THE BLOG
12/19/2016 09:57 am ET

On Trump Conflicts, Don't Forget About the Other Emoluments Clause

There's been a lot of talk lately about the many conflicts of interest posed by a Trump presidency. And rightly so. After all, these conflicts are a constitutional crisis in the making: unless Donald Trump sells his business interests before January 20 (and he's thus far shown no willingness to do so), he will be in violation of the Constitution on the very day he takes the oath to uphold it.

But amidst all of the conversation about Trump's conflicts and the constitutional problems they pose, most (although certainly not all) of the attention has thus far focused on the Foreign Emoluments Clause of Article I of the Constitution, and the entanglements between Trump's business interests and foreign governments. There's more than one Emoluments Clause in the Constitution, however. And people should definitely be paying attention to both.

As I and others have noted, when the Framers drafted our Constitution, they were deeply concerned about corruption and self-dealing; they wanted to ensure that government officials, including the President, were focused on serving the peoples' interests and not their own. It seems obvious that the President of the United States shouldn't be thinking about his own financial interests when he sets national policy, but the Framers didn't want to leave that to chance. That's why they enshrined in the Constitution itself prohibitions designed to prevent such corruption.

As is now widely known, the Foreign Emoluments Clause prohibits any "Person holding any Office of Profit or Trust" from "accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State," without "the Consent of the Congress." But that's not the only Emoluments Clause in the Constitution. Importantly, there's also a Domestic Emoluments Clause (in Article II), which explicitly applies to the President and prohibits him from receiving, on top of his salary, "any other Emolument from the United States, or any of them." Together, these Clauses prohibit the President from receiving, other than his salary, any "emolument"--any compensation, gift, or other form of profit or gain--from foreign governments, the United States, or state governments and their instrumentalities.

Significantly, the Domestic Emoluments Clause is absolute in its prohibition; while the Foreign Emoluments Clause allows Congress to give its consent to presidential receipt of otherwise forbidden emoluments, Congress can't wish away violations of the Domestic Emoluments Clause even if it wanted to. The Framers were clear: no Emoluments beyond the President's salary from the federal government or the states. Period.

The Framers weren't just belaboring the point in twice prohibiting the receipt of emoluments - rather, the two provisions established separate prohibitions aimed at different evils. While the Foreign Emoluments Clause addresses foreign interference in our national governance, the Domestic Emoluments Clause addresses domestic entanglements that might compromise the President's independence or lead him to put his own interests above those of the nation's people.

The concerns underlying the Domestic Emoluments Clause are not difficult to understand. What if Congress, by offering the President some financial advantage, seeks to influence his vote on legislation or encourage him to take action that he does not truly think is in the national interest? Key to the Framers design, after all, were independent branches that could serve as checks on each other. As Alexander Hamilton wrote, the ban on emoluments would ensure there was "no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." Or what if the President attempts to use the powers of the presidency and the tools of the federal bureaucracy to enhance his own wealth?

Or what if one state, by offering the President some financial advantage, seeks to encourage the President to adopt policies that benefit that state even though they may harm others? The Framers may have been concerned about tariffs and other 18th century policies that could affect states differently, but the same general concern could apply to a host of additional policies today. If Louisiana would rather a federal agency deposit nuclear waste in South Carolina, why not offer the President some personal benefit to curry favor? If the executive branch is helping to determine where a new plant and new jobs should be located, why not do the same?

These concerns were so important to the Framers that Alexander Hamilton wrote that "[i]t is not easy . . . to commend too highly the judicious attention which has been paid" to addressing them in the Constitution.

Of course, it may often be difficult to trace any given policy decision to any specific financial incentive, but the point is the American people should never have to wonder whose interests the President of the United States is serving. And, unfortunately, when it comes to the incoming Administration, it's apparent that there may be no shortage of ways in which the new President may be violating the Domestic Emoluments Clause, even as the President-elect's failure to disclose all of his financial holdings and interests makes it impossible to know the true extent of the problem.

Perhaps most significantly, with hotels and property developments all over the United States, it's possible that Trump has been--and will continue to be--the beneficiary of tax breaks from any number of states. As the NY Times has reported, since 1980, Trump "has reaped at least $885 million in tax breaks, grants and other subsidies for luxury apartments, hotels and office buildings in New York." And that's just in New York. It's not difficult to imagine that Trump could use the power of the presidency to "encourage" states and cities to offer similar tax breaks to his properties, or that states and cities could of their own will do so to try to curry favor with the Administration. Likewise, Trump plans to maintain a financial stake in the reality TV show Celebrity Apprentice. It's quite possible that the show might be the recipient of tax incentives and breaks, and that Trump would be one of the people reaping the benefits.

The Framers might not have been able to envision the precise nature of the conflicts of interest presented by the Trump presidency (they surely couldn't have imagined Celebrity Apprentice), but we do know they envisioned these types of problems. That's why they included the prohibitions they did in the Constitution to protect against corruption and self-dealing. And as the conversation continues about Trump's conflicts of interest and the constitutional problems they pose, we shouldn't lose sight of the fact that there's not just one constitutional provision at stake, but two. We shouldn't forget the other Emoluments Clause.

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