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Wednesday, December 21, 2016

Hey, what about that domestic emoluments clause? (Yes, there is one...)

by digby

I wrote about Trump's domestic corruption exposure for Salon today:

I would guess that most Americans had never heard of the “foreign emoluments clause” of Article I of the United States Constitution until the last month. We’ve certainly heard a lot about it since. It is a constitutional prohibition against presidents receiving compensation, gifts or other forms of profit or gain from foreign governments. Donald Trump’s potentially colossal conflicts of interest have compelled legal scholars from all sides of the political divide to dust off this old clause in the Constitution in what is probably a vain hope that it will force the incoming president to divest himself of his businesses.

The obvious concern is that Trump will be unduly influenced by foreign interests currying favor by supporting his business (or vice versa). But it turns out that there is a domestic emoluments clause as well, which has not been discussed. And Trump faces potential conflicts on that front as he does on the other.

It remains a mystery as to why, with some notable exceptions, the campaign press largely ignored the the issue of what Trump planned to do about his privately held business if he were elected. His unprecedented refusal to release any tax returns was an obvious sign that he was hiding something. And the required forms that he filed with the Federal Election Commission don’t shed much light on his web of business interests — other than to show that the appearance of conflict is overwhelming. But members of the press largely let that drop, aside for a few questions that Trump waved away with a fatuous declaration that he planned to turn the business over to his kids in a “blind trust” — which meant it would not be a blind trust. He promised that he wouldn’t “care about” the business.

Since the election Trump has said that his ethics adviser, the new White House counsel (and notorious former Republican federal elections commissioner), told him that “the president cannot have conflicts of interest” although he told The New York Times he wanted to “do something” to alleviate questions. He scheduled a press conference for Dec.15 to announce his plans and then canceled it. The last we’ve heard is that he’s not going to divest anything and plans to have his sons run the business.

Legal scholars are scandalized. It is true that the conflict of interest laws that apply to others in government don’t apply to the president. But the Constitution’s two emoluments clauses apply directly to him and him alone. Laurence H. Tribe, a professor of constitutional law at Harvard, wrote this in The Guardian about the foreign emoluments issue:
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.

Tribe says that if Trump refuses to “cure his continuing violation of the emoluments clause” the Congress has the power and the duty to impeach him.

Brianne J. Gorod, chief counsel at the Constitutional Accountability Center, addressed the lesser known but equally applicable domestic emoluments clause of Article II of the constitution in an article for The Huffington Post. She explained that this clause was designed to prevent the president from receiving, beyond his salary, “any other Emolument from the United States, or any of them” meaning that the Congress or the individual states could not offer the president side deals or other financial inducements.

How this compromises Trump is obvious. His company owns properties and businesses all over the United States as well as around the world. Gorod laid out a few of Trump’s possible conflicts that appear to violate Article II:
[I]t’s apparent that there may be no shortage of ways in which the new President may be violating the Domestic Emoluments Clause, even as the President-elect’s failure to disclose all of his financial holdings and interests makes it impossible to know the true extent of the problem. 
Perhaps most significantly, with hotels and property developments all over the United States, it’s possible that Trump has been — and will continue to be — the beneficiary of tax breaks from any number of states. As [The New York] Times has reported, since 1980, Trump “has reaped at least $885 million in tax breaks, grants and other subsidies for luxury apartments, hotels and office buildings in New York.” And that’s just in New York. It’s not difficult to imagine that Trump could use the power of the presidency to “encourage” states and cities to offer similar tax breaks to his properties, or that states and cities could of their own will do so to try to curry favor with the Administration. Likewise, Trump plans to maintain a financial stake in the reality TV show “Celebrity Apprentice.” It’s quite possible that the show might be the recipient of tax incentives and breaks, and that Trump would be one of the people reaping the benefits.

It’s also not difficult to imagine Trump’s children winking and nodding at various parties to offer favors in exchange for favorable regulations or other benefits. Just this week it was revealed that Trump’s older sons were involved in selling access to the president for million-dollar donations to unnamed “conservation charities.” (That they would do this after their father and the Republican Party spent months ripping Hillary Clinton for taking the calls of donors to the Clinton Foundation redefines the word hypocrisy.)

There is already the appearance that the Trump family is engaged in enriching itself further through Donald Trump’s presidency. Trump’s children are talking business with foreign leaders and businesspeople during the transition and openly selling access to themselves and the president-elect. Since the actual scope of Trump’s businesses remains shrouded in secrecy, we have no way of knowing the true range of his potential conflicts and avenues of corruption.

Tribe wrote in his piece for The Guardian that “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.” Trump is anything but a virtuous leader. The emoluments clauses could have been written specifically with him in mind.

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