8 ms·

We've probably all seen the emoluments clause raised as one way he may be breaking the law. I'm not a legal expert but I would assume, if it's true, that breaki

by knz 10y ago

We've probably all seen the emoluments clause raised as one way he may be breaking the law. I'm not a legal expert but I would assume, if it's true, that breaking the Constitution would be illegal? https://en.m.wikipedia.org/wiki/Title_of_Nobility_Clause https://en.m.wikipedia.org/wiki/Title_of_Nobility_Clause "The Title of Nobility Clause is a provision in Article I, Section 9, Clause 8 of the United States Constitution, that ... restricts members of the government from receiving gifts, emoluments, offices or titles from foreign states without the consent of the United States Congress." I suspect we will hear a lot more about the "consent of Congress" in the next 6 months if this has any merit.

deleted 10y ago
[deleted]
caseysoftware 10y ago
Except Congress already consented decades ago: > The financial conflict statute prohibits federal employees from participating in matters where they could enrich themselves. It applies to everyone in the executive branch, from the lowliest file clerk up to the White House chief of staff – except for the president and vice president. Ref: http://www.nytimes.com/roomfordebate/2016/12/07/can-congress-end-donald-trumps-conflict-of-interest-exemption http://www.nytimes.com/roomfordebate/2016/12/07/can-congress... You could try to convince Congress to re-apply the rules, but that's a different discussion.
- sfeng 10y ago
  Sure, but the courts enforce the constitution, not congress.
  - azernik 10y ago
    The issue isn't who enforces the constitution; it's what the constitution says. Congress has the power to decide which emoluments are okay. Assuming parent comment's interpretation of the law is correct (which it may not be), Congress has given blanket permission, in the same way that it has historically signed away large parts of its Constitutional war-making powers to the executive.
    - int_19h 10y ago
      Congress hasn't given blanket permission. The law says that it's illegal for certain government officials to accept gifts etc. It doesn't say anything about whether it's legal for the president to accept them; it merely says that the president is not within the scope of that particular law.
      - kazagistar 10y ago
        You don't have to have a law for something to be legal. All actions are legal unless stated otherwise.
        benchaney 10y ago
        Yes, and the constitution states otherwise.
        int_19h 10y ago
        In the absence of any law, yes, it would be legal. Constitution has a clause that prohibits it for any public official including the president (assuming for the moment that it is the meaning of the emoluments clause), unless Congress specifically authorizes it. Congress additionally passed a law - 18 U.S. Code § 202 and § 208 - that regulates conflicts of interest among government officials. Its domain intersects with the Emoluments Clause somewhat, but it is not an implementation of the Emoluments Clause. It says that certain actions by people other than the president are illegal. Insofar as it intersects with Emoluments Clause, it is at best redundant (although even then it defines clear penalties, so not really). But there's nothing in it authorizing the president to receive emoluments. § 202 does contain language excluding certain people from the categories of "government officer" and "government employee", which are the target of § 208; but this simply means that § 208, and prohibitions in it specifically, do not apply to those people. In other words, the law doesn't say anything about them. It most certainly doesn't contain any language explicitly authorizing emoluments. Here, see for yourself: https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/202 https://www.law.cornell.edu/uscode/text/18/202 If we look at other past cases where the Emoluments Clause had to be dealt with, Congress specifically authorized such things, with clear verbiage to that effect. For example, here's the Foreign Gifts and Decorations Act: https://www.law.cornell.edu/uscode/text/5/7342 https://www.law.cornell.edu/uscode/text/5/7342 Note the language: "The Congress consents to ..." There's nothing even remotely similar in the law we are discussing. The only real question for the courts here is whether receiving payment for goods and services from a foreign government qualifies as emolument or not. The originalist interpretation is in favor of that - this is one of those clauses in the Constitution where the Founders wrote a great deal about why it was there, and it's clear that their concerns were broad rather than narrow (preventing "foreign corruption" of all kinds).
