“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.”
Laurence H. Tribe is the Carl M Loeb University
Professor and Professor of Constitutional Law at Harvard Law School.
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