Why Donald Trump May Get Away With Flouting the Constitution's Gifts Clause

U.S. Donald Trump Constitution Emoluments clause Conflicts of interest

Donald Trump has a problem—and it dates back to 1787.

At the Constitutional Convention in Philadelphia, the delegates were divided on many issues, especially slavery. But they agreed the new republic they were creating was vulnerable to subversion from European countries that wanted to once again rule the North American continent. "Foreign powers will not be idle spectators," delegate Alexander Hamilton said at the convention. "[They will] interpose their will, confusion will increase, and a dissolution of the union will ensue." To prevent this dissolution, the founders of the United States of America banned any government official from receiving gifts or fees for profit from a foreign government.

This ban is a huge problem for the president-elect. Diplomats to the United States, for instance, have already said they plan to stay at Trump's Washington, D.C. hotel instead of at those of his competitors. This could be reasonably understood as a kind of gift that violates the Constitution. And if Trump's hotels overseas received building permits, tax abatements or other largesse from foreign governments, those could also be seen as the type of fee, salary or profit our government's founders expressly prohibited.

On November 30, Trump tweeted that "legal documents are being crafted which take me completely out of business operations. The Presidency is a far more important task!" And with a showman's elan, he chirped that he'll hold "a major news conference" with his children in New York City on December 15 to offer more details. What happened next was one of the stranger moments in the annals of American government: The Office of Government Ethics (OGE), an independent agency whose head was appointed by President Barack Obama, sarcastically tweeted back at the billionaire mogul. "OGE is delighted that you've decided to divest your business!" Trump, of course, has said no such thing. Nor is he likely to—and whatever he announces this month, few think he'll allay the constitutional concerns of both Democrats and Republicans.

Years of Precedent

"The intent of the founders was not to have government officials beholden to foreign governments," says Richard Painter, who was in charge of ethics in the White House Counsel's office under President George W. Bush. He believes Trump's conflicts of interest run so deep that unless he completely divests from his company, the Electoral College should deny him the presidency when its members meet in state capitals across the country on December 19.

Trump's not the first government official ensnared by what legal scholars call "the emolument clause." The language the founders crafted is a mouthful: "[N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State." Historically, that's meant presidents or government officials have had to decline or give the Treasury any gifts bestowed by a foreign power. This is not like bribery. Nothing has to be done in return for the gift to be unconstitutional. When the Imaum of Muscat (a city in Oman) shipped horses and pearls to President Martin van Buren as an unexpected gift, Marty didn't keep them; the U.S. government sold the horses and deposited the money in the Treasury, and the pearls wound up at the Smithsonian.

Since the clause applies to all government officials, there are lots of test cases. The Justice Department ruled that a government historian couldn't receive payment from a historical commission formed by the Austrian government because, well, it's a government. But two NASA scientists were allowed to go on leave without pay and accept money from a Canadian university because the school was deemed independent of the Canadian government. In 2009, a 13-page ruling from the Justice Department's Office of Legal Counsel determined that President Obama could keep his Nobel Peace Prize money—as had Theodore Roosevelt and other government officials before him—because it was being awarded by an independent commission, not the Norwegian government.

Trump is expected to stop running his business, but not relinquish his ownership of it. That would still allow him or his children to profit from foreign gifts. The president-elect has complained many times about the windmills near his Scottish golf resort. If the British government accommodated him, that could be construed as a gift. Similarly, Trump reportedly has substantial loans from the Bank of China, which is considered a state-run institution. Any loan forgiveness he received from any government-run lender could be seen as an unconstitutional gift.

"Unless his solution is to sell the business outside the family and put the proceeds in a blind trust, he's not really doing anything to solve the problem," said Citizens for Responsibility and Ethics in Washington in a statement in late November. "Just because you say something on Twitter, doesn't make it so."

Can Trump Ignore the Constitution?

Most analysts agree. The best way for Trump to proceed, according to Painter, the former Bush counsel, and Norm Eisen, the White House Special Counsel for Ethics under Obama, is for Trump to sell his business either through a buyout or a stock offering. Then the cash could be put in a more traditional blind trust managed by a third party instead of by his kids. As The Wall Street Journal recently put it in an editorial: "The presidential stakes are too high for Mr. Trump to let his family business become a daily political target."

Yet if Trump doesn't follow this advice, he'll probably get away with it. The Constitution puts Congress in charge of enforcing the gift ban, and so the Republican-controlled House and Senate could grant him waivers. (Technically, it could also pursue impeachment on this question, which is unlikely, given the Democrats' chances of taking back both houses of Congress in 2018.)

If Trump is allowed to flout the Constitution, it would be a supreme irony (and take a considerable amount of chutzpah). As the leader of the birther movement, Trump demanded to see Obama's birth certificate and only announced his belief that the president was a citizen this fall. Natural-born citizenship is one of the requirements for being president, which the founders established to limit foreign influence. But Trump seems far less concerned with the gift ban they created to stem this same influence; he spent the past year skewering his rival, Hillary Clinton, for accepting foreign contributions to the Clinton Foundation. "A secretary of state," he lamented, "sold her office...betraying the public trust."

Critics may eventually say the same about him.