Friday, January 27, 2017

The Emoluments Clause

Is Donald Trump entitled to conduct his businesses as usual while he is president?  Or, are the people entitled by the Constitution to a president who serves free of conflicts of interests created by his other full time job?  The answer to this question may lie in part in the US Constitution "emoluments clause," Article I, section 9, clause 8:  No Title of Nobility shall be granted by the United States:  And no Person holding an 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."  The Heritage Guide to the Constitution provides an interesting explanation of the origins and purposes of this clause.  With regard to the prohibition on accepting an "emolumnent" from a foreign government or sovereign without consent of Congress, Alexander Hamilton noted in The Federalist No. 22:  "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."  The founders were worried that economic entanglements between American government officials (persons holding an office of profit or trust) could undermine the republic.

Constitutional scholars and legal ethicists are debating about what exactly the emoluments clause prohibits, who is entitled to enforce it, and what remedy a court could order if it found Trump's conduct a violation of the clause.  It's not clear whether a foreign corporation should be treated as a "King, Prince, or foreign State."  Nor is it clear whether a payment received in an arms' length transaction for services rendered-- for example, payment for a stay by a foreign official at a hotel connected to Trump-- is a "present" or "Emolument."  Another clause in the constitution makes bribery an impeachable offense for the president, but the emoluments clause doesn't say what the consequences are for violating it, and because it doesn't specifically mention the president, some argue that it may not apply to the president at all.

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