The NY Times' Room-for-Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents

President-elect Trump has many extensive and diverse business interests, including some abroad, and some of his interests involve foreign government entities. In order to ensure against ethical conflicts, both real and perceived, Trump should place his interests in those holdings beyond his personal control, i.e., into an independently managed blind trust. Such a move would be wise: consistent with America’s best political traditions and practices.

Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides: “[N]o Person holding any Office of Profit or Trust under them [i.e., 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.”

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 State 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.

Again, as a matter of constitutional law, Trump is not obligated to divest himself of his foreign business interests. Still, his coming up right smack against the ill defined boundary of constitutional propriety, and perhaps going over that line, as arguably the Clintons and the Clinton Foundation did, will not endear Trump to his voters. Millions of voters took a chance on Trump on election day: what Trump does here will be a good first test to determine if those voters were right to take that chance. 

The above appeared in: Seth Barrett Tillman, Room for Debate, Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The NY Times, Nov. 18, 2016, 10:41 AM, http://tinyurl.com/jpbhom5

 

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, National Conference Of State Legislatures: Number Of State Legislative Seats Held By Each Party, The New Reform Club (Nov. 16, 2016, 2:36 AM). [here]