Except Congress already consented decades ago:

> The financial conflict statute prohibits federal employees from participating in matters where they could enrich themselves. It applies to everyone in the executive branch, from the lowliest file clerk up to the White House chief of staff – except for the president and vice president.

Ref: http://www.nytimes.com/roomfordebate/2016/12/07/can-congress...

You could try to convince Congress to re-apply the rules, but that's a different discussion.

The courts have historically been unlikely to see a Constitutionally-required affirmative permission in the fact that an additional restriction is not applied by Congress.

The fact that Congress has specifically granted permission under the Emoluments Clause to Presidents, at the latter's request, while the conflict statute was in effect wouldbsuggest stronglynthat neither past Presidents, nor, more importantly, the Congress has viewed the non-application of the conflict statute to the President as a grant of permission under the Emoluments Clause that makes more specific grants unnecessary.

OTOH, absent coverage under the conflict statute or some other statute establishing judicial remedies, there may an argument that there is no such remedy for a Presidential violation of the clause, and that the only remedy is via impeachment. That's probably the biggest weakness in an Emoluments Clause lawsuit.

On the gripping hand, a court ruling to the effect that the only remedy is by impeachment may create additional political pressure on Congress, which would probably have value to those bringing the claim, perhaps moreso than a judicial remedy that, e.g., forced Trump to give up past gains and avoid future gains through divestment.

This is a different issue. Trump is correct that the conflict of interest laws don't apply to him. However the emoluments clause is something else, and most constitutional scholars say that it clearly does apply. This doesn't prohibit conflicts of interest; it prohibits federal employees and office holders from receiving gifts, titles or emoluments from foreign governments. Profits from business with foreign governments would certainly be covered by this, as would beneficial terms on loans and, arguably, things such as building permits. You'd struggle to find a single non-partisan expert who would say that he isn't violating this right now, and even plenty of Republican lawyers agree.

The trouble is that impeachment is the responsibility Congress, and it would be a brave Republican congressman who would vote to impeach a Republican president right now.

Sure, but the courts enforce the constitution, not congress.

The issue isn't who enforces the constitution; it's what the constitution says. Congress has the power to decide which emoluments are okay. Assuming parent comment's interpretation of the law is correct (which it may not be), Congress has given blanket permission, in the same way that it has historically signed away large parts of its Constitutional war-making powers to the executive.

Congress hasn't given blanket permission. The law says that it's illegal for certain government officials to accept gifts etc. It doesn't say anything about whether it's legal for the president to accept them; it merely says that the president is not within the scope of that particular law.

There is an argument that the spelling out of cases in which it would be illegal implies that they're okay with it in other cases. See https://en.wikipedia.org/wiki/Exception_that_proves_the_rule...

You don't have to have a law for something to be legal. All actions are legal unless stated otherwise.

In the absence of any law, yes, it would be legal.

Constitution has a clause that prohibits it for any public official including the president (assuming for the moment that it is the meaning of the emoluments clause), unless Congress specifically authorizes it.

Congress additionally passed a law - 18 U.S. Code § 202 and § 208 - that regulates conflicts of interest among government officials. Its domain intersects with the Emoluments Clause somewhat, but it is not an implementation of the Emoluments Clause. It says that certain actions by people other than the president are illegal. Insofar as it intersects with Emoluments Clause, it is at best redundant (although even then it defines clear penalties, so not really).

But there's nothing in it authorizing the president to receive emoluments. § 202 does contain language excluding certain people from the categories of "government officer" and "government employee", which are the target of § 208; but this simply means that § 208, and prohibitions in it specifically, do not apply to those people. In other words, the law doesn't say anything about them. It most certainly doesn't contain any language explicitly authorizing emoluments. Here, see for yourself:

https://www.law.cornell.edu/uscode/text/18/208 https://www.law.cornell.edu/uscode/text/18/202

If we look at other past cases where the Emoluments Clause had to be dealt with, Congress specifically authorized such things, with clear verbiage to that effect. For example, here's the Foreign Gifts and Decorations Act:

https://www.law.cornell.edu/uscode/text/5/7342

Note the language: "The Congress consents to ..."

There's nothing even remotely similar in the law we are discussing.

The only real question for the courts here is whether receiving payment for goods and services from a foreign government qualifies as emolument or not. The originalist interpretation is in favor of that - this is one of those clauses in the Constitution where the Founders wrote a great deal about why it was there, and it's clear that their concerns were broad rather than narrow (preventing "foreign corruption" of all kinds).

Yes, and the constitution states otherwise.

Well then. My assumption of parent comment's correctness was wrong :-)

Courts interpret the constitution. I'm no lawyer, but "without the consent of the United States Congress" seems very clear-cut to me. It's up to congress, as per the constitution.

I did a spot of research on the emoluments clause and found three instances where specific events were evaluated for breaching this clause:

1 - Theodore Roosevelt. Nobel Peace Prize. He accept both the cash award and the medal.

