Emoluments R Us

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.

           ARTICLE I, SECTION 9, CLAUSE 8

                  of the Constitution of the united States of America

We have a system of government that imposes strict conflict of interest requirements, with lots of reporting and disclosure obligations, on virtually every federal employee and vendor. Except the President of the United States. The only exception, the only limitation imposed on the president, is the above “emoluments” clause. Nothing else. The framers of the Constitution had faith that anyone elected to the presidency would be of the highest moral character and that such detailed limitations were simply unnecessary. How wrong they were.

While we have had presidents with massive real estate holdings – very common among our Founding Fathers – and presidents who come from massive family wealth, we’ve never had a president who remains a continuing active owner and decider of a large financial empire. With very few restrictions on his activities, Donald Trump has stepped out of tradition by refusing to the limit his active connection with his financial world. After promising to release his tax returns, normally and openly provided by every president in recent history – returns that would reflect the kinds of influences and business practices that could compromise the integrity of the highest office in the land – we are seeing Trump’s “what is he hiding” refusal to disclose.

But those ongoing Trump’s businesses – especially those where people wanting to curry favor with the President of the United States because they want something – are still generating revenues to Mr. Trump. Hotels. Trademarks. Golf courses, resorts and country clubs. Condominiums. These assets are not in a blind trust as has been the traditional practice for folks with money as they assume the highest office in the land. Money flows into The Donald’s pockets every day. And those seeking to use money to influence US policy… well, it’s no secret.

But what exactly is an “emolument”? It’s an old word, generally filed under the term “advantage,” but Merriam-Webster defines it as “the returns arising from office or employment usually in the form of compensation or perquisites.” It covers more than an out-and-out bribe, a “pay for play” exchange, and it is not a campaign contribution, because the inference is that the “returns” go directly into the pockets of the relevant office-holder. Common sense tells you it is finding a way to pay an office-holder under the guise of a legitimate business transaction. That the recipient might “donate” the profits generated from some of those dealings, itself a source of power, does not mitigate the underlying potential for financial influence.

So, what happens when an interpretation of that word is issued by a federal governmental agency, where its senior members are appointed by and report to the president? Where that interpretation pretty much gives the president a carte blanche to make money from his businesses? It stinks, I suspect.

The April 9^th Guardian (UK) explains the U.S. Department of Justice’s formal opinion is on this nasty subject: “The Department of Justice has adopted a narrow interpretation of a law meant to bar foreign interests from corrupting federal officials, giving Saudi Arabia, China and other countries leeway to curry favor with Donald Trump via deals with his hotels, condos, trademarks and golf courses, legal and national security experts say.

“The so-called foreign emoluments clause was intended to curb presidents and other government officials from accepting gifts and benefits from foreign governments unless Congress consents.

“But in a forthcoming article in the Indiana Law Journal, the Washington University Law professor Kathleen Clark reveals justice department filings have recently changed tack. The new interpretation, Clark says, is contained in justice filings responding to recent lawsuits lodged by attorneys generals and members of Congress.

“Clark’s article notes that in more than 50 legal opinions over some 150 years justice department lawyers have interpreted the clause in a way that barred any foreign payments or gifts except for ones Congress approved. But filings by the department since June 2017 reveal a new interpretation that ‘… would permit the president – and all federal officials – to accept unlimited amounts of money from foreign governments, as long as the money comes through commercial transactions with an entity owned by the federal official,’ the professor writes.

“The justice department stance now closely parallels arguments made in a January 2017 position paper by Trump Organization lawyer Sheri Dillon and several of her law partners. On 11 January 2017, just days before he was sworn in, Dillon said Trump isn’t accepting any payments in his ‘official capacity’ as president, as the income is only related to his private business. ‘Paying for a hotel room is not a gift or a present, and it has nothing to do with an office,’ Dillon said.

“That goes against what many experts believe… ‘For over a hundred years, the justice department has strictly interpreted the constitution’s anti-corruption emoluments clause to prohibit federal officials from accepting anything of value from foreign governments, absent congressional consent,’ Clark told the Guardian.

“‘In 2017, the department reversed course, adopting arguments nearly identical to those put forward by Trump’s private sector lawyers. Instead of defending the republic against foreign influence, the department is defending Trump’s ability to receive money from foreign governments,’ Clark added.” This is but one of many reasons why the United States is seen (as The Economist calls us) a “flawed democracy.” Why the United States is now increasingly viewed as a plutocracy where once you reach a particular income level or political office, the laws no longer apply to you. Like mega-wealthy Vladimir Putin or Kim Jong-un, autocrats whose wealth grows by reason of their office. But can you legitimize corruption? Or does the fish continue to stink from the head.

              I’m Peter Dekom, and there is a lot about our government today that should make most of us ashamed of what we have become.