On January 20th, 2017, President-elect Trump put his hand on two bibles — one a family bible, and one the same bible that President Lincoln was sworn in for his first term, and that President Obama used — and swore that he would, to the best of his ability, “preserve, protect, and defend the Constitution of the United States.”
President Trump then promptly broke his word.
Specifically, the minute Trump was sworn in, he violated Article I, Section 9 of the U.S. Constitution, known as the emoluments clause.
The emoluments clause prohibits any person holding a federal office (such as, for example, the presidency) from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” In other words: People in the federal government aren’t allowed to take anything at all from any foreign government entity.
Trump, however, retains ownership of his international business empire as president. And his business empire is taking in a stream of payments from foreign governments — money that ultimately goes into his pockets.
For example, the Kuwait National Day celebration, thrown by the Kuwaiti embassy, will be held at Trump’s downtown D.C. hotel in February.
The Industrial and Commercial Bank of China Ltd. (ICBC), which is controlled by the Chinese state, is currently paying rent for tenancy in the Manhattan Trump Tower (according to mortgage documents filed in 2012, it is the Tower’s largest office resident).
And, for some foreign politicians and foreign diplomats in town for the inauguration, Trump’s Washington hotel is the place to be this weekend, according to reporting from the New York Times.
Each of these represents an incident in which the President of the United States will, effectively, be receiving payment from a foreign government.
Critically, the valuation of Trump’s development products depends a lot on the Trump brand itself. Much of Trump’s business lately has revolved around licensing deals — taking a fee for allowing properties in the U.S. and abroad to emblazon “Trump” on their building.
The market value of that licensing is difficult to pin down. But Trump himself told the New York Times that the brand is “certainly hotter than it was before” the election, and that more people will likely flock to his hotels as a result.
Any additional business given to Trump because he is the president — such as foreign embassies choosing his hotel as venue for state events in an attempt to curry his favor, or any payments from a foreign government above what would be considered market rate for a service as a result of the Trump name — could be considered a present to the U.S. president, and thus a violation of the Constitution.
That means issues will arise every time the Trump Organization reaps any concessions from foreign governments in business dealings, or any time the business appears to financially benefit from Trump being the president.
The lease of the ICBC, for example, is up in 2019. If the bank pays anything more than market rate, or if rates at Trump Tower increase because of any corresponding effect on Trump’s brand now that he’s the president, that could be viewed as a gift in violation of the emoluments clause.
In another example, the Trump Organization is due to open a golf course in Dubai in February, and a second in 2018. These golf courses will depend on the government of the United Arab Emirates for all services and regulations. Any concessions could be deemed a gift — and therefore an emolument.
Trump has repeatedly denied that his businesses will pose an issue, saying the specific legal proscription against conflicts of interest does not apply to him as president. Every other modern president, however, has met its standard and divested from their assets. Trump has not.
Instead, at a press conference on January 11th he announced that he would hand over control of the company to his sons, and that he promised not to talk about business with them. He gave no means to verify this promise, and he ultimately retains ownership of the company. While some of his assets will be placed in a trust, it is not a blind trust.
Trump also promised at this press conference that he would give the profits from foreign governments staying at his hotel to the U.S. Treasury, claiming this would solve any issues with the emoluments clause.
But Trump’s purported fix falls well short of the mark, according to ethics experts. For one, Trump promised only to give away the profits from foreign state entities using his hotels. His downtown D.C. hotel, which since his election has played host to a stream of diplomats and embassies, was financed with a $170 million loan from Deutsche Bank. It will be years before it turning a profit.
In addition, nothing in the emoluments clause states that payments, if they are taken from foreign governments and then donated, are acceptable. The only way for an emolument to be acceptable is if it is explicitly approved by Congress.
Unless Trump divests from his businesses — which he shows no indication of doing — he will continue to violate the Constitution throughout his presidency. Trump is the first president in history to cause a constitutional crisis from his first minute in office.
The Constitution is a favorite talking point in American political rhetoric. It holds enormous legal power — the Supreme Court has the power to measure laws against it, and strike them down and hold them up.
Yet at the end of the day, the Constitution is also just a piece of paper. It depends on people to enforce it.
Violation of the emoluments clause is grounds for impeachment, which is a process that can be initiated by lawmakers in Congress.