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Chief of Emoluments

The so called president recently confirmed, yet again, his complete lack of understanding of the U.S. Constitution, and the very idea of laws or rules as they might apply to him, by referring to the emoluments clause of the Constitution as “phony.”

Nothing about the Constitution can be “phony.” The Constitution is the considered wisdom of the persons who founded the Republic. We have since found various important points on which we disagree with them, but we have addressed those disagreements, mostly, by amending the Constitution, which it expressly allows. No one has ever even suggested any amendment that would have any impact on either of the emoluments clauses.

They are not “phony.”

Article I, Section 9, paragraph 8 of the United States Constitution reads, “[N]o 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.”

Article II, Section 1, paragraph 7 of the United States Constitution reads, “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.”

An “emolument” is a salary, income, or anything of value. The point of these two passages is essentially to prevent the president, or any other federal official, from accepting bribes. In a peculiar quirk of the U.S. legal system, these very clear provisions of our Constitution can be very hard to enforce because the federal courts impose on themselves the requirement that people who file law suits, plaintiffs, have to show standing, which requires them to demonstrate that they suffer a “concrete, particularized” harm that a federal court can remedy with a favorable decision.

That means that most average citizens cannot challenge Trump’s obvious violations of the emoluments clause in federal court because it does not harm us in any concrete, particularized way. The state of Maryland and Washington, D.C. filed suit against the so called president, claiming that, by owning a hotel in D.C., he invited people who want to curry favor with him to use his hotel at the expense of other hotels in the area, which violates the emoluments clause. The House of Representatives has filed a separate suit, arguing that, as part of the logic of separation of powers that is built into our Constitution, it should have the ability to review Trump’s business endeavors to enforce the prohibition on emoluments.

Now new reports indicate that, as part of the impeachment inquiry, the House Oversight Committee is looking at the practice by some entities of booking large numbers of rooms in Trump hotels that they only use a small percentage of.

Again, the emoluments clauses in the Constitution effectively prohibit bribery. Choosing the Trump hotel during stays in D.C. is an obvious way to curry favor with Trump by paying him money in a way that looks reasonable on its face, but is obviously equivalent to a bribe.

In fulminating about how the emoluments clauses are “phony,” Trump pointed to George Washington having run his businesses while he was president, and to the publication deals and Netflix contract President Obama signed soon after leaving office. Of course, Trump totally misses the point. Obama relied on being a former two term president of the United States, a status that only two other living humans can currently claim, in getting what was very likely a huge advance on his book, but there is no conceivable way in which the book deal could have had any impact on any of his policy decisions as president. This goes double for the Netflix contract. Similarly, Washington might have used his position as president to win sales of products from his plantation to the federal government, but if he did, we likely know about it, and it was likely relatively innocuous.

The recent defiant admission by Mick Mulvaney, acting White House chief of staff, that Trump deliberately withheld aid to Ukraine to have leverage over them for his demand that they investigate entirely spurious allegations against former vice president Joe Biden and his son, Hunter, reflects the general failure of Trump and his toadies to understand the basic ethical constraints that should apply to the actions of the president of the United States. The aid to Ukraine was more blackmail than bribery, but it is analogous to an emoluments violation in being the use by the president of his public position to pursue his personal goals without regard for the well being of the public, which should be his primary concern as long as he is president.

It is not legally relevant, but the contempt Trump shows for our Constitution, and for the idea of the rule of law in general, by calling the emoluments clauses “phony” are entirely relevant to the obvious point that he is not fit to serve as president of the United States. This new claim can, and should, serve as a further goad to the process of removing him through impeachment.

His unfitness has always been obvious. The time to remove him has long passed.

Written by

Uppity gay, Buddhist, author, historian.

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