Donald Trump has been impeached, but House Democrats have given him a pass on arguably his most egregious high crime and misdemeanor—his unrelenting use of the presidency as an instrument of personal financial gain in violation of the Constitution’s emoluments clauses, which outlaw the receipt of payments and gifts from unauthorized sources.
The House made history in citing Trump for abuse of power and obstruction of Congress in connection with his attempt to pressure the government of Ukraine to dig up political dirt on Joe Biden in exchange for U.S. military aid.
Taken together, the two articles of impeachment set forth a narrative of profound lawlessness. The former reality-TV show host has now joined Andrew Johnson and Bill Clinton in the three-man rogues’ gallery of impeached American presidents. (Richard Nixon, who would have been the fourth, resigned from office in 1974 before the full House could vote on three articles of impeachment passed by that body’s judiciary committee.
While mainstream pundits debate the wisdom of House Speaker Nancy Pelosi’s decision to delay delivering the articles to the Senate until the upper chamber agrees to conduct a meaningful impeachment trial, progressives should take the opportunity to highlight the inadequacy of the current articles, and urge the Democrats to expand them while there is still time.
But as significant as they are, the Trump articles of impeachment only scratch the surface of our 45th commander in chief’s corruption. While mainstream pundits debate the wisdom of House Speaker Nancy Pelosi’s decision to delay delivering the articles to the Senate until the upper chamber agrees to conduct a meaningful impeachment trial, progressives should take the opportunity to highlight the inadequacy of the current articles, and urge the Democrats to expand them while there is still time.
Even with regard to Ukraine, the articles fall short of what could and should have been alleged, as they fail to charge Trump with committing the federal crimes of bribery and extortion. This is lamentable, not only because Trump appears to have satisfied the elements of both crimes, but because bribery is explicitly set forth in Article II of the Constitution as an impeachable offense.
The articles also fail to hold Trump accountable for obstruction of justice (another federal felony) regarding the investigation conducted by special counsel Robert Mueller into Russian interference in the 2016 presidential election. Mueller and his team compiled a 448-page report, which was released to the public in April. Although heavily redacted, the report details numerous instances of obstruction, ranging from the firing of former FBI Director James Comey to Trump’s demand that former White House counsel Don McGahn fire Mueller, an order McGahn refused to obey.
But of all the deficiencies in the current impeachment articles, none is quite as glaring as the absence of any allegation that Trump has violated the Constitution’s emoluments clauses, the document’s basic anti-corruption prohibitions.
There are actually two emoluments provisions in the Constitution—one foreign and the other domestic.
The foreign clause, set forth in Article I, applies to all federal officials—not only to Trump, but to his daughter Ivanka, and his son-in-law, Jared Kushner, who hold high-level advisory positions in the administration. The clause instructs that: “[N]o Person holding any Office of Profit or Trust under [the United States], 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 domestic emoluments clause, which applies only to the president, is found in Article II. It provides: “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be increased 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.”
Combined, the emoluments clauses prohibit the president and other federal office holders from receiving financial compensation beyond their official salaries. The framers of the Constitution included the clauses in the national charter they crafted as a check against both foreign influence and personal greed. Writing about the domestic clause in Federalist (Paper) No. 73, Alexander Hamilton reasoned that with the emoluments prohibition in place, the president would “have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.”
Trump has blatantly violated both clauses since his first days in office, refusing to place his private business interests in a blind trust in defiance of long-established presidential norms and traditions.
As the nonprofit group Common Cause explains in a lengthy impeachment analysis entitled “Patterns of Deception”:
“The Trump Organization LLC is a collection of more than 500 business entities that engage in global real estate development, sales and marketing, property management, golf course development, entertainment and product licensing, brand development, restaurants and event planning businesses. Although President Trump claimed to have relinquished control over the Trump Organization, his adult children continue to operate the organization in his stead, and he has maintained ownership of the Trump Organization while serving as president.”
Through his ownership of the Trump Organization, the president has raked in millions from foreign states, the federal government and various domestic state agencies for stays at the Trump Hotel in Washington, D.C., and Trump-branded golf courses in the U.S. and abroad. In addition, as Common Cause notes, the Industrial and Commercial Bank of China and the Abu Dhabi Tourism and Cultural Society continue to rent space in Trump Tower in Manhattan, paying as much as $95 per square foot for their tenancies.
The president’s emoluments transgressions also include the payment of royalties from the international distribution of “The Apprentice” and its spinoffs, a $6 million tax break given by Mississippi to a Trump-branded hotel project in the state, and 65 foreign trademarks that have been awarded to Trump businesses. Both China and Japan also have granted trademarks to Ivanka Trump and her fashion-design businesses since the 2016 election. According to Fortune magazine, Ivanka and Jared made at least $82 million in 2017 from “multiple streams of outside income while they were senior White House advisers.”
It would be easy to add an emoluments allegation to the articles of impeachment lodged against Trump. Both Common Cause and other progressive groups have drafted model articles that House Democrats could edit and adopt.
A public airing of Trump’s economic corruption would nicely complement the political focus of the Ukraine impeachment articles, and could do so without complicating the case House managers will need to present in Trump’s upcoming Senate impeachment trial. Prosecuting an emoluments count also would likely drive up popular support for Trump’s impeachment and removal from office, which currently rests at roughly 48%. Many Americans may care little about Ukraine, but most strongly disapprove of economic privilege and inherited wealth.
In declining to adopt an emoluments article, House Democratic leaders may have acted pragmatically in the belief that they’ve gotten the most they could from their legislative caucus. Or they may have less salutary motives. Since many of them are deeply indebted to corporate donors, they may also have been deterred by their own susceptibility to charges of economic elitism. Whatever the reason, there’s no good excuse for their failure of nerve.