Trump may be haunted by ‘phony’ Emoluments Clause

President Trump recently called the Foreign Emoluments Clause of the U.S. Constitution “phony.” It was the verbal equivalent of his using his black Sharpie to attempt to delete a vital provision from our nation’s founding document — an action that deserved far greater outrage than it elicited. But the Emoluments Clause may come back to haunt him in ways that underscore its importance.

Discussion of President Trump and the Emoluments Clause largely has focused on whether payments made by foreign states to his hotels and resorts violate this provision. But two new, and fundamentally more important, questions arise as well: Has the president violated the Emoluments Clause by soliciting the president of Ukraine for help in his 2020 reelection? In light of his requested “favor” regarding Ukraine’s investigation of former president Joe Biden’s dealings there, has the president also violated the clause by words and acts that show Russia that he welcomes their continued interference in U.S. elections on his behalf?

The Foreign Emoluments Clause was placed in the Constitution to keep federal officials from being improperly influenced by or beholden to foreign governments. The clause provides that no federal officers can “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.”

Inclusion of the phrase “of any kind whatever” shows that the clause is to be read broadly. So, with that broad reading in mind, consider the application of the terms of the clause to the president’s July 2019 conversation with Ukraine President Volodymyr Zelensky. According to the White House transcript, immediately following a discussion about military assistance, the president asked Zelensky “to do us a favor, though.”   

If he was asking for a favor for the United States, there can be no objection. If he was asking for a favor for his campaign and, therefore, himself, that request falls within the Foreign Emoluments Clause, because a personal favor of significant value to the recipient is a kind of “present” under a clause that bans acceptance of any kind of present whatever.       

In this case, the conclusion that he was asking for a personal favor to help his 2020 reelection campaign is inescapable. President Trump goes on specifically to request investigation of Democratic presidential candidate Biden and his son, Hunter. He also wants Ukraine to speak to his private attorney, Rudy Giuliani, regarding Biden’s role in the firing of a Ukrainian prosecutor. That prosecutor, whom Trump called “very good,” was widely viewed as corrupt.     

As for Russia, it has been established by the Mueller report that Russia interfered in the 2016 U.S. presidential election. Candidate Trump welcomed their assistance in his “Russia, if you are listening…” appeal in July 2016 to hack Democratic presidential nominee Hillary Clinton’s emails.

The acceptance of a present can be established by words and deeds that tell the giver that the present is welcome. There is no need to prove collusion, conspiracy, solicitation, or quid pro quo.    

There is a strong body of evidence that President Trump has conveyed to Russian President Vladimir Putin that he welcomes Russia’s assistance and, if reelected in 2020, will be grateful. 

First is President Trump’s 2017 Oval Office meeting with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergey Kislyak the day after he fired former FBI director James Comey. As reported in The Washington Post, the president told the Russians that the firing relieved “great pressure” on him related to Russia, and he made clear that he was not concerned about Russian interference in the 2016 U.S. presidential election because the United States did the same in other countries.

Second is the president’s 2018 public statement in Putin’s presence that he believed Putin’s claim that he had not interfered, despite the view of the U.S. intelligence community to the contrary. Saying the interference did not happen, when the evidence shows the opposite, is a way of saying, “Keep it up, and you will hear no criticism from me.”    

Third is the way President Trump responded in 2019, again in Putin’s presence, to a reporter’s question as to whether Trump had told Putin not to interfere in U.S. elections. Trump made a joke by turning to Putin and telling him with a smile, “Don’t meddle in the election.”  

Fourth is the president’s request for campaign help from the Ukraine. If he is willing to solicit that assistance, he obviously would welcome comparable help from Russia.  

The fundamental question, however, is not whether these violations of the Constitution occurred — as they clearly did — but how much they threaten the nation. If they pose a major threat to representative democracy under the Constitution and to the national security of the United States, then they are solid grounds for impeachment and removal from office. 

Speaking at the Virginia Ratifying Convention of the U.S. Constitution in 1788, Delegate Edmund Randolph said of the need to prevent the president from receiving emoluments from foreign powers, “I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”

Evan A. Davis, an attorney, was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).