Brookings Institution paper on the Emoluments Clause

Two snips from The Emoluments Clause: Its Text, Meaning and Application by Norman L. Eisen, Richard Painter and Laurence H. Tribe:

Never in American history has a president-elect presented more conflict of interest questions and foreign entanglements than Donald Trump. Given the vast and global scope of Trump’s business interests, many of which remain shrouded in secrecy, we cannot predict the full gamut of legal and constitutional challenges that lie ahead. But one violation, of constitutional magnitude, will run from the instant that Mr. Trump swears he will “faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”1 While holding office, Mr. Trump will receive—by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities—a steady stream of monetary and other benefits from foreign powers and their agents.

Applied to Mr. Trump’s diverse dealings, the text and purpose of the Emoluments Clause speak as one: this cannot be allowed.

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. Especially given Mr. Trump’s strong personal attachment to his business, it is easy to imagine situations in which he is affected—whether subtly or overtly—by perceptions of whether foreign nations have dealt fairly with the company that he built and still owns. In those circumstances, feelings of gratitude, affection, frustration, and anger inevitably bleed out in complex and hard-to-discern ways, muddling motives in respects that elude conscious awareness or public accountability. Foreign states, attuned to that basic truth of human psychology, will no doubt tread carefully around Mr. Trump’s private interests—seeking to avoid his wrath and induce his favor. The Emoluments Clause was put in place to avoid precisely that blending of public and private interest.

Recommended. — Joe

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