Last week’s revelations that the military has spent millions propping up President Donald Trump’s Scottish resort and the failing airport that provides primary access to it represent more than just additional Trumpian schemes to debase the presidency for personal enrichment. They reveal fresh constitutional violations and signal a grave new chapter in Trump’s kleptocratic presidency, in which he ever more severely imperils national security and brazenly solicits constitutionally impermissible payments from foreign states and taxpayer coffers alike. It’s thus especially fitting that the House Judiciary Committee appears poised to expand its impeachment inquiry to encompass these latest twists on the seemingly endless tales of unconstitutional emoluments, both foreign and domestic.
A great deal of attention has centered on the foreign emoluments clause of Article I, Section 9, which bars officeholders from receiving anything of value from foreign states without congressional consent. Few realize that the Constitution contains two separate emoluments clauses, each with a uniquely important role. Trump has long been impermissibly accepting payments from foreign governments (even recently lobbying to host the next G-7 at his faltering Doral, Florida, resort) in contravention of the foreign emoluments clause. The military’s Turnberry entwinement and Vice President Mike Pence’s 181-mile commute to stay at Trump Doonbeg violate a distinct constitutional provision: the domestic emoluments clause of Article II, Section 1, which prevents presidents from receiving payments from federal or state accounts, save their congressionally predetermined salary.
The domestic emoluments clause is less familiar to the public than its sister clause but is no less vital to the constitutional design. It is indeed the core anti-corruption and anti-profiteering clause of Article II. For the Framers, the danger of a president being unduly influenced by some subgroup of the country or using the office to drink at the public trough was no trivial matter, as they’d long watched the English king loot the Treasury and likewise corrupt Parliament and colonial governors, making reciprocal financial inducements the coin of the realm. Emblematic of the depth of this concern, the domestic clause is absolute in character—without the foreign clause’s contingent exception for congressional consent—and expressly forbids even Congress from adjusting the president’s salary during his tenure or permitting him to accept any additional sum from any source.
Trump’s forgoing of any part of his official salary doesn’t absolve him of this constitutional responsibility either, not least because the aggregate value of his emoluments no doubt enrich him—and his children—by many times his $400,000 salary. Article II provides that the president “shall not receive” (emphasis added) any additional compensation not provided by Congress; it doesn’t contemplate how a president may spend or return such compensation. As Alexander Hamilton articulates in Federalist No. 73, this categorical prohibition is no accident. Noting the “judicious attention” paid to this issue, Hamilton underscores the Framers’ intention that presidents be barred from receiving “any other emolument”—be it from Congress, the states, or federal fiefdoms—that might engender even the question of divided presidential loyalty or corruption.
Trump’s latest schemes reveal exactly why the founders sought to prevent such profiteering. Tapping the military budget to prop up his failing resort, Trump is not only pilfering taxpayer resources and usurping congressional appropriations power but potentially compromising national security by distorting the procedures and independence of the Armed Forces. These avaricious actions also have significant second-order effects. By “suggesting” that the G-7 nations and even the vice president aid in lining his own pockets, Trump is sending clear signals to administration and external actors interested in access that there’s an expectation of pay-to-play, in turn perverting the honest decision making of government agencies and public officeholders, all to Trump’s private profit and the country’s detriment.
Beyond the constitutional violations, Trump’s profiteering also provides a rapacious nexus to the other ways he’s compromising national security for personal and political gain. While accepting vast sums from foreign governments, he continues to invite those same governments to proffer dirt on his political opponents, as do his top advisers. So too is Trump—purportedly an unyielding defender of our troops—diverting congressionally appropriated dollars from military schools and day care centers to fund his ultra vires vanity border wall—yes, the very wall that he repeatedly promised Mexico would pay for.
The seemingly synchronized nature of the Turnberry scheme also raises serious questions about the independence Trump claims from his businesses while in office. While his administration was funneling funds and service members to Glasgow Prestwick Airport, the resort—ostensibly run by his children without his knowledge—was offering special deals to those same service members in conjunction with the airport. Even if Trump’s children were indeed running his business empire without his personal involvement, the unending flow of financial benefits to Trump’s own bottom line, given that he has steadfastly refused to divest his ownership interest, would mean that the emoluments clause violations remain uncured. But the pretense of independent management is itself a joke. And as enterprising journalists continue to discover new emoluments channels almost daily, it seems a near-certainty that these developing stories just scratch the surface of Trump’s continuing abuse of power.
Although a federal court has recognized members of Congress as having standing to challenge Trump’s acceptance of foreign emoluments without first obtaining congressional permission, it is unclear precisely who would be able to invoke federal judicial power to challenge Trump’s violations of the domestic emoluments clause. But Congress is not powerless to investigate this wrongdoing, and if courts are not in a position to intervene, the need for Congress to do so is all the more compelling. It should not be beyond imagination for Congress, endowed by the Constitution with the exclusive power to raise and distribute the funds Trump has wrongfully appropriated, to insist that Trump forfeit the full amount he has illegally siphoned from government coffers in excess of his congressionally set compensation. A concurrent resolution to that effect would not be subject to a presidential veto and, being a nonpunitive measure, arguably wouldn’t even constitute a forbidden bill of attainder. Indeed, not being a “bill” at all—except in the colloquial sense that an invoice is a “bill”—such a measure shouldn’t require Senate concurrence, especially because the Constitution specifies in Article I, Section 7, that “All Bills for raising Revenue shall originate in the House of Representatives.” At worst, Trump could thumb his nose at such a demand. But the political price of his doing so would be considerable.
To be sure, the only constitutional remedy that Trump would not be free to ignore would be impeachment by the House followed by conviction and removal by the Senate. And, so long as the Senate remains unwilling to take its “sole Power to try all Impeachments” seriously, the most Trump is likely to face as a matter of realpolitik is impeachment by the House. Even there the stomach to take constitutional responsibility with the requisite seriousness seems to be swamped by the desire to reduce the odds of defeat at the polls in 2020 and by the fervent hope that the president may yet be defeated in his run for reelection, a prospect that I continue to believe would be enhanced, not reduced, by a vote of impeachment in the House. While the Framers created the impeachment power to deal with precisely the circumstance we now confront, only the fortitude of principled leaders can guard our republic and keep our constitutional democracy alive. The 93rd Congress boldly protected this nation from Richard Nixon’s deceptions and denigrations; it remains past time that the 116th do the same in holding Donald Trump accountable for any and all of his “high Crimes and Misdemeanors” and for safeguarding our country from the enormous harm his continued presidency threatens to inflict.
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