  - emiliobumachar 10y ago
    Courts interpret the constitution. I'm no lawyer, but "without the consent of the United States Congress" seems very clear-cut to me. It's up to congress, as per the constitution.
- dragonwriter 10y ago
  The courts have historically been unlikely to see a Constitutionally-required affirmative permission in the fact that an additional restriction is not applied by Congress. The fact that Congress has specifically granted permission under the Emoluments Clause to Presidents, at the latter's request, while the conflict statute was in effect wouldbsuggest stronglynthat neither past Presidents, nor, more importantly, the Congress has viewed the non-application of the conflict statute to the President as a grant of permission under the Emoluments Clause that makes more specific grants unnecessary. OTOH, absent coverage under the conflict statute or some other statute establishing judicial remedies, there may an argument that there is no such remedy for a Presidential violation of the clause, and that the only remedy is via impeachment. That's probably the biggest weakness in an Emoluments Clause lawsuit. On the gripping hand, a court ruling to the effect that the only remedy is by impeachment may create additional political pressure on Congress, which would probably have value to those bringing the claim, perhaps moreso than a judicial remedy that, e.g., forced Trump to give up past gains and avoid future gains through divestment.
- ascorbic 10y ago
  This is a different issue. Trump is correct that the conflict of interest laws don't apply to him. However the emoluments clause is something else, and most constitutional scholars say that it clearly does apply. This doesn't prohibit conflicts of interest; it prohibits federal employees and office holders from receiving gifts, titles or emoluments from foreign governments. Profits from business with foreign governments would certainly be covered by this, as would beneficial terms on loans and, arguably, things such as building permits. You'd struggle to find a single non-partisan expert who would say that he isn't violating this right now, and even plenty of Republican lawyers agree. The trouble is that impeachment is the responsibility Congress, and it would be a brave Republican congressman who would vote to impeach a Republican president right now.
g00gler 10y ago
So, wasn't Hillary Clinton breaking the Constitution when she was accepting donations from Saudi Arabia at the Clinton Foundation while secretary of state?
- willvarfar 10y ago
  So does Hillary get to spend the foundation money on herself?
  - geetee 10y ago
    Didn't the leaks reveal that Chelsea's wedding was paid for by the foundation?
    - ebbv 10y ago
      No, they didn't.
    - bduerst 10y ago
      No, those were fake news headlines run by Fox and Russian news agencies.
    - 3131s 10y ago
      Here is the email in question so you all can judge for yourselves: https://wikileaks.org/podesta-emails/emailid/52046 https://wikileaks.org/podesta-emails/emailid/52046 For context, Doug Band is a very close Clinton associate and he's discussing an initiative apparently launched by Chelsea Clinton to investigate money within the Clinton Foundation (which is also mentioned in some of the other Podesta emails).
      - geetee 10y ago
        That's the one. Thanks for digging it up.
  - deleted 10y ago
    [deleted]
rabboRubble 10y ago