2 - Barack Obama. Nobel Peace Prize. He accepted only the medal.

... and most interestingly ...

3 - Ronald Reagan. Receipt of pension payments from the state of California as a former Governor and California pension plan participant.

https://www.justice.gov/sites/default/files/olc/opinions/198...

The way I read the analysis of Ronald Reagan's situation, any benefit from a domestic state, city, or county could potentially fall afoul of the emoluments clause. Think here of any local property tax rebate from a city to entice a Trump business to build a hotel or set up shop. Maybe even a tax rebate / waiver from prior business development agreement could fall afoul. Who knows how deep this particular rabbit hole could go.

I also was puzzling over Hobby Lobby the other day and I realized that Trump's situation vis-a-vie the emoluments clause could be parallel to Hobby Lobby versus the ACA. Hobby Lobby wanted out of the mandate for birth control and the Supreme Court sided with them because Hobby Lobby was a closely held corporation; close enough where the owners' religious beliefs could be infringed upon by ACA birth control mandates on the corporation they controlled.

I believe the Trump empire is a closely held corporation like Hobby Lobby. Per the Supreme Court a closely held corporation like Hobby Lobby has a personal connection unlike widely held corporation. Simply saying payments made to Trump's corporation is a sufficient separation from the person to avoid the emoluments clause may not be a strong argument for those arguing Trump's side.

Edit: IANAL, but rather a politics major.

The Norwegian Nobel Committee is not a "foreign state".

No, but the committee is directly appointed by the Norwegian parliament, so the argument could reasonably be made that they're essentially accepting a prize from a foreign state.

No, "Despite its members being appointed by parliament, the committee is a private body tasked with awarding a private prize" - https://en.wikipedia.org/wiki/Norwegian_Nobel_Committee

Yea, I know that's the official line. But it would be fairly easy for a lawyer to argue otherwise.

That is what lawyers get paid for, but no attempt to impeach Obama was made for accepting the Nobel peace prize which indicates any such argument would have no chance of succeeding, would not be valid.

But Obama did turn down the cash part of the prize, only accepting the medal and diploma, specifically to avoid any such potential problems.

I wouldn't think there is a legal distinction between the cash and the medal. Accepting the money would probably been politically unacceptable even with out any legal issues. But I accept you are correct about the potential legal difficulties in accepting the prize at all:

http://www.washingtonpost.com/wp-dyn/content/article/2009/10...

I don't know about that. Look into the 2010 price to Liu Xiaobo. Norway worked for 6 years to try to repair relations with China after that and trade has only recently been opened again.

The Liu Xiaobo case shows that (some) other countries see the Nobel committee as an unofficial extension of the Norwegian government. If China thought that the Nobel prize was handed out by 6 random dudes in some private club then the Nobel prize probably wouldn't have had such an impact on the relations between the Chinese and Norwegian governments.

Or perhaps China is trying to pressurize the Norwegian government into removing independence from committee, as well as warning other countries not to do anything similar.

Trump has had reams of lawyers on this one for a while.

If the Dems thought they could 'get him' on his ownership of whatever, they would have been pressing it already.

I think as it stands, he's on decent legal footing.

Which admittedly is a little ridiculous, you'd think the Prez. would not be above conflict of interest.

Aside from that, Trump says ridiculous things, but they are mostly in the vein of ridiculous populism. It makes him look ridiculous to most people, I don't know why he does it, that said, none of his policies so far are as gonzo as his ridiculous rhetoric.

Give it time. Maybe he'll cool down, or maybe he'll do something impeachable.

I predict: tons and tons of PR snafus, but nothing illegal.

> I predict: tons and tons of PR snafus, but nothing illegal.

I predict something illegal

> If the Dems thought they could 'get him' on his ownership of whatever, they would have been pressing it already.

Impeachment is sort of a legal process but it's really political, while Republicans control congress and he hasn't sunk with the base impeachment won't happen.

The Dems are just standing by for this lawsuit:

http://www.vox.com/policy-and-politics/2017/1/24/14358654/tr...

The interesting thing about this is that it's a bipartisan affair as far as party affiliations go: the two main guys behind it are the ethics people for Bush and Obama, respectively.

> The lawsuit asks the court to declare that Trump is in violation of the emoluments clause. Even if he is, though, it would be up to Congress to decide whether that merits impeaching him and removing him from office — and Republicans in Congress so far have been reluctant to look into Trump’s break with tradition on ethical issues.

If SCOTUS were to rule for the plaintiffs in this case, the Congress would be in a much more difficult spot. Right now they can dismiss it all as "he said she said" and "not really illegal". But if there's a SCOTUS ruling that the president is in violation of the Constitution, and they don't impeach, they'd basically be saying that either they don't care about the Constitution, or they don't care about SCOTUS. Either would cause a major constitutional crisis with unclear consequences.

