Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
Trump: “You people with this phony Emoluments Clause”
If it feels like “Emoluments Clause” is a phony thing cooked up to box Trump’s presidency in, know a few things first.
1. It’s definitely a real thing. Article 1, § 9 of the US Constitution. In short, it prohibits US elected officials from accepting gifts from foreign states. Trump has been in violation of this clause since his inauguration.
2. The reason you’ve never heard of the Emoluments Clause before is because every US president prior to Trump respected it; indeed, enough to divest their holdings or put their holdings into blind trusts so that (in part) emoluments issues wouldn’t arise. Trump, of course, did none of those things. He called a press conference announcing he would turn over operations to Junior and Eric (both who routinely fly around on the taxpayer dime as if they’re White House officials), but even when canceling the G7 to Doral, Trump referred to it as a deal he was willing to do as owner. The self-dealing couldn’t be more glaring.
3. There were good reasons the framers included the emoluments clause — they wanted this country’s elected officials to be entirely free from appearances of conflict and inducements to corruption. Presidents are fiduciaries and if they’re looking out from themselves, they’re failing their constituents.
4. The Trump Organization, given its myriad of international holdings, is effectively beholden to foreign governments wherever those holdings are located. Those governments create the business conditions in which Trump’s businesses exist. They can promote or destroy Trump’s foreign entities through tax policy, intellectual law policy, by how contracts are awarded, and so on.
5. The preceding paragraph is not at all hypothetical — you can point to Trump’s conflicts throughout the world, and you can point to instances where his judgment as to US policy was colored by his own self-interest. As a recent example take Turkey, where two Trump Towers license his name. When Erdogan called Trump and told him he wanted to steamroll the Kurds in northern Syria, Trump put up zero resistance. Whether Trump’s meekness was due to his (admitted) conflict of interest, it’s kind of beside the point because the idea behind all corruption laws is to remove even the appearance of impropriety. And we also know that foreign officials make a point to stay at Trump branded hotels and resorts. Far from being constitutional arcana, Trump routinely justifies the need for the emoluments clause, not to mention its enforcement.
6. With respect to Doral and the G7 (now cancelled), the emoluments clause wasn’t even the most glaring problem. There are federal laws preventing officials from awarding contracts to themselves, which is precisely what this was.
7. Trump’s defense (being made even today, days after it was cancelled) is that he was going to do it “at cost” and “no profit.” Even if Trump’s accounting principles were trustworthy (he’s evaded taxes and is extremely likely to have engaged in fraud over not years but decades), the idea behind prohibitions against self-dealing goes beyond the bottom line. When a negotiator sits on both sides of the table, the law is already violated.
8. And even if it could be conclusively shown that hosting the G7 at Doral was done “at cost” to everyone’s satisfaction, realize that Trump himself once valued his brand at $4.1 billion (which figure is horseshit, but let’s assume it isn’t because we’re dealing with Trump’s perceptions here). Hosting the G7 at Doral would necessarily and objectively increase the brand value of his Doral property in particular by some difficult to quantify amount, if only because it would gain some minor historical significance. Even if Trump personally covered all costs related to hosting G7, that amount could easily be exceeded by a jump in Doral’s value at having hosted — certainly by Trump’s own stated perceived value of his brand.
