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Donald Trump'’s international business empire, and his unwillingness to share his tax returns with the American electorate, have been raising concerns over conflicts of interest since well before his shock victory, though, as he himself has noted, Federal law signed by G. W. Bush on such matters does not cover the President or members of Congress.1 The Constitution's framers were well aware of the potential for corruption in both the executive and legislative branches. Delegates to the Philadelphia Convention spent some time considering how best to address this possibility, especially with a view to guarding against foreign interests which might seek to influence the new government.
Months before he enters the Oval Office, real as well as theoretical concerns about foreign influence on Trump have been raised. The New York Times reports that foreign diplomats have been making a beeline for Trump’s hotels since his election victory.2 According to the president-elect himself, the Trump name has been the biggest selling-point for his various ventures, making his businesses easy targets for those seeking favour. While previous presidents have had private sources of wealth, none of them have ever headed an international business empire with the Trump profile - a business empire holding contracts with foreign governments.
The president-elect has made a variety of statements about separating his private interests from the interests of the United States. In a New York Times interview on 22 November 2016, Trump said, 'I don’t care about my company. It doesn’t matter. My kids run it.'3 While the president is exempt from conflict of interest regulations appertaining to other federal offices, it remains unclear how the president-elect plans to confront accusations of corruption.
So what does the Constitution advise be done about Trump’s business activities?
The Emoluments Clause of Article I, §9 reads: '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.'
When Donald Trump becomes president in January, he will be a 'Person holding any office of Profit or Trust under [the United States].' William Blackstone, who published his Commentaries on the Laws of England in 1765 and was well-known to the Constitution’s framers, used the word 'emoluments' to describe income. One might receive emoluments for services performed, or as rent on property, or due to office (for example, as king). The word appears to be something of a catch-all, accompanying more precise descriptions of payment: 'manorial rights and emoluments', 'fees and emoluments', 'rents and emoluments'.
The clause provides for Congressional oversight of payments, gifts, offices, and titles received by officers of the United States from foreign powers, and prohibits the holding of other offices. But it does not prohibit income from private business, nor does it specify what Congress should do in the event that the prohibition is breached. No method of trial or punishment is specified.
Instead, a remedy is provided in Article II, §4. 'The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours.'
The President can therefore be removed from office on conviction for bribery, but only under the procedure provided for in the Constitution, which sets a very high bar indeed, requiring a vote in the House to impeach and a trial in the Senate to convict.
In both cases, the definition of bribery would be a matter of contention. Blackstone, the leading legal authority at the time of the framing, wrote of members of Parliament, 'And if any money, gift, office, employment, or reward be given or promised to be given to any voter at any time, in order to influence him to give or withhold his vote, as well he that takes as he that offers such bribe forfeits 500l., and is forever disabled from voting and holding any office in any corporation.' Although initially English legal precedent, this strongly suggests that receipt of a reward in return for favourable decisions would be grounds for impeachment. However, distinguishing such gifts from commercial contracts legitimately entered in to with Trump's business empire might prove an impossible task.
The principal difficulty would likely be in establishing intention. In recent times, courts in the United States have struggled to decide what standards should be applied in the case of senior elected officials. In June 2016, the conviction for corruption of former governor of Virginia Bob McDonnell was overturned when the Supreme Court elaborated and redefined the parameters of the term 'official acts' - which, the prosecution argued, had been exchanged for bribes - to exclude 'setting up a meeting, talking to another official, or organizing an event'. In other words, although it could be proved that 'loans or gifts' had been received, the Court said, McDonnell’s intention to provide official favours in return could not be established under this narrower definition.4
The case of a different state governor offers a contradictory lesson. In December 2011, former Illinois governor Rod Blagojevich was convicted, on wire-tap evidence, of 18 counts of corruption, one of which was the attempt to 'sell or trade the Senate seat that became vacant when President Obama went to the White House'.5 As the Seventh Circuit Court of Appeals found when it overturned the convictions on 5 of the 18 counts, 'a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.'6 Politics is done by trading favours - such acts cannot be considered bribery. Significantly, Blagojevich was convicted solely on the basis of evidence that he had solicited money in exchange for political favours, not evidence that he had actually received bribes.
