How Donald Trump Might Start Violating the Constitution the Second He's Sworn In
If Donald Trump decides not to give up ownership of his businesses, he could be at risk of violating the U.S. Constitution as soon as he’s sworn in.
Although he indicated that he has plans to separate himself from his businesses, he has also made the case that the law is “totally” on his side and that “the president can’t have a conflict of interest.”
But legal experts tell ABC News that’s simply not the case.
Constitutional law expert Laurence Tribe argues that Trump is set to become “a walking, talking violation of the Constitution” if he doesn’t give up his businesses.
“From the very moment he takes the oath, he will be violating a provision of the Constitution that he takes an oath to uphold every minute of every day,” said Tribe, a professor at Harvard University.
It all comes down to the emoluments clause of the Constitution, which forbids elected officials, including the president, from accepting gifts or profit from a foreign government.
What Is the Emoluments Clause?
Article I, Section 9, Clause 8 of the Constitution reads, “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.”
“Emolument” is a fancy word that means compensation, profit or benefit.
And with a business empire that spans the world and includes a network of real estate properties and hotels that are patronized by representatives of foreign governments, how might Trump abide by the clause and still maintain his businesses?
Richard Painter, a former ethics lawyer for President George W. Bush, says Trump needs to divest from any part of his businesses that interact with foreign governments.
“To satisfy the Constitution, he needs to make sure he does not own companies that are accepting payments from foreign government or corporations owned by foreign governments,” Painter told ABC News.
That means Trump would almost certainly need to give up his new D.C. hotel and other properties patronized by representatives of foreign governments, Painter said, but could keep other aspects of his businesses that involve only U.S. citizens or private foreign clients.
“Theoretically, he could keep businesses that don’t deal with foreign governments and corporations controlled by foreign governments,” said Painter, offering the example of an office building in which the tenants are only American firms or privately owned foreign companies as a permissible business venture.
Tribe goes further in his interpretation of the clause, arguing that Trump needs to completely divest from his business to truly adhere to the constitutional guideline set by the framers of the Constitution.
“The Constitution was deliberately written to forbid a U.S. official, particularly a president, from accepting a profit from a foreign government or from some entity representing a foreign government. The reason for that was the long experience of European corruption,” Tribe said.
“Every minute of every day, one of his hundreds of enterprises around the world will be receiving benefits from foreign governments,” he continued.
It’s a principle that Tribe argues extends to Trump’s adult children.
“The whole history of European corruption that our founders were trying to get away from was based on the understanding that the best way to get to the king is to give benefits to the prince,” Tribe said. “The whole point of the emoluments clause is to prevent foreign governments from greasing the palm of an American official, and whether it’s his own palm or the extended palm of his daughter or son doesn’t make the slightest difference.”
Painter, in contrast, doesn’t believe the clause extends to Trump’s adult children, even though he says “the appearances politically are still very questionable,” should foreign payments continue to flow to Trump’s children.
“Can we hold the officeholder in violation of the Constitution because his grown children are doing business with foreign governments? I can’t imagine that that would happen,” Painter said.
The problem, Painter says, arises with the appearance created by Trump’s adult children sitting in on meetings with foreign leaders, because there is no way to ensure that they are not “mixing Trump business with government business.”
What Can Congress Do, and Is There a Risk of Impeachment?
There is one solution under which Trump can avoid the risk of violating the emoluments clause altogether: Congress can give him permission to maintain his business empire.
“The emoluments clause specifically says that Congress is in charge. It can give the president permission to have what might otherwise look like a conflict of interest,” Tribe said.
Painter suggests that it would be an “excellent solution” if Trump could work out a deal with Congress in which it shrinks the application of the emoluments clause and lays out the terms under which Trump may continue owning businesses.
The big catch in that scenario, of course, is that Congress would have to go along with it — a politically risky venture for Republicans who may not want to be held responsible down the road.
Painter said that it is unlikely that Trump could be sued over the matter. The enforceable body in the case of the emoluments clause is Congress.
But without congressional sign-off, Painter cautions, Trump could find himself facing a hugely risky — although highly unlikely — situation: impeachment.
“It Congress doesn’t affirmatively give permission, he runs the risk that the next Congress is going to come back and accuse him of something,” Painter said. “It’s a big risk.”
And even though Trump may appear safe from impeachment with a Republican-controlled Congress, Tribe doesn’t rule out the possibility that Trump’s party could turn on him.
“We don’t know what Congress will do,” Tribe said. “If they decide Mike Pence might be a safer president for them in terms of their re-election prospects, they might well bring the sword down on Donald Trump.”
“The very fact that he’s in that day-to-day threat really distorts the whole American system of government,” Tribe said. “He is a walking impeachable offense.”
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