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. Continue reading