US Constitution’s Emoluments Clause: a Nothingburger for Trump

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.

President-elect Donald Trump on Wednesday announced on Twitter that he would hold a news conference on December 15 to “discuss the fact that I will be leaving my great business in total in order to fully focus on running the country in order to MAKE AMERICA GREAT AGAIN! (his emphasis).”

Trump further tweeted:

Hence, legal documents are being crafted which take me completely out of business operations. The Presidency is a far more important task!

Trump faces real difficulties as he seeks to turn over what I assume will be temporary control over his assets while he serves as President. In the past, when affluent people have held public office, they placed their assets in a so-called “blind trust”. (How blind these trusts actually were is a question I defer to another day.)  It was possible to do this because most of the assets held were paper assets– e.g., shares and bonds– which were largely liquid, and which had an easily determinable market value. Such assets could be passively managed throughout an individual’s tenure in public service.

By contrast, most of Trump’s assets are in real property or other non-paper assets. They require more active management. Further, many (most, all– no one knows for sure as I’ve yet to see any comprehensive statement of Trump’s holdings) are illiquid. This means  that even if Trump wished to divest himself of these assets, it would be difficult to do so.

Recently, a veritable journalistic cottage industry has developed to discuss  the conflicts of interest created by Trump’s extensive ownership of assets and his upcoming role as President of the United States. Articles have appeared in the Wall Street Journal, the Financial Times, the New York Times and Politico that spell out some of the legal, political, and practical problems arising from potential conflicts between Trump as an owner of a business empire and Trump as President.

In this post, I’ll address what several sources have highlighted as the most serious potential problem: the emoluments clause of the United States Constitution. Article 1, Section 9 of that document states that “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.”

Over to the New York Times to tease out some of the potential problems:

Mr. Trump’s companies do business with entities controlled by foreign governments and people with ties to them. The ventures include multimillion-dollar real estate arrangements — with Mr. Trump’s companies either as a full owner or a “branding” partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest.

Experts in legal ethics say those kinds of arrangements could easily run afoul of the Emoluments Clause if they continue after Mr. Trump takes office. “The founders very clearly intended that officers of the United States, including the president, not accept presents from foreign sovereigns,” said Norman Eisen, who was the chief White House ethics lawyer for Mr. Obama from 2009 to 2011.

“Whenever Mr. Trump receives anything from a foreign sovereign, to the extent that it’s not an arm’s-length transaction,” Mr. Eisen said, “every dollar in excess that they pay over the fair market price will be a dollar paid in violation of the Emoluments Clause and will be a present to Mr. Trump.”

The Supreme Court has never squarely considered the scope of the clause, and there are no historical analogies to help understand how it should apply to a president who owns a sprawling international business empire. Earlier presidents worked hard to avoid even the appearance of a conflict of interest involving a foreign power, said Zephyr Teachout, a law professor at Fordham who ran for Congress in New York this year as a Democrat and lost.

“The reason we don’t really have a lot of precedent here is that presidents in the past have gone out of their way to avoid getting even close to the Emoluments Clause,” she said. (Jerri-Lynn here: I’ve omitted all citations in this extended quotation; interested readers are directed to the original article to find these).

Now, at this point, I should bring up a rather elementary point. Just because something’s unconstitutional, doesn’t mean that any such unconstitutional activity will necessarily be prevented, precluded, or punished. Much of what I’m about to discuss applies a pretty basic common sense test (but I believe would stand up to more serious scrutiny by lawyers or others with specialized knowledge).

For starters, there are some who claim the clause doesn’t apply to the President, as the New York Times  and Fox News have reported. I don’t think that’s a sound position, but if you disagree, you can stop reading here.

Yet while I agree with the Wall Street Journal  that: “U.S. law exempts presidents and vice presidents from conflict-of-interest rules, which require many federal employees to recuse themselves from decisions involving their financial interests”, and although I haven’t made an exhaustive search,  I also assume one of many existing anti-corruption or anti-bribery statutes might conceivably apply to the President. Some of these even may rest on authority provided in the emoluments clause. Is it possible that President Trump in some way might fall afoul of some such statute? Let’s assume yes.

But, here’s the problem: who enforces these statutes? The Answer: The Attorney General of the United States. Yup, that’s the same Attorney General who serves at the pleasure of the President, and can be removed for any whim or reason.  Does anyone honestly think that an Attorney General is going to seek to prosecute President Trump for violating an anti-bribery statute? Good– I didn’t think so.

