From his first day in the office onward, former President Trump’s significant foreign and domestic assets created potential conflicts of interest. While he made some limited efforts to isolate himself from his business, questions about financial entanglements remained throughout his term. Some of the former President’s critics raised the Emoluments Clause as a possible means to address those concerns. However, Trump’s opposition struggled to effectively use the Clause to combat the former President’s rampant impropriety. Efforts to hold the President accountable via the Clause likely failed because the Emoluments Clause had previously been relatively obscure and unlitigated, it did not cover all the President’s conflicts, and the President’s opposition ultimately decided to focus their attention and resources on other pressing ethical problems. There are, however, some steps that can be taken to both strengthen the Emoluments Clause and promote transparency in a President’s personal financial interests.
The Emoluments Clause Background
The Emoluments Clause prohibits federal officeholders from receiving any gift, payment, or other thing of value from a foreign state or its rulers, officers, or representatives. The Constitution also includes a domestic iteration of the Clause, which bars the President from receiving compensation or profits from the States, excluding his official salary. The Framers designed these prohibitions — commonly referred to as the Foreign and Domestic Emoluments Clauses, respectively — to help maintain the President’s independence. They were concerned that a foreign government could sway a President’s opinions and even policies via personal gifts. In the following sections, the two Clauses will be referred to collectively as “The Emoluments Clause,” or “the Clause.”
There do not appear to be any explicit enforcement or oversight mechanisms within the Clause. At the Virginia ratifying convention, one of the Framers suggested that violating the Clause could be grounds for impeachment, but this has never been attempted.
The courts have thus far been unclear on whether plaintiffs can pursue civil remedies for Emoluments Clause violations. No noteworthy litigation on the issue emerged prior to the Trump Administration.
Conflicts of Interest in the Trump Administration
Before he took office, former President Trump claimed that he would be moving most of his business over to what he described as a “blind trust” managed by his children. This did not assuage any concerns about possible conflicts and emoluments violations, as he still had a stake in his businesses. Actual blind trusts are managed by an independent, outside party and ideally would not include assets that had not been liquidated.
The former President’s Washington, DC hotel became the epicenter of the Emoluments Clause criticism. Government officials from several countries spent hundreds of thousands of dollars at the Trump International Hotel during the former President’s term. Numerous reports on the specific nature of those transactions and their origins are prevalent and thoroughly discussed in several other forums. Such practices left the former President very open to questions about whether the large sums foreign countries were spending at his properties influenced his political decisions.
Despite these repetitive and apparent violations of the Emoluments Clause, the former President’s opponents were unable to receive any type of remedy. Establishing standing in emoluments suits has proven difficult for litigants. U.S. businesses and Members of Congress have relied on several different theories, with varying degrees of success in the lower courts.
The Supreme Court recently closed multiple paths to legal relief under the Emoluments Clause. The court declined to take up two possible cases, dismissing them as moot after the former President left office. This leaves the Emoluments Clause’s meaning and scope unresolved. It is unclear whether the profits from foreign governments staying at hotels would be considered gifts under the Clause, or whether Congress needed to approve the transactions in advance. No answer on these issues appears forthcoming.
Former President Trump’s conflicts also extended beyond issues covered by the Emoluments Clause. Government payments to Trump businesses, frequent visits to his own properties, and a deluge of special interest group events at Trump venues contributed to the nearly $1.9 billion Trump’s company made in revenue during his first three years in office.
Given Congress’s finite resources and time, House and Senate Committee investigators working to hold the former President accountable had to focus on the avenues that seemed most likely to produce results. The Emoluments issue, though not disregarded entirely, fell out of the spotlight. More pressing concerns, like the January 6th Insurrection and the former President’s decision to withhold aid to Ukraine, served as the subject for his two impeachments.
There are a few possible solutions to the enforcement issues uncovered in the Emoluments Clause during the Trump Administration. In November 2021, several Democratic Senators introduced a bill specifically designed to strengthen the Emoluments Clause. The bill provides clear enforcement procedures, including civil suits by the House or Senate. It delegates investigative authority to the Office of Government Ethics and the Office of Special Counsel. It would also amend the Ethics in Government Act of 1978 to require the President to disclose any emoluments they receive. These provisions would clarify many of the existing grey areas in the Emoluments Clause and could allow for it to be used more effectively in the future.
However, even a stronger Clause would not necessarily address every problem that results from a President keeping control of significant business holdings after entering office. Policy changes to combat that deeper rooted issue would be more difficult to implement.
Ethics officials have suggested divesting from assets and placing them in a blind trust to effectively mitigate conflicts of interest. Several Presidents have established such trusts in the past, including Bill Clinton and George W. Bush. However, they are not required to do so. This process is also common at other levels of the government. Former President Trump’s own Secretary of State, Rex Tillerson, used one during his time in the Administration. Tillerson stepped down from his post at Exxon, set aside millions in bonus payments, and placed his assets in a blind trust overseen by the Office of Government Ethics.
Other independently wealthy foreign leaders follow a similar protocol. For instance, in the United Kingdom, current Prime Minister Rishi Sunak also holds his assets in a blind trust.
It could be worthwhile to establish a requirement that Presidents divest from their assets and establish a similar trust before entering office. While certainly not a panacea, such a rule would help to avoid repeats of some of the more egregious conflicts during the Trump administration.
Enforcing a policy like this one would present challenges. The Supreme Court’s current majority appears unlikely to allow an executive agency to investigate and enforce this rule against the President. Congress may be able to step in and set out more stringent ethical and disclosure requirements for Presidential candidates, but there will not be sufficient political momentum for such changes in the foreseeable future.
In sum, the Emoluments Clause offered an imperfect method to address a glaring ethical problem in the Trump administration. The Clause was largely untested in the courts and violations did not capture the Congress and the public’s attention as rigorously as other issues. The Clause also did not cover all the other ways former President Trump enriched himself through his time in office.
Changes to bolster the Emoluments Clause should be paired with a requirement that Presidents divest from their assets and place them in a blind trust. Reform in this area would begin to restore some trust that future presidents make their policy decisions based on the public’s best interest, not their own.