Plan B Forum

President-elect Donald J. Trump's business dealings have raised concerns about ethical conflicts. But his financial involvements with foreign state-controlled companies could violate a crucial constitutional protection against corruption and influence by other governments.

At the Constitutional Convention, Alexander Hamilton warned, "Foreign powers … will interpose, the confusion will increase, and a dissolution of the union ensue." The delegate Elbridge Gerry said, “Foreign powers will intermeddle in our affairs, and spare no expense to influence them …. Every one knows the vast sums laid out in Europe for secret services.”

Several provisions of the Constitution were designed assuming that foreign powers would actively try to gain influence. President-elect Trump may be on the verge of violating one of them, known as the “emoluments clause.”

The emoluments clause is essentially an antibribery rule, which forbids public servants from accepting anything of value from foreign powers without explicit congressional approval. It states, "no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present ... of any kind whatever, from any king, prince, or foreign state."

Most presidents avoid violating the emoluments clause by setting up a blind trust, which prevents them from knowing when “something of value” comes their way. But Mr. Trump has said he will give his children the responsibility of running the Trump Organization. This puts a constitutional burden not only on him, but on Congress, to create a procedure to review and consent to foreign-state related transactions that benefit him.

Congress has exercised this obligation in the past. In 1840, when President Martin Van Buren was offered horses, pearls, a Persian rug, shawls and a sword by Ahmet Ben Haman, the Imam of Muscat, Van Buren got a joint resolution of Congress authorizing him to split the bounty between the Department of State and the Treasury. When President John Tyler was given two horses from a foreign power, Congress had him auction them off and give the proceeds to the Treasury.

The sheer volume of Trump’s enterprises, and his role as a promoter in them, makes this a near-impossible task, as does the difficulty of defining which of the transactions falls within the prohibition, and which do not. But the Constitution is clear that Congress has an obligation to stand as a check on inappropriate foreign influence. Congressional leaders should be among the loudest voices demanding he liquidate his assets and create a true blind trust, because of the burden that the alternative poses.

The emoluments clause is not an arcane rule. It is a fundamental principle of our country.

... international embarrassement ...

Mr. Trump’s companies do business with entities controlled by foreign governments and people with ties to them. The ventures include multimillion-dollar real estate arrangements — with Mr. Trump’s companies either as a full owner or a “branding” partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest.

Experts in legal ethics say those kinds of arrangements could easily run afoul of the Emoluments Clause if they continue after Mr. Trump takes office. “The founders very clearly intended that officers of the United States, including the president, not accept presents from foreign sovereigns,” said Norman Eisen, who was the chief White House ethics lawyer for Mr. Obama from 2009 to 2011.


“Whenever Mr. Trump receives anything from a foreign sovereign, to the extent that it’s not an arm’s-length transaction,” Mr. Eisen said, “every dollar in excess that they pay over the fair market price will be a dollar paid in violation of the Emoluments Clause and will be a present to Mr. Trump.”

The Supreme Court has never squarely considered the scope of the clause, and there are no historical analogies to help understand how it should apply to a president who owns a sprawling international business empire. Earlier presidents worked hard to avoid even the appearance of a conflict of interest involving a foreign power, said Zephyr Teachout, a law professor at Fordham who ran for Congress in New York this year as a Democrat and lost.

“The reason we don’t really have a lot of precedent here is that presidents in the past have gone out of their way to avoid getting even close to the Emoluments Clause,” she said.

But if Mr. Trump takes a different approach, it is not clear that anyone would have standing to challenge him in court.

“There are a lot of very smart lawyers turning that question over in their minds today,” Mr. Eisen said, adding that a business competitor injured by foreign favoritism toward a Trump company might have standing.

But Richard W. Painter, who was the chief White House ethics lawyer for President George W. Bush from 2005 to 2007, said such a business most likely would not have standing to sue.

“It’s not there to protect a competitor,” he said of the clause. “It’s there to protect the United States government.”

The way to address violations of the clause, Mr. Painter said, is not a lawsuit but impeachment.

Lawmakers could take steps short of impeachment, particularly because the clause itself describes a role for Congress, which can give its consent to payments that would otherwise be barred. Mr. Painter said Congress should embrace that role by passing a resolution directed at Mr. Trump.


“It should send a clear message to him that he should divest his assets, and that they will regard dealings with his companies that he owns abroad and any entities owned by foreign governments as a potential violation of the Emoluments Clause unless he can prove it was an arm’s-length transaction,” he said.

Professor Teachout agreed that Congress had “an institutional, constitutional obligation to make sure that Trump isn’t violating this clause.”

“You would think the responsible action — Republican, Democrat, whatever,” she said, “would be for Congress to say, ‘We want to make sure that there isn’t a violation of this clause, and in order to do so, we need to look at the transactions to make sure they’re fair market transactions instead of gifts.’ ”

Econoline wrote:Our only hope is that he will install a private email server in the White House or in one of his other properties: that seems to be the one unforgivable sin that Republicans will never forgive.