Trump just vowed to protect the Constitution — but law scholars say he's already violating it

Trump just vowed to protect the Constitution — but law scholars say he's already violating it
President Donald Trump takes the oath of office from Chief Justice John Roberts, as his wife Melania holds the Bible, and with his children Barron, Ivanka, Eric and Tiffany, Friday, Jan. 27, 2017 on Capitol Hill in Washington. Don Jr. is partially hidden b Jim Bourg/AP
President Donald Trump takes the oath of office from Chief Justice John Roberts, as his wife Melania holds the Bible, and with his children Barron, Ivanka, Eric and Tiffany, Friday, Jan. 27, 2017 on Capitol Hill in Washington. Don Jr. is partially hidden b Jim Bourg/AP

At noon on Friday President Donald Trump took the oath of office, and in doing so vowed to protect the United States Constitution. 

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States," the oath reads, "and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

But constitutional scholars consulted by Mic aren't so sure Trump can honestly uphold that oath, given his refusal to divest from his businesses. 

In fact, five of the scholars Mic spoke with for this story said he is already violating the oath — and the U.S. Constitution — because of the numerous ways foreign countries are already financially benefiting Trump through payments to the Trump Organization.

Such payments, without the consent of Congress, are prohibited by the Constitution's emoluments clause

The group of scholars making this argument includes Richard Painter, who was the chief ethics lawyer for former President George W. Bush. 

Mic previously posed a similar question to 18 constitutional scholars in December: asking whether Trump could legally keep ownership of his businesses.

Seventeen of those 18 scholars said Trump should divest, whether or not he was legally required to. Twelve said he would likely violate the Constitution on day one. Only one said that objections to Trump's business ties were illegitimate (and politically motivated).

When Mic went back to them this week with Trump's plan to address these concerns — announced Jan. 11 by Trump's attorney, Sheri Dillon — all eight constitutional laywers reached said they were unimpressed. 

"I’m appalled that a lawyer from a respected law firm would help sell this plan to the American public" said Catherine Ross, a constitutional law professor at the George Washington University Law School. "He’s really just pretending to have addressed the issue."

United States President Donald Trump with his Attorney Sheri Dillon on Jan. 11, 2017, in New York.
United States President Donald Trump with his Attorney Sheri Dillon on Jan. 11, 2017, in New York. DON EMMERT/AFP

There were a few attorneys who stopped short of saying Trump's breach of the Constitution would be instantaneous with his oath.

But they all agreed that the plan is more style than substance, given the fact that Trump will ultimately retain ownership of his company — and even joked that he will fire his sons if they do a bad job

"[The plan] is not meaningful at all," said University of California at Berkeley School of Law Professor Christopher Kutz.

University of Santa Clara School of Law's Margaret Russell echoed that sentiment, calling the plan "insufficient."

Vermont Law School's Jennifer Taub called it "absurd."

Georgetown's Victoria Nourse said Trump "will only be safe," if he gets Congressional approval for the plan.

University of Minnesota's Painter said the plan "doesn't solve any of the problems."

And Harvard Law School's Laurence Tribe was the most succinct, saying in an email to Mic that Trump would "absolutely" violate the Constitution today. 

There are two major reasons for the skepticism toward Trump's plan.

The first is Dillon's argument that the emoluments clause — which proscribes accepting benefits from foreign governments without congressional approval — doesn't apply to the president. 

As virtually everyone consulted by Mic pointed out, the clause very clearly says "any office" — not "any office but the president of the United States." 

"There's no wiggle room there," George Washington University's Ross said. 

The second main issue was the idea put forth by Trump's attorney that "emoluments" doesn't doesn't describe "fair-value transactions."

"If you believe [that] interpretation," Vermont's Taub said, "then even without Congressional knowledge or approval a foreign government could pay the president speaking fees and consulting fees."

Placed in that context, it's a little easier to understand why Trump's plan reads as outrageous to legal scholars.

Try to picture, for a second, if Hillary Clinton was set to take the oath of office while continuing to accept speaking fees not just from Wall Street banks, but from foreign heads of state.

At least from these constitutional experts' standpoint, from the moment that a diplomat's check to the Trump International Hotel clears, President Trump will have defied the Constitution — in exactly the same way as if Vladimir Putin had paid him to give a speech.

Sheri Dillon did not immediately respond to request for comment. 

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