The emoluments clause and the president’s office
November 29, 2016
The current likely recount notwithstanding, Donald Trump is the presumptive president-elect. Although his opponent, Hillary, came with baggage, Trump brings baggage of his own — Gucci with gold-platted clasps, no doubt.
Recently, addressing potential conflicts of interest between his business concerns and his new role, Trump told the New York Times, "The law's totally on my side" when it comes to questions about conflict of interest and ethics laws. "The president can't have a conflict of interest."
Setting aside the disquieting ethical implications of such a statement, from a purely legal perspective, Trump is right. Both the president and vice president are exempt from federal rules that prohibit executive branch employees from participating in matters in which they have financial interests. Specifically, 18 U.S.C. Section 202 (relating to financial interests), holds that, "Except as otherwise provided … the terms 'officer' and 'employee' … of this title shall not include the President, the Vice President, a Member of Congress, or a Federal Judge."
So, there you go.
If this election has taught us anything, however, is that Trump is a whole different kind of political bird. If past is prelude, then it seems that Trump will do whatever he wants and figure out the details later.
The theory underlying the exemption is that the president and vice president need to carry out their constitutional duties without restraint. But, wait, that's not the end of it. In practice, recognizing that perception matters at least as much as strict legal compliance, past presidents have taken steps to separate their business lives from their political existence. Many constitutional and political scholars would argue that so doing is the very core of good governance.
But, wait, there's more. There is the emoluments clause.
Emoluments which, despite sounding as though it is something you'd apply to smooth your skin, means something entirely different. Merriam Webster defines an emolument as, "the returns arising from office or employment usually in the form of compensation or perquisites." To bring this kicking and hollering into the 21st century, an "emolument" means a "perk," a "spiff" or an opportunity derived from one's office or employment. It is some special advantage one derives as a consequence of one's position.
Found at Article I, Section 9, Clause 8, what the Constitution has to say about emoluments is: "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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."
Well, there you have it. At least sorta. How does this potentially apply to the president elect and the Trumpian empire which stretches its business tentacles to the far reaches of the earth?
Bear with me…
Shortly after he took office, President Obama sought advice from the Justice Department about a potential conflict of interest. He wanted to know whether he could accept the Nobel Peace Prize. Innocent enough? But you see, the Noble Prize comes with a little spiff of its own. Nearly $1.5 million, to be precise.
In answering, the Justice Department concluded that the Emoluments Clause "surely" applied to the president, and the prize was the sort of thing that would be barred if it came from a foreign state. But, as the committee that chose Obama was independent of the Norwegian government and the prize itself was privately financed, the President could accept the prize.
Trump's companies do in fact do business with entities controlled by foreign governments and people with ties to them. Many legal ethicists are concerned that those kinds of arrangements could easily run afoul of the emoluments clause after Trump takes office. Any time Trump were to receive anything of value from a foreign sovereign, to the extent that it does not represent fair market value, it might be considered a gift and stand in violation of the emoluments clause.
Interestingly, The Supremes have never weighed in on this directly. The reason is that Trump's predecessors have moved heaven and earth to assiduously avoid brushing up against the clause. If this election has taught us anything, however, is that Trump is a whole different kind of political bird. If past is prelude, then it seems that Trump will do whatever he wants and figure out the details later.
What's more, billionaire presidents being a bit of a rarity, there is no real historical precedent to follow. What will the Court do — if and when the issue falls to it — to apply the Constitutional imperative to a president who owns a business empire that yawns from Argentina to Turkey to the United Arab Emirates to China?
There are two things we do know. First, in his recent meeting with the New York Times, Trump acknowledged that he was "awed" by the office of the presidency. Donald Trump and a touch of humility? One can hope so. Second, what else we know is that the president elect likes to make a buck. How his business instincts may butt up against his new responsibilities will, at the least, be fascinating to watch.
Fasten your seat belts. We may be in for a "trumpy" ride.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 and at his email address, Robbins@SLBLaw.com.
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