The following is the seventh installment in a series of undetermined duration and frequency about life in America after Trump (A.T.). For most Americans the phrase “Emoluments Clause” first came into their vocabulary during the last three years. Let’s explore.
I remember a conversation I had with a Trump supporting neighbor shortly after his inauguration where my neighbor inquired as to my central problem with Trump. I replied, “The stealing”. He said, “Stealing from who?” I said, “Us, via the Emoluments Clause violations.” His immediate reaction was to say, “The what?” He is a very good neighbor and we are friends, we just disagree on politics and obviously are not nearly on a par when it comes to civic knowledge. Keep in mind that in America his vote counts just the same as mine does.
I will admit that in my various readings of the Constitution – many complete, but most partial – I have read Article I, Section 9, Clause 8; better known as the Emoluments Clause many times. To me it basically meant that you couldn’t be knighted without an act of Congress. I remember that from a case involving the late Senator Ted Kennedy (he sought and received permission from his colleagues.)
The Founders put the clause in because they feared a president, in particular, being effectively bribed by a foreign power. They envisioned a Congress that would stop him (in those days the idea of a woman holding public office was unthinkable), via impeachment or the threat of it. Sadly, today that does not appear to be the case. Therefore I propose that post-Trump we codify the Emoluments Clause and impose civil penalties for violating it.
Note I say civil not criminal penalties. That would remain consistent with the internal Justice Department memo (which has never been tested in court and I disagree with) prohibiting the criminal prosecution of a sitting president.
For a penalty I suggest we consider treble damages. In many legal proceedings the idea of making someone pay a financial penalty equal to three times their illegal gain is considered both an adequate penalty and a sufficient deterrent.
One of the main goals of the American experiment in democracy is a more perfect union. In other words, we want to continue to improve. Before Trump we have never been confronted with a president who had the mechanisms to personally profit from his position on a large scale. Since Trump is also corrupt and has a sufficiently complicit Congress he presents a unique situation that the Founders did not provide for. Codifying the Emoluments Clause and including civil penalties would address that shortcoming. The offender could be sued and the court could impose the civil penalty.
I am not trying to take away the right to run for and win the presidency from a candidate of wealth who has holdings from which they could profit if they so choose. I have previously suggested that they be required to put those assets in a true blind trust which Trump claims to have done but never did. That is a separate, though related, issue that needs to be dealt with.
My proposal is like all other policy ideas: a framework. If properly implemented and enforced it would protect the American people while not infringing on the rights of the very wealthy to pursue high public office.
If we do not learn from our mistakes and recognize our vulnerabilities we will never improve. If you are number one and don’t keep improving inevitably you get caught from behind. While I recognize that America is not number one in everything I still believe that on net we are the best country in the world.
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