Next issue: Can any third party– an aggrieved private citizen, for example, or more interestingly, a business competitor, successfully sue the President for violating the emoluments clause? I’ll take these issues in turn, starting first with our aggrieved private citizen.

This often comes as a surprise to non-lawyers, but the reality is that the US legal system strictly limits who can sue. Persons must have standing in order to bring a suit (as compared to some countries, such as India, and US states, such as California (but only for state law violations),  where it is possible to bring a public interest litigation to right an obvious wrong). In US federal court, the authority for bringing a suit comes from Article III of the Constitution.  To summarize very broadly an extremely complicated area of the law, to have standing to sue, plaintiffs must be involved in an actual case or controversy– meaning that one cannot bring a case just to determine what a court MIGHT decide. Further, a long series of cases has also established that plaintiffs must have suffered a particularized injury in order to prevail in a lawsuit. This provision prevents someone from bringing a suit arguing, hypothetically, that as a taxpayer, s/he has been harmed by a general policy of the US government.

What does this mean? Well, I would suggest that no one should spend hard-earned money and try to find a lawyer to bring a suit alleging that President Trump has violated the emoluments clause– or any other federal anti-corruption or anti-bribery statute, for that matter– anytime soon. That matter would almost certainly be dismissed on the basis that the plaintiff lacked standing to sue.

A more interesting issue is raised by the notion that a business competitor might have standing to sue. That might mean in the present context that some business competitor of Trump’s– Hilton Hotels, to pluck an example from the air– might choose to contest the award of some particular contract or more ambiguously, a particular policy decision.

In contrast to Politico, which calls the notion of competitor standing a “controversial legal theory”, I suggest that such a basis for standing is quite common in suits disputing the award of government contracts. Where I concur with the Politico analysis is in what the remedy might be: a rescission of a particular contract award, or maybe, a rollback of a policy. But no court is likely to look to make a decision that invokes the emoluments clause, and as a result tells Trump: You’re fired! Sorry, DNC, better luck in 2020.

Impeachment

Given that legal remedies are unlikely to enforce the emoluments clause, that leaves impeachment as the only remedy for addressing the conflicts of interest between Trump’s business interests and his role as President.

Now, I have seen too many otherwise sane and sensible people suggesting this is a possibility.

Really?

Let’s review the basics of impeachment.

Article II, Section 4, says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

So that means– as those who’ve paid attention to recent US history know– that the President may be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours. Removal from office following impeachment has never occurred for any President  in US history.

Let’s also cover the procedural aspects of impeachment:

Article I, Section 2 says:

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

So, the House of Representatives is responsible for drawing up articles of impeachment. What does that mean in the present, hypothetical case? The 2016 election had Republicans capturing 241 seats, compared to 194 Democrats: a clear Republican majority.

Does anyone seriously believe that the new Republican-majority House will vote to impeach Trump for conflicts of interest that may either have arisen or between his business empire and his role as President?

Now, even though I stand by what I just wrote, just for the sake of argument, what would happen if the House did vote to impeach Trump?

Well, again, turning to the US Constitution, Article I, Section 3 provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.

What does this mean? The Senate would be responsible for trying the case of impeachment– a Senate, let me remind you, that when seated in January 2017, will also have a Republican majority. Does anyone honestly think that the necessary 2/3 concurrence of all members present can be found in a Republican-majority Senate? Believe what you choose to believe: I certainly don’t think so.

Please, can we lay to rest the idea that Trump would be impeached for ANYTHING. Or, if you’re not willing to follow me that far, at least defer further impeachment discussions until after the 2018 mid-term elections.

Relax, readers. There are plenty of things to worry about concerning the incoming Trump administration. This isn’t one of them.

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58 comments

  1. PlutoniumKun

    Is it really so unlikely that the Republicans might be tempted to impeach Trump if he veers too much from Republican orthodoxy? Surely many Republicans would much prefer Pence as President so could be tempted to find an excuse to shove Trump out of the way. Although in such a situation it might be the Dems who find they’d rather keep Trump in position.

    1. Katharine

      If you observed Mitch McConnell’s gleeful smirk that first week, why do you suppose that the Republicans anticipate difficulty from that quarter?

