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Trump and emoluments clause

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Pigs must be flying, as I have substantive agreement with reliably tone-deaf conservative columnist Jennifer Rubin, specifically about the Emoluments Clause as it applies to the short-fingered vulgarian.

No title of nobility shall be granted by the United States: and 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.

(click here to continue reading Title of Nobility Clause – Wikipedia.)

Donald Trump Is A Swine
Donald Trump Is A Swine

As things stand now, President-elect Donald Trump has suggested he will not divest himself of a myriad of businesses around the globe that pose serious conflicts of interest, nor will he liquidate even foreign holdings, the proceeds of which would put him in violation of the emoluments clause of the Constitution.

In an academically sound and federal court brief quality paper, Norman Eisen, Richard Painter and Laurence Tribe conclude:

Careful review of the Emoluments Clause shows that the Clause unquestionably applies to the President of the United States; that it covers an exceptionally broad and diverse range of remunerative relationships (including fair market value transactions that confer profit on a federal officeholder); and that it reaches payments and emoluments from foreign states (including state-owned and state-controlled corporations).

In the context of Trump, they cite multiple sources of foreign revenue that on their face would, the moment Trump is inaugurated, put him in violation of the Constitution. They enumerate multiple instances in which he already improperly blurred private and public conduct. (For example: “Most troubling, Ivanka has participated in several meetings between Mr. Trump and foreign heads of state, including those from Turkey, Argentina, and Japan. Ivanka’s presence at Mr. Trump’s meeting with Prime Minister Shinzo Abe of Japan is especially striking, since Ivanka is currently in talks with Sanei International (whose largest shareholder is wholly owned by the Japanese government) to close a major and highly lucrative licensing deal.”) They then list multiple holdings that would provide prohibited revenue. (For example: “Trump International Hotel, a major new project in Washington, D.C. and a new hot spot for foreign diplomats”; “the Industrial and Commercial Bank of China—owned by the People’s Republic of China—is the single largest tenant in Trump Tower”; “even as debates rage over American/Russian relations and Russian cyberattacks on U.S. interests and even on the recent presidential election, it has been reported that Russian financiers play a significant (albeit concealed) role in Mr. Trump’s organization.”)

These examples are but the tip of an iceberg of unknowable dimension. They suggest the remarkably wide range of situations in which a foreign power could seek to confer a benefit on Mr. Trump through his private interests. Wholly apart from any actual quid pro quo arrangements or demonstrable bribes or payoffs, the Emoluments Clause will be violated whenever a foreign diplomat stays in a Trump hotel or hosts a reception in one; whenever foreign-owned banks offer loans to Mr. Trump’s businesses or pay rent for office space in his buildings; whenever projects are jump-started or expedited or licensed or otherwise advantaged because Mr. Trump is associated with them; whenever foreign prosecutors and regulators treat a Trump entity favorably; and whenever the Trump Organization makes a profit on a business transaction with any foreign state or foreign owned entity.

(click here to continue reading Trump is on target to violate the Constitution the moment he takes the oath of office – The Washington Post.)

Hog Cholera
Hog Cholera

Lawrence Tribe writes about the walking unconstitutionality of Trump’s pending regime in the Guardian U.K.

Known as the emoluments clause, this provision was designed on the theory that a federal officeholder who receives something of value from a foreign power can be tempted to compromise what the constitution insists be his exclusive loyalty: the best interest of the United States. The clause applies to the president and covers even ordinary, fair market value transactions with foreign states and their agents that result in any profit or benefit. That a hostile government has gotten its money’s worth from our president is obviously no defense to a charge that he has abused his office.

Trump’s continued interest in the Trump Organization and his steady stream of monetary and other benefits from foreign powers put him on a collision course with the emoluments clause. Disentangling every improper influence resulting from special treatment of Trump’s business holdings by foreign states would be impossible. The American people would be condemned to uncertainty, leaving our political discourse rife with accusations of corruption. These problems are exacerbated by the fact that Trump has regularly declined to make his business dealings or tax returns transparent.

Thus a specter of skewed incentives will haunt a Donald Trump presidency.

While much has changed since the constitution was written, certain premises of politics and human nature have held steady. Among them is that private financial interests can subtly sway even the most virtuous leaders. As Alexander Hamilton wrote in Federalist 22: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The framers sought to avoid these ends by avoiding these beginnings, writing a broad ban on potentially corrupting foreign influence into article I of our nation’s charter.

By imposing clear limitations, the clause avoids situations in which the American people must search for hints of improperly motivated presidential favoritism toward selected foreign powers, or of foreign attempts to seduce the American president into compromising our national interest for his private profit.

With Trump, this search has already begun. His global business empire creates ideal conditions for ongoing violations of the emoluments clause. Mere weeks before Trump spoke by phone with the president of Taiwan – a dramatic departure from America’s “one China” policy – a businesswoman associated with his conglomerate reportedly arrived in Taiwan to inquire about major new investments in luxury hotels. Trump’s businesses owe hundreds of millions to Deutsche Bank, which is currently negotiating a multibillion-dollar settlement with the US Department of Justice – a settlement that will now be overseen by an attorney general selected by and serving at the pleasure of Trump.

