When President-Elect Donald Trump is sworn in next month he will already be violating the Emoluments Clause of the U.S. Constitution.
So argued a leading First Amendment and open-government lawyer, Daniel J. Klau.
Klau made the observation on an episode Tuesday of WNHH radio’s “Legal Eagle” program, a day after the Electoral College formally elected Trump as the 45th president of the United States. Trump will be sworn in on Jan 20. We discussed the so-called emoluments clause of the U.S. Constitution, which is likely to have a special significance for the Trump business empire and for Trump himself.
Paul Bass Photo
Klau.
Klau (pictured) noted that with a Republican House of Representatives in place, early impeachment action as a result of the emoluments violation is unlikely. Here is our discussion on the issue and its implications:
WNHH:
So let’s talk a little bit about a particular clause of the U.S. Constitution that you might be familiar with and that I don’t necessarily think all of our listeners are until it came up. Tell me about it.
Klau:
Article 1, section nine of the U.S. Constitution. It’s called the Emoluments Clause. One of the things that the founding fathers were very, very concerned about, they were drafting the Constitution, was the influence that foreign powers might attempt to exercise over the United States by giving gifts … to ingratiate themselves and get officeholders in America to do things that were more in the interest of the foreign power than in the interest of the United States of America. There’s a long, long history of the way that the kings and princes and whatnot conducted themselves in Europe — you can look at the relationship of the kings in Britain and France to the parliament, where they would essentially bribe members of parliament through giving them gifts in order to induce them to do certain things.
So the founding fathers were very conscious of this history and they did not want the American government and the elected representatives in that government to be susceptible to these foreign interests through gift giving. So the Emoluments Clause basically says that no office holder in the United States, no federal office holder in the United States of America, can accept emoluments from any foreign power. And emoluments are a broad term that includes gifts, special privileges, special honors, and so on and so forth. Now, for most of the history of our country, the clause has sat there collecting dust. It hasn’t been the subject of much litigation, there was one interesting recent occasion wherein President Obama, upon taking office in 2009, was awarded the Nobel Peace Prize.
WNHH:
Oh, yes.
Paul Bass Photo
Klau.
Klau:
He wrote to Congress and to ethics officers in the government to determine ‘could he accept that?’ Would accepting the Nobel Peace Prize — because remember, it comes with a very substantial monetary award … it’s a lot of money — and the question was … is this a gift from a foreign government, Norway? If fact, the Nobel Organization is not a government organization so he was able to accept the prize money.
But this question, this little dust-collecting section of the constitution is front and center. Because we now have a president elect who has more business interests around the world than perhaps any other person who has ascended to this office of president of the United States.
WNHH:
>And I might add, he’s also a president who has not shared his taxes, so we don’t know specifically.
WNHH:
That’s right. But what we do know, even despite the lack of transparency, is that he has … property interests, real estate, hotel, golf courses in countries all around the country — the world. And many of the relationships he has are with foreign entities that are substantially controlled by foreign governments, so he … the conflicts of interest that president-elect Trump will have when he becomes president on January 20 cannot be understated. They are astounding.
Now, he has said in his 140 character twitter feed that the law is on his side and the president can’t have conflicts of interest, which reminds me of Richard Nixon standing up and saying during the famous interviews that when the president does something, it’s by definition legal.
WNHH:
Right.
Klau:
That of course is absurd. There is a law, a statute was passed dealing with conflicts of interest that doesn’t apply to the president. But the Emoluments Clause does. And what I want every reader to appreciate is that the moment that he takes the oath of office on January 20, he is committing what many, many, many people believe is an impeachable offense.
WNHH:
When you say people, could you define that a little better?
Klau:
Certainly, if you look at members of the legal community — that is, law professors on the right and left that have studied this issue, they have serious, serious questions about his conduct violating the Emoluments Clause. So students, if you will, of the Constitution have raised these concerns. Think tanks on both sides of the aisle so to speak are concerned about this issue, the only people who don’t seem to be concerned are the Congressional Republicans in Washington who were losing their mind over the possibility that Hillary Clinton’s foundation would present conflicts of interest, but when the President-Elect on their team has these problems, they are scarily silent.
WNHH:
Very silent, yes. So you define people as professors, perhaps those in think tanks and so forth … . And what happens next? What’ action might take place to investigate this?
Klau:
Well, it’s also important to understand that this is largely a political issue. That is, one that cannot be resolved by the courts, but only through an act of Congress. And why do I say that? First of all, the president of the United States — you can’t sue the president for acts …
WNHH:
You were saying impeach…..
Klau:
Yes. An impeachment is not a civil lawsuit. An impeachment requires, of course, a vote of the majority of the House of Representatives, and it’s akin to an indictment. So when you impeach somebody, what the congress is saying is that there is reason to believe that the president has committed what the Constitution calls ‘High Crimes or Misdemeanors,’ If you get a majority of congress to vote that way, as we saw during the Clinton administration … then what happens is the matter goes to the Senate. And the senate sits as jurors, and there’s a trial in the senate.
WNHH:
Okay, so the House starts it and then there’s a trial in the Senate.
Klau:
Exactly.
WNHH:
So someone on the House side would have to make the first move.
Klau:
Right. Now, is that likely, given the composition of the House? Answer: not right now. It’s very hard to imagine with the control that the Republicans have, that they’re going to jump to impeaching their own guy. However, I remain .… if the President-Elect upon assuming office engages in conduct that becomes detrimental to the political wellbeing of congressional Republicans — in other words, if they begin to feel the heat from their own constituents because their constituents begin to lose faith in the president and are upset about his conduct — then, because the number one rule of being a political official in Washington is getting re-elected, their feelings might change. So I don’t see any immediate prospect for actual impeachment. The question is: how does the President conduct himself over the next several years? Does he bring the country together, or does he push it farther apart and exploit divisions, and does he do things that leave the people who voted for him realizing ‘Oh my God, why did we do this?; And then, do they then look to their local representatives to act as a check upon the president.
WNHH:
So, one of the big issues during the campaign was Donald Trump’s refusal to turn over his income tax and so forth. Does that change when he becomes the president? Is there a requirement as president to share your income tax returns or not?
Klau:
There isn’t any.
WNHH:
Even when you take office?
Klau:
That’s right. Now, there are norms of behavior. One of the things that has happened over the past eight years or so is that the way in which people have conducted themselves because there’s an understanding that that is the way people ought to conduct themselves, even if there isn’t a law that says so — those norms of behavior that have developed over decades have been shattered. So one of those norms is that all candidates for presidency, once they have obtained the nomination of their party, have to release their returns. We’ve been doing that for the past 40, 50 years since President Nixon. So those norms have been shattered. And then upon becoming president, our presidents have released their returns.
WNHH:
That was my recollection.
Klau:
But they’ve done that not because there’s any legal requirement to do so but because that is the acceptable norm of behavior. Donald Trump is the master of shattering norms. He simply doesn’t care about the way things have been done. So I do not see any reason to believe that he will release tax returns during his term in office.
To listen to the full interview, which includes other topics as well as Trump, click on or download the above audio file.
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