Nearly every week in Washington brings another example of how the Trump Administration actively promotes the business interests of the Trump Organization around the globe. That is, we see how government is used to enrich the president. Which means—if you happen to sweat the small stuff—the president is in violation of his oath of office to faithfully execute the responsibilities of the presidency and to preserve, protect, and defend the Constitution of the United States. In a functioning constitutional republic, he would be subject to impeachment.
But instead, it’s just Trump being Trump. “To ethics lawyers, the most extraordinary aspect of the daily merging of Mr. Trump’s official duties and his commercial interests both in Washington and around the world,” noted New York Times reporters Eric Lipton and Annie Karni last week, “is that it has now become almost routine.”
Trump has been in violation of the Constitution’s ban on receiving gifts and income from foreign governments since the day he was sworn in.
It made a small ripple when the media noticed that Vice President Mike Pence and his entourage arranged a two-night stay early this month at a Trump hotel and golf resort in Doonbeg, Ireland, even though Pence was traveling for meetings in Dublin, some three hours away by car. Likewise, a few eyebrows were raised when Politico reported that the House Oversight Committee is looking into a series of military stopovers at an airport in Scotland that happens to be near a Trump resort, where Air Force crew members sometimes lodged at a steep discount and golfed for free. “Taken together,” Politico reported, “the incidents raise the possibility that the military has helped keep Trump’s Turnberry resort afloat—the property lost $4.5 million in 2017, but revenue went up $3 million in 2018.”
Everyone who wants to curry favor with the president knows they are expected to patronize his properties. The Trump International Hotel in Washington, D.C., has become de rigueur for right-wing Trumpian conferences and parties. Attorney General William Barr has already booked the Presidential Ballroom for his annual holiday party in December, the Washington Post reported last month. But there’s more than just Trump-style cronyism at issue here. As last week’s Lipton and Karni Times story about the Trump Hotel in D.C. observed, “The single biggest known tab was paid by the government of Saudi Arabia, which disclosed that it spent $190,273 at the Trump hotel in early 2017, as well as an additional $78,204 on catering.”
It’s that fact that shows how brazen this president is about ignoring his constitutional responsibilities. Trump has been in violation of the Constitution’s ban on receiving gifts and income from foreign governments since the day he was sworn in. Because he refused to follow precedent by divesting himself of his commercial properties, he waded into a swamp of daily ethical conflicts. In fact, the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) released a report in August documenting more than 2,300 conflicts of interest in his term so far. These include the more than 360 times the president has visited his own properties at taxpayer expense, as well as the visits by at least 250 administration officials, ninety members of Congress, and more than a hundred visits from officials of sixty-five countries.
So, one might ask, how goes it with efforts to address these violations of the Constitution’s “emoluments clause” in the courts? So far, not so well. There are three such active lawsuits, but the first setback came this summer when the Fourth Circuit ruled in District of Columbia v. Trump that D.C. and Maryland lacked standing to sue the president. The plaintiffs claimed businesses in the district and in Maryland were put at a competitive disadvantage because of the favoritism that benefits the Trump International Hotel. By denying the plaintiffs had standing to sue, the court was able to conveniently avoid the question at hand: Is the president in violation of the clear language of the Constitution, and if so, what can be done about it?
Harvard Law professor Matthew Stephenson analyzed the problem:
If the courts are so gun-shy about having to confront this question on the merits that they’ll use the flexibility afforded them by standing doctrine to kick the cases out, this will amount to reading the Emoluments Clause out of the Constitution. There’s no other practical way to enforce it. So why should any future president even make a pretense of complying?
Meanwhile a case brought by CREW against the president is on appeal in the Second Circuit in New York. A third case, Blumenthal v. Trump, has been brought by about two hundred members of Congress and is still under consideration. Judge Emmet Sullivan of the U.S. District Court for D.C. in June rejected a move by the Justice Department on behalf of the president to dismiss the case. An early round in that case involved extended argument about the proper interpretation of the word “emoluments” as used in Article I, Section 9 of the Constitution. The clause reads: “no person holding any Office of Profit or Trust under them [the United States], 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.”
As much as the public is inclined to resort to an easy cynicism—they’re all a bunch of crooks—it’s rare that people can agree on what kind of corruption they oppose.
The president’s lawyers argued for a narrow interpretation that very nearly amounted to saying the language only meant public officials are not allowed to be on the take, or directly on the payroll of a foreign government. It is not meant to be, they argued “a blanket prohibition on commercial transactions with foreign governments by businesses in which the official has a financial interest.” The court rejected that reasoning and agreed with plaintiffs that when the Constitution was written “‘emolument’ was a commonly used term that often referred to profit or gain in general.” It’s unfortunate that such an important question turns on such an archaic word—because it impedes widespread public understanding—and yet, the legal and historical research that solves the confusion is not that difficult. As Zephyr Teachout wrote in her 2014 study Corruption in America, “It is one of the more strongly worded prohibitions in the Constitution . . . the clause does not merely stop at ‘no gifts,’ but emphasizes the prohibition through the use of ‘any kind whatever.’”
