Trump will violate the Constitution on Day 1

Trump’s Business Interests

Will Violate the Constitution on January 20th

I must admit that as a constitutional lawyer for over 40 years, I never thought about Article 1, Section 9, Clause 8 of our founding document, the United States Constitution. I never had to until now.

It reads, “[n]o 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.”

Put simply, this provision is designed to keep foreign governments from meddling in our political affairs by bribing our elected officials, as in Mr. Trump, you owe me $1 million, I’ll forgive the debt if you _________________.

My conservative lawyer friends who believe we must take the words of the Constitution literally, without room for changing circumstances, are having difficulty with Donald Trump’s abject failure to follow this simple language with respect to his business holdings that spread across multiple foreign countries.

One pundit tried to side step the anti-bribery language of this clause by suggesting that it does not apply to presidents. Sorry, but the word “any” shoots that one down in a hurry.

In order to keep his international businesses running, they will have to do business with foreign states in order to operate. Trump will need import/export permits, occupancy permits, tax incentives, debt restructuring and all of the other parts of the “deals” he loves to make. At each and every turn, he will run afoul of this constitutional provision should he keep control of his assets. An “emolument” is a payment and that is a very broad term that can encompass not only monetary compensation but also any benefit obtained in exchange for some action.

Recognizing the legal thicket and potential fodder for those who oppose him, Trump has been advised to sell off his business holdings or, at the very least, to follow precedent set by several predecessors and place his business holdings in a “blind trust.” These trusts put control of the assets in the hands of a neutral third party to manage and control without any reporting to, input from or influence by the owner of the assets over the handling of the trust assets.

Trump just cannot let go of his financial empire. At his press bludgeoning this past Wednesday, he appeared with a table filled with file folders that were supposed to represent his holdings and what he planned to do with them. He said he would not sell or put these assets into a blind trust. Instead, he would turn operational control over his businesses to his sons to manage in his name until his term was over. This does not meet any reasonable definition of a “blind trust,” even if he does make good on his promise to “fire” them if they don’t do a great job.

Needless to say, the government’s own ethics watchdogs found Trump’s proposals wholly unsatisfactory. Ethics lawyers for past presidents from both political parties have chimed in, saying these proposals are not sufficient.

So what happens next?

Congress could give him a complete pass on the prohibitions in the Constitution. A simple majority resolution exempting Trump’s businesses from the anti-bribery bar might do the trick. While the GOP majorities in both house of Congress might be willing to do much of his bidding, I doubt they would feel comfortable going that far. I would have said there was no way Trump would get a pass on this, but then I remember the Citizens United case that opened the dark money flood into our political discourse and now I’m not so sure.

The U. S. Constitution is not self-executing. That means nothing happens unless one branch of the government or another does something to enforce its provisions. Certainly violation of the anti-bribery bar could be an impeachable offense, but only if Congress chooses to act should such a violation take place. Would Congressional Republicans take up articles of impeachment if Trump maintains control of his international empire? I doubt that they would, unless some foreign holder of Trump debt tries to use repayment as leverage to obtain some advantage.

I guess it will be up to us, remember “we, the people,” to demand that Trump sell or put his private business interests in a truly blind trust, and hold Congress accountable for failing to make sure it happens or it will just be Trump business as usual for the next four years.  

Waring R. Fincke is a retired attorney and Vice-Chair of the Democratic Party of Washington County.