      1. integer

        Mitch McConnell has what could be described as an incredibly punchable face, which is not to suggest that anyone should do so. I was going to add “unless they want to” to the end of that sentence but I’m sure there are many out there who are only just able to hold themselves back from acting on this sentiment, and I don’t want my comment to be the straw that broke the Camel’s back.

  2. pictboy3

    I think it’s not as certain that a Republican led house won’t impeach Trump. A lot of those reps are the same ones who went out of their way in the primary to make sure he didn’t win the nomination. Remember that most of them are still pure ideologues who want to get rid of Medicare and SS and Trump has set up a conflict with them by winning on a sort of pro-entitlement platform. The only things that keep them from impeaching him is fear of their base and a fear of Pence in the driver’s seat, but if they could find a solid enough excuse to get rid of him, I can easily see them throwing him overboard and taking their chances with Pence.

    1. Yves Smith

      An impeachment would damage the party and help the Democrats. The Republicans won’t want to hand a victory to their opponents. After Watergate, the Democrats had not only the Presidency but majorities in the House and Senate. It was the severity of the 1979-1981 recession plus the Iran hostage crisis that allowed Reagan to win. The polls swung sharply in his favor only in the last couple of weeks of the campaign.

      The Republicans are salivating at the chance to get rid of Obamacare and reform taxes. And if you’ve been watching, places like Bloomberg have recent articles on how the GOP has accepted Trump. Or see this one from the Washington Post today: https://www.washingtonpost.com/politics/trumps-takeover-of-the-gop-is-now-complete/2016/11/30/bf5f8dc2-b714-11e6-a677-b608fbb3aaf6_story.html.

      Pence is impeachment insurance for Trump. The evangelicals were bad for the party and they don’t want to give them more power.

      1. cocomaan

        on how the GOP has accepted Trump.

        Of course they have. He’s filled his cabinet with GOP insiders like Eileen Chao.

        Anyone that thinks the R’s are going to impeach are living in a fantasy.

      2. pictboy3

        I guess they’re with him for now but I can’t help but think they’ll drop him as soon as he becomes more of a liability than a help.

      3. a different chris

        If you don’t believe in climate change or don’t believe that it is human induced or even don’t believe we can change enough to do anything about it – I don’t think at this point I’ve left out a single Republican member of Congress – why wouldn’t you just wait Trump out?

      4. John

        I don’t agree that Pence is impeachment insurance for Trump.
        If Trump is anything but the Trojan Horse the elites wanted in there
        they will impeach him to put Pence at the top.

        Pence owes his whole career to the Koch brothers.
        With him on top they will be running the country.
        And that’s what they always wanted.

      5. Infidel

        The polls did not swing sharply in favor of Reagan in the last couple weeks. Reagan was consistently leading Carter except for one outlier Gallup poll. It’s not hard to look up.

        Next, Reagan didn’t win because of a recession and Iran. He won because he sold a broad message of freedom and liberty to the country while Carter was doubling down on more of the same. Also easy to look up in exit polling data.

  3. Knot Galt

    Thank you for the very clear and concise analysis of the issue. As a layperson my impression is that JLS has put this issue into a more understandable context. My concern is that ALL of the Red Baiting MSM will not be treating these issues with any objective or factual basis like it is written here.

    I feel the true hill to be surmounted will be the upcoming Electoral College where this is just one issue that will be used to build irrefutable evidence that Trump Electorates can indeed change their votes?

    1. grayslady

      You bring up an interesting point regarding the MSM (or, as I prefer to call it, the Propaganda Press). While it didn’t work with trying to drag Hillary over the finish line (probably because the talking points were all coming from the idjits within the Clinton campaign), press reports possibly could gin up enough citizen outrage over an incident that congressional reps would have to respond. See The Autobiography of Lincoln Steffens and the chapter entitled “I Make a Crime Wave.” The question is whether the Propaganda Press has lost so much credibility after this election season that it will be written off as “the boy who cried wolf” whenever a serious issue demands public review.

  4. diogenes

    Jerri-Lynn, you lay out the practicalities just fine, and I concur.

    That our society will tolerate such a deviation from practice and principle is 1/2 of explaining a Trump presidency. The other 1/2 being the Democratic abandoning of working people for a generation, mixed in with an electorate ditching TINA.