Context may, however, be as important as legal standards. In some ways, Illinois is a special case; at the time that Blagojevich was tried and sentenced, the state was in the midst of a perceived crisis of corruption, and this may have played its part in the former governor’s sentence of 14 years in prison.
In the case of the Federal Government, since the power to impeach the President of the United States resides will reside with a Republican-controlled Congress, it remains to be seen whether evidence of solicitation or receipt of bribes would bring about such a rigorous pursuit of conviction. The procedure for impeachment itself makes this as much a political question as a strictly legal one.
What would the Constitution’s framers say about the matter?
The only mention of the Emoluments Clause in the Constitutional Convention was on 23 August 1787, when Charles Pinckney of South Carolina proposed the clause in the form in which it currently stands. Mr Pinckney, James Madison noted, 'urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence' and so moved the clause. There was no further debate or discussion of the clause’s meaning.
Discussions of other parts of the Constitution demonstrate, however, that the framers spent a great deal of time worrying about corruption. The executive, whose power would reside in a single person, was a particular cause for concern, although not always for the reasons we would expect.
James Madison fretted, on 6 June, that the decision to do away with an hereditary monarch would make the executive more liable to corruption, not less. The president 'would not possess those great emoluments from his station, nor that permanent stake in the public interest which wd. place him out of the reach of foreign corruption.' At that moment, at least, the Father of the Constitution betrayed a fear that it was poverty that would, above all, induce men to corruption.
It was the debate on impeachment of 20 July which produced some of the most striking statements of the Convention on the topic of executive corruption. Colonel George Mason of Virginia demanded an impeachment clause on the basis that presidential candidates might bribe electors to favour them. James Madison thought such a provision 'indispensable': the president 'might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers… In the case of of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within than compass of probable events, and either of them might be fatal to the Republic.' The young governor of Virginia, Edmund Randolph, admitted that 'The Executive will have great opportunitys of abusing his power.'
The most powerfully appropriate statement on the subject of corruption of the debate came from Gouverneur Morris, an aristocratic New Yorker who came to the Convention with the Pennsylvania delegation. Although he had not been convinced, at the beginning of the debate, that broad powers of impeachment were necessary, the arguments of the other delegates had convinced him to change his position. His great concern was less that the President would hand out bribes - which was enumerated among the grounds for impeachment at the close of the Convention - and more that the chief executive would be swayed by the receipt of monetary gifts. 'He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst it by displacing him.'
The framers thought that a president ought to be impeachable for being incapable of doing his job; for trying to extort money due to his great power; and for being in the employ of foreign governments. They attempted to prepare for these eventualities by putting Congress in charge of preventing officers of the United States from receiving gifts, favours, and dignities from foreign states, and by providing for the impeachment of the president for particular kinds of criminal activity. They also knew, however, that the Constitution could not solve everything. As the ever-quotable Alexander Hamilton warned on 18 June, 'one of the weak sides of Republics was their being liable to foreign influence & corruption. Men of little character, acquiring great power become easily the tools of intermedling neibours.'
As so often, the framers hoped to provide a more rational solution to the problems that had been faced by other states - the idea that a head of state might be both elected and impeachable was still novel, even if British kings had been removed by force. As Benjamin Franklin noted, 'What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination.' The legal and practical thresholds they set for impeachment were, however, extremely high. At time of writing, fewer than twenty Federal officials of any kind have ever been impeached. Indeed, the procedure is so difficult that very few articles of impeachment have ever been prepared, let alone voted through by the House of Representatives.7 Although he did succeed in the removal of William Pickering as a Federal Judge, Thomas Jefferson lamented that the difficulty of the procedure meant that 'the judiciary [are] independent of the nation, their coercion by impeachment being found nugatory.'8 The same might be said of all others whose only restraint is Federal impeachment.
Donald Trump's calculation that there is, in practice, little beyond legal convention to control his ongoing handling of his business affairs seems, for the moment, to be correct.
GM, NC, KH
https://www.washingtonpost.com/news/fact-checker/wp/2016/11/23/trumps-claim-that-the-president-cant-have-a-conflict-of-interest/ ; http://www.fas.org/sgp/crs/misc/conflicts.pdf ; https://www.law.cornell.edu/uscode/text/18/202 . ↩