12 top law scholars say Donald Trump could defy the Constitution his first day in power

Getty Images

No, President-elect Donald Trump will not be selling his businesses.

At least that's the latest leading assumption, according to the Wall Street Journal's Monica Langley, who told CNN as much on Thursday.

That was the day Trump originally said he'd unveil plans to leave his business, with "legal documents" to take him "completely out" in a "major news conference" — just ahead of the Electoral College vote on Monday.

But then on Dec. 12, just three days before the conference, that unveiling was pushed back to January.

In short, Trump isn't promising key details until after the electors seal the deal.

Democrats, including Massachusetts Sen. Elizabeth Warren, have denounced Trump's manifold business conflicts of interest as unconstitutional and announced a bill they say would enforce the Constitution: It requires presidents to sell off any assets that could attract foreign favors and to place the proceeds from their sale in a blind trust.

Are these Senate Democrats just being dramatic?

To help unpack whether Trump's conflicts of interest are — in fact —unconstitutional, Mic consulted 18 constitutional law scholars, including chief ethics lawyers from the last two White Houses and several leading global authorities on corruption and conflicts of interest in American politics.

Here's what they had to say.

Could Trump violate the Constitution on his first day in office?

There was little disagreement about whether Trump should sell his businesses.

Of the 18 scholars, 17 said Trump ought to divest, whether or not he's legally required to.

But 11 went further, and said that the president-elect's existing business ties to foreign entities could potentially breach the Constitution's emoluments clause, which prohibits U.S. officeholders from receiving payment from foreign states without permission from Congress.

A 12th scholar, University of Virginia School of Law's Saikrishna Prakash, equivocated a little, saying that — while it was certainly possible Trump's business ties could result in a violation of the Constitution — it would likely be too hard to prove in order for him to be held accountable.

Three of the scholars consulted — Seth Tillman at the Maynooth University Department of Law in Ireland, Stanford University Law School's Michael McConnell and the University of Chicago Law School's William Baude — all pushed against the idea that the emoluments clause applies to the president.

But they also said Trump should still take steps to distance himself from his businesses, even if he isn't bound to by law — a sentiment echoed by Washington University School of Law professor Kathleen Clark.

Many scholars pointed to the Trump International Hotel in D.C. as the most likely cause of a constitutional infringement. Source: Evan Vucci/AP
Many scholars pointed to the Trump International Hotel in D.C. as the most likely cause of a constitutional infringement.  Evan Vucci/AP

One scholar, University of California Berkeley School of Law professor Chris Kutz, declined to comment on the exact constitutional legality as an ethicist, but still called Trump's plan to have his children run the business a "laughably inadequate" solution to his conflicts of interest.

Finally, only one, Vanderbilt constitutional law professor James Blumstein, suggested the entire gripe with Trump's business conflicts was illegitimate, saying the conflicts are being "trumped up by the president-elect's opponents" in an effort Blumstein likened to Japanese soldiers refusing to acknowledge the country's defeat in World War II.

Yet Trump's opponents have a case that could haunt him, said Georgetown University law professor and former ethics counsel for Vice President Joe Biden Virginia Nourse: They have effectively found Trump's "Benghazi," she said.

Does the Constitution's emoluments clause really apply to the president?

The whole controversy centers on the Constitution's emoluments clause, which reads: "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."

You might think "any office" obviously applies to the president, but there's actually no precedent from the Supreme Court that makes it clear either way.

One proponent of the idea that the president is exempt from the clause, Maynooth University's Tillman, said previous presidents were not required to act as if the clause applied to them; they simply opted to.

But the majority of the scholars consulted disagreed with Tillman's assessment: They argue no one has adjudicated the clause because no one has needed to — as every president has observed it of their own accord.

President George Washington accepted a gift from France, but most experts doubt this is enough to put Donald Trump in the clear.Source: Lefteris Pitarakis/AP
President George Washington accepted a gift from France, but most experts doubt this is enough to put Donald Trump in the clear.  Lefteris Pitarakis/AP

"The clause applies to the president," said Georgetown's Nourse. "There are rooms full of gifts that are given to the president and the vice president, they are logged, everyone takes it seriously." 

"I see no way of translating 'no person' into not including the president," said Erwin Chemerinsky, founding dean of the law school at University of California, Irvine. "It doesn't say no person except for the president or vice president."

"The answer isn't complicated," George Washington University Law School professor Catherine Ross said, after being asked if the clause applies to the president. "Yes."

How can Trump avoid violating the Constitution?

Several scholars who have studied the emoluments clause closely argue the president-elect has no choice but to divest from his businesses if he hopes to abide by the Constitution.

They argue, for example, that since Trump's creditors include state-owned foreign banks there's a nonzero likelihood of foreign government dollars inappropriately winding up in Trump's pockets.

These include former White House ethics lawyers Norm Eisen and Richard Painter, Harvard University Law School's Laurence Tribe and Fordham University School of Law's Zephyr Teachout, as well as Columbia Law School vice dean Richard Briffault and Kenyon College associate professor H. Abbie Erler.

Painter, chief ethics counsel under President George W. Bush, said the president must sell his assets — particularly those with foreign ties — in an initial public offering. If Trump doesn't, he said, the overseas properties could amount to a national security threat.

"The only way the president could avoid violating [the emoluments clause]" Tribe wrote in an email, "would be to get congressional consent or divest his assets and place the proceeds in a blind trust."

Teachout agreed with the need for a solution.

"The minute he's in office, the Trump Organization will be receiving payments from foreign governments and that's an instant violation," she said. "It'll call into question every one of our trade and military agreements."

Some of the experts consulted by Mic disputed the idea that Trump would definitely violate the Constitution on his first day; the devil is in the details, said the University of Virginia's Prakash.