Setting aside the fact that discussion of emoluments makes many people think of skin creams and moisturizers, there’s a deeper problem lurking in how Americans engage with the problem of political corruption. It’s beyond appalling that a barely literate real-estate hustler could end up in the White House and use the office for his own enrichment. If you define corruption as excessive private interests influencing the use of public power, or the use of public power to benefit private interests, then Trump is the definition of a corrupt official. And yet as much as the public is inclined to resort to an easy cynicism—they’re all a bunch of crooks—it’s rare that people can agree on what kind of corruption they oppose. Any political attempt to dislodge a corrupt official is immediately assumed to be a partisan cause. If you oppose the official it’s easy to see that scoundrel’s corruption. Otherwise, those efforts are just assumed to be a partisan witch hunt.
There were a lot of Republicans who seemed to be very serious about ethical standards back when the Clintons were in power and every document related to their Whitewater investments needed to be studied under a magnifying glass. What exactly was the concern? That the Clintons had benefited financially from their public service? And yet, how many leaders of that Republican inquisition take an interest in Trump’s enrichment schemes today? There’s no better example of hypocrisy and partisanship in the prosecutorial world than Kenneth Starr, who pursued Bill Clinton’s attempts to obstruct justice, which became grounds for Republican attempts to impeach, and then popped up in recent months to caution against impeachment hearings on Trump because “it’s so bad for the country.”
Voters have not always taken a punctilious approach to political corruption, either. When politicians have posed as rule-benders who were standing up for the people, they have often won popular support. It worked for Huey Long in Louisiana, and later for that state’s gambling governor Edwin Edwards. For a while, Providence, Rhode Island, mayor Buddy Cianci and Illinois governor Rod Blagojevich were well-liked, rascally pols. They ended up in prison, but that was because of the efforts of prosecutors. Ultimately, they all made the same mistake: they didn’t get elected president, which is the safest office in the land if you want to break the law with impunity.
It’s pretty hard to imagine that anything can be done about Trump’s constitutional violations. If the emoluments cases make it all the way to the U.S. Supreme Court, the partisan Republican justices will protect him. What are we supposed to do? they will reason. We can’t make him divest of his financial empire. If voters are unhappy with his corruption they can turn him out of office.
You will see such a stance taken by the very people who consider themselves “strict constructionists” in constitutional interpretation—the ones who insist that the text of the Constitution must be interpreted in its original meaning and intent. They will ignore, as always, the great irony that in these cases they are reading their own new meanings into constitutional law. As Teachout explains in great detail in her history of the problem of corruption, during and after the Revolutionary War there was a widespread fear that the “Old World’s” corrupt ways could lead to a return to despotism. Thus, even the smallest gifts to American officials from foreign dignitaries could not be accepted without permission from Congress. Historians such as Bernard Bailyn and Gordon Wood, she writes, showed that “the framers were ‘perpetually threatened by corruption.’ . . . The fear of corruption was ‘near unanimous’ and there was a sense that corruption needed to be ‘avoided, that its presence in the political system produced a degenerative effect.’”
Since the 1970s, though, the Supreme Court has narrowed the understanding of corruption to mean little more than outright “quid pro quo” bribery. All of the legalized influence peddling that is part of our campaign finance system now has the Court’s blessing. It’s predictable that the Court would distort the obvious meaning of the emoluments clause, as well—perhaps agreeing with the president’s lawyers who see no “blanket prohibition on commercial transactions with foreign governments.”
There is a tendency on the left to see little political potential in an anti-corruption campaign. After all, there are direct human consequences of Trump’s politics that are more pressing: the racism, the assaults on the environment, the inhumane treatment of immigrant families, including the deliberate abuse of children. Teachout notes in her book that there is also a group of liberal scholars who argue that corruption concerns are really a subset of equality concerns, and therefore the political emphasis should be against inequality.
All of the legalized influence peddling that is part of our campaign finance system now has the Court’s blessing.
But in making a case for keeping a “grammar of corruption” in political discourse, Teachout makes an important point: we’re not likely to find a fair and equitable way to police corruption after the fact through the courts. There’s a danger in relying on prosecutorial zeal when prosecutors are themselves political appointees. Teachout favors “bright-line rules,” which clearly state what is unacceptable—for example, that financial gifts to judges are banned, regardless of any question of intent. In other words, some political activities are suspect from the beginning and should be legally ruled out with clear and definitive language.
By this way of thinking, the sleaze of the Trump years clearly demonstrates the necessary response. If we survive this trek through the muck, and the political moment turns toward reform, Congress could enact a package of laws to prevent a recurring nightmare. Congress could require that presidential candidates disclose the details of their tax returns and personal financial entanglements. (The House passed such a bill in March.) It could be required (rather than merely expected) that elected presidents divest from their business activities. Why shouldn’t the public state directly: “Look, if you want to be president, focus on that job without outside income. If you want to run a business empire, go run your business empire.”
It’s a fundamental principle of democracy that private interests and public interests be separated as much as possible. At the Constitutional Convention, Gouverneur Morris asserted that “wealth tends to corrupt the mind & to nourish its love of power, and to stimulate it to oppression.” The delegates to that convention knew, as Teachout writes in her conclusion, that “democracy, without constant vigilance against corruption, is an unstable, unmoored thing, subject to great gusts of whimsy, and likely to collapse.”