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Trump's Conflicts Of Interest Could Add Up To Constitutional Calamity

12/15/2016 10:35 am ET | Updated Dec 15, 2016

There is much about the rise of President-elect Donald Trump that seems unprecedented in American politics and marked with uncertainty. But one aspect of Trump as a public official was foreseen and forewarned against since the very beginnings of our nation -- the problem of his foreign entanglements and financial conflicts of interest.

As our nation's Founders came together to draft our Constitution, they were deeply concerned that the government be designed to prevent against corruption and foreign influence. They considered anti-corruption measures essential to an enduring republican system of government. As George Mason warned his fellow delegates at the Constitutional Convention, "if we do not provide against corruption, our government will soon be at an end." "[N]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption," Alexander Hamilton explained in the Federalist Papers.

Indeed, James Madison's notes of the Constitutional Convention record that 15 delegates used the term "corruption" no fewer than 54 times, and seven of the most prominent delegates, including James Madison, accounted for the vast majority of those usages. Corruption was an express topic of concern on almost a quarter of the days that the members convened.

The Founders were particularly anxious about the temptations that could come from holding office and dealing with foreign and domestic governments, and wrote into our nation's charter provisions that attempted to prohibit and prevent such types of potential corruption, and remedy them if they occurred.

Two textual manifestations of this design are in the Constitution's Emoluments Clauses, which, thanks to Trump, have been in the news lately. First is the "foreign gifts" or Foreign Emoluments Clause of Article I, declaring that "no Person holding any Office of Profit or Trust... 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." The other is the "domestic" Emoluments Clause, found in Article II, which forbids the President from receiving, apart from his salary, "any other Emolument from the United States, or any of them." Our Constitution's Framers drafted these clauses because they wanted to exclude any foreign influence or temptation to self-dealing that could compromise the government's independence (or, more precisely, the government's intended dependence on the American people). They did so by prohibiting the President from receiving any compensation, gift, or other form of profit other than the salary being paid him by the American people--whether it was from foreign governments, the United States, or state governments.

As Edmund Randolph explained during the ratification debates in Virginia, "[i]t was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states."

The President-elect, of course, has a multi-billion-dollar net worth, with business dealings in at least 20 foreign countries, a lucrative stake in the NBC reality TV show "The Apprentice," and a luxury hotel deal involving the federal government that is already raising major red flags. While it is difficult to know the extent of the President-elect's business dealings with foreign and domestic governments because of his refusal to be more transparent, the little we do know implicates both the foreign and domestic Emoluments Clauses.

While the concerns about foreign influence and financial corruption implicated by Trump's business dealings go back to our political beginnings, what is far less certain is what happens now that these potential constitutional problems have been identified.

One way out of the problem, at least for the Foreign Emoluments Clause, is for Congress to give consent to Trump's foreign business dealings, presumably determining that they don't represent the potential for foreign influence and corruption the drafters of our Constitution so feared. In 1785, for example, King Louis XVI of France gave Benjamin Franklin a portrait of the King set in diamonds atop a gold snuff box, which Congress determined he could keep.

Perhaps the easiest way to dissipate the looming cloud of constitutional doubt would be for Trump to be transparent about his financial dealings and fully separate himself from any profit from foreign or domestic governments. Simply promising that his children will assume management of his businesses -- allowing him to continue to reap the profits, even if he himself is not running the operations day to day -- doesn't cut it. Presumably the Founders' concerns with foreign gifts would not have been alleviated simply by having officials send their children to pick up their jewel-encrusted snuff boxes.

But what if Trump refuses to do either of these things? He certainly doesn't seem to appreciate the constitutional magnitude of these conflicts of interest. Last week, Trump dismissed calls, including from the Office of Government Ethics, to divest his assets by tweeting that "it was well known [before the election] that I have interests in properties all over the world." This week, he again minimized the importance of distancing himself from potential conflicts by postponing until next month a long-awaited announcement of his business plans, instead attempting to address these major issues in a tweet, something that is wholly inadequate to address the serious constitutional issues implicated by his financial dealings.

This is where we get to the unprecedented part. Is Trump outright ineligible to assume the office of the presidency if he does not refuse any profit from the federal or state governments, as required by the Domestic Emoluments Clause, or receive congressional approval of his financial deals with foreign governments, as required by the Foreign Emoluments Clause? Members of the Electoral College would probably feel much more comfortable voting Trump into office if they had more information regarding his compliance with these constitutional standards. (It's a shame he postponed his press conference on the matter until after the Electoral College vote, leaving the electors with woefully inadequate information on the subject.)

Does the matter fall to Congress, to investigate and then take appropriate action, up to and including impeachment? After all, we are not simply talking about vague norms about conflicts of interest -- these are explicit constitutional requirements that our next President could be set to violate.

Or does the matter fall to the courts to decide? It would certainly be uncharted territory, and there are questions about who would have the standing to go into court and sue. But it isn't difficult to see the vast possibilities for such lawsuits, and it is too early to count out judicial enforcement of these constitutional standards.

Our nation's Founders knew that because the presidency "was to be administered by a single man ... corruption was more within the compass of probable events," as James Madison explained. And because of this they wrote into the Constitution provisions that Trump is setting himself up to violate from the moment he takes the oath of office. Trump should heed that oath, in which he will swear to "preserve, protect, and defend the Constitution," and sufficiently separate himself from his financial and business dealings that implicate the Emoluments Clauses.

If he doesn't, it may fall to the members of Congress or the judges of our federal courts to follow their sworn oaths to uphold the Constitution and ensure that these constitutional anti-corruption standards are maintained.

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