I did a spot of research on the emoluments clause and found three instances where specific events were evaluated for breaching this clause: 1 - Theodore Roosevelt. Nobel Peace Prize. He accept both the cash award and the medal. 2 - Barack Obama. Nobel Peace Prize. He accepted only the medal. ... and most interestingly ... 3 - Ronald Reagan. Receipt of pension payments from the state of California as a former Governor and California pension plan participant. https://www.justice.gov/sites/default/files/olc/opinions/1981/06/31/op-olc-v005-p0187.pdf https://www.justice.gov/sites/default/files/olc/opinions/198... The way I read the analysis of Ronald Reagan's situation, any benefit from a domestic state, city, or county could potentially fall afoul of the emoluments clause. Think here of any local property tax rebate from a city to entice a Trump business to build a hotel or set up shop. Maybe even a tax rebate / waiver from prior business development agreement could fall afoul. Who knows how deep this particular rabbit hole could go. I also was puzzling over Hobby Lobby the other day and I realized that Trump's situation vis-a-vie the emoluments clause could be parallel to Hobby Lobby versus the ACA. Hobby Lobby wanted out of the mandate for birth control and the Supreme Court sided with them because Hobby Lobby was a closely held corporation; close enough where the owners' religious beliefs could be infringed upon by ACA birth control mandates on the corporation they controlled. I believe the Trump empire is a closely held corporation like Hobby Lobby. Per the Supreme Court a closely held corporation like Hobby Lobby has a personal connection unlike widely held corporation. Simply saying payments made to Trump's corporation is a sufficient separation from the person to avoid the emoluments clause may not be a strong argument for those arguing Trump's side. Edit: IANAL, but rather a politics major.
- Gupie 10y ago
  The Norwegian Nobel Committee is not a "foreign state".
  - dagw 10y ago
    No, but the committee is directly appointed by the Norwegian parliament, so the argument could reasonably be made that they're essentially accepting a prize from a foreign state.
edblarney 10y ago
Trump has had reams of lawyers on this one for a while. If the Dems thought they could 'get him' on his ownership of whatever, they would have been pressing it already. I think as it stands, he's on decent legal footing. Which admittedly is a little ridiculous, you'd think the Prez. would not be above conflict of interest. Aside from that, Trump says ridiculous things, but they are mostly in the vein of ridiculous populism. It makes him look ridiculous to most people, I don't know why he does it, that said, none of his policies so far are as gonzo as his ridiculous rhetoric. Give it time. Maybe he'll cool down, or maybe he'll do something impeachable. I predict: tons and tons of PR snafus, but nothing illegal.
- int_19h 10y ago
  The Dems are just standing by for this lawsuit: http://www.vox.com/policy-and-politics/2017/1/24/14358654/trump-lawsuit-emoluments-clause-constitution http://www.vox.com/policy-and-politics/2017/1/24/14358654/tr... The interesting thing about this is that it's a bipartisan affair as far as party affiliations go: the two main guys behind it are the ethics people for Bush and Obama, respectively.
  - rat87 10y ago
    > The lawsuit asks the court to declare that Trump is in violation of the emoluments clause. Even if he is, though, it would be up to Congress to decide whether that merits impeaching him and removing him from office — and Republicans in Congress so far have been reluctant to look into Trump’s break with tradition on ethical issues.
    - vidarh 10y ago
      But it would mean Trump would be serving at the mercy of Congress, and at the mercy of maintaining a Republican majority, which could have substantial effects on policy in itself even if he's never impeached.
    - int_19h 10y ago
      If SCOTUS were to rule for the plaintiffs in this case, the Congress would be in a much more difficult spot. Right now they can dismiss it all as "he said she said" and "not really illegal". But if there's a SCOTUS ruling that the president is in violation of the Constitution, and they don't impeach, they'd basically be saying that either they don't care about the Constitution, or they don't care about SCOTUS. Either would cause a major constitutional crisis with unclear consequences.

