Except, if the whole thing is a violation of the emoluments clause, Congress can’t exempt Trump from it., because statutory law can’t negate a constitutional provision. Only a constitutional amendment can do that. Is it a violation of the emoluments clause? I don’t know. But if it is, the president’s exemption from conflict of interest law wouldn’t change that.
From an earlier thread:
Sorry. What I meant to say is that, while congress could lift the clause in particular cases, I don’t think they can do so in a blanket way. They’d have to approve each enolument individually.
As was already cited, in this case, Congress definitely can, because the Constitution allows it.
“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.”
I think the jurisdictions may have standing. I don’t think what is happening qualifies as emoluments. I don’t think there are any non-impeachment remedies other than the entities forfeiting the amount that is considered emoluments to the US government.
Presumably these other hotels have had competition before Trump was elected and the case that they are losing business as a result I would think does not create standing for damages via the emoluments clause. For a violation of the constitution, I do not think a competitor hotel would be the aggrieved party anymore than you or I would be. In this case however, I believe there were various incentives to some DC hotels by DC itself via tax credits, or other co-investments such that the government of DC may be shown to have experienced damages if they can demonstrate that Trump hotels have received more business at their expense as a result of emoluments received. Celebrity status alone I do not think would be sufficient.
Emoluments are gifts basically. If Trump hotels received payment for services rendered before he was elected, and payments for services rendered after he was elected at substantially the same rates, that’s not a gift. If the rate was $300/night and then went to 10,000/night, that would be more revealing as a gift. Unless that type of information comes out, I would say the hotel stays did not constitute emoluments.
When a military person is found in violation of the emoluments clause via some kind of foreign consulting or some such, the remedy is a withholding of pay up to the amount of the emolument or the amount of the pay due to the person. (Page 12, Remedies). I seem to recall that the payments are being donated to the Treasury, so that would seem to moot the issue in the case of remedies.
My caveat is that none of this has been tested so this is my take on it.
Not so. Congress could allow certain gifts in a blanket way and set forth the criteria for such allowance. For example, the Foreign Gifts and Decorations Act which established policies and procedurespertaining to the acceptance, use, and disposition of gifts or decorations from foreign governments.
But the allegation is that Trump has already accepted emoluments without the consent of Congress.
There’s no law saying Trump can’t nuke Toronto, but if he did (or tried but the people in the bombers and missile silos refused to carry out his orders), should we impeach and remove him?
Well, yeah. And I’m sure you’d agree with that.
And if you do, then the only question is, how big an abuse of power that broke no laws would it take for impeachment to be the right thing?
Like in the old joke, we’ve established the principle, now we’re dickering over the price.
And maybe get a peek at some certain tax returns.
Then wouldn’t the exemption from conflicts of interest be un-Constitutional? It was a blanket exemption.
Like Bricker says above, would Congress have to have given approval every time Obama sold a book, or got a dividend from some investment?
ISTM that the Constitution doesn’t define how Congress has to give approval, any more than it says how or when it has to approve a SCOTUS nominee. Why couldn’t Congress just pass laws saying “put it all in a blind trust and it will be OK”? When the DC and Maryland AGs have evidence that Trump is taking cash under the table (or selling pardons for campaign contributions, or firing people from the White House travel office to channel business to your friends) we can worry about it then.
I did some Googling but I can’t tell - did Obama get permission from Congress before he accepted the Nobel Prize? That’s worth a considerable sum, although I believe Obama donated it to charity.
Regards,
Shodan
According to the DOJ as cited in this article, the Nobel Prize did not violate the emoluments clause because the prize is awarded by the Nobel Committee which is not a king, prince or foreign state.
It was considered by the Office of Legal Counselfor sure. In summary:
Much more at the link.
eta: ninja’d while copying/pasting!
bolding is mine.
I would disagree. Courts generally try to give distinct meaning to each word. Since the clause specifies “…present, emolument, office, or title, of any kind whatever…” I would assume that present has a different meaning than emolument which has a different meaning than office… etc…
IMHO, the term “present” would mean gift - something given without expectation of receiving anything in return. The term “emolument” would seem to have the distinct meaning of salary, wage, honorarium, or compensation for work performed. If “emolument” included the idea of a gift received without expectation of receiving anything in return then the term “present” would be a surplusage.
The terms office and title do not seem to be at issue at the present.
So far I have not heard any allegation that Trump has personally received outright gifts that were not permitted by Congress. Perhaps there have been some ceremonial gifts exchanged in the course of diplomacy, but so far I have not seen an allegation that any such gift was not permitted or handed over to a US government agency in accordance with tradition for how such matters have been handled.
There does not seen to be an allegation of Trump receiving a salary, wage, or honorarium. So the real question is down to emoluments, and whether such term includes ordinary profits from business, and whether such are the sort of compensation intended to be prohibited by this clause.
If emoluments are to be understood as including any profits from business transaction then it seems likely that the last several presidents would have been in violation in some small way. In addition to the book sale hypothetical Bricker raised above, Obama did own stock in a variety of companies according to his financial disclosures. If those companies had any sales to a foreign government then Obama as a part-owner shareholder directly benefited in some small way. But is that important? Hardly. It was roundly ignored.
Which gives rise the the reasonable question, might a connection be so tenuous and distant, or a profit be so minor, that the emoluments clause should not be triggered?
Twenty bucks, same as in town.
You make a fair point. There could certainly be an abuse that didn’t break any laws but deserved impeachment anyway. I don’t know if I could define it, except it would have to be enough to convince non-partisans as well as reasonable partisans, if such exist.
The case the last time we impeached a President wasn’t enough, apparently, but that probably doesn’t make it any clearer.
Regards,
Shodan
Thanks to you (and Bone) for the cite. I didn’t see where Trump was getting anything from a foreign state in the lawsuits.
Regards,
Shodan
The broad allegation is that foreign governments might be booking hotel rooms and/or events space in one or more hotels owned, at least in part, by Trump.
So if I, as an employee of a foreign government, travel to a conference in Washington and stay in a Trump owned hotel that might be an emoluments clause violation for Trump if my hotel stay is paid for by my employer.
From the WaPo article cited in the OP:
I believe the state bank of China is a tenant in one of the buildings owned by one of Trump’s enterprises. That and foreign dignitaries choosing to pay for stays at Trump owned hotels. That would be getting something from a foreign state.
ETA: Dammit! ninja’d again!
Just to be difficult, I will mention that the Nobel Peace Prize committee is appointed by the Norwegian government.
Regards,
Shodan
True. I suspect this decision would have received more scrutiny if there was any evidence of Norway receiving favorable treatment from President Obama. (Though the emoluments clause applies even if there wasn’t any quid pro quo.)