    1. RepubAnon

      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.”

      In other words, a Republican Congress could add a “get out of the Emoluments Clause free card” to the budget, and pass it by a simple majority.

      1. Jerri-Lynn Scofield Post author

        Yes, this is correct– you’ve picked up on an important point, and with the benefit of hindsight, I perhaps should have highlighted this more prominently in my post. Reading through comments, I see many readers steadfastly insisting that the incoming Congress might impeach Trump. I’ve spelled out why I think that’s unlikely.

        I actually think it more likely that the incoming Congress would give Trump such a “get out of the Emoluments Clause free card” than impeach him (although I admit that such a free pass is also probably highly unlikely). Why would Congress do such a thing– implicitly endorsing his conflicts of interest– when they don’t have to? If there’s no desire to impeach him, the status quo remains: he may be in violation of the Emoluments Clause, but nothing will be done about it.

  5. Jim A.

    Well impeachment, since it is done by politicians, is inherently a political matter. And I DON”T think that Trump has much loyalty to the Republican party as such. This early in the transition, it certainly looks like the cabinet and access to Trump will be mostly controlled by Republican insiders. But Trump being Trump it remains to be seen how long this will last. It is certainly not impossible for me to imagine becoming angry and impatient with the Republican party and resigning from it. And THEN I could imagine impeachment proceedings.

    1. Jerri-Lynn Scofield Post author

      Why would he do that? He’s the President (or, more accurately, will soon be). If he doesn’t like what people he’s appointed are doing, it’ll give him a chance to do something we all know he likes to do, e.g., to say You’re fired.

      I just don’t see the scenario you’ve outlined occurring.

  6. fritter

    First time in 40 years I’ve heard of the Emoluments clause. After all the graft from both “parties”, we get nothing but a nod and a wink from the MSM pundits. What did the Clinton Foundation raise, almost half a billion? Not a word, excepting the occasional Russian spies ;-). Now every outlet has a story about how the Constitution suddenly matters, how every vote must be counted and double checked, how graft is suddenly an abhorrent thought, not to mention the dreaded expanded executive powers.
    Trump may be the best thing for the Executive Branch we’ve seen in a long, long time. I suspected so in the primaries. Good article/analysis, I’m just wallowing in my Schadenfreude a little today. I think you are right that nothing will come of it but if there are to be any limits to the office for the next 100 years, they will come now.

  7. Vatch

    Dang! Didn’t the Emoluments Clause apply to Senator Hillary Clinton and to Secretary of State Hillary Clinton? What about the Clinton Foundation and foreign donations during those terms of office? There is evidence that the foundation was used for private inurement by the Clinton family (Chelsea’s 2010 wedding, for example).

    1. Jerri-Lynn Scofield Post author

      Okay, assume the Emoluments Clause applies to HRC (as IIRC, Newt Gingrich did and fyi, I believe it did also).

      Let’s run through the enforcement issues.

      1) Would the Obamamometer’s AG have been inclined to pursue an action against HRC. (All together now: No.)

      2) Would an ordinary citizen have standing to sue? (All together now: No.)

      3) Would competitors be able to allege sufficient harm (and be sure they could prevail), to make trying to bring a suit under some competitor theory of standing worth their while? (All together now: No.)

      Bottom line: Just because it’s unconstitutional doesn’t mean anything can or will be done about it.

      1. Vatch

        2) Would an ordinary citizen have standing to sue? (All together now: No.)

        Why wouldn’t a citizen have standing to sue when a government official violates the Constitution? Yes, I know, sovereign immunity and all that, but couldn’t Hillary Clinton be sued personally? (Not that I would want to pay the legal fees.)

        1. Jerri-Lynn Scofield Post author

          I explained this above in the paragraph that begins, “This often comes as a surprise to non-lawyers, but the reality is that the US legal system strictly limits who can sue.”

          1. Vatch

            This provision prevents someone from bringing a suit arguing, hypothetically, that as a taxpayer, s/he has been harmed by a general policy of the US government.

            I really shouldn’t be arguing with you, because you’re not responsible for defects in the laws. But in the case of Clinton violating the Emoluments Clause, I would modify what you said like this:

            [T]hat as a taxpayer, s/he [the taxpayer, not Clinton] has been harmed by a general policy specific action of the US government government official Hillary Clinton.

