Why People Are Worried Donald Trump Might Be Violating the Constitution

November 20th 2016

Tricia Tongco

About 100 foreign diplomats attended an event at President-elect Donald Trump's International Hotel in Washington on Friday "to sip Trump-branded champagne, dine on sliders, and hear a sales pitch about the U.S. president-elect’s newest hotel," The Washington Post reported.

If you cringed after reading that, your instinct that something is off is not entirely wrong.

Allowing foreign dignitaries "to curry favor or access with the next president" by spending money at one of his hotels or other businesses, as the Post reported, could constitute a quid quo pro situation and present a significant, unprecedented conflict of interest.

It could violate the emoluments clause of the Constitution, which explicitly bars such conduct:

"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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."

"Some might think it's the right way to engage, to be able to tell the next president, 'Oh, I stayed at your hotel,'" Arturo Sarukhan, a former Mexican ambassador to the United States, told the Post. "If I were still in government, I would discourage it, among other reasons because it can be questioned and looked at in a very poor light, as though you are trying to buy influence via a hotel bill."

"Anything in excess of fair market value is a gift."

That's the assessment of Richard Painter, the former chief ethics counsel to President George W. Bush and a law professor at the University of Minnesota. He told ThinkProgress:

"'I don't think you can take into account the value of the name Trump in calculating fair market value.' The diplomats are not staying in one of Trump’s expensive luxury hotels because Trump is charging their nation a reasonable market rate for a night's stay. They are staying in the hotel because of the added value that comes from doing business with the President of the United States.

"'It had better stop by January 20,' says Painter."

People expressed concern about the emoluments clause with regard to both Trump and his Democratic rival, Hillary Clinton, during the campaign.

Jonathan H. Adler at the Post outlined the potential issue for Clinton in September:

"The issue is whether the Clinton Foundation's acceptance of gifts from foreign governments while Hillary Clinton served as secretary as state violated this provision (assuming, of course, that gifts to the Foundation were, in some sense, also gifts to her). Additionally, it would seem, there would also be a question as to whether the Clinton Foundation could accept such gifts if Hillary Clinton is elected president. ...

"I do not believe that someone could go to court to seek to disqualify or sanction Clinton. The issue might, however, be of interest to some voters (and by 'some' I mean some percentage of lawyers, professors and pedants who have actually thought about the Emoluments Clause and its significance). One could conclude that Clinton violated the spirit of the clause even if one does not believe courts can (or should) do anything about it. (And one could also reach this conclusion and still believe that such an ethical lapse is still minor compared with the offenses committed by Donald Trump.)"

Trump handed over control of his businesses to his children through a "blind trust" once he was elected, Politico reported. But that may be misleading, the site said:

"While his lawyer Thursday used the term 'blind trust' when discussing the family's upcoming financial arrangement, putting Trump's children in charge of a set of assets that their father is aware of does not constitute a blind trust. Under the legal definition of a blind trust, a public official places his finances under the management of an independent party. The official would have no knowledge of what is in the trust or how it is managed."

[h/t ThinkProgress]