It’s “phony,” President Trump said Monday of the portion of the Constitution that forbids presidents from profiting off their offices.
But the emoluments clause provisions are there in black and white — and some of the Founders expressly said that presidents should be impeached if they violate the provision barring a president from getting financial benefits from foreign governments, constitutional law experts say.
Trump referred to the “phony emoluments clause” in rambling remarks Monday in which he continued to defend his decision to hold next year’s Group of 7 summit at one of his own properties, Trump National Doral Miami. His remarks came even though he had already reversed the controversial move.
There are actually two emoluments clauses: The foreign emoluments clause is contained in Article 1, Section 9, Paragraph 8, of the Constitution.
It says 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.”
The purpose of the clause is “the obvious one of preventing foreign states from buying their way into influence over American government,” said Frank Bowman, a professor at the University of Missouri School of Law who is the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”
The second clause is known as the domestic emoluments clause. It is contained in Article II, Section 1, Paragraph 7, of the Constitution.
It says that “the president is entitled to a salary, but may not receive ‘any other Emolument’ either from the federal or state governments. It is designed to ensure that presidents don’t try to turn their offices into schemes for self-enrichment and that state governments don’t try to curry favor with the president by paying him on the side,” Bowman said.
Critics say Trump has been violating the emoluments clauses by collecting money from foreign governments, the US government, and others at his company’s properties. The Trump National Doral decision appeared to be an even bolder step. Trump in his Monday remarks said, among other things, his family runs his business rather than him, and George Washington and other presidents “ran their business at the same time” as being president.
Some in Congress have suggested that alleged emoluments clause violations, already the subject of several lawsuits, be considered as one of the impeachment articles against Trump. It’s not clear if they will be, as the House inquiry rapidly accelerates into the Ukraine scandal.
At least as it regards accepting foreign emoluments, some Founders were on the record saying that accepting emoluments was an impeachable offense, Bowman said.
“Accepting foreign emoluments was expressly mentioned by some among the Framers as impeachable. And, of course, it fits squarely into their dual concerns that federal officers be free of corruption and that foreign powers not gain undue influence,” Bowman said.
Bowman wrote in “High Crimes and Misdemeanors” that Gouverneur Morris of New York at the Philadelphia Convention spoke several times of the need for impeachment of a president in the pay of a foreign power.
Morris spoke at the convention where the Constitution was drawn up of the “danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him.”
Morris also said, “No man would say that an Executive known to be in the pay of an Enemy, should not be removable in some way or another,” according to records of the convention.
At the Virginia ratifying convention a year later, Edmund Randolph of Virginia said, “There is another provision against the danger. . . of the President receiving emoluments from foreign powers. If discovered, he may be impeached.”
Bowman wrote, “Congress has the authority to decide that accepting money and favors from persons or nations who have a natural desire to ingratiate themselves with an American president is not only a technical violation of the emoluments clauses, but constitutes corruption of a type embraced by the phrase ‘high Crimes and Misdemeanors.’ ”
“The emoluments clauses prescribe particular aspects of a norm of republican virtue. The impeachment power is the enforcement mechanism for that norm,” he wrote.
Cass Sunstein, a professor at Harvard Law School, noted in his book, “Impeachment: A Citizen’s Guide,” that some lawyers debate whether the emoluments clause applies to the president, but Sunstein said Randolph’s comment bolstered the argument that it does.
Sunstein wrote, “From the standpoint of the founders, the link made perfect sense. The emoluments clause protects the nation against officials who have been compromised by receiving gifts from foreign nations. Impeachment supplies the remedy in the event of a violation,” he wrote.
Material from Globe wire services was used in this report.