            I guess I’m nitpicking, but it really does seem to me that a taxpaying citizen should have standing in a specific case such as this. No doubt I’m wrong. :-(

            1. Jerri-Lynn Scofield Post author

              There’s a whole line of cases involving what’s called “taxpayer standing” in which courts have held that taxpayers do not, in fact, have standing to sue. Sorry, we may wish it were different, but it’s not.

  8. cocomaan

    The discussions I’m hearing about conflict of interest solidify something for me: the mainstream media only wants a certain type of person to be president.

    That person is a career politician. If you do not fit that mold, do not apply.

    Interests other than pure political power are disqualifying. NPR was talking about Obama’s actions to prevent conflict of interest as being an exemplar. Meanwhile he was blowing up american citizens with drones. It’s bizarre but it makes sense. It makes normal a certain kind of power seeking.

    Trump changed the definition of what a politician could be and it’s scary. It means ANYONE could be president! THE HORROR!

  9. Katharine

    Ben Cardin seems to disagree with you.

    https://www.congress.gov/congressional-record/2016/11/29/senate-section/article/S6553-2

    SENATE CONCURRENT RESOLUTION 56–CLARIFYING ANY POTENTIAL
    MISUNDERSTANDING AS TO WHETHER ACTIONS TAKEN BY PRESIDENT-ELECT DONALD
    TRUMP CONSTITUTE A VIOLATION OF THE EMOLUMENTS CLAUSE, AND CALLING ON
    PRESIDENT-ELECT TRUMP TO DIVEST HIS INTEREST IN, AND SEVER HIS
    RELATIONSHIP TO, THE TRUMP ORGANIZATION

    Mr. CARDIN (for himself, Mr. Leahy, Mr. Reid, Mr. Durbin, Ms.
    Mikulski, Mrs. Boxer, Mr. Wyden, Mr. Reed, Mr. Carper, Ms. Stabenow,
    Mr. Whitehouse, Mr. Udall, Mr. Merkley, Mr. Bennet, Mr. Franken, Mr.
    Coons, Ms. Baldwin, Mr. Murphy, Ms. Hirono, Mr. Heinrich, Ms. Warren,
    Mr. Markey, Mr. Booker, and Mr. Casey) submitted the following
    concurrent resolution; which was referred to the Committee on Homeland
    Security and Governmental Affairs:

    … Whereas the very nature of a “blind trust” is such that
    the official will have no control over, will receive no
    communications about, and will have no knowledge of the
    identity of the specific assets held in the trust, and that
    the manager of the trust is independent of the owner, and as
    such the arrangement proposed by Mr. Cohen is not a blind
    trust….

    I recommend a quick read through. The results of this may be more political than practical, but it is worth knowing what line various members are taking.

    1. Jerri-Lynn Scofield Post author

      Thanks for this. I will certainly look at it carefully.

      I fully expect the Democrats to continue to make further mischief over this issue. But if Trump refuses to divest himself of his interest in the Trump Organization before he becomes President (and I don’t see how he would be able to do that, frankly, given the complexity of his holdings), and then let us assume actions he takes some action that violates the emoluments clause, I say, so what? Who enforces this constitutional provision?

      As I wrote above, I do expect we will see some competitor standing lawsuits. But the remedy for such a lawsuit would be narrow– where to put it very generally, the wrong the competitor suffered would be righted. No court would hold, “Okay, plaintiff, you’re right, Trump’s violated the emoluments clause so now this court says he must be booted from office.”

      That leaves us with impeachment– that’s not going to happen, with Republicans fully in control of both House and Senate. (I recognize the Senate majority is narrow, but remember, the Constitution requires a 2/3 majority to convict, and before we even get to such a trial, the House must first pass articles of impeachment.)

  10. Skippy

    I am perplexed by this author’s willingness to roll over and avoid taking Trump to task. Of course we are powerless to charge him with anything or impeach him. That’s not the point. When the Republicans repealed the ACA 37 times they did so, not because they thought they could actually repeal it, but for political theater. When they formed countless Benghazi committees they knew they were not actually going to find any actual crimes. Again, it was political theater designed to craft a narrative and draw negative attention to their enemies. So sad that anyone wants to back down from this right after a campaign against Clinton that was baseless in its allegations about emails and charity work. Perhaps there is a better reason to keep pointing out his conflict of interest. Pure revenge. That’s right. Sometimes payback is worth it for its own sake.

