Several opinion pieces have questioned the constitutionality of Donald Trump continuing to profit from his many business ventures while he’s in office.
University of Kansas Law Professor Lumen “Lou” Mulligan explains where those writers are getting the argument in the Constitution.
“The United States Constitution in Article I, Section 9, states that no person holding any office of profit or trust under the United States shall, without the consent of Congress, accept any present emolument, office, or title, of any kind, from any king, prince, or foreign state.”
This issue was not brought up in the campaign, because it’s not illegal for a private citizen to take money from foreign governments, even if running for office.
“The emoluments clause only applies to persons holding office under the United States government,” said Mulligan. “It doesn’t apply to you and me.”
However, it is failing to give up ownership that is the potential violation, not staying out of the day to day matters.
“It has been the history of every President in the modern era to divest him or herself of their holdings and to put them in a blind trust,” said Mulligan.
According to a report for Congress by the Congressional Research Service, a blind trust is “a device employed by a federal official to hold, administer and manage the private financial assets, investments and ownerships of the official, and his or her spouse and dependent children, as a method of conflict of
The idea is that some assets will be sold and the official won’t know exactly what is owned, so those holdings can’t be manipulated by foreign governments.
“There’s no Supreme Court caselaw on this provision, because no other President has come even close to violating it,” said Mulligan. “Reading it afresh, and reading a few of the Office of Legal Counsel opinions, it’s a division of the United States Department of Justice, which offers legal opinions on stuff the courts haven’t addressed, it looks to be just someone who profits. Emolument means to profit or take money from.”
There’s also another issue, and that is profiting from state governments.
“Article II, which is the Article about the President, also says that a President may not take emoluments from states,” said Mulligan. “Mr. Trump’s businesses engage in all types of tax breaks and other sorts of payments from states, for the real estate properties that they have. Now, that is standard operating practice in real estate. I’m not trying to say that those are improper dealings. It would look, though, that these were not the types of involvements that the people that drafted the Constitution imagined the President would have.”
These provisions of the Constitution would appear to be in place to avoid conflicts of interest.
“The point of conflict-of-interest laws and those types of things is to avoid those situations where one’s judgment could be clouded,” said Mulligan. “It’s not necessarily saying someone is selling someone out, but rather you’re putting yourself in a situation where it’s hard to honestly weigh two different points of view.”
The Washington Post reported that President-elect Donald Trump announced late Monday night that he would hand over control of his businesses to his adult sons before his inauguration and vowed that the companies would make “no new deals” while he is in office.
Trump will be inaugurated in January.