The Electoral College, the Constitution, and Trump's Conflicts of Interest

On Friday, the Brookings Institution issued an analysis of an obscure constitutional provision that should concern every American. The paper, by Norman Eisen, Richard Painter and Laurence Tribe, demonstrates persuasively that when the 538 presidential electors meet on Monday to cast their votes for president, electing Donald Trump as almost everyone expects, they will be electing a president whose tangled and mysterious web of business dealings "violate both the spirit and the letter of [a] critical piece of the U.S. Constitution."

The concern, specifically, arises out of Trump's many entanglements with foreign governments and leaders. While we don't know the full extent of these ties, thanks to Trump's refusal to make his business records (including tax returns) public, what we do know raises grave concerns. As the clock ticks down to Monday's Electoral College vote, which will actually be 51 separate votes in each state capital plus the District of Columbia, it is still not too late for electors to hold the President-Elect accountable.

The constitutional provision in question is the Emoluments Clause, found in Article I, Section 9. Before its current moment in the spotlight, even most lawyers would be hard pressed to explain its purpose in our constitutional framework. Simply put, the clause prohibits any "Person holding any Office of Profit or Trust" under the United States government from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state." Only explicit consent from Congress can make such actions legal.

The word "emolument" is defined in the Oxford English Dictionary as "profit or gain from station, office, or employment; reward, remuneration, salary." As the Brookings paper notes, the framers of our Constitution used the term as "a catch-all for many species of improper remuneration."

The framers worried a great deal about foreign interference in the American political system. They saw first hand how the great European powers tried to manipulate American officials by giving them gifts and money. Indeed, as Professor Zephyr Teachout explains: "Several provisions of the Constitution were designed assuming that foreign powers would actively try to gain influence." By strictly insulating our government officials from financial ties to foreign states and leaders, they sought to avoid insidious foreign influence and dual loyalties.

As the Brookings' authors note: "The Emoluments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance."

The concerns over foreign meddling, viewed through the prism of 1789, don't seem so far fetched in 2016, despite our evolution from fledgling republic to pre-eminent global power. Indeed, as we continue to collectively process an election in which a rival nation, Russia, flagrantly meddled with the goal of affecting the result, the framers' concern over foreign entanglements seems more vital than ever.

The Brookings' report argues that "Mr. Trump's business holdings present significant problems under the Emoluments Clause," which covers "an exceptionally broad range of remunerative relationships (including fair market value transactions that confer profit on a federal officeholder; and that it reaches payments and emoluments from foreign states (including state-owned and state-controlled corporations)." The array of Trump's foreign entanglements laid out in the report - surely only the tip of the iceberg due to Trump's continued refusal to make his tax returns public - are breathtaking. He is, in the authors' view, "a walking, talking violation of the Emoluments Clause."

According to the report, "The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable ways, from decisions made every day by foreign governments and their agents." The special advantages and benefits already reaped by Trump, due solely to his status as President-Elect, range from foreign agents making a point of staying in Trump hotels to stalled Trump projects around the world suddenly given the green light by foreign governments. To date, there is no evidence that Trump is taking the steps necessary to fully insulate himself from these undue gains.

Of course, Trump cannot technically be in breach of the Emoluments Clause until January 20, when our next president takes the oath of office. But what is the remedy after that? As the report explains, "Congress could pass legislation imposing restrictions to limit the president's ownership of or involvement in foreign businesses that could confer payments or emoluments." Or private parties, say business competitors injured by the unfair advantages reaped by Trump's companies, might press novel legal arguments in the courts.

Impeachment and removal from office remain the ultimate sanction for persistent violations of the Constitution's ban on emoluments. As the authors assert, "Congress would be well within its rights to impeach him for engaging in 'high crimes and misdemeanors,'" adding that "at least one prominent leader in the ratification process saw violations of this Clause as grounds for impeachment."

But action on this pressing question of national concern need not wait another five weeks. The 538 presidential electors have the opportunity now, before they cast their votes, to insist on appropriate disclosure. While there is an active public debate over the right of electors to vote their conscience, rather than cast their votes for the candidate chosen by the voters in their state as is the norm, the authors argue that the "Electoral College would be justified in concluding that [Trump] is unqualified for the Office of the Presidency."

It must also be said that this would be an unprecedented departure from the understood rules of the game, codified in the laws of many states, which strictly limit the role of electors to following the will of the voters. While little stops the electors from posing these urgent questions, the mere possibility that the election result could be altered through the personal initiative of 538 people - however motivated by principle - raises other profound questions. Surely, the democratic legitimacy of our presidential elections would be better served by retiring the Electoral College once and for all.

Since that day is far off, one thing is certain: these 538 presidential electors preparing to cast their votes on Monday have unique leverage at a moment of constitutional peril. They should act now before time runs out. The emoluments issue is not going away.