Those of us who are still reeling from the shock and horror of Donald Trump’s election are going through many of the typical stages of grief: denial, anger, depression, etc. To these I’d add an additional stage of (political) grief, which seems to disproportionately afflict my fellow law professors: the desperate concoction of legally plausible but politically dead-on-arrival constitutional theories designed to stop Trump from becoming President (or stop him from doing lots of the things he wants to do).
Enter the Foreign Emoluments Clause of the U.S. Constitution (Article I, Section 9, Clause 8), which provides that “no person holding any office [of the United States government] … 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.” Many legal scholars, including my colleague Larry Tribe, as well as a number of legal ethics experts, have argued (persuasively, in my view) that Donald Trump’s global business dealings may well put him in violation of this Clause: If any foreign state pays above-market-value for any goods or services provided by the Trump business empire, or does any other favor (with a cash value) designed to benefit President Trump’s businesses, that could well be deemed a “present … of any kind.” The wording of the Emoluments Clause is broad: It does not require a quid pro quo, it does not require a showing that the gift was intended to influence a decision or an expression of gratitude for a decision already made. In contrast to the conflict-of-interest statutes, there is no explicit exemption from the Foreign Emoluments Clause for the President (though some scholars have sought to argue that the President is not covered, for reasons I don’t find all that persuasive). Furthermore, the “of any kind” modifier would seem to defeat many of the otherwise-plausible claims that the terms “present” and “emolument” should be read narrowly. (I imagine that there might still be a “de minimis” exception from the Emoluments Clause, allowing for ceremonial gifts of various kinds, but that’s not really what we’re talking about in the Trump case.) Though I’m no expert, based on what I’ve read thus far I’m prepared to accept the claim that should foreign governments provide benefits to the Trump Organization while Donald Trump is President—including paying above-market-rates, or steering business to Trump’s companies—then President Trump would be in violation of the Foreign Emoluments Clause.
The question is: So what? What’s the remedy for this constitutional violation?
There are three possibilities—a judicial remedy, an “elite” political remedy, and a public opinion remedy. None of them seems especially promising.
- A judicial remedy for a Foreign Emoluments Clause violation is a pipe dream. Even if some party could establish that he or she had standing to bring a suit against the President for violation of the Clause, it’s just not realistic to imagine that the U.S. Supreme Court would intervene. My guess is that if such a suit were brought, and weren’t immediately dismissed on standing grounds, the courts would invoke the little-used “Political Question Doctrine” to decline to rule on the issue. In any case, what would the remedy be? Would the Court order the President to give back the (excess) financial gain he received from a foreign government? Would it order the President to divest his business holdings, or place them in a blind trust? While perhaps these ideas might not be totally outlandish in a parallel universe, I have a hard time imagining that you’d get five Justices of the U.S. Supreme Court (one of whom would almost certainly be a recent Trump appointee) to go along with something like that. The Court would likely say that this is one of those issues that should be left to the political branches.
- Which brings us to the second possible remedy: Some have suggested that the President’s consistent and unrepentant violation of the Foreign Emoluments Clause would be grounds for impeachment. Others, most notably former Bush ethics advisor Richard Painter, have suggested that the inevitability of Trump’s violations of the Foreign Emoluments Clause is a legitimate reason for the Electoral College to take the unprecedented step of denying Trump the presidency, either selecting Hillary Clinton instead or throwing the decision to the House of Representatives, which might then select some other Republican. I wish. But it’s not gonna happen. I mean, think about everything that Donald Trump has already said and done—the list of things that should have disqualified him from the presidency is so long, it’s mind boggling. And that list has long included his shady financial ties to foreign governments (especially Russia) and the enormous conflicts of interest that his business empire would create. (Of course, during the election campaign, many media outlets and commentators seemed to devote less time to those conflicts of interest than to vague insinuations about the Clinton Foundation, but that’s a whole other matter.) How, precisely, will framing the same problem—a problem that any competent observer has known about for the duration of Trump’s campaign for the presidency—as a legal problem, and more specifically as a violation of the Foreign Emoluments Clause, change the political calculus? On what planet will a Republican House of Representatives—most of whose members either support Trump or are terrified of a primary challenge from the pro-Trump faction—vote to impeach him in his first year in office? I’ve heard some people suggest that the Foreign Emoluments Clause argument might give enough House Republicans “cover” to vote to impeach. I’m sorry, I wish I could believe that, but no. Neither Trump nor his rabid supporters—nor, let’s be blunt about this, most Republican members of the House of Representatives—gives one whit about the Foreign Emoluments Clause. As for the Electoral College, I don’t know enough about the law here to know whether it’s even possible for enough electors to switch their votes to deny Trump the presidency, but I do know that it’s not going to happen either. Or maybe I should say, (predicted) violations of the Foreign Emoluments Clause are not going to be enough to sway any Electors who are currently pledged to vote for Trump to switch their vote.
- So even if we stipulate that Donald Trump, from pretty much the first day of his presidency, will be in flagrant violation of the Foreign Emoluments Clause, the likelihood of a judicial remedy, an impeachment, or an Electoral College revolt are practically nil. So why are we even talking about the legal issue at such length? This brings us to the third and final potential remedy for a constitutional violation: the so-called court of public opinion. Perhaps the arguments that Trump’s refusal to separate his public duties as President from his private business interests is not just improper and unethical, but also unlawful and unconstitutional, will have an effect on public discourse about Trump’s presidency, on his political leverage, and on other less tangible factors. Maybe it will provide additional motivation for people to turn out and vote for Democrats in the 2018 mid-term congressional elections, and to vote Trump out of office in 2020. Maybe. There’s certainly an American tradition of constitutional arguments infusing political discourse. But in the case of Trump and the Foreign Emoluments Clause, I’m skeptical that the nuanced legal arguments will get much traction or make much difference. That’s not to minimize the importance of the underlying issue, which Paul Krugman nailed in his NYT column yesterday: the massive conflict of interest problems, and the interest of not only Trump but many of his appointees to use their power to adopt policies that are bad for the country but enrich the appointees and their cronies. The United States is careening toward kleptocracy, and I (tentatively) disagree with Rick’s suggestion that harping on this problem is counterproductive, for reasons I may go into in greater detail later. But I tend to think that focusing on the substantive problem—that Trump is a greedy amoral SOB who is conning America to enrich himself and his family, and appointing unqualified cronies to do the same sort of thing—is more useful than emphasizing alleged violations of a relatively obscure constitutional provision that most Americans have never heard of. The fact of the matter is that the United States of America is careening toward kleptocracy, and the Constitution isn’t going to save us.