Trump’s emoluments issue looms

On day one will Trump be in violation of The Constitution of The United States?

No.

Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not.

First, the Constitution does not rely on generalized “office” language to refer to the president and vice president. Where a provision is meant to apply to such apex or elected officials, the provision expressly names those officials. For example, the Impeachment Clause applies to the “president, vice president and all civil officers of the United States...”

Second, the Foreign Gifts Clause was given an early construction by George Washington. While he was president, Washington received two gifts from officials of the French government — including a diplomatic gift from the French ambassador. Washington accepted the gifts, he kept the gifts, and he never asked for or received congressional consent. There is no record of any anti-administration congressman or senator criticizing the president’s conduct. As Professor Akhil Amar has reminded us, the precedents set by President Washington and his administration deserve special deference in regard to both foreign affairs and presidential etiquette.

Finally, in 1792, again during the Washington administration, the Senate ordered Secretary of the Treasury Alexander Hamilton to supply a list of persons holding office under the United States and their salaries. Hamilton’s 90-page responsive list included appointed officers in each of the three branches, but did not include any elected officials in any branch. In other words, officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States. Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.

http://www.nytimes.com/roomfordebate/2016/...

The Constitution is often majestically vague, but here it is stingingly clear: With his foreign cash flows continuing unabated, Trump is on the verge of violating America’s fundamental law.

President-elect Donald Trump either does not appreciate, or does not care, that his extensive business holdings pose serious legal problems. At his news conference on Wednesday morning, Trump and a lawyer said that he would donate hotel profits from foreign governments to the United States Treasury and let his children manage all operations. Although the plan is vague on crucial details, it clearly isn’t strong enough to keep him on the right side of the Constitution.

Article I, Section 9 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.”

This will be a good one for Congress to determine. I am interested to see resolve.

Article 1 specifies the powers granted to Congress. This clause refers to persons holding an office of profit or trust under Congress. The president is not such a person.

Joy and her panel know that the vast majority of Americans don't understand the Constitution and seize the opportunity to obfuscate.