Shortly after he became president-elect, at a time when most incoming leaders are greeting well-wishers and pondering their plans for the nation, Donald Trump reportedly tried to leverage his new status against a foreign leader to enrich himself.
Argentine President Mauricio Macri was one of many such leaders to call Trump and congratulate him on his electoral college victory over Democratic candidate Hillary Clinton. According to a report in the Argentinian paper La Nacion, which was first flagged in the United States by Talking Points Memo, Trump asked Macri during this call to “authorize a building he’s constructing in Buenos Aires.”
According to TPM, Trump is a partner in a project to build an office building in the Argentine capital, but the “project has been held up by a series of complications tied to financing, importation of building materials and various permitting requirements.”
A spokesperson for the Argentine president denied the allegations.
If Macri does agree to give Trump such special treatment, that would likely violate a clause of the Constitution intended to prevent federal officials from engaging in self-dealing with foreign governments.
The Constitution’s Emoluments Clause is broadly written, providing that “no person holding any office of profit or trust under” the United States “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.”
As a general rule, federal officials covered by this clause are allowed to deal with foreign governments so long as they do so on the same terms as anyone else. A senior official could, for example, sell 100 shares of stock on the open market at the stock’s fair market value, even if the entity purchasing that stock is a sovereign wealth fund. But they cannot seek out “sweetheart deals,” that trade upon their public position to enrich themselves at a foreign government’s expense.
Though the situation presented by Trump’s appeal for a regulatory exemption may be unique, the Emoluments Clause is written very broadly — prohibiting gifts “of any kind whatever.” A regulatory exemption — or even a call from a foreign president that hustles along a project that would have been greenlighted eventually — has very real value to a real estate developer. At best, it enables them to ignore expensive conditions placed on builders who aren’t also heads of state. At least, it lets them break ground on the project sooner and start generating profits at an earlier date.
Harvard Law Professor Laurence Tribe agrees. “If this report is accurate,” Tribe told ThinkProgress, “it’s both alarming and disgraceful and clearly implicates the principles at the core of the Emoluments Clause.”
Though Tribe notes that “some scholars have made serious arguments to the effect that this Clause contains a loophole for the highest official in our Government,” Tribe finds those arguments unpersuasive. “In my view, the language of the Clause literally covers financial benefits foreign powers might bestow on the American President, and the anti-corruption and anti-divided-loyalty purposes of the Clause apply even more clearly to the President than to any less august officer.”
In an exchange with ThinkProgress about a similar effort by Trump to trade upon his new office — a Trump hotel invited foreign diplomats to a tour soliciting their business, something many of the diplomats viewed as an invitation to patronize the hotel in order to curry favor — President George W. Bush’s former chief ethics counsel warned that these incursions on the Emoluments Clause may be difficult for Trump to cure after he becomes president.
“The only good answer,” for Trump, according to Professor Richard Painter, the ethics counsel, is for the president-elect “to sell the hotel or give it to his kids (and pay the gift tax) by January 20.”
A similar analysis would likely control Trump’s conversation with the Argentine president for, while Trump was not actually president when the conversation took place, Trump’s implicit message that the foreign leader could earn Trump’s favor by speeding along the permit cannot be unsaid.
UPDATE: Will Carless, a reporter for PRI and BBC, spoke with a spokesperson for the Argentine president, who denied the allegations.
BREAKING: Spox for Argentina President Mauricio Macri says claims that Trump talked to Macri about Trump Tower in BsAs “Absolutely untrue"
— Will Carless (@willcarless) November 21, 2016