EXPLAINER: Trump vs. the Emoluments Clause

- It’s a lesser known part of the U.S. Constitution with an odd name, but it could pose a large thorn in the Trump Administration: the Emoluments Clause.

The key part of the clause states: “no Person holding any Office…shall, without the Consent of the Congress, accept of any present, Emolument…from any King, Prince, or foreign state.” The point of the clause is to avoid bribes and conflicts of interest.

Modern presidents have complied by divesting themselves of business holdings, and putting investments in blind trusts. President Barack Obama had his lawyers compose a 13-page memo on whether he could accept the cash award that came with the Nobel Peace Prize; he could because the award wasn’t closely tied to the Norwegian government.

But the clause has only come up a few times in presidential history. Our first president, George Washington, received gifts from French officials without Congress seeming to care. However, Congress made President Martin Van Buren turn over gifts to federal coffers, and made President John Tyler turn over proceeds of two horses he received from a foreign government.

But President-elect Trump, so far, has announced no intentions to sell his businesses. And Richard Painter, the former ethics lawyer for President George W. Bush thinks Trump’s possible conflicts of interest are ethical and legal problems.

“He is involved with a lot of projects all over the world. There are foreign governments that are involved in some of these, government-owned banks, and he also has diplomats from other countries staying at his hotels,” said Richard Painter, now a professor at the University of Minnesota School of Law. “So these are all potential conflicts of interest that need to be dealt with before he takes office.”

Painter, and others, have suggested Trump avoid conflicts, and a possible constitutional violation, by selling his business holdings.

“That is the type of thing the Emolument Clause does not want happening: foreign money going to a United States government official, much less our president,” Painter told Fox 9. “I think he would be best off to sell his business holdings, take the company public, come up with a way to convert these business holdings to cash, so he can focus on being a good president.”

While Painter, and other ethics lawyers, believe Trump could be in violation of the Constitution, there are some lawyers who do not believe the Emoluments Clause applies to the President.

In addition to the Emoluments Clause, there are other conflict of interest laws at stake. A law concerning conflicts in the executive branch excludes the President, Vice President, members of Congress, and federal judges. However, another law, the Foreign Gifts and Decorations Act, does apply to the President.
 

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