Unless someone could prove Trump was getting bribed — either through a quid-pro-quo exchange or by receiving compensation that went beyond fair market value — there wouldn't be a clear case against him, Prakash said.

"If he's selling land to a foreign government and there's no claim that he's getting extra value for that land," then Trump would likely be in the clear, Prakash said. "The problem is really the suspicion that everyone is giving him a little extra to influence him."

Richard Painter argued that Donald Trump's overseas properties could constitute a security threat. Source: Ozan Kose/Getty Images
Richard Painter argued that Donald Trump's overseas properties could constitute a security threat.  Ozan Kose/Getty Images

Stanford's McConnell disagreed that the clause applies, saying Trump holding an ownership stake in Trump Organization as the company does business overseas is not the same as Trump dealing with another country personally.

"I don't think we have ever believed that officers of the U.S. can't own stock in a company that does business abroad," McConnell said.

Yet the behavior of past presidents suggests Trump is deviating from the norm, said University of California, Los Angeles, School of Law professor Adam Winkler. "Most presidents have avoided having any kinds of financial arrangements with foreign countries," he said, "and presidents in the past have been very rigorous in reporting gifts from foreign governments."

What have past presidents done to avoid violating the Constitution?

President Martin Van Buren got permission from Congress before accepting a series of gifts from the Imam of Muscat, Teachout wrote in an op-ed for the New York Times. President John Tyler sought congressional approval over two horses gifted to him from a foreign power. 

Even President Barack Obama weathered his own emoluments clause controversy because of his Nobel Peace Prize. Conservatives suggested accepting the prize would amount to a violation of the Constitution.

In the end, Obama's lawyers decided it was legal for him to accept, but only because the Nobel is privately financed, and the award itself is granted by an independent committee, not the Norwegian government. 

Other emoluments memos from the Justice Department have hinged on whether money was coming from a foreign government, not the size of the gift or whether it constituted a quid-pro-quo bribe.

"Trump's choice not to sell is really a slap in the face to our constitutional protections against foreign corruption."

In 1994, two NASA scientists had to get permission from the Justice Department before accepting temporary teaching positions at the University of Victoria in Canada. 

As with the Nobel, the decision hinged on whether the university was sufficiently independent from the government.

What's wrong with Trump getting foreign emoluments?

Why, exactly, are ethicists and legal experts so freaked out? It has to do with the precedent being set.

"I use the word 'king' and 'monarchy.' That is not an overstatement," said Margaret Russell, a professor at the Santa Clara University School of Law. "The records of many of [Trump's] Cabinet appointments suggests there is an oligarchical sense of business interests that happen to be driving a lot of these decisions."

"They're not at all based on what is the well-being of the country and the public," Russell added.

"Trump's choice not to sell is really a slap in the face to our constitutional protections against foreign corruption," said Fordham's Teachout, adding that presidential divestment amounts to "a fundamental law of our republic."

Teachout pointed to the example of former Italian Prime Minister Silvio Berlusconi to show what happens when a businessman assumes office without divesting.

Indeed, Italian journalists drew comparisons to Trump during the president-elect's rise. 

"His historical legacy will depend on this. Let's assume he's the best president ever, there will be some people 50 years from now and they'll be able to figure it out. ... People will find out that he profited, and his reputation will suffer."

The now-disgraced former Italian prime minister rode a right-wing populist wave to Italy's top office, where many hoped he could translate his business success into benefits for the country as a whole.

But when he was in office, Berlusconi's fortune soared — while his country languished.

His term was marked by recessions and economic malaise, while passing regulation later deemed to be in his own personal interests, including attempts to relax laws that he was accused of breaking.

In 2012 and 2013, Berlusconi was convicted of crimes including tax fraud, though he was ultimately acquitted of charges of abusing power.

Is Trump already being influenced by foreign business interests?

"Look at his hotel, that is a magnet for emoluments," said Vermont Law School's Jennifer Taub. "They are actively courting people. And you don't even need to be asked or told to curry favor. You're a diplomat, why wouldn't you stay at the president's hotel?" 

Newsweek's Kurt Eichenwald argues that foreign officials in Turkey may already be pressuring the president-elect through his business partners there.

Eichenwald also points out that Trump's reluctance to criticize Philippines President Rodrigo Duterte, a self-professed killer, looks bad — particularly in light of the fact that Duterte has appointed a Trump associate as an economic envoy to the United States.

Many have accused Rodrigo Duterte of human rights violations and encouraging extra-judicial killings. Source: Ted Aljibe/Getty Images
Many have accused Rodrigo Duterte of human rights violations and encouraging extra-judicial killings.  Ted Aljibe/Getty Images

"This is his Benghazi," said Georgetown's Nourse. "[Trump's] historical legacy will depend on this. Let's assume he's the best president ever, there will be some people 50 years from now and they'll be able to figure it out. ... People will find out that he profited, and his reputation will suffer."

So why would Trump allow even the appearance that he is hesitant to criticize a reportedly homicidal head of state out of concern for his properties?

One working theory is that Trump can't afford not to. Talking Points Memo editor Josh Marshall makes exactly that case, pointing out that a heavily leveraged business requires you constantly have money coming in through new deals to meet interest payments on outstanding debts.

Whether or not Marshall is right, the clock is ticking.

The president-elect has only about a month before inauguration to decide how to handle his businesses. If he needs to talk to a constitutional lawyer, Mic could send him some numbers.

The Trump transition team didn't respond to request for comment.

Dec. 19, 2016, 2:46 p.m.: This story has been updated.

Correction: Dec. 19, 2016
A previous version of this story misidentified the school where Jennifer Taub works. She is a professor at Vermont Law School.