Could President‐​elect Trump’s Business Dealings Violate the Constitution?

At the New York Times, Adam Liptak has a story on whether President-elect Trump’s business dealings--in particular the possibility that he may use his presidential power to secure business advantages--would violate the obscure Emoluments Clause of Article I, Section 9 of the Constitution. Since the clause has never been directly addressed by the Supreme Court, we'll have to do some guesswork.

The short answer: very possibly, but it will depend upon the facts of the situation.

The longer answer: whether or not Trump’s dealings violate the text and original public meaning of the Emoluments Clause, it should be highly concerning to everyone that the President-elect seems committed to still being closely involved in his businesses. Unless he wants a pall of suspicion hanging over his every move and every phone call to a foreign official, the President-elect should immediately place his businesses in a blind trust in order to maintain at least the semblance of propriety.

In the text, the Emoluments Clause prohibits any Person holding “any Office of Profit or Trust” under the Constitution from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Immediately, it is clear that the text limits the clause to gifts from foreign governments and the officials.

The original public meaning of the clause also confirms this interpretation. Foreign kings and princes once gave lavish presents to American officials, for example, a diamond-studded snuff box given to Benjamin Franklin (then ambassador to France) by Louis XVI. The Framers were concerned that these gifts would corrupt our officials, and so they prohibited them.

The next relevant consideration is whether, if Trump’s businesses receive a “gift” from a foreign government, Trump himself may be violating the Emoluments Clause. There is certainly an argument for this, since he benefits from the gift, even if only by increasing the value of his brand and stock holdings.

Finally, what sort of things would be a “gift” from a foreign state? According to one report, Trump has already asked Mauricio Macri, the Argentine president, whether he would help with permitting issues that are holding up the construction of a major office building in Buenos Aires.

If such a deal was made, would the permit be a “gift” from a foreign state? Very likely. Valuable gifts from members of foreign governments need not come in the form of diamond-studded snuff boxes, they can certainly be building permits worth several millions of dollars.

The final problem, however, is should such a gift occur, will anyone be able to bring a constitutional challenge against it? In order to bring a case to court, a plaintiff must have “standing,” meaning, among other things, that they must be actually harmed by the alleged violation. It is hard to say who would be harmed by such a gift. Perhaps a competitor of Trump businesses, but that may be a stretch.

Nothing would prevent the Congress, however, from impeaching Trump on those grounds. Over the next four years, members of Congress should remain vigilant against the possibility of President Trump using the presidency for personal gain.