Symposium | Trump Vs. Democracy

Mocking the Emoluments Clause

By Zephyr Teachout

Tagged ConstitutionDemocracyDonald Trump

Remember the empty folders? In January 2017, during his first press conference after being elected, Donald Trump stood next to a pile of folders and announced that: “These papers are just some of the many documents I’ve signed turning over complete and total control to my sons” of the Trump Organization.

Later, it turned out the folders were likely empty—no serious political crime, the kind of stunt many politicians engage in. But the emptiness of the folders represented the nonexistence of this commitment. Although he delegated some powers to his sons—Corruption 101, a trick used by leaders around the world—he retained his financial stake, meaning that every foreign government dollar spent in enriching the Trump Organization enriches the President himself.

The press conference, designed to ease fears about foreign influence over United States foreign policy, was the opposite of reassuring: a direct, precise, blatant, taunting assault on the rule of law and the right of the people to govern themselves.

He might as well have said that he did not intend to take any constitutional obligations seriously. It was a public announcement that he would engage in a daily violation of the Constitution’s most explicit and demanding anti-corruption clause, the Foreign Emoluments Clause.

His choice to keep his financial stake in the Trump Organization immediately transformed the relationships between foreign governments and the people of the United States; instead of pursuing public, diplomatic efforts, governments turned to private ways to shape trade and military policy.

The next month, lobbyists representing the Saudi government reserved huge blocks of rooms at President Trump’s Washington, D.C. hotel, racking up a total of 500 high-priced nights at the hotel in just three months.

Trump transformed foreign policy with the Saudis almost immediately, resuming sales of bombs that had been suspended, and tweeting in support of the Saudi blockade on Qatar, writing, “During my recent trip to the Middle East I stated that there can no longer be funding of Radical Ideology. Leaders pointed to Qatar—look!” The tweet marked a decided shift toward the Saudis by Trump, and it took Secretary of State Rex Tillerson and Defense Secretary James Mattis totally by surprise.

In the fall of 2018, when Saudi writer Jamal Khashoggi, a critic of the Saudi government, was killed and dismembered in Istanbul on the orders of Saudi Crown Prince Mohammed bin Salman, Trump stood with the Saudi government against his own intelligence agencies, saying, “It could very well be that the Crown Prince had knowledge of this tragic event—maybe he did and maybe he didn’t! . . . That being said, we may never know all of the facts surrounding the murder of Mr. Jamal Khashoggi. In any case, our relationship is with the Kingdom of Saudi Arabia.”

When his New York hotel was losing money, Saudi money proposed it up; the Saudi crown prince booked rooms, without staying in them, leading to a net profit.

Donald Trump, the person, has taken money from not only the Saudis, but from China, UAE, India, the Philippines, and Turkey—think the very lucrative Trump Towers in Istanbul, which exists at the pleasure of the Turkish government—while serving as President.

The human and global political cost of his Turkish cash appears to be enormous and may reverberate for decades. On October 6, 2018, Trump told Turkish President Recep Tayyip Erdogan he would not interfere with a military invasion of the Kurds who controlled Rojava, in Syria. The Kurds had been our strongest allies against ISIS; Erdogan’s assault displaced hundreds of thousands of Kurds and killed and wounded hundreds of people, transforming global alliances in Syria. We cannot know whether his financial interests made a difference, but we know we left Kurds to be slaughtered, in our name, with no good public reason, and cash flowing to Trump’s pockets.

The foreign cash flowing to Trump represents a triple assault on self-government.

The Constitution explicitly forbids it. Article I, Section 9, Paragraph 8 of the Constitution prohibits federal officials from receiving gifts or cash from foreign governments without congressional approval.

Despite Trump’s claims, it is not at all ambiguous as to whether he may behave in this fashion. The language reads: “No Person holding any Office of Profit or Trust under [the United States], 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.”

I have studied the clause since long before Trump became President. It is no sideshow to the Constitution but was a central provision in the new republic; a confident, brave rejection of the monarchic, entangled, corrupt regimes of Europe, in favor of a system where public interest, not private interest, would decide policy. What should our policy be in Syria, Turkey, China, and Saudi Arabia? The most basic covenant of our country insists that that decision is reserved to the public sphere, not private interests.

We don’t need to prove a link between any decision and any governmental emolument; the violation exists just because the benefits are taken.

The Framers of the Constitution were very concerned about the threat of any influence from foreign powers corrupting the government of the United States, both because it undermined the central promise of our country—that we, the people would decide on vital issues of war, peace, and trade—and because human history had shown that foreign entanglements could disrupt and corrupt the most resilient of systems.

They had some haunting histories on their minds. A hundred years prior, the French King Louis XIV offered a secret pension to King Charles II of England. Charles took the pension and joined a treaty that undermined England’s best interest, leading to internal revolt and chaos.

The Framers were worried about the destruction of our country through international cash from kings. George Washington said, “Few men have virtue to withstand the highest bidder.” And the entire Constitutional Convention of 1787 was consumed with how to avoid repeating European international corruption and the long-ago corruption of Rome. The possibility of money from foreign countries flowing to presidents and other federal officials, and the way that foreign interests could disrupt internal trust, was very much on their minds.

The violation also restructures global incentives to treat us like a banana republic that can be bought and sold, creating new, corrupt avenues of private diplomacy, training other countries to corrupt us.

It is part of an overall attack by Trump on the very concept of corruption, a bedrock idea of the American system. The Framers of our Constitution made fighting corruption their primary target, talking about the problems of corruption, and particularly foreign corruption, throughout the summer of 1787, so much so that Alexander Hamilton described the constitutional project as enacting “every practical obstacle” to corruption.

Long before Trump, we have had serious problems of legal corruption, campaign finance systems that have long been eroding public faith and public power. But not all corruption is made of the same stuff. Trump’s assault on the keystone anticorruption provision of the Constitution is an assault on constitutionalism, and the possibility of law to retrain executive power.

I am involved in a lawsuit (one of many) against Trump to demand that courts force him to stop this violation. We recently had a major victory in the Second Circuit, which held that our clients, hotel and restaurant professionals who compete against the Trump Organization, have standing to go forward with the lawsuit. I am confident we will prevail. However, in the meantime, we have lived through nearly four years during which the Constitution has been treated as a joke by the President, and foreign policy has been upended.

From the Symposium

Trump Vs. Democracy

No President in our history has presented such a threat to the Constitution and our democracy as this one. In this special issue, we asked 35 contributors to describe different aspects of the assault. We could have asked twice that number.


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By Michael Waldman


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Read more about ConstitutionDemocracyDonald Trump

Zephyr Teachout is an Associate Professor at Fordham Law School, the author of Break ‘em Up: Recovering our Freedom from Big Ag, Big Tech, and Big Money and Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United. She is the former candidate for New York State Attorney General, a former National Director of the Sunlight Foundation, and serves on the Board of CREW.

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