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The Electoral College, the Constitution, and Trump’s Conflicts of Interest

The 538 presidential electors voting today have unique leverage now to hold the President-Elect accountable and demand appropriate disclosure of foreign entanglements. The question is, will they use it?

December 17, 2016

Yester­day the Brook­ings Insti­tu­tion issued an analysis of an obscure consti­tu­tional provi­sion that should concern every Amer­ican. The paper, by Norman Eisen, Richard Painter and Laurence Tribe, demon­strates persuas­ively that when the 538 pres­id­en­tial elect­ors meet on Monday to cast their votes for pres­id­ent, elect­ing Donald Trump as almost every­one expects, they will be elect­ing a pres­id­ent whose tangled and myster­i­ous web of busi­ness deal­ings “viol­ate both the spirit and the letter of [a] crit­ical piece of the U.S. Consti­tu­tion.”

The concern, specific­ally, arises out of Trump’s many entan­gle­ments with foreign govern­ments and lead­ers. While we don’t know the full extent of these ties, thanks to Trump’s refusal to make his busi­ness records (includ­ing tax returns) public, what we do know raises grave concerns. As the clock ticks down to Monday’s Elect­oral College vote, which will actu­ally be 51 separ­ate votes in each state capital plus the District of Columbia, it is still not too late for elect­ors to hold the Pres­id­ent-Elect account­able.

The consti­tu­tional provi­sion in ques­tion is the Emolu­ments Clause, found in Article I, Section 9. Before its current moment in the spot­light, even most lawyers would be hard pressed to explain its purpose in our consti­tu­tional frame­work. Simply put, the clause prohib­its any “Person hold­ing any Office of Profit or Trust” under the United States govern­ment from accept­ing “any present, Emolu­ment, Office, or Title, of any kind whatever, from any King, Prince, or foreign state.” Only expli­cit consent from Congress can make such actions legal.

The word “emolu­ment” is defined in the Oxford English Diction­ary as “profit or gain from station, office, or employ­ment; reward, remu­ner­a­tion, salary.” As the Brook­ings paper notes, the framers of our Consti­tu­tion used the term as “a catch-all for many species of improper remu­ner­a­tion.”

The framers worried a great deal about foreign inter­fer­ence in the Amer­ican polit­ical system. They saw first hand how the great European powers tried to manip­u­late Amer­ican offi­cials by giving them gifts and money. Indeed, as Professor Zephyr Teachout explains: “Several provi­sions of the Consti­tu­tion were designed assum­ing that foreign powers would actively try to gain influ­ence.” By strictly insu­lat­ing our govern­ment offi­cials from finan­cial ties to foreign states and lead­ers, they sought to avoid insi­di­ous foreign influ­ence and dual loyal­ties.

As the Brook­ings’ authors note: “The Emolu­ments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expres­sion of insight into the nature of the human condi­tion and the precon­di­tions of self-governance.”

The concerns over foreign meddling, viewed through the prism of 1789, don’t seem so far fetched in 2016, despite our evol­u­tion from fledgling repub­lic to pre-emin­ent global power. Indeed, as we continue to collect­ively process an elec­tion in which a rival nation, Russia, flag­rantly meddled with the goal of affect­ing the result, the framers’ concern over foreign entan­gle­ments seems more vital than ever.

The Brook­ings’ report argues that “Mr. Trump’s busi­ness hold­ings present signi­fic­ant prob­lems under the Emolu­ments Clause,” which covers “an excep­tion­ally broad range of remu­ner­at­ive rela­tion­ships (includ­ing fair market value trans­ac­tions that confer profit on a federal office­holder; and that it reaches payments and emolu­ments from foreign states (includ­ing state-owned and state-controlled corpor­a­tions).” The array of Trump’s foreign entan­gle­ments laid out in the report – surely only the tip of the iceberg due to Trump’s contin­ued refusal to make his tax returns public – are breath­tak­ing. He is, in the authors’ view, “a walk­ing, talk­ing viol­a­tion of the Emolu­ments Clause.”

Accord­ing to the report, “The bottom line is simple: Mr. Trump stands to bene­fit person­ally, in innu­mer­able ways, from decisions made every day by foreign govern­ments and their agents.” The special advant­ages and bene­fits already reaped by Trump, due solely to his status as Pres­id­ent-Elect, range from foreign agents making a point of stay­ing in Trump hotels to stalled Trump projects around the world suddenly given the green light by foreign govern­ments. To date, there is no evid­ence that Trump is taking the steps neces­sary to fully insu­late himself from these undue gains.

Of course, Trump cannot tech­nic­ally be in breach of the Emolu­ments Clause until Janu­ary 20, when our next pres­id­ent takes the oath of office. But what is the remedy after that? As the report explains, “Congress could pass legis­la­tion impos­ing restric­tions to limit the pres­id­ent’s owner­ship of or involve­ment in foreign busi­nesses that could confer payments or emolu­ments.” Or private parties, say busi­ness compet­it­ors injured by the unfair advant­ages reaped by Trump’s compan­ies, might press novel legal argu­ments in the courts.

Impeach­ment and removal from office remain the ulti­mate sanc­tion for persist­ent viol­a­tions of the Consti­tu­tion’s ban on emolu­ments. As the authors assert, “Congress would be well within its rights to impeach him for enga­ging in ‘high crimes and misde­mean­ors,’” adding that “at least one prom­in­ent leader in the rati­fic­a­tion process saw viol­a­tions of this Clause as grounds for impeach­ment.”

But action on this press­ing ques­tion of national concern need not wait another five weeks. The 538 pres­id­en­tial elect­ors have the oppor­tun­ity now, before they cast their votes, to insist on appro­pri­ate disclos­ure. While there is an active public debate over the right of elect­ors to vote their conscience, rather than cast their votes for the candid­ate chosen by the voters in their state as is the norm, the authors argue that the “Elect­oral College would be justi­fied in conclud­ing that [Trump] is unqual­i­fied for the Office of the Pres­id­ency.”

It must also be said that this would be an unpre­ced­en­ted depar­ture from the under­stood rules of the game, codi­fied in the laws of many states, which strictly limit the role of elect­ors to follow­ing the will of the voters. While little stops the elect­ors from posing these urgent ques­tions, the mere possib­il­ity that the elec­tion result could be altered through the personal initi­at­ive of 538 people – however motiv­ated by prin­ciple – raises other profound ques­tions. Surely, the demo­cratic legit­im­acy of our pres­id­en­tial elec­tions would be better served by retir­ing the Elect­oral College once and for all.

Since that day is far off, one thing is certain: these 538 pres­id­en­tial elect­ors prepar­ing to cast their votes on Monday have unique lever­age at a moment of consti­tu­tional peril. They should act now before time runs out. The emolu­ments issue is not going away.