I don't know. I think Trump could literally say that he doesn't care about SCOTUS and it would be unlikely to be the wildest thing he said that day. A Republican majority Congress could definitely ignore a SCOTUS ruling.

I'm not saying that they can't do it. I wouldn't even be particularly surprised if Trump does it - he is, allegedly, a big fan of Andrew Jackson, the only president to date in US history who openly defied the Supreme Court ("John Marshall has made his decision, now let him enforce it").

I would be somewhat surprised if the Congress ended up doing it, but seeing how spineless they already are wrt Trump even where he contradicts them, not super surprised.

My point, rather, is that, should such a thing happen, it would be a bona fide constitutional crisis. If two branches of government are openly in defiance of parts of the Constitution, it becomes a free for everyone else, as well. Secession would suddenly be on the table for real - after all, the Constitution is what makes the Union, so if the Constitution is no longer the supreme law of the land, then the states could reasonably argue that they aren't bound to the Union in any sensible way. Or they could simply state that per the Emoluments Clause, they consider the president illegitimate from there on, and so no EO and no act of Congress signed by him has force of law on their territory. Or even invoke the 9th and the 10th Amendments in a full-on literalist vein (stealing the book from fringe factions of the right), and just claim that the feds simply don't have most powers that they claim as well.

This is all very far-fetched, but in the event of an open defiance of SCOTUS by the other two branches, we'd already be in the realm of far-fetched things, so the impossible becomes possible, and unlikely becomes probable.

But it would mean Trump would be serving at the mercy of Congress, and at the mercy of maintaining a Republican majority, which could have substantial effects on policy in itself even if he's never impeached.

So, wasn't Hillary Clinton breaking the Constitution when she was accepting donations from Saudi Arabia at the Clinton Foundation while secretary of state?

Why is anyone still talking about Hillary Clinton?

Donald Trump is the man in office. Hillary Clinton has nothing to do with anything.

However Clinton may or may not violated the Constitution is absolutely irrelevant to the question of whether Trump is violating it now.

I've noticed this a lot in Reddit too. There I feel it is A distraction tactic. Posters seek to make a comment about very in every Trump thread and it is always some distracting sound bytes about the emails or something. Totally irrelevant to the thread at hand.

Seems to work like a charm to derail conversation about the real topic at hand.

Because it show the duplicitous nature of people like you. Clearly this wasn't an issue Hillary, so it's obvious that is all political nonsense.

> Why is anyone still talking about Hillary Clinton?

Because we're trying to ascertain if the complainers are genuinely principled or partisan hacks. I've a feeling most of them would be turning a blind eye if it wasn't trump.

Why does it matter? The complaints are either right, or they're wrong. The complainers' motives for making their complains have no bearing on that.

Maybe, but for those of us who aren't experts on constitutional law, it's difficult to ascertain exactly who is in the right, we have to decide which self-proclaimed experts to believe.

For this reason it's helpful to understand the motives of those putting forth a particular argument.

I have a rule, and I think it's a good one. When I hear some political rhetoric I ask myself "if the parties were reversed would this person still be saying the same thing?" If the answer is no, I ignore that person. This cuts out about 97% of all political discussion and saves a lot of time.

I don't think that rule can apply for anonymous Internet commenters listing objective claims. You probably don't have enough information to determine the partisanship of the commenter, and even if you did, their claims are either true or false, and debating that is almost certainly a better use of time.

Right. I didn't like either of them, I'm not a Republican or a Democrat.

I just think it's odd to say that Trump should be impeached for something his opponent did while in office.

Complainers can't prosecute and convict. Courts can. That's a difference I'd recommend coming to terms with as it's the crux of this discussion at a level that's intensely germane.

In this case particular, actually, it's the legislature that can prosecute and convict. Still not random people on HN, though :-P

I would guess Hillary's situation would depend on the structure of the foundation. Likely she was not the one "accepting" it, and the ownership structure, such as it is, might not even include the Clintons. It might just have their name on it. This is all just speculation though.

I am willing to put money that this is being brought up so no one can set up another clinton foundation again. trumps press conference a while back he spent a considerable amount of time talking about his company and the legalities. he knew what he was talking about and they had spent some time working on it.(then he called cnn fake news). Now all this talk about nobility... This gets ruled on and he is totally inside the rules... but the real message is don't set up "Clinton Global Inititave" as it wound be outside the rules.

So does Hillary get to spend the foundation money on herself?

Didn't the leaks reveal that Chelsea's wedding was paid for by the foundation?

Here is the email in question so you all can judge for yourselves:

https://wikileaks.org/podesta-emails/emailid/52046

For context, Doug Band is a very close Clinton associate and he's discussing an initiative apparently launched by Chelsea Clinton to investigate money within the Clinton Foundation (which is also mentioned in some of the other Podesta emails).

That's the one. Thanks for digging it up.

No, those were fake news headlines run by Fox and Russian news agencies.

No, they didn't.