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Tuesday, December 20, 2016
On January 20th, Trump "Will Be Committing a Violation of Constitutional Magnitude"--Laurence H. Tribe
“When Donald Trump swears at the inauguration that he will ‘faithfully execute the office of president of the United States, and will to the best of [his] ability, preserve, protect and defend the Constitution of the United States,’ he will be committing a violation of constitutional magnitude.
“The US Constitution flatly prohibits any ‘Person holding any Office of Profit or Trust under [the United States]’ from accepting ‘any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.’
“Known as the emoluments clause, this provision was designed on the theory that a federal officeholder who receives something of value from a foreign power can be tempted to compromise what the constitution insists be his exclusive loyalty: the best interest of the United States. The clause applies to the president and covers even ordinary, fair market value transactions with foreign states and their agents that result in any profit or benefit. That a hostile government has gotten its money’s worth from our president is obviously no defense to a charge that he has abused his office.
“Trump’s continued interest in the Trump Organization and his steady stream of monetary and other benefits from foreign powers put him on a collision course with the emoluments clause. Disentangling every improper influence resulting from special treatment of Trump’s business holdings by foreign states would be impossible. The American people would be condemned to uncertainty, leaving our political discourse rife with accusations of corruption. These problems are exacerbated by the fact that Trump has regularly declined to make his business dealings or tax returns transparent. Thus a specter of skewed incentives will haunt a Donald Trump presidency.
“While much has changed since the constitution was written, certain premises of politics and human nature have held steady. Among them is that private financial interests can subtly sway even the most virtuous leaders. As Alexander Hamilton wrote in Federalist 22: ‘One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.’ The framers sought to avoid these ends by avoiding these beginnings, writing a broad ban on potentially corrupting foreign influence into article I of our nation’s charter.
“By imposing clear limitations, the clause avoids situations in which the American people must search for hints of improperly motivated presidential favoritism toward selected foreign powers, or of foreign attempts to seduce the American president into compromising our national interest for his private profit.
“With Trump, this search has already begun. His global business empire creates ideal conditions for ongoing violations of the emoluments clause. Mere weeks before Trump spoke by phone with the president of Taiwan – a dramatic departure from America’s ‘one China’ policy – a businesswoman associated with his conglomerate reportedly arrived in Taiwan to inquire about major new investments in luxury hotels. Trump’s businesses owe hundreds of millions to Deutsche Bank, which is currently negotiating a multibillion-dollar settlement with the US Department of Justice – a settlement that will now be overseen by an attorney general selected by and serving at the pleasure of Trump.
“In his last public press conference, Trump called on Russia to hack Hillary Clinton and release her personal emails. Recently, both the FBI and CIA determined that the highest levels of Russia’s government in fact ran a covert operation aimed at helping Trump’s campaign, making his victory in the Electoral College more likely.
“The bottom line is simple: Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made daily by foreign governments and their agents. History teaches that leaders with divided interests cannot be counted on to faithfully serve those who elected them.
“The framers understood this lesson. The emoluments clause was forged of their hard-won wisdom. No relic of a bygone era, it is a profound expression of insight into the nature of the human condition and the preconditions of sovereign self-government.
“Trump’s shifting proposals for addressing his multifarious conflicts of interests are simply inadequate. If he retains an ownership interest in his empire, his personal bottom line is necessarily affected by everything his business does, whether or not he is at the helm.
“Nor is a supposedly ‘blind trust’ involving control of Trump’s assets by his adult children remotely sufficient. It is inconceivable that he could avoid discussing with them at least some matters relating to his policies and their business ventures, or that he could avoid noticing and caring about their interactions with foreign nations.
“So even full divestment of his personal ownership and control of the Trump Organization is no remedy for his emoluments clause violation: it is often to the prince and not the king that special favors are done.
“Because Trump would take office in blatant violation of the constitution, the electoral college would be fully justified in concluding that he is unsuited to the presidency. As Justice Robert Jackson wrote 64 years ago, electors must be considered free to vote their conscience.
“If Trump deliberately declines to cure his continuing violation of the emoluments clause upon entering office, Congress has both power and responsibility to enforce the constitution. It would be well within its rights to impeach and remove him for engaging in ‘high crimes and misdemeanors.’
“Short of that awesome step, Congress might set lasting, bipartisan precedent by requiring all presidents to divest assets that risk conflicts of interest and to place the proceeds in a truly blind trust, and by creating a private cause of action explicitly allowing competitors disadvantaged by the president’s acceptance of unlawful benefits to file emoluments clause suits against the president in his personal capacity.
“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.”
Donald Trump will violate the US constitution on inauguration day by Laurence H. Tribe
Laurence H. Tribe is the Carl M Loeb University Professor and Professor of Constitutional Law at Harvard Law School.