High Crimes and Misdemeanors

Donald Trump appears determined to violate the Constitution on Day One of his presidency.

US President-elect Donald Trump speaks to reporters between meetings December 28, 2016 at Mar-a-Lago in Palm Beach, Florida.

President-elect Donald Trump speaks to reporters between meetings on Dec. 28 at Mar-a-Lago in Palm Beach, Florida.

Don Emmert/Getty Images

As soon as Donald Trump is sworn in as president, he will almost certainly be violating the United States Constitution. Trump still refuses to fully divest himself of his business holdings, creating the potential for massive conflicts of interest in the executive branch—a problem the Framers foresaw and attempted to preempt in drafting something called the Emoluments Clause. Although it centers around a strange word and sits in an obscure cranny of the Constitution, the clause presents a fairly straightforward rule: No federal officeholder can receive an “emolument”—money, services, or items of value—from a foreign state, including a state-owned corporation. On Jan. 20, Trump will simultaneously hold the office of the presidency and own a business that receives a great deal of cash from foreign, state-owned companies. History, tradition, and the plain text of the Emoluments Clause suggest that by doing so, Trump will clearly be in contravention of the Constitution. There is only one practical remedy for such a violation: impeachment.

But in one corner of academia, a different take has emerged: Trump can’t violate the Emoluments Clause because the clause doesn’t apply to presidents. According to this hypothesis, the Framers excluded the president from the Emoluments Clause. They failed to inform the public of this fact for unknown reasons. Indeed, the Framers’ true intention remained mostly concealed for centuries, even as president after president rejected foreign gifts as unconstitutional emoluments. The real meaning of the Emoluments Clause, this theory concludes, stayed largely shrouded in the mists until the 21st century, when Seth Barrett Tillman, a law professor in Ireland, revealed it to the world.

Tillman is a fine scholar who specializes in telling familiar constitutional stories with a fresh angle. He started promoting his emoluments thesis long before Trump’s candidacy and cannot be written off as a partisan hack. But partisan hacks will surely seize upon his postulation to defend Trump’s constitutional corruption.

The consensus understanding of the Emoluments Clause is reflected in a memo written by the Office of Legal Counsel in 2009 after President Barack Obama was awarded the Nobel Peace Prize. “The President surely ‘hold[s] an[] Office of Profit or Trust,’ ” and is thus barred from receiving emoluments under the Constitution. Tillman disagrees with this interpretation, insisting that the presidency is not an “Office of Profit or Trust.” Why not? Because, he writes, the Constitution does not use the word “office” to refer to “elected federal officials,” but only to appointed federal officeholders. Therefore, the president is exempted from the clause’s restrictions.

A recent paper by scholars Norman L. Eisen, Laurence Tribe, and Richard Painter (the chief ethics counsel to President George W. Bush) explains why this assertion is wrong on its face. First, the exclusion of the presidency from such an anti-corruption provision would surely be significant enough to merit explicit mention in the text of the Constitution. The Emoluments Clause states that “no person holding any office of profit or trust under [the United States], 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.” The Framers were terrified that officers of their new government, particularly its chief executive, would fall prey to foreign influence. Why include this blanket ban then tacitly exempt the president from it entirely?

Second, there are at least five constitutional provisions that seem to presume the presidency constitutes an “office.” Most notably, the Constitution states that an official who has been impeached and removed from office may not hold “any office of honor, trust or profit under the United States.” If Tillman’s reading is correct, then an official who is impeached could still have another turn in an elected office, including the presidency.

Tillman has indeed argued that the Constitution does not bar a disgraced former official from the presidency. His argument, however, cannot be squared with the Framers’ obsessive focus on corruption in the executive branch. It would make little sense for them to create a slew of privileges and restrictions for federal officeholders—then quietly exempt the executive from these rules. When I ran this apparent illogic by Tillman, he countered that “there is a tradition in law of excluding apex officials from certain ethics requirements. There must be certain residual discretion in every system, or else you might end up creating another apex, one that might be even less well monitored.” The practical reasoning here became difficult for me to follow.

Tillman’s argument doesn’t only have logic problems; it also goes against the grain of history. When Simon Bolivar gave President Andrew Jackson a gold medal, Jackson felt compelled to ask Congress whether he could keep the gift and was told he could not. When a sultan, Ahmet Ben Haman, presented President Martin Van Buren with horses, pearls, shawls, a sword, and a Persian rug, Van Buren declared that it was a “fundamental law of the Republic which forbids its servants from accepting presents from foreign States or Princes.” Several years later, the sultan offered two more horses to President John Tyler, who also asked Congress for help in disposing of them.

Tillman counters that Jackson, Tyler, and Van Buren were far from model presidents and should not be held out as paragons of constitutional fidelity. He also points out that the very first president, George Washington, received two gifts while in office: the key to the Bastille following the prison’s liberation (from the Marquis de Lafayette) and a portrait of King Louis XVI (from a French ambassador). Both of these gifts appear to be objects of diplomacy presented by foreign dignitaries as an act of national friendship, which may or may not be an Emoluments violation. But even if they were personal gifts rather than symbols of statecraft, Washington’s actions are hardly definitive. It’s certainly possible that Washington violated the Emoluments Clause, just as President John Adams violated the First Amendment in signing the Alien and Sedition Act. The founders were not angels, and two symbolic diplomatic gifts in the early 1790s do not render the Emoluments Clause toothless.

Another historical chapter, though, more directly contradicts Tillman’s theory. At the Virginia Ratifying Convention, Edmund Jennings Randolph—a delegate to the Constitutional Convention of 1787—proclaimed unambiguously that the clause applied to presidents. Randolph also noted that the proper remedy for a presidential violation of the Emoluments Clause is impeachment. If “the president receiv[es] emoluments from foreign powers,” Randolph explained, “he may be impeached. … I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”

Tillman speculates that Randolph simply misunderstood the scope of the clause. But it’s difficult to imagine that one of his fellow Framers would not have corrected him at some point, and his is the clearest account of the Emoluments Clause from anyone present at the Constitutional Convention.

This debate might at first appear to be a purely academic exercise. But its public understanding is of immense importance. If anyone attempts to sue Trump under the Emoluments Clause, federal courts would declare the clause to be “nonjusticiable”: an issue with no clear judicial remedy that only the political branches can resolve. Here, of course, as Randolph argued, political resolution means impeachment. If Tillman’s view is correct, Trump’s congressional defenders can assert that he isn’t actually running afoul of the Emoluments Clause because it does not apply to him at all.

In an email to me, Tillman wrote that because “no federal court has determined” the Emoluments Clause applies to the president, “the question remains unsettled. … As such, it is an unsuitable basis for the Left and its pro-impeachment fantasists. Unsettled law is no basis for impeachment. You don’t overturn an election based on a theory or a matter of first impression. First graders know that, and so should you. So should your readers. I wonder if you will tell them.”

In the end, Tillman simply does not present a convincing case against centuries of history and precedent, logic, and the plain words of the Framers themselves. But his argument need not be persuasive to be damaging. If the meaning of the Emoluments Clause is seen as contested, one of the most potent arguments against Trump will become a point of endless debate rather than a means of holding him accountable for potential constitutional violations. Americans must not let that happen, no matter how vehemently one corner of academia attempts to reframe the Emoluments Clause. The Constitution is often majestically vague, but here it is stingingly clear: With his foreign cash flows continuing unabated, Trump is on the verge of violating America’s fundamental law.