by knz 10y ago

deleted 10y ago

[deleted]

caseysoftware 10y ago

Except Congress already consented decades ago: > The financial conflict statute prohibits federal employees from participating in matters where they could enrich themselves. It applies to everyone in the executive branch, from the lowliest file clerk up to the White House chief of staff – except for the president and vice president. Ref: http://www.nytimes.com/roomfordebate/2016/12/07/can-congress-end-donald-trumps-conflict-of-interest-exemption http://www.nytimes.com/roomfordebate/2016/12/07/can-congress... You could try to convince Congress to re-apply the rules, but that's a different discussion.

sfeng 10y ago
Sure, but the courts enforce the constitution, not congress.
- azernik 10y ago
  The issue isn't who enforces the constitution; it's what the constitution says. Congress has the power to decide which emoluments are okay. Assuming parent comment's interpretation of the law is correct (which it may not be), Congress has given blanket permission, in the same way that it has historically signed away large parts of its Constitutional war-making powers to the executive.
  - int_19h 10y ago
    Congress hasn't given blanket permission. The law says that it's illegal for certain government officials to accept gifts etc. It doesn't say anything about whether it's legal for the president to accept them; it merely says that the president is not within the scope of that particular law.
    - kazagistar 10y ago
      You don't have to have a law for something to be legal. All actions are legal unless stated otherwise.
      - benchaney 10y ago
        Yes, and the constitution states otherwise.
      - int_19h 10y ago
        In the absence of any law, yes, it would be legal. Constitution has a clause that prohibits it for any public official including the president (assuming for the moment that it is the meaning of the emoluments clause), unless Congress specifically authorizes it. Congress additionally passed a law - 18 U.S. Code § 202 and § 208 - that regulates conflicts of interest among government officials. Its domain intersects with the Emoluments Clause somewhat, but it is not an implementation of the Emoluments Clause. It says that certain actions by people other than the president are illegal. Insofar as it intersects with Emoluments Clause, it is at best redundant (although even then it defines clear penalties, so not really). But there's nothing in it authorizing the president to receive emoluments. § 202 does contain language excluding certain people from the categories of "government officer" and "government employee", which are the target of § 208; but this simply means that § 208, and prohibitions in it specifically, do not apply to those people. In other words, the law doesn't say anything about them. It most certainly doesn't contain any language explicitly authorizing emoluments. Here, see for yourself: https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/202 https://www.law.cornell.edu/uscode/text/18/202 If we look at other past cases where the Emoluments Clause had to be dealt with, Congress specifically authorized such things, with clear verbiage to that effect. For example, here's the Foreign Gifts and Decorations Act: https://www.law.cornell.edu/uscode/text/5/7342 https://www.law.cornell.edu/uscode/text/5/7342 Note the language: "The Congress consents to ..." There's nothing even remotely similar in the law we are discussing. The only real question for the courts here is whether receiving payment for goods and services from a foreign government qualifies as emolument or not. The originalist interpretation is in favor of that - this is one of those clauses in the Constitution where the Founders wrote a great deal about why it was there, and it's clear that their concerns were broad rather than narrow (preventing "foreign corruption" of all kinds).
- emiliobumachar 10y ago
  Courts interpret the constitution. I'm no lawyer, but "without the consent of the United States Congress" seems very clear-cut to me. It's up to congress, as per the constitution.
dragonwriter 10y ago
The courts have historically been unlikely to see a Constitutionally-required affirmative permission in the fact that an additional restriction is not applied by Congress. The fact that Congress has specifically granted permission under the Emoluments Clause to Presidents, at the latter's request, while the conflict statute was in effect wouldbsuggest stronglynthat neither past Presidents, nor, more importantly, the Congress has viewed the non-application of the conflict statute to the President as a grant of permission under the Emoluments Clause that makes more specific grants unnecessary. OTOH, absent coverage under the conflict statute or some other statute establishing judicial remedies, there may an argument that there is no such remedy for a Presidential violation of the clause, and that the only remedy is via impeachment. That's probably the biggest weakness in an Emoluments Clause lawsuit. On the gripping hand, a court ruling to the effect that the only remedy is by impeachment may create additional political pressure on Congress, which would probably have value to those bringing the claim, perhaps moreso than a judicial remedy that, e.g., forced Trump to give up past gains and avoid future gains through divestment.
ascorbic 10y ago
This is a different issue. Trump is correct that the conflict of interest laws don't apply to him. However the emoluments clause is something else, and most constitutional scholars say that it clearly does apply. This doesn't prohibit conflicts of interest; it prohibits federal employees and office holders from receiving gifts, titles or emoluments from foreign governments. Profits from business with foreign governments would certainly be covered by this, as would beneficial terms on loans and, arguably, things such as building permits. You'd struggle to find a single non-partisan expert who would say that he isn't violating this right now, and even plenty of Republican lawyers agree. The trouble is that impeachment is the responsibility Congress, and it would be a brave Republican congressman who would vote to impeach a Republican president right now.

g00gler 10y ago

So, wasn't Hillary Clinton breaking the Constitution when she was accepting donations from Saudi Arabia at the Clinton Foundation while secretary of state?

willvarfar 10y ago
So does Hillary get to spend the foundation money on herself?
- geetee 10y ago
  Didn't the leaks reveal that Chelsea's wedding was paid for by the foundation?
  - ebbv 10y ago
    No, they didn't.
  - bduerst 10y ago
    No, those were fake news headlines run by Fox and Russian news agencies.
  - 3131s 10y ago
    Here is the email in question so you all can judge for yourselves: https://wikileaks.org/podesta-emails/emailid/52046 https://wikileaks.org/podesta-emails/emailid/52046 For context, Doug Band is a very close Clinton associate and he's discussing an initiative apparently launched by Chelsea Clinton to investigate money within the Clinton Foundation (which is also mentioned in some of the other Podesta emails).
    - geetee 10y ago
      That's the one. Thanks for digging it up.
- deleted 10y ago
  [deleted]

