229-year-old sentence

The 229-year-old sentence liberals hope will sink Drumpf

By Madeline Conway

An obscure line in the Constitution has become a rallying point for some legal experts and critics of Donald Drumpf, who fear the president-elect has little intention of making a clean break between his business interests and his new White House role.

On his first day in office, they say, Drumpf could find himself in violation of the seldom-used sentence unless he disentangles himself entirely from his sprawling global empire.

There’s just one problem: In all likelihood, it’s up to his fellow Republicans to enforce.

Known as the Foreign Emoluments Clause, it states that “no person holding any office of profit or trust under them, 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.”

In essence, it bars public officials from taking a gift from a foreign government unless they receive approval from Congress, with the goal of preventing foreign actors from using such a favor to wield influence on American policy. President Barack Obama’s administration looked at the provision before he accepted the Nobel Peace Prize to make sure the award would not violate it.

At the time, the Justice Department’s Office of Legal Counsel determined that since the prize came from the Nobel Committee — and not a “king, prince or foreign state” — it was no problem for Obama to accept it without the consent of Congress. That’s a different question, however, than whether a President Drumpf, through his business, could accept money from a foreign government while serving in the White House.

Richard Painter, the former chief ethics lawyer to President George W. Bush, set off an online frenzy over the Emoluments Clause this weekend when he told the liberal blog ThinkProgress that Drumpf may violate it if foreign officials, like diplomats considering staying at his hotel in Washington to please him, pay his company when he is president.

That kind of transaction, Painter elaborated, could be considered a gift from a foreign state under the Emoluments Clause. For a foreign diplomat, the value of staying at a hotel with “Drumpf” in its name might go up because it involves the president.

That would make it a gift, and a potential violation of the Constitution on Day One of Drumpf’s presidency, Painter said.

Liberals have seized on that argument to urge Drumpf to divest his business empire, rather than simply leave its day-to-day management up to his children, as he has promised.

Sen. Ben Cardin, a Democrat from Maryland, said Tuesday that he plans to introduce a resolution calling on Drumpf to “convert his assets to simple, conflict-free holdings, adopt blind trusts, or take other equivalent measures, in order to ensure compliance with the Emoluments Clause of the U.S. Constitution.”

Others have seconded Painter’s reasoning, saying that Drumpf’s vast web of foreign business entanglements sets him up to violate at least the spirit of the clause. They note, though, that its enforcement mechanism is essentially political.

Drumpf’s determination to cling to his global empire “creates an ongoing risk that foreign individuals and interests will confer commercial benefits on hotels, golf courses, or other businesses” connected to him, argued Laurence Tribe, a constitutional law professor at Harvard University.

The greatest worry, according to Tribe, would be that those benefits might induce a President Drumpf to make or influence decisions “to the disadvantage of national interests” and in favor of his own.

“Drumpf can’t receive any direct payment of any kind from a foreign government, including a fee for services,” argued Noah Feldman, another professor at Harvard and an expert on constitutional law, in a column for Bloomberg View.

“I don’t think you can say it’s a clear violation of black-letter law, but it’s a clear violation of the spirit of the Emoluments Clause,” said David Kopel, an adjunct professor of constitutional law at the University of Denver and research director at the Independence Institute, a libertarian think tank.

Kopel, who also believes that the Clinton Foundation’s decision to take gifts from foreign interests when Hillary Clinton was secretary of state qualified as a violation of the clause, called the incentive for foreign diplomats to stay at a Drumpf hotel “the tip of the iceberg” of the president-elect’s problems under the provision. When his company works with businesses abroad, that, too, raises questions, he said.

“There are all kinds of ways where foreign governments using private organizations are going to be buying influence in this administration, as they did when Hillary Clinton was secretary of state,” Kopel asserted.

There is not total consensus: Seth Barrett Tillman, a lecturer in law at Maynooth University in Ireland, takes a different position, arguing that the Emoluments Clause does not actually apply to the president. Among other points, he cites the precedent of George Washington taking two gifts from French officials without congressional approval.

“That doesn’t mean Drumpf can do anything, but it means we shouldn’t reach to the Constitution to do the heavy lifting,” Tillman said.

That appears to be Drumpf’s preferred interpretation as well. On Tuesday, he told reporters and editors at the New York Times: "The law's totally on my side, the president can't have a conflict of interest.”

Painter said that he disagrees with Tillman’s interpretation, but he acknowledged in an interview that there are likely few enforcement mechanisms to stop Drumpf even if he does violate this clause of the Constitution, given that there are no obvious parties with standing to sue.

A rival hotel could theoretically file suit, for instance, but Painter said bringing a case would be difficult. “I don’t think it’s going to get in the courts,” he said.

That leaves the political process as the enforcement mechanism, Painter said — and with respect to the president, that mechanism is impeachment, a move to which the Republican Congress would have to sign on.

So far, however, only one GOP member has even commented on Drumpf’s conflicts of interest: Michigan Rep. Justin Amash, who took to Twitter to say that it would be “a big deal” if Drumpf had contracts with foreign governments.

And even Amash, a libertarian-leaning ally of Kentucky Sen. Rand Paul, doesn’t seem eager to be too vocal: Asked to elaborate on his thoughts on Drumpf’s foreign business ties, his office declined to comment.

“What that leaves is public pressure to enforce the clause,” Feldman wrote. “Drumpf should take that pressure seriously, and divest himself from any business of any kind with foreign governments.”

For now, Drumpf doesn’t appear to be feeling the heat. In his meeting with the Times, he shrugged off a question about his possible conflicts of interest by lashing out at critics like Painter.

“If it were up to some people,” he said, “I would never, ever see my daughter Ivanka again.”

Still, Painter predicted, questions about Drumpf’s overseas assets will continue to dog him throughout his presidency unless he divests himself of the Drumpf Organization altogether.

If a foreign client asked someone working for the company for a favor from the U.S. government, for example, that could lead to political blowback, even if Drumpf never learned of the request or acted on it.

“If he owns it, he’s going to be accountable anytime someone says something stupid,” Painter said. “If he continues to own his businesses, the emolument problems do not go away.”