The Emoluments Clause and Donald Trump’s Assets
Why it may be too late to penalize Trump.
Some things never end. Yesterday, a judge agreed to let a lawsuit, against Trump, issued by house Democrats to proceed (The Hill). The lawsuit is over the emoluments clause. Many have claimed that Donald Trump must place all of his assets in a blind trust, or else he would be violating the Emoluments Clause of the constitution.
This position is only half true. And it is on Congress to make a decision in the matter. What is interesting is that some have actually suggested impeachment for Trump, if he does not fully divest his assets, before taking office. But is that really necessary? It might be, if Congress does not make a decision to the contrary.
The Emoluments Clause
The constitutional provision in question is Article 1, Section 9, Clause 8: “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.”
Obviously no one wants the leader of the United States to be in conflict of interest. We don’t want to risk Trump, or any other President or politician, being bribed into acting in a way that is in the interest of some other country’s leaders.
But there’s an issue the clause. A key phrase is “without consent of Congress.” If Congress reviews Trump’s positions and determines that he will not be subject to a conflict of interest or that his position would not be a danger to the state, and gives him permission to hold the assets himself, or divest them to a family member, then it would not be unconstitutional for him to do so. In other words, the ball is in Congress’ court on this issue, and Congress needs to stop acting like a bunch of cowards and come to a verdict.
Tu Quoque
It should fall into consideration that Secretary of State Hillary Clinton was in technical violation of the Emoluments Clause. However, one could argue that a failure to impeach was an implicit okay from Congress. Given that there is also concern from many about Trump’s position, that may not fly in this case.
A Little Too Late
In any case, Trump has now been in office for over two years, and it took a very long time for anyone in Congress to get to the point of actually stating that Trump was in violation of the emoluments clause. Even now, there has not been an official statement from Congress as a whole. A person or other legal entity cannot spend years giving tacit permission to someone, only to penalize them after the fact. Such a precedent would be absurd. The only thing that Congress could do, if it ever actually got off its ass to act, is issue a statement that mandates that, going forward, Trump must comply.
Originally published at Politicoid on November 22, 2016
