Emoluments

The framers of the U.S. Constitution were so fearful that foreign influence might cause federal office holders to breach their ethical duty of loyalty to the people of United States that they inserted a clause into the Constitution prohibiting office holders from receiving any gifts or emoluments from foreign governments.  This is the infamous “Emoluments Clause” about which we have all heard so much of late. However, the clause does provide one notable exception to the ban—the office holder can keep the gift or emolument if Congress consents.

As President Trump is determined to retain an ownership interest in his company, he must receive approval from Congress before he or his surrogates accept any payments, benefits, or preferential treatment from foreign governments and their agencies. Congress must exert its authority under the Emoluments Clause and provide oversight of President Trump’s vast international enterprises to ensure that no foreign government is seeking to influence our President.

Recently the President’s attorney, Sheri Dillon, stated her opinion that the term “emolument” does not apply to arms-length business transactions. There is no legal precedent for this declaration. I agree with government ethicists Norman Eisen and Richard Painter who argue that the ban applies to all payments or benefits from foreign governments.  They rightfully reason that doing business with a President is a way of currying favor by enriching the President’s holdings.

Dillon denies that the ban applies to the President’s hotel revenues received from foreign states, however she tells us that the President is going to do the right thing by donating those receipts to the U.S. Treasury. This is a good start, but doesn’t go far enough.

What Dillon failed to address is all of the other potential benefits that might be conferred by foreign governments doing business with President Trump. Examples might include favorable interest terms from the Bank of China, renewal of development permits in countries where the Trump Organization does business, or ongoing lease payments for rent of office space in a Trump owned building.

The President is legally (if not ethically) exempt from most ethics laws enacted by Congress. To do otherwise might cross the line separating the executive power from the legislative.  However, when it comes to potential foreign influence over the President, the Constitution requires congressional intervention. In the case of Donald Trump, Congress has a duty to step in and evaluate every benefit conferred by foreign states. The American people have the right to demand transparency in these transactions so that we can be confident that foreign governments are not meddling in our affairs.

There is a way out for President Trump.  If he doesn’t want Congress overseeing his business dealings with foreign governments he can, and should, divest.

Hana Callaghan directs the government ethics program at the Markkula Center for Applied Ethics at Santa Clara University in California.  The opinions expressed are her own.