Professor Zephyr Teachout wrote an op-ed in the New York Times about the possibility that Donald Trump’s business dealings with foreign companies violate the emoluments clause of the Constitution.
President-elect Donald J. Trump’s business dealings have raised concerns about ethical conflicts. But his financial involvements with foreign state-controlled companies could violate a crucial constitutional protection against corruption and influence by other governments.
At the Constitutional Convention, Alexander Hamilton warned, “Foreign powers … will interpose, the confusion will increase, and a dissolution of the union ensue.” The delegate Elbridge Gerry said, “Foreign powers will intermeddle in our affairs, and spare no expense to influence them …. Every one knows the vast sums laid out in Europe for secret services.”
Several provisions of the Constitution were designed assuming that foreign powers would actively try to gain influence. President-elect Trump may be on the verge of violating one of them, known as the “emoluments clause.”
The emoluments clause is essentially an antibribery rule, which forbids public servants from accepting anything of value from foreign powers without explicit congressional approval. It states, “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present … of any kind whatever, from any king, prince, or foreign state.”
Most presidents avoid violating the emoluments clause by setting up a blind trust, which prevents them from knowing when “something of value” comes their way. But Mr. Trump has said he will give his children the responsibility of running the Trump Organization. This puts a constitutional burden not only on him, but on Congress, to create a procedure to review and consent to foreign-state related transactions that benefit him.
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The sheer volume of Trump’s enterprises, and his role as a promoter in them, makes this a near-impossible task, as does the difficulty of defining which of the transactions falls within the prohibition, and which do not. But the Constitution is clear that Congress has an obligation to stand as a check on inappropriate foreign influence. Congressional leaders should be among the loudest voices demanding he liquidate his assets and create a true blind trust, because of the burden that the alternative poses.
The emoluments clause is not an arcane rule. It is a fundamental principle of our country.