//  7/26/17  //  Commentary

Six months into Donald Trump’s presidency, the legal troubles faced by this President and his Administration appear to be growing on a daily basis.  While much of the current focus is, quite reasonably, on dealings between Trump’s campaign and his businesses and foreign governments, no one should forget that dealings between Trump’s businesses and governments here at home also raise serious legal questions.

As others and I discuss in a new white paper released today, the Domestic Emoluments Clause—which prohibits the President from receiving any “emolument” from “the United States, or any of them,” other than his fixed compensation from the federal government—is a critically important provision in our Constitution.  And its implications for Trump and his businesses are significant.

When the Framers drafted the Constitution, they were deeply concerned about the corrosive and destructive effects that corruption could have on the young nation.  On one hand, the Framers were concerned with foreign nations and how they might try to meddle in the nation’s internal affairs—hence, their adoption of the Foreign Emoluments Clause and its prohibition on federal officials accepting benefits from foreign governments without first obtaining the consent of Congress.  On the other, they were also deeply worried about corrupting forces within the nation itself.  And with good reason: their experience under British rule had taught them how leaders could be tempted to put their own interests above the interests of the people they were supposed to serve.

To guard against the dangers that the nation’s highest official would be so tempted, the Framers adopted the Domestic Emoluments Clause, which prohibits the President from receiving benefits from the federal government, or state and local governments, beyond the fixed compensation he receives for serving as President.  As we discuss in great detail in the white paper, this prohibition was the result of the Framers’ anxiety that Presidents might abuse their position, putting their own financial self-interest above the interest of the American people.  It was also the result of the Framers’ concern that states, which had only recently yielded their sovereignty and come together to form a new nation, might try to give the President benefits in order to curry favor and compromise his independence.

While this Clause was critically important to the Framers—one early legislator called it “one of the most salutary clauses in the constitution”—it, like its foreign counterpart, had not received much modern attention prior to Donald Trump’s election.  Past Presidents, after all, had taken the steps necessary to ensure that they did not run afoul of this important anti-corruption provision in our national charter.

Not so, President Trump.  In just one of many examples of his disregard for the Constitution and the rule of law, Trump has essentially acted like the Domestic Emoluments Clause doesn’t exist.  He didn’t divest from his vast business holdings, as constitutional and ethics experts warned that he should.  Indeed, at his press conference shortly before the Inauguration in which he purported to explain how he would deal with his many conflicts of interest, he and his lawyers ignored the very existence of the Domestic Emoluments Clause.

President Trump has done so at his own peril.  As we also discuss in the white paper, the Domestic Emoluments Clause is quite broad in its prohibition, and, as a result, Trump appears likely to violate the Clause—and may already be violating it.  Earlier this month, for example, the Washington Post reported that the “State Department spent more than $15,000 to book 19 rooms at the new Trump hotel in Vancouver when members of President Trump’s family headlined the grand opening of the tower in late February.”  That payment may run afoul of the Domestic Emoluments Clause.  Last week, the Department of Homeland Security increased the cap on visas for foreign guest workers, and then days later Trump properties asked for “approval to hire 76 guest workers using those visas.”  If the Department of Labor says yes, that benefit may run afoul of the Clause. As I’ve written about previously, GSA is allowing Trump to continue to hold the lease on the Old Post Office building in Washington, D.C., even though that lease, by its terms, prohibits elected officials from benefiting from it.  The GSA’s provision of that benefit to the President may run afoul of the Clause.  The list could go on and on.

Efforts to hold the President accountable are already underway.  Two pending lawsuits—one brought by Citizens for Responsibility and Ethics in Washington and competitors to Trump businesses and another by the District of Columbia and Maryland—allege that the President is violating the Domestic Emoluments Clause.  And Free Speech for People has launched a campaign “urging two of the biggest U.S. public pension funds to divest from an investment fund unless it stops” making payments to one of Trump’s companies.  These and other efforts will surely continue, as well they should.

The Framers foresaw the dangers of a President who might put his own interests above the interests of the nation.  To prevent that, they enshrined two critical provisions in the Constitution: the Foreign and the Domestic Emoluments Clauses.  President Trump shouldn’t be allowed to violate them.  The stakes—for the American people and for the rule of law—are far too high.

The SDNY Debacle And The Supreme Court

6/20/20  //  Quick Reactions

The Trump administration's apparent desire to force out the U.S. Attorney for SDNY could have implications for several major Supreme Court cases this term.

Leah Litman

Michigan Law School

Versus Trump: Uncle Charlie's Comity Hour

10/10/19  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the major recent decision dismissing the President's attempt to block his accounting firm from turning over his tax returns to the Manhattan DA. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Can You Hear The Whistle Blowing?

9/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP