Here’s Why Trump’s Business Interests Could Trigger A Constitutional Crisis

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Kevin Daley Supreme Court correspondent
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The questions surrounding the future of President-elect Donald Trump’s sprawling business interests aren’t strictly ethical; they also present a major constitutional concern.

Almost 100 foreign diplomats attended an event at Trump International Hotel in Washington, D.C., where they sipped Trump-labeled champagne and took in a sales pitch about Trump’s newest property, the Washington Post reported Friday.

“Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’” a diplomat from an Asian nation told the Post. “Isn’t it rude to come to his city and say, ‘I am staying at your competitor?'”

“Believe me, all the delegations will go there,” a Middle Eastern diplomat added. (RELATED: Sessions Can Prosecute Sanctuary Cities As Attorney General)

[dcquiz] Though the Constitution does not preclude office-holders from doing business with foreign powers, the little-known and rarely litigated Article I Emoluments Clause forbids public officials from accepting gifts of value or receiving special treatment in commercial dealings with foreign interests, according to Fordham School of Law professor Zephyr Teachout. Teachout, a progressive stalwart, recently lost a bid for a congressional seat in New York to Republican John Faso. The clause reads: “No Title of Nobility shall be granted by the United States: And no person holding any Office or Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The provision was adopted as a prophylactic measure against the corrupting influence of foreign powers attempting to curry favor with American officials. As the Heritage Foundation’s Guide to the Constitution explains:

The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from … [a] foreign State.”

One might reasonably debate whether staying at a Trump property is ordinary commercial business or an unconstitutional emolument, but for as long as Trump remains invested in his properties, the prospect of foreign officials attempting to build good will with his administration by staying at his hotels and clubs could trigger unprecedented constitutional questions. For example, as Ian Millhiser at ThinkProgress points out, it’s unclear what remedies could be applied against President-elect Trump should a court find he has run afoul of the Emoluments Clause.

Some scholars assert that the issue is less problematic constitutionally than it may appear. Seth Barrett Tillman, lecturer at the Maynooth University department of law, argues the Emolument Clause does not apply against the president. Writing in the pages of The New York Times he cites three reasons: 1.) Constitutional provisions relevant to the president and the vice president name them expressly, and do not “rely on generalized ‘office’ language”; 2.) President George Washington accepted gifts from the French without congressional consent, and scholars have held that his administration deserves “special deference in regard to both foreign affairs and presidential etiquette.”; 3.) Per historical evidence from the founding period, an office holder within the meaning of this clause refers to appointed and not elected officials.

In the Yale Journal on Regulation, Andy Grewal, law professor at Iowa Law School, writes that a commercial transaction, such as staying at a hotel, cannot be construed as a “gift” imagined by the clause, provided that one is paying the going market rate. Furthermore, the purpose of such transactions do not have securing a favor as their direct aim. In other words, no emolument can exist if Trump receives an amount from a foreign interest in exchange for a service unrelated to his official public and political duties.

For the moment, it seems Congress is the only entity capable of providing a meaningful buffer against the specter of foreign influence in the Trump administration, should he decline to fully divest his commercial and real estate holdings. But with both chambers under GOP control, it’s unclear that members of Trump’s own party will risk transgressing a leader who prioritizes loyalty.

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