With the recent news that two Republican electors are refusing to vote for Donald Trump, we have been inundated with inquiries asking whether other electors should decline to select Trump because of a particular constitutional issue. It’s one we worked on when we were advising Presidents Bush and Obama, respectively: the Emoluments Clause.
Every elector must search his or her own conscience, but after a blizzard of reporting on the president-elect’s foreign business relations in recent days, it appears that Trump will be in violation of this clause of the Constitution from the moment he takes office—and the plan for his business that he hinted at on Twitter last week does not solve the problem.
The Emoluments Clause of the Constitution stemmed from one of the Founders’ core concerns: foreign influence over our nation’s affairs. They worried that their new republic would, like the colonial governments the Americans had overthrown, once again come under the thumb of foreign rulers—if not by force of arms, by artifices of corruption. The term "emolument" comes from the Latin emolumentum, meaning profit or advantage, and emoliri, meaning to bring out by effort.
By 1789, the founders had seen enough of the way foreign rulers corrupted their own officials and those abroad. The British Crown plied elected members of Parliament with stipends and other emoluments intended to induce them to do the King’s bidding rather than serve the people who elected them, while the French King sent expensive gifts—including portraits framed with diamonds—to American officials to curry favor.
Hence the Emoluments Clause, which provides “no Person holding any Office of Profit or Trust under [the United States], 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.” It is the original financial conflict of interest law of the United States, and the only one embodied in the Constitution.
The Emoluments Clause applies to all persons holding an office of trust or profit with the United States government—no exceptions. It applies to the president, the vice president, and the members of Congress. No one is above the law. The founders could have exempted these elected officials in the plain language of the Emoluments Clause, but they did not, and for good reason. It makes little sense to prohibit foreign gifts from going to ambassadors and other officials if their elected bosses could simply accept the same gifts in their stead.
The Framers' contemporary views illustrate that they clearly intended the clause to have the broadest possible scope. As Virginia debated the adoption of the Constitution, Governor Edmund Randolph made clear that the Emoluments Clause applied to the president when he said (in response to questions about whether term limits were needed for the president):
There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeached he may be displaced at the end of the four years. … He is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.
The Emoluments Clause prohibits the president from accepting anything of value from a foreign government. The clause expressly prohibits both "presents [and] emoluments...of any kind whatever."
The Framers could not have been clearer: the president's claim that something was not a gift, but was earned through his business or other effort still does not allow him to accept it. It would blow a giant loophole in the clause in terms of the Framer's intent—preventing foreign sovereigns from corrupting American officials—to forbid presents but allow other things of potentially much greater value on the pretext (or actuality) that they were earned. Moreover, the Framers did not limit "emoluments" to cash or any other particular kind of thing of value. (Indeed, the root of emoliri is said to refer to the grinding done by a miller in exchange for a portion of the wheat or other payment.)
Thus, emoluments capture the cash-flows from foreign governments that Trump is seeking for his Washington, D.C., hotel, which has openly solicited business from foreign embassies, and potentially from the government permits and permissions that The New York Times and The Washington Post have noted are now starting to flow to stalled Trump building projects in Argentina and Georgia that suddenly restarted after his election.
As these examples make clear, this clause in the Constitution is hardly an anachronism. We are in danger of having a president who could violate it if he does not disentangle his business operations from foreign governments. The potential violations also include the benefits conferred on Trump in connection with outstanding loans from the Bank of China, which is controlled by the Chinese government, as well as any investment or involvement of sovereign wealth funds in his many projects around the globe, and foreign governments putting up their officials or diplomats at Trump hotels or even those governments buying apartments in his buildings—at times likely vying for the most expensive suites. All of this will become unconstitutional come January 20.
Nor is Trump's Twitter announcement last week that he will completely exit his "business operations" enough. Although it is of course important that he have no involvement in Trump business operations, in order to avoid the constitutional conflicts, he must also exit the ownership of his businesses through using a blind trust or some other equally effective disposition. Otherwise he will have a personal financial interest in the foreign government payments and benefits that flow to his businesses daily.
The only workable solution to this problem (and Trump’s many other conflicts) is for him to do what ethics lawyers have been urging him to do for months, which is to divest himself of his business holdings before he becomes president. Alternatively, the Constitution allows Congress to approve Trump's receipt of this vast global flow of foreign government cash and other benefits to him. Congressional deliberation and oversight would confer the benefit of hearings and of offering some of the transparency about Mr. Trump's holdings that have so far been denied to the public by his refusal to release his taxes. But we doubt that would be a politically attractive alternative to his fellow Republicans, and he probably could not count on support from the minority party. Accordingly, divestment and a blind trust is the way to go, and indeed, our proposal has been endorsed by an array of conservative voices sympathetic to Trump, including the Wall Street Journal, the New York Post, Peggy Noonan, and Peter Schweitzer, the author of Clinton Cash.
And what if Trump declines, as he has so far, to eliminate his foreign government emoluments that violate the Constitution? That brings us back to the Electoral College. Each elector should, as two have now done, review the Constitution and the facts, and his or her legal and moral obligations. Twenty-nine states and the District of Columbia require electors to vote consistent with the popular vote of his or her state; the others allow them to vote their conscience, as the Framers intended. Even in those states that bind electors, the constitutionality of the limits is unclear and penalties are generally light. Short of that, electors can move now to demand, individually or collectively, more information to inform their choice. And electors also have the option of raising these issues with the courts for guidance, for example through seeking a declaratory judgment that they need not cast their ballot as required by state law if doing so would elect a president who could violate the Constitution on his first day in office.
Since we must disregard the nationwide popular vote, then the mechanism that substitutes for it should be infused with meaning. The Electoral College was intended to be a brake on a constitutionally or otherwise unqualified candidate for president. The Electoral College certainly could not vote for a man who was discovered to be too young to be president (under age 36), not naturally-born in the U.S. (remember all that fuss about birth certificates) or otherwise constitutionally disqualified.
Now, unless the foreign payments issue is resolved, there is significant evidence that Trump will be in violation of the Constitution when he takes the oath of office.