In recent weeks, much of the talk in the political world has centered around the prospect that Donald Trump’s myriad foreign business deals could potentially get him impeached. Specifically, they could fall afoul of a clause in the Constitution that bars federal officials from accepting gifts from foreign powers. Well, a number of ethics experts from both parties have gone one step further. They believe his conflicts of interest are so stratospheric that the Electoral College must not vote him in as president.
The first expert to weigh in on this issue was Richard Painter, the chief ethics counsel to George W. Bush. Painter is actually responsible for turning the hot lights on the constitutional minefield surrounding Trump’s foreign deals last weekend. When Painter learned that a number of diplomats are trying to trade stays at Trump’s luxury hotel just a few blocks from the White House for access to a President Trump, he argued this was a violation of Article I, Section 9, Clause 8 of the Constitution–known as the “Emoluments Clause” or the “Title of Nobility Clause.”
That provision bars federal officials from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state” without congressional approval. Painter believed that Trump’s only way out would be to sell or gift the hotel lease to his kids before he takes office. However, he went further than that on Wednesday–not once, but twice. He thinks that Trump’s foreign deals potentially disqualify him from serving as president.
He first dropped this bombshell on CNN Wednesday morning. Think Progress got a clip.
This interview came less than 24 hours after Trump declared that it was not possible for presidents to have conflicts of interest. Painter scoffed at this notion. He revealed that earlier in the day, he emailed his concerns about potential Emoluments Clause violations to Trump campaign manager Kellyanne Conway. He suggested that Trump sign over any payments that the Trump Organization receives from foreign governments and state-owned businesses after January 20 to the federal government, with yearly audits to ensure that every penny goes to the United States.
However, a visibly frustrated Painter said, the Trump campaign hasn’t shown any interest in his advice because–wait for it–Painter didn’t support Trump’s election bid. Painter reminded Trump that he is about to be “president for all of us,” and for that reason, he needs to give assurances that he will “comply with the Constitution at a bare minimum”–and do so before the Electoral College meets on December 19. And if he doesn’t?
“I don’t think the Electoral College can vote for someone to become president if he’s going to be in violation of the Constitution on day one, and hasn’t assured us he’s not in violation.”
Later that night, Painter doubled down on this argument on “PBS Newshour.” Watch here.
Painter told host Judy Woodruff that Trump has a number of potential Emoluments Clause issues, such as outstanding loans from the Bank of China. He claimed that his proposal to assign foreign payments to the federal government would be the “bare minimum” to ensure that Trump complies with the Constitution–and that the electors should insist on such a move before they meet.
Norman Eisen, who served as President Obama’s chief ethics counsel for most of Obama’s first term, went even further than Painter. In an email to Think Progress, he argued that the Emoluments Clause was specifically aimed at preventing the president from being unduly influenced by foreign powers.
“The Founders did not want any foreign payments to the president. Period.”
As evidence, he cited a statement from Edmund Randolph, a delegate to the Constitutional Convention who went on to become governor of Virginia. Randolph bluntly stated that if the president breached the Emoluments Clause, it would be an impeachable offense. Eisen agreed with Painter that Trump’s attempts to encourage diplomats to stay at his Washington hotel a textbook case of such emoluments. He believes it’s “laughable” to suggest that they aren’t related to his future status as president.
As Eisen sees it, Trump has only two ways out of this. One would be to put his companies into a true blind trust–not one run by his kids, as Trump has claimed he will do. He further argued that the electors must insist that Trump create a blind trust as a condition of getting their vote. Failing that, Eisen suggested that Congress give its stamp of approval to these arrangements–and thus “admit that they endorse Trump’s exploitation of public office for private gain.”
Harvard law professor and constitutional scholar Laurence Tribe has also studied the matter. He concluded that unless Trump sets up a blind trust for his businesses, he cannot honestly take the oath of office. After all, he would be “knowingly breaking his oath of exclusive fealty” to the Constitution even as he repeats that oath after Chief Justice John Roberts. He further argued that without such a blind trust, an Electoral College vote for Trump would amount to “an abdication of the solemn duties of the 538 Electors.”
So there you have it, from three of the nation’s leading legal minds. Contrary to what Trump would have you believe, this is the very situation that the Founders had in mind when they included this clause in the Constitution. Trump appears to be of the mind that we shouldn’t care about this issue. Hopefully the Electoral College has the guts to tell him otherwise.
(featured image courtesy Gage Skidmore, available under a Creative Commons BY-SA license)
