Conservatives, we are constantly told, believe in strict adherence to the Constitution based primarily on the text and secondarily on the views of the Founding Fathers. If conservatives really were “originalists,” they would be the first to say that Donald Trump is exactly the kind of president who ought to be impeached.
Unique among presidents, Trump has divided loyalties. He has entangled his business interests with his official duties, creating the impression, if not the reality, that his own financial interest — not his duty as president — guides his thoughts and actions.
The Founding Fathers, savvy students of history and human nature, were highly attuned to the risks of public corruption — actual or perceived — and inserted language into the Articles of Confederation and later into the Constitution to guard against such human frailties. They wanted to make sure that anyone who held a public office would serve only one master: the American people.
A farewell to kingsFor the Founders, public corruption wasn’t just a theoretical danger. They viewed it as the primary threat to their independence. Living in a small, fledgling country, the Americans feared that the European powers would seize control of the American democracy by flattering and bribing our officials.
The kings and princes of Europe were masters of the art. The British king had corrupted Parliament by providing titles and sinecures, a major contributor to the split between the colonies and Britain. The true history of the 1670 Treaty of Dover had just been published, which revealed that King Louis XIV of France had bribed Charles II of England with a secret pension, a beautiful and beloved French mistress, and a promise of protection. In exchange, Charles had agreed to convert to Catholicism and to join Louis in his costly and fruitless war against the Dutch, his former ally.
During the Constitutional Convention, Gouverneur Morris (who is regarded as the chief architect of the presidency) argued that receiving such emoluments would justify impeachment of the president: Because the president would not have a lifetime office or income, Morris said, “he may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him.”
It seems the Founding Fathers had Donald Trump (or someone very like him) in mind when they wrote those clauses into the Constitution. They were concerned about our government officials being corrupted by foreign or domestic powers. Alexander Hamilton argued in Federalist Paper #73 that the domestic emoluments clause was designed to keep the president independent and incorruptible.
‘Appealing to his avarice’“In the main,” Hamilton argued, “it will be found that a power over a man’s support is power over his will.”
With the emolument ban in place, “they can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice,” Hamilton wrote.
The key passage in the Constitution is Article I, Section 9: “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.”
The point of this clause is to prevent any foreign power from gaining influence over the U.S. government by providing gifts, titles, jobs or other benefits to its officials.
No exceptionsArticle II, Section 1 specifically limits the president and does not allow Congress to approve exceptions: “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.”
The point of this clause is to prevent the Congress or any of the states from gaining undue influence over the president by lining his pockets.
Note that these prohibitions don’t require a legal finding of bribery. The Constitution doesn’t say payments are OK as long as there’s no quid pro quo. Such “emoluments” are unconstitutional, full stop.
Trump is suedTrump has been hit with lawsuits alleging that he is violating those two constitutional provisions. One of the lawsuits is moving forward, bad news for this utterly corrupt administration.
The facts of the case are clear: Foreign and state officials do patronize his businesses with the express purpose of currying his favor (also known as “stay to play”). Trump is soliciting business from foreign officials and U.S. politicians. The emoluments he receives from them is significant and important to his business. Congress has not been asked for its consent, nor has it been granted. State government officials have also patronized his hotel. The federal government has also granted Trump an “advantage” by approving the continuation of the lease for his hotel at the Old Post Office despite the clear wording in the lease that “no elected official” shall benefit from it.
The only real point of dispute between Trump’s defenders and his critics is over the meaning of the word “emolument.” Trump’s lawyers say “emolument” means only the money that is earned for holding an office (and not for renting a room or granting a lease). His critics say “emolument” means any profit, advantage, gain or benefit.
‘Originalist’ approachRecently, Federal District Judge Peter J. Messitte sided with Trump’s critics as to the legal meaning of “emoluments,” and ruled that a lawsuit alleging violations of the emolument clauses could proceed.
It’s interesting that Messitte’s ruling relies heavily (but not exclusively) on an “originalist” approach. He notes in his opinion that the preponderance of the evidence shows that the common meaning in 1787 of the word “emolument” was any “profit,” “gain” or “advantage.” Nearly all dictionaries of the day followed this definition, and many authors and politicians at that time also used that definition. Trump’s alternative definition has almost no contemporaneous support, the judge ruled.
Messitte’s ruling may be overturned, of course. There is considerable pressure on Republican office holders, as well as conservative jurists, to ignore the stench of corruption stemming from Trump’s ownership of a large and complex business that does business with governments near and far.
The Founding Fathers could well imagine that a foreign or domestic power would try to corrupt the president. But they could not imagine that the constitutional system they created would ever permit the president to corrupt the Congress or the courts. Let’s hope they weren’t wrong about us.
‘Guard against corruption’Edmund Randolph, governor of Virginia, delegate to the Philadelphia convention and first attorney general of the United States, said during the ratification debate that the president “is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption.”
And if the president does so, “he may be impeached,” Randolph declared with no reservations.
The Founding Fathers, in other words, would have impeached Trump in a New York minute.
