1/12/2017
Trump may violate the Constitution on Day One ­ LA Times
Op-Ed Trump may violate the Constitution on
Day One
President­elect Donald Trump answers a question during a news conference at Trump Tower in New York City on Jan. 11. (Gary
Hershorn / TNS)
By Erwin Chemerinsky
JANUARY 12, 2017, 4:00 AM
P
resident­elect Donald Trump either does not appreciate, or does not care, that his extensive business
holdings pose serious legal problems. At his news conference on Wednesday morning, Trump and a
lawyer said that he would donate hotel profits from foreign governments to the United States
Treasury and let his children manage all operations. Although the plan is vague on crucial details, it clearly isn’t
strong enough to keep him on the right side of the Constitution.
Article I, Section 9 states: “And no Person holding any Office of Profit or Trust under them, shall, without the
Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any
King, Prince or foreign State.”
The so­called emoluments clause was meant to restrict the ability of foreign governments to influence American
officeholders, a matter of great concern to a fledgling nation. It was also designed to prevent conflicts of
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interests. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.”
The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from
receiving anything of value from a foreign country.
The emoluments clause applies to all who hold “office” in the United States government. The Office of Legal
Counsel of the Department of Justice explicitly has declared that this obviously includes the president.
“
In a word, Trump’s proposed solutions are
laughable.
Trump’s business holdings are incompatible with the emoluments clause. Just for example, the largest single
tenant in Trump Tower is the Industrial and Commercial Bank of China. Guess who owns that bank? The
People’s Republic of China. Rent payments therefore arguably constitute an emolument — a salary, fee or profit
— from a foreign state. As a recent report of the Brookings Institution concluded: “The bottom line is simple: Mr. Trump stands to
benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign
governments and their agents.”
In a word, Trump’s proposed solutions are laughable. So what if he donates “profits” from foreign governments
to the United States Treasury? All he has to do is accept money from a foreign government and he’s already in
violation of the emoluments clause — it doesn’t matter whether it constitutes a profit, or where the money
ultimately ends up. Focusing on profits, moreover, ignores the countless ways that his businesses can benefit from foreign
governments that would never show up on a balance sheet. For example, it was widely reported that Trump
lobbied a British political ally to oppose a wind farm project because it might ruin the view from his golf course
in Aberdeen, Scotland.
Besides, Trump on Wednesday again refused to reveal his tax returns and declared that the American people
do not care about them. A pledge to turn over profits is meaningless without detailed accounting.
Trump also said that he would engage in no new foreign business deals. Yet at the same news conference he
said he had discussions in early January with a developer in Dubai for a $2­billion real estate investment, which
he ultimately declined. And after the election, Trump and his children met with Indian business partners
building a Trump­branded luxury apartment complex south of Mumbai. What constitutes a “new” deal?
Adding to the pile of woefully inadequate steps, Trump said that his two sons would run his businesses, and
that they would not discuss details with him. But how will anyone know if he violates this promise? Will Eric or
Donald Jr. spill the beans? Even if he keeps it, the conflict of interest problem remains because the Trump
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family, and ultimately Trump, stand to benefit in countless ways from decisions originating in the White
House. Consider that Trump’s businesses owe millions to financial institutions around the world, and that
Trump’s Treasury Department must regulate and supervise these banks.
At the news conference, Trump declared that he could continue to run his businesses and be president. That is
consistent with his earlier statement: “I can be president of the United States and run my business 100%, sign
checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have
a conflict of interest.” That is simply false, not to mention Nixonian.
The only solution is for Trump to divest himself of his businesses, and especially all foreign holdings, or at least
to place them in a blind trust. Otherwise, Trump risks violating the Constitution from his first moments in
office.
Erwin Chemerinsky is dean and Raymond Pryke Professor of First Amendment Law at the UC Irvine School
of Law.
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