Rebel without a clause: One president’s serial violations of the Constitution
The saga continues and it is not good.
Now the Vice President of the United States has become embroiled in the ongoing controversy around President Trump’s open and notorious abuse of the Emoluments Clause. Mike Pence’s staff finds themselves in hot water over first admitting that the President encouraged him to stay at the Ireland property, and then saying that he did not. Add too, military planes which reportedly diverted to Trump’s Scotland property to refuel.
Imagine a sitting U.S. diplomat, military officer or anyone employed by the federal government abroad openly making a case on worldwide TV that their family’s vacation property should be the next site of one of the world’s great leadership gatherings. Imagine further the duly elected president of the United States making such a case.
Of course, Trump did exactly that last month at the G-7 Summit in France, ending his departing remarks with a shameless plug for his Doral, Fla. resort as the perfect location for the 2020 summit. In doing so, the president neglected to mention that such a hosting at his property would be a direct violation of Article I, sections 6 and 9 and Article II section 1 of the U.S. Constitution — the “emoluments clause" (or, in truth, “clauses").
The Article I clause was put in place to both protect and prohibit the Congress and the president from abuses of power, of being subject to the influence of money, and to be free of undue foreign government influences.
Trump has been sued three times in federal court for alleged emoluments violations. Two were dismissed this year, including one in the DC Circuit thrown out by a federal judge panel. After France, the attorneys general of Maryland and DC refiled their lawsuit.
This appeal should be successful — courts cannot continue to rely on a “standing” argument to defeat the claims. Why? Because if the president is allowed to use his own properties in DC, Maryland, New Jersey, Florida or otherwise for official government business, he is in fact violating the clause. Wantonly and willfully.
What Trump has been doing and what he suggested in France is also in direct violation of Article II’s Domestic ((a.k.a. “Presidential”) Emoluments Clause (art. II, § 1, cl. 7): “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be encreased nor diminished during the period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”
The bottom line: Unlike most presidents, Trump refuses to share his federal tax returns, and thus, no one can see where his income come from, how much it is, and where it is invested. Further, he has not recused himself or his children from their vast Trump empire holdings. And he has spent tens of millions of taxpayer dollars at Trump Resort properties. The Secret Service has had the most difficult time managing this sensitive “emoluments” issue, as they must both protect the president and house their agents at his resort, or wherever the president stays.
Trump counters that being president has cost him millions, and that he also donates his federal salary of $400,000 annually to charity. He fails to mention that he rakes in millions since he took office as his properties bill the federal government for costs of his weekly stays. Who bears the ultimate cost? We the people do.
The purpose of the Domestic Emoluments Clause is to preserve presidential independence, prohibiting a sitting chief executive from receiving emoluments from federal or state governments, except for his fixed salary — precisely what Trump has been doing. To underscore the point again, Trump urged Vice President Pence to stay at his property in Ireland — a ridiculous three hours from the location of this week’s Dublin meetings. Pence is paying for the additional costs, but why should the vice president be putting money in the pocket of the president? In 1976, Jimmy Carter had to sell his peanut farm, and put his proceeds in a trust. And yet, this president runs amuck.
The outcome of the congressional and attorneys general lawsuits will have major implications. It will answer a long held question of just how far the president can go in walking — crossing? — the line between public duty and private gain. Until recently, there had been no substantial litigation concerning the emoluments clauses. Once again, President Donald J. Trump has broken the mold.
Nelson is author of the book, “E Pluribus One: Reclaiming Our Founders Vision for a United America,” and host of the “e Pluribus One” podcast.