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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: foreign emoluments clause

Losing a Two-Front War

16 Sunday Sep 2018

Posted by crosbysamuel in Articles, Uncategorized

≈ 1 Comment

Tags

campaign chairman, civil suit, conspiracy to defraud, constitution, domestic emoluments, donald trump, foreign emoluments clause, impeach, Impeachment, investigation, Manafort, maryland, Mueller, Obstruction of Justice, paul manafort, plea deal, president, Special Counsel, trump, trump internation hotel, two-front war, u.s. district court of maryland

This week has proven to be a difficult one for President Trump. As both civil and criminal investigations draw near and his tight spot becomes tighter, one can only begin to imagine his discomfort.

The world of Special Counsel Robert Mueller’s investigation has gotten a little brighter with the cooperation of Paul Manafort. Trump’s former Campaign chairman finally struck a plea deal last Friday and pleaded guilty to conspiracy to defraud the United States and obstruction of justice. Though Trump’s press secretary, Sarah Sanders, argues that the charges against Manafort have nothing to do with the President and could not incriminate him, Manafort apparently possesses information valuable enough for Mueller to agree to waive 5 of his 7 charges and argue leniency in his sentencing. Especially valuable is Manafort’s participation in the Russian lawyer meeting and any insight he may be able to give as to what happened there. Some theorize that Manafort’s cooperation promises the end of Mueller’s investigation.

On top of Mueller’s progress, Trump faces discovery requests pursuant to a civil suit in the U.S. District Court of Maryland. The suit alleges that Trump violated the Domestic and Foreign Emoluments Clauses of the United States Constitution through operation of the Trump International Hotel near the White House. Pursuant to those allegations, the plaintiffs, D.C. Attorney General Karl Racine and Maryland Attorney General Peter Frosh, are seeking communications between Trump and foreign and U.S. state government officials related to use of the hotel, records of the hotel’s business with foreign officials, records of cash transferred from the trust which collects the hotel’s funds to Trump, and documents from the General Services Administration and the U.S. Treasury Department which lease the hotel building to Trump.

The likely result of these two investigations is that allegations of impeachable offenses committed by Trump, conspiracy to defraud the American people, obstruction of justice, and violation of the emoluments clauses, will soon either be substantiated or refutable. And with midterm elections looming, this information could not have come at a better time. Soon there will be a Congress that can transform all of this discovery into articles of impeachment.

GettyImages-578331186-trump-manafort-2016-1120.jpgBill Clark, CQ Roll Call, Getty Images

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Trump Walks Away from SoHo Hotel

29 Wednesday Nov 2017

Posted by crosbysamuel in Articles, Uncategorized

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foreign emoluments clause, hotel, SoHO, standing, suit, trump

The Trump Organization recently received a buyout deal to walk away from Trump SoHo — one of its hotels. President Trump’s lawyers say that in so doing, Plaintiffs who are suing Trump for violation of the Foreign Emoluments Clause, many of which are competitors of Trump SoHo, will lose standing for their lawsuit. The Foreign Emoluments clause is something which has been considered extensively on this blog. However, if the Plaintiffs lose their standing, confirmation of the violation will be substantially less likely.

trumpdonald_101717gn2_lead.jpgGreg Nash

 

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The Foreign Emoluments Issue

10 Sunday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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foreign emoluments clause, hotel, Tillman

This article, written by Professor Seth Barrett Tillman, examines President Trump’s potential violations of the foreign emoluments clause in the context of the precedent set by the Constitution’s drafters.

trump (1).jpg

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Debunking the claim that the Foreign Emoluments Clause doesn’t cover Presidents

18 Tuesday Jul 2017

Posted by impeachableoffenses in Uncategorized

≈ 2 Comments

Tags

emoluments, foreign emoluments clause, Tillman

Several days ago, I wrote skeptically about the claim advanced by Seth Barrett Tillman and Joshua Blackman that the Foreign Emoluments Clause of the Constitution doesn’t cover Presidents.  The online magazine Slate has just published a more extensive, and in my view, dispositive critique of the Tillman-Blackman argument.  The article by Professors Gautham Rao and Jed Handelsman Shugerman, is accessible here, and well worth reading.

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Emoluments: A teaser

14 Friday Jul 2017

Posted by impeachableoffenses in Uncategorized

≈ 2 Comments

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emoluments, foreign emoluments, foreign emoluments clause, Teachout, Tillman

Should impeachment of Mr. Trump ever become a serious prospect, the Foreign Emoluments Clause of the constitution may be part of the conversation.  Article I, Section 9, Clause 8, in which the clause resides, reads as follows:

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.

The question in Mr. Trump’s case, of course, is whether payments by foreign governments to any of Mr. Trump’s businesses constitute prohibited emoluments.  Some observers take the position that payments, however large and lucrative, that are part of commercial transactions are not “emoluments.”  Others, emphasizing the anti-corruption purpose of the clause and recognizing the likelihood that foreign governments will try to curry favor with Mr. Trump by enriching him, disagree.

Another strand of the argument relates to the even more fundamental question of whether a president is covered by the Clause at all.  The most vocal exponent of the view that presidents aren’t covered has been a fellow named Seth Barrett Tillman, a lecturer in law from, of all places, the National University of Ireland in Maynooth.  He and co-author Josh Blackman had an op-ed in the New York Times yesterday espousing this view.

I haven’t yet studied the emoluments question, so I do not want to be unduly dismissive of Professor Tillman’s position.  Still, at first blush, his argument seems thin for at least two reasons.

First, his position rests heavily on the fact that several early presidents accepted and kept single ceremonial gifts like the key to the Bastille the Marquis de Lafayette gave George Washington, or the bust of Czar Alexander I sent to Thomas Jefferson by the Russian government.  Tillman discounts the fact that later presidents either treated such gifts as property of the nation or, if they wanted to keep them personally, asked congressional permission.  Tillman’s argument that events in the founding era have more interpretive value than later practice is a common trope in constitutional debate.  But it is never a dispositive argument, and, to me, carries even less weight than usual when it relates to events as obscure as the receipt of single ceremonial diplomatic presents.

After all, the point of the clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

Second, when interpreting constitutional language, considerable weight ought to be given to its apparent purpose. Again, the foreign emoluments clause was enacted because the Framers were realists who recognized that men are not angels and that the judgment even of persons of moderate virtue can be distorted by sufficiently generous rewards.  While those Framers would not, I submit, have had the least concern on this score about one-off ceremonial gifts of a key or a bust, they would quite certainly have thought that payments of hundreds of thousands or even millions of readily spendable dollars could have the corrupting effect they feared.

These considerations hardly settle the question.  Professor Tillman also makes the textual argument that the phrase “person holding an office of profit or trust under [the United States” doesn’t include any elected official.  And there remains the, to me, more substantial question of whether payments, however large, to a president’s businesses can be prohibited emoluments.  I’ll return to those another time.

Until then, if you are interested in reading more, I commend you to this page of the Constitution Center website, which explains the issue in some detail and features the differing perspectives of Professor Tillman and Professor Zephyr Teachout.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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