rabboRubble 10y ago

I did a spot of research on the emoluments clause and found three instances where specific events were evaluated for breaching this clause: 1 - Theodore Roosevelt. Nobel Peace Prize. He accept both the cash award and the medal. 2 - Barack Obama. Nobel Peace Prize. He accepted only the medal. ... and most interestingly ... 3 - Ronald Reagan. Receipt of pension payments from the state of California as a former Governor and California pension plan participant. https://www.justice.gov/sites/default/files/olc/opinions/1981/06/31/op-olc-v005-p0187.pdf https://www.justice.gov/sites/default/files/olc/opinions/198... The way I read the analysis of Ronald Reagan's situation, any benefit from a domestic state, city, or county could potentially fall afoul of the emoluments clause. Think here of any local property tax rebate from a city to entice a Trump business to build a hotel or set up shop. Maybe even a tax rebate / waiver from prior business development agreement could fall afoul. Who knows how deep this particular rabbit hole could go. I also was puzzling over Hobby Lobby the other day and I realized that Trump's situation vis-a-vie the emoluments clause could be parallel to Hobby Lobby versus the ACA. Hobby Lobby wanted out of the mandate for birth control and the Supreme Court sided with them because Hobby Lobby was a closely held corporation; close enough where the owners' religious beliefs could be infringed upon by ACA birth control mandates on the corporation they controlled. I believe the Trump empire is a closely held corporation like Hobby Lobby. Per the Supreme Court a closely held corporation like Hobby Lobby has a personal connection unlike widely held corporation. Simply saying payments made to Trump's corporation is a sufficient separation from the person to avoid the emoluments clause may not be a strong argument for those arguing Trump's side. Edit: IANAL, but rather a politics major.

Gupie 10y ago
The Norwegian Nobel Committee is not a "foreign state".
- dagw 10y ago
  No, but the committee is directly appointed by the Norwegian parliament, so the argument could reasonably be made that they're essentially accepting a prize from a foreign state.

edblarney 10y ago

Trump has had reams of lawyers on this one for a while. If the Dems thought they could 'get him' on his ownership of whatever, they would have been pressing it already. I think as it stands, he's on decent legal footing. Which admittedly is a little ridiculous, you'd think the Prez. would not be above conflict of interest. Aside from that, Trump says ridiculous things, but they are mostly in the vein of ridiculous populism. It makes him look ridiculous to most people, I don't know why he does it, that said, none of his policies so far are as gonzo as his ridiculous rhetoric. Give it time. Maybe he'll cool down, or maybe he'll do something impeachable. I predict: tons and tons of PR snafus, but nothing illegal.

int_19h 10y ago
The Dems are just standing by for this lawsuit: http://www.vox.com/policy-and-politics/2017/1/24/14358654/trump-lawsuit-emoluments-clause-constitution http://www.vox.com/policy-and-politics/2017/1/24/14358654/tr... The interesting thing about this is that it's a bipartisan affair as far as party affiliations go: the two main guys behind it are the ethics people for Bush and Obama, respectively.
- rat87 10y ago
  > The lawsuit asks the court to declare that Trump is in violation of the emoluments clause. Even if he is, though, it would be up to Congress to decide whether that merits impeaching him and removing him from office — and Republicans in Congress so far have been reluctant to look into Trump’s break with tradition on ethical issues.
  - vidarh 10y ago
    But it would mean Trump would be serving at the mercy of Congress, and at the mercy of maintaining a Republican majority, which could have substantial effects on policy in itself even if he's never impeached.
  - int_19h 10y ago
    If SCOTUS were to rule for the plaintiffs in this case, the Congress would be in a much more difficult spot. Right now they can dismiss it all as "he said she said" and "not really illegal". But if there's a SCOTUS ruling that the president is in violation of the Constitution, and they don't impeach, they'd basically be saying that either they don't care about the Constitution, or they don't care about SCOTUS. Either would cause a major constitutional crisis with unclear consequences.