Graft Expectations
Congress probably won’t care that Donald Trump may violate the constitutional ban on accepting gifts from foreign powers
DONALD TRUMP has a problem—and it dates back to 1787.
At the Constitutional Convention in Philadelphia, the delegates were divided on many issues, especially slavery. But they agreed the new republic was vulnerable to subversion from European countries that wanted to once again rule the North American continent. “Foreign powers will not be idle spectators,” delegate Alexander Hamilton said at the convention. “[They will] interpose their will, confusion will increase, and a dissolution of the union will ensue.” To prevent this dissolution, the founders of the United States banned any government official from receiving gifts or fees for profit from a foreign power.
This ban is a huge problem for the president-elect. Diplomats to the U.S., for instance, have already said they plan to stay at Trump’s Washington, D.C. hotel instead of at those of his competitors. This could be reasonably understood as a kind of gift that violates the Constitution. And if Trump’s overseas hotels received building permits, tax abatements or other largesse from foreign governments, those could also be seen as the type of fee, salary or profit the U.S.’S founders prohibited.
On November 30, Trump tweeted that “legal documents are being crafted which take me completely out of business operations.” And with a showman’s elan, he chirped that he’ll hold “a major news conference” with his children on December 15 to offer more details. What happened next was even more bizarre: The Office of Government Ethics, an independent agency whose head was appointed by President Barack Obama, sarcastically tweeted back at the billionaire mogul. “OGE is delighted that you’ve decided to divest your business!” Trump, of course, has said no such thing. And whatever he announces this month, few think he’ll allay the constitutional concerns of both Democrats and Republicans.
“The intent of the founders was not to have government officials beholden to foreign governments,” says Richard Painter, who was in charge of ethics in the White House Counsel’s office under President George W. Bush. He believes Trump’s conflicts of interest run so deep that unless he completely divests from his company, the Electoral College should deny him the presidency when its members meet on December 19.
Trump’s not the first government official ensnared by what legal scholars call “the emolument clause.” The language the founders crafted is a mouthful: “[N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.” Historically, that’s meant presidents or government officials have had to decline or give the Treasury any gifts bestowed by a foreign power.
Nothing has to be done in return for the gift to be unconstitutional. When the Imaum of Muscat (a city in Oman) shipped horses and pearls to President Martin van Buren as an unexpected present, Marty didn’t keep them. The U.S. government sold the horses and deposited the money in the Treasury; the pearls wound up at the Smithsonian.
There are lots of other test cases. The Justice Department ruled that a government historian couldn’t receive payment from a historical commission formed by the Austrian government because, well, it’s a government. But two NASA scientists were allowed to go on leave without pay and accept money from a Canadian university because the school was deemed independent of Ottawa. In 2009, the Justice Department determined that President Obama could keep his Nobel Peace Prize money—as had Theodore Roosevelt and other government officials before him—because it was being awarded by an independent commission, not the Norwegian government.
Trump is expected to stop running his business, but not relinquish his ownership of it. That would still allow him or his children to profit from foreign gifts. The president-elect has com- plained about the windmills near his Scottish golf resort. If the British government accommodated him, that could be construed as a gift. Similarly, Trump reportedly has substantial loans from the Bank of China. Any loan forgiveness from a government-run lender could be seen as an unconstitutional gift. “Unless his solution is to sell the business outside the family and put the proceeds in a blind trust, he’s not really doing anything to solve the problem,” said Citizens for Responsibility and Ethics in Washington in late November.
The best way for Trump to proceed, according to Painter, the former Bush counsel, and Norm Eisen, the White House Special Counsel for Ethics under Obama, is for Trump to sell his business either through a buyout or a stock offering. Then the cash could be put in a more traditional blind trust managed by a third party. As The Wall Street Journal recently put it in an editorial: “The presidential stakes are too high for Mr. Trump to let his family business become a daily political target.”
Yet if Trump doesn’t follow this advice, he’ll probably get away with it. The Constitution puts Congress in charge of enforcing the gift ban, and so the Republican-controlled House and Senate could grant him waivers. (Technically, it could also pursue impeachment on this question, which is unlikely, given the Democrats’ chances of taking back both houses in 2018.)
If Trump is allowed to flout the Constitution, it would be a supreme irony. As the leader of the birther movement, he demanded to see Obama’s birth certificate and only announced his belief that the president was a citizen this fall. Natural-born citizenship is one of the requirements for being president, which the founders established to limit foreign influence. But Trump seems less concerned with the gift ban intended to stem this same influence; he spent the past year skewering his rival, Hillary Clinton, for accepting foreign contributions to the Clinton Foundation. “A secretary of state,” he lamented, “sold her office... betraying the public trust.” Critics may eventually say the same about him.
THE JUSTICE DEPARTMENT DETERMINED THAT PRESIDENT OBAMA COULD KEEP HIS NOBEL PEACE PRIZE MONEY.