The Emoluments Clause—A Presidential Violation

Nicole Langesfeld – When Donald J. Trump became the forty-fifth president of the United States on January 20, 2017, constitutional questions immediately arose. The Emoluments Clause made headlines from the outset of the Trump Presidency. However, prior to Trump’s presidency the Emoluments Clause was an arcane concept to many, only coming to light as Trump took office whilst leaving behind a business empire. Article I, Section 9, Clause 8, of the United States Constitution reads as follows:

No Title of Nobility shall be granted by the United States: And No Person holding any Office or Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, or any kind whatever, from any King, Prince or foreign state.

“In plain English, the clause prohibits certain government officials from receiving gifts, offices, titles, or emoluments from members of foreign governments without approval from Congress,” ensuring that government officials act in the interest of the American people instead of acting in their own self-interest or the interest of their personal businesses. The Emoluments Clause was designed as a means to prevent foreign governments from exerting undue influence over American government officials – bringing truth to the slogan “serve the public not yourself.” Although, the clause does not specify who the clause covers or what would qualify as an Emoluments clause violation, Trump’s business empire has brought conversation about the clause to the forefront.

Prior to becoming the forty-fifth president of the United States, Donald Trump was one of the world’s most successful business moguls. As the President of the United States, however, some say that he “almost certainly began violating the Constitution the moment he took the oath of office.” This differs greatly from the actions of his predecessors who either sold or liquidated their assets prior to officially becoming President, in efforts to prevent violating the Constitution of the country they have vowed to solemnly protect. Trump has repeatedly refused to follow the lead of his predecessors; “instead, he has transferred management, but not ownership, of the Trump organization,” to a blind trust, which is currently managed by his own children. Therefore, Trump retains full ownership of his widespread private holdings, while only delegating the “operational responsibility not to an independent arm’s length trustee, but to his sons, Eric and Donald Jr.”

Although, President Trump may be running afoul of the United States Constitution there is probably no judicial remedy available to hinder any further violations. A federal judge has recently dismissed a pair of lawsuits “claiming that [although] President Donald Trump’s failure to divest himself of his real estate empire and other business holdings violated the Constitution’s [Emoluments Clause],” ruling that the suits were “fatally flawed” because of the failure to show any direct injury as a result of the alleged violations.

According to the court, President Trump’s actions did not violate the Emoluments Clause and are not impeachable under the current application of the clause. The only standing remedy would have to come from Congress in the form of passing specific legislation that would then enable judicial enforcement. Given the time it would take to pass such legislation it is unlikely that the Emoluments Clause will have any effect on Trump’s presidency or the current administration. However, the new light shed on the ambiguity of the Emoluments Clause may spark an ongoing reformation of the clause and its application moving forwards.

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