    Lamentably, I fear that people will take to the streets and protest this president while the media will wonder why they are so angry. They will bring up all these nuanced arguments about how what he is doing is technically legal and so on. Meanwhile, we will all conveniently forget the thousands of hours and millions of dollars spent on Benghazi, emails and so on. It’s the ultimate gaslighting.

    1. Yves Smith

      The reason I beg to differ is when you are in the opposition, you want to fight winnable fights. You do not want to expend time and energy on battles you are sure to lose.

      Despite the Republican not framing a good narrative on Benghazi (were the Repubs not willing to say that the acting Ambassador was running arms out of the Embassy? I assume that was the problem, since it would put all Embassies in hot spots at risk), they scored a huge win: that inquiry exposed that Clinton had a private server at home. The Republicans knew that Clinton had been up to no good at State, and if they kept pulling on that string, they’d get somewhere.

      There might be a time to go after Trump emoluments, if evidence can be developed that he has been giving preferential treatment. But as the article points out, private parties can’t go after him, and the House isn’t going to impeach him unless he does something really egregious and then they can impeach him for just about anything. “High crimes and misdemeanors” means what the House wants it to mean.

    2. Lambert Strether

      This comment reminds me of the old story about the reviewer of a book about penguins, who trashed it because it wasn’t about owls (his favorite bird).

      The headline promises an examination of the constitutional issues in applying the emoluments clause to Trump. First, I’m sorry you wasted your time reading an article that wasn’t on your preferred topic; and second, I know you are a valued regular, but I still need to remind you: we don’t take assignments. You seem to have wanted the writer to do an article based on a recycled macédoine of stale and limp Clinton campaign talking points. There are plenty of sites that are doing that. I suggest you visit them.

    1. Bugs Bunny

      Sorry, I meant to post this in the Water Cooler. I see others have already noted it. Just saw it on TV.

  11. Xander

    What do you mean, ‘relax”? Why would I feel more ‘relaxed’ knowing that it’s very unlikely a President Trump could be impeached??? I feel distinctly unrelaxed now.

  12. Science Officer Smirnoff

    But, here’s the problem: who enforces these statutes? The Answer: The Attorney General of the United States. Yup, that’s the same Attorney General who serves at the pleasure of the President, and can be removed for any whim or reason. Does anyone honestly think that an Attorney General is going to seek to prosecute President Trump for violating an anti-bribery statute? Good– I didn’t think so.

    _____________________________________________________________________

    Nor does Jeff Sessions in protest remove himself—in a kind of remembrance of Eliot Richardson. Oh, how far from it!

    1. Jerri-Lynn Scofield Post author

      I well remember the Saturday Night Massacre– just over 43 years ago. Yikes. I was babysitting at the time and riveted to the tv.

  13. George Phillies

    “Please, can we lay to rest the idea that Trump would be impeached for ANYTHING.”

    I’m old enough to remember Nixon being on a straight line course to impeachment, with Senator Goldwater telling Nixon he had perhaps 50 votes in the House,and Barry was liekly going to vote for impeachment on some counts, in the Senate.

    The answer to your question is “Like the Vampire Nostradamus, impeachment will return to claim its lawful prey.”

  14. Ptup

    Does anyone remember how Trump insulted his way to the nomination? Made enemies of the Bushes? McCain? Ryan? Romney? Even friggin Cruz, he himself the most hated man in the senate. Don’tcha think there is a little bit of bad feelings there? A little payback brewing? Wouldn’t you think they would prefer Pence over this grown up 8 year old with a rabid Twitter habit? At least they can get into a room and make some sort of plan with Pence. With this guy, it’s like, wake up, ok, what the hell did he do/say at 4 am that I missed and now have to react to, one way or another. Do you actually think they have some sort of plan, or are winging it with this guy, like the rest of America, nay, the world?

    I’m guessing that, in certain circles, they’re all just hoping he screws up so bad in the “conflict of interest” department, that it wouldn’t take too much for an impeachment. It will be ugly, but, it’s not pretty now, right? President Pence at least is a predictable, sane thing. Not this child. Good lord.

    1. Ptup

      And, once and for all, the attorney general is not the one to “enforce the law” when it pertains to the Emoluments clause. It is not a law. It is an amendment to the constitution. Congress is is the only body that can act.

