The Constitution (Probably) Won’t Save Us If Trump Becomes a Kleptocrat

The art of the self-deal. Photo: Drew Angerer/Getty Images

As a candidate, Donald Trump never promised to separate himself from his globe-spanning business interests upon winning the White House. Instead, the president-elect vowed to turn over the day-to-day operations of his company to his children — an arrangement that he described as a “blind trust,” despite the fact that it would leave him with perfect knowledge of the assets he holds, and immediate access to the managers of those assets.

But since his election, Trump has neglected to abide by the (absurdly insufficient) limits his campaign vow would have placed on his behavior. Rather than distance the managers of his blind trust from his administration, Trump appointed his children to his transition team; invited Ivanka to a closed-door meeting with the prime minister of Japan; and sought to appoint her husband to a position in the White House.

Meanwhile, Trump took a meeting with his Indian business partners and allowed his D.C. hotel to actively court the patronage of foreign diplomats.

When confronted with the nefarious implication of these actions — that the man who campaigned against corruption could intend to govern as a kleptocrat — he and his surrogates responded with variations of the same refrain: The president-elect will dutifully comply “with all applicable rules and regulations.”

The problem with this answer is that there are, quite likely, no applicable rules and regulations: The president is exempt from conflict-of-interest laws. The only constraints on Trump’s freedom to leverage his public power for private profit is political disapproval and his own sense of shame.

And, considering that Trump was just elected after spending a year and a half advertising his own avarice and shamelessness, it’s hard to have much confidence in those constraints.

The search for some other means of reining in our president-elect’s capacity for corruption has led several legal minds to a little-known section of the Constitution called the Emoluments Clause.

Concerned with insulating the American government from the influence of foreign powers, the founders penciled the following into that sacred document: “no person holding any office of profit or trust under” the United States, “shall, without the consent of the Congress, accept of any present … of any kind whatever, from any king, prince, or foreign state.”

Richard Painter, who served as chief ethics counsel to President George W. Bush, argues that the moment Trump’s D.C. hotel allows foreign diplomats to book rooms at an above-market rate, Trump will find himself in violation of the Constitution. Per ThinkProgress:

The diplomats’ efforts in seeking Trump’s favor by staying in his hotel “looks like a gift,” Painter told ThinkProgress in an email, and thus is the very kind of favor the Constitution seeks to prevent …

“Anything in excess of fair market value is a gift,” according to Painter, “and I don’t think you can take into account the value of the name Trump in calculating fair market value.” The diplomats are not staying in one of Trump’s expensive luxury hotels because Trump is charging their nation a reasonable market rate for a night’s stay. They are staying in the hotel because of the added value that comes from doing business with the President of the United States.

Painter’s argument has been endorsed by Harvard law professor Lawrence Tribe, the Republican former FEC chairman Trevor Potter, and Fordham law professor (and Democratic congressional candidate) Zephyr Teachout.

Writing for the New York Times, Teachout notes that past presidents have behaved as though the Emoluments Clause bound them to clear gifts from foreign nations with Congress:

In 1840, when President Martin Van Buren was offered horses, pearls, a Persian rug, shawls and a sword by Ahmet Ben Haman, the Imam of Muscat, Van Buren got a joint resolution of Congress authorizing him to split the bounty between the Department of State and the Treasury. When President John Tyler was given two horses from a foreign power, Congress had him auction them off and give the proceeds to the Treasury.

So, the Emoluments Clause is probably the best tool America has to restrain our (self-described) “greedy, greedy, greedy” president.

And it’s still a pretty lousy tool.

First, the legal argument here isn’t open and shut. There have been very few cases ever brought in connection with the Emoluments Clause, and thus, no binding precedent for its interpretation.

In a rebuttal to Teachout’s piece, Maynooth University law professor Seth Barrett Tillman argues that the Emoluments Clause was never intended to apply to the presidency. Tillman maintains that, read in context, the clause applies only to appointed members of the U.S. government, not elected ones. Further, George Washington’s own comportment in office suggests that he did not believe the clause applied to the president:

While he was president, Washington received two gifts from officials of the French government — including a diplomatic gift from the French ambassador. Washington accepted the gifts, he kept the gifts, and he never asked for or received congressional consent. There is no record of any anti-administration congressman or senator criticizing the president’s conduct. As Professor Akhil Amar has reminded us, the precedents set by President Washington and his administration deserve special deference in regard to both foreign affairs and presidential etiquette.

Thus, anyone suing Trump under the Emoluments Clause would have to establish:

1. That the clause applies to the president.

2. That patronage of a hotel is legally equivalent to a gift.

Both these assertions seem contentious. And even if we accept Painter’s interpretation, so long as Trump charged the diplomats market rate — a price that would still allow him to profit off their stays — he would be in the clear.

And then, even if the merits of the case against Trump were unambiguous, it would still be difficult to find an entity with both the standing and willingness to bring suit against a vindictive president.

Sure, a rival D.C. hotel might have standing to sue Trump on this matter. But the potential benefit (gaining competitive parity in the “foreign diplomats in D.C. on business” market) pales in comparison to the risk (when you come at the kleptocrat, you best not miss).

Now, the Emoluments Clause could, ostensibly, provide Congress with grounds to seek Trump’s impeachment. But it’s highly unlikely that Paul Ryan is going to lead an impeachment effort against a president who is more popular with Republicans than he is. And Democrats’ prospects of recapturing Congress in 2018 aren’t much better than my prospects of pitching on opening day at Citi Field.

Thus, it’s very likely that President Trump will comply with all applicable rules and regulations — and shape domestic and foreign policy around his own business interests in the process.

There’s Only One Legal Barrier to a Trump Kleptocracy