachment and removal from office for “bribery, or other high crimes and misdemeanors,” under Article II, Section 4 of the Constitution. Conviction would require the vote of two-thirds of the senators.

Tribe concludes his article with this ominous, almost hysterical warning: “The looming constitutional shadow cast by a Trump presidency poses a frightening risk to our national security and gravely disserves the people of the United States.”

I think this is poppycock.

We all understand that Tribe is not a big Trump supporter. But a vigilant Congress, together with news media that will undoubtedly seize every opportunity to challenge and expose any arguably questionable transaction made by a Trump company, should be sufficient to preserve our national security from the depredations of a President TrumpDonald John TrumpWhere do we go from here? Conservation can show the way Gov. Ron DeSantis more popular in Florida than Trump Sotomayor accuses Supreme Court of bias in favor of Trump administration MORE. I’m betting the nation will survive.

 

David E. Weisberg is a semi-retired attorney and a member of the NYS Bar. He currently resides in Cary, N.C., and has published pieces on the Social Science Research Network and The Times of Israel.


The views expressed by Contributors are their own and are not the views of The Hill.