(click here to continue reading Donald Trump will violate the US constitution on inauguration day | Laurence H Tribe | Opinion | The Guardian.)

Let Your Conscious Be Your Guide
Let Your Conscious Be Your Guide

more on this topic from John F. Kowal:

On Friday, the Brookings Institution issued an analysis of an obscure constitutional provision that should concern every American. The paper, by Norman Eisen, Richard Painter and Laurence Tribe, demonstrates persuasively that when the 538 presidential electors meet on Monday to cast their votes for president, electing Donald Trump as almost everyone expects, they will be electing a president whose tangled and mysterious web of business dealings “violate both the spirit and the letter of [a] critical piece of the U.S. Constitution.”

The concern, specifically, arises out of Trump’s many entanglements with foreign governments and leaders. While we don’t know the full extent of these ties, thanks to Trump’s refusal to make his business records (including tax returns) public, what we do know raises grave concerns. As the clock ticks down to Monday’s Electoral College vote, which will actually be 51 separate votes in each state capital plus the District of Columbia, it is still not too late for electors to hold the President-Elect accountable.

The constitutional provision in question is the Emoluments Clause, found in Article I, Section 9. Before its current moment in the spotlight, even most lawyers would be hard pressed to explain its purpose in our constitutional framework. Simply put, the clause prohibits any “Person holding any Office of Profit or Trust” under the United States government from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state.” Only explicit consent from Congress can make such actions legal.

The word “emolument” is defined in the Oxford English Dictionary as “profit or gain from station, office, or employment; reward, remuneration, salary.” As the Brookings paper notes, the framers of our Constitution used the term as “a catch-all for many species of improper remuneration.”

The framers worried a great deal about foreign interference in the American political system. They saw first hand how the great European powers tried to manipulate American officials by giving them gifts and money. Indeed, as Professor Zephyr Teachout explains: “Several provisions of the Constitution were designed assuming that foreign powers would actively try to gain influence.” By strictly insulating our government officials from financial ties to foreign states and leaders, they sought to avoid insidious foreign influence and dual loyalties.

As the Brookings’ authors note: “The Emoluments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance.”

The concerns over foreign meddling, viewed through the prism of 1789, don’t seem so far fetched in 2016, despite our evolution from fledgling republic to pre-eminent global power. Indeed, as we continue to collectively process an election in which a rival nation, Russia, flagrantly meddled with the goal of affecting the result, the framers’ concern over foreign entanglements seems more vital than ever.

(click here to continue reading The Electoral College, the Constitution, and Trump’s Conflicts of Interest | Common Dreams | Breaking News & Views for the Progressive Community.)

No Accomodations
No Accomodations

and more from Norman Eisen and Richard Painter of The Atlantic:

The Emoluments Clause of the Constitution stemmed from one of the Founders’ core concerns: foreign influence over our nation’s affairs. They worried that their new republic would, like the colonial governments the Americans had overthrown, once again come under the thumb of foreign rulers—if not by force of arms, by artifices of corruption. The term “emolument” comes from the Latin emolumentum, meaning profit or advantage, and emoliri, meaning to bring out by effort.

By 1789, the founders had seen enough of the way foreign rulers corrupted their own officials and those abroad. The British Crown plied elected members of Parliament with stipends and other emoluments intended to induce them to do the King’s bidding rather than serve the people who elected them, while the French King sent expensive gifts—including portraits framed with diamonds—to American officials to curry favor.

Hence the Emoluments Clause, which provides “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.” It is the original financial conflict of interest law of the United States, and the only one embodied in the Constitution.

The Emoluments Clause applies to all persons holding an office of trust or profit with the United States government—no exceptions. It applies to the president, the vice president, and the members of Congress. No one is above the law. The founders could have exempted these elected officials in the plain language of the Emoluments Clause, but they did not, and for good reason. It makes little sense to prohibit foreign gifts from going to ambassadors and other officials if their elected bosses could simply accept the same gifts in their stead.

The Framers’ contemporary views illustrate that they clearly intended the clause to have the broadest possible scope. As Virginia debated the adoption of the Constitution, Governor Edmund Randolph made clear that the Emoluments Clause applied to the president when he said (in response to questions about whether term limits were needed for the president):

There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeached he may be displaced at the end of the four years. … He is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.

The Emoluments Clause prohibits the president from accepting anything of value from a foreign government. The clause expressly prohibits both “presents [and] emoluments…of any kind whatever.”

(click here to continue reading Trump Could Be in Violation of the Constitution His First Day in Office – The Atlantic.)

There is more discussion of this topic, of course. But will a toothless, feckless Congress, and a complacent media insist that the Constitution be followed? Or is this the beginning of the end of our republic?

Written by Seth Anderson

December 20th, 2016 at 11:38 am

Posted in politics

Tagged with ,

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