      1. Jerri-Lynn Scofield Post author

        You’re correct– the remedy is impeachment. In the post itself I was careful to talk about the AG enforcing statutes. I’ve amended my comment above so as not to misinform readers.

        1. Jerri-Lynn Scofield Post author

          Also, just to be clear, the clause is found in Art I, section 9, clause 8– it’s part of the original text, and is not an amendment.

          1. Ptup

            Yes, well, that’s right, and, this may sound like blasphemy around here, but, imagine how an originalist like Scalia would be reacting to this whole situation right now. If asked. Or, petitioned.

            1. Jerri-Lynn Scofield Post author

              I actually discussed this issue with a brilliant constitutional litigator I know, who happens to be an originalist. Said litigator concurred with my nothingburger analysis and in fact, even questioned why I was spending time writing about such a non-issue. Said litigator also suggested that the tempest over this clause originated with some Democratic talking points somewhere.

  15. YY

    I listen with grinding teeth to such things as Slate’s political gabfest just to hear where and how out of touch the center of politics are. Listening to the outrage about Trump hotels in all the trouble spots in the globe, I wonder if I ever heard a hint of conflict of interest addressed by this and other “reasonable” media sources of VP Biden’s conflict of interest because of his family interest in Ukraine. And we know the answer. At least Trump’s apparent conflicts are lit up in neon for everyone to see and judge as to how big they may be.

    1. Ptup

      Enough already with the corruption in the Democratic Party. Stop it. Look at what’s happening! Stop thinking this is the same! There is a plutocracy brewing under our feet that makes the supposed quid pro quo of the last few decades look like democratic paradise. This is disgusting, far beyond the stuff the Clintons or Biden, for crying out loud, could even think of pulling off. And, on top of it all, Goldman is more embedded then they could imagine for all they spent on the Dems!
      Stop it. This is not good. Forget about her. She’s gone. This fight needs unity, and force.

        1. Foppe

          (I.e., could you please point me to the application form for CTR? I’m terrible at performing internet searches, which is why I’m here and not on DKos like a proper soldier.)

  16. Cry Shop

    Meh, followed more in word than deed. First president (under the Constitution) George Washington held a slave powered plantation business highly dependent on trade with the UK and France. A business it was very clearly his plan to return to after leaving office. Jefferson, the same, and the Boston Boys were up to their necks in both trade and fiance with the UK. Madison set off the War of 1812 because he and his block long favored the implications of disrupting UK trade would have on their own businesses.

  17. Don W

    I expect Trump will run afoul of something impeachable via conflicts of interest and Ryan and McConnell will use it as a threat to keep him signing every bill they send him. If for some unknown reason Trump becomes difficult enough that Republicans impeach in an attempt to get Pence, it puts Democrats in a bad spot. A Trump president that blocks Ryan’s Ayn Randian dreams or a Pence President that passes everything in return for his promotion.

  18. barrisj

    The so-called “emoluments clause aside, there appears to be substantive problems for Trump qua Trump, Inc. regarding his lease of the Old Post Office Building in DC; a clause in the lease stipulates that “…no elected official of the Government of the United States shall be ‘admitted to any share or part of this Lease”. The building now is rebranded as “Trump International Hotel”, right on Pennsylvania Ave., into which Trump put serious money (his own) and retains an equity stake in the hotel. As sharp-eyed legal types have noted, this “conflict of interest” is not with the Constitution but rather with the terms of the GSA lease, which, if not amended, places Trump in “breach of contract”. I’m sure he’s well lawyered up by now, and I can imagine the fees that firms will be collecting the next four years (or longer).

    1. Cry Shop

      His own money, or via corporate holding company/trust? Find it hard to believe he’d not use a shelter and corporate shield.

  19. GK

    I agree the Emoluments Clause is likely a nothingburger for Trump, but I wonder if the reason would be non-justiciability as a political question more so than standing problems. If the clause applies to the President and is justiciable, then presumably someone must have standing to sue. But the text of the clause, allowing emoluments if Congress consents, plus the fact that the likely consequence of a violation would be removal from office, which the Constitution places in the hands of Congress via impeachment, suggests to me that a court would likely find that violations are a political question not meant for resolution by a court even if a plaintiff with standing could be found. Same result, just a different path.

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