I’m old enough to remember when it was a scandal that Trump had been secretly negotiating a deal to build a Trump Tower in Moscow while he was campaigning for President in his first term. Yeah, I know that was back in Season 1, when the plot was relatively more straightforward, and the writers hadn’t yet come up with more colorful characters like “Big Balls” or create a government run by the anchors at Fox News. But here we are, eight years later, and secret hotel deals with foreign governments are the least of our problems: Trump recently accepted a plane from the Qatari government, dubbed “the palace in the sky,” valued at $400 million dollars and which Trump says he intends to use as the new Air Force One as President. After that, he claims, it will be donated to his presidential library. Where, I’m sure, it will sit on display and never be employed for Trump’s personal use.
In The Federalist No. 68, Alexander Hamilton warned that ‘[the] most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.” This worry is expressed in subtle ways, such as listing treason as grounds for impeachment, and even the requirement that the President be a natural-born citizen, presumably as a way to protect against divided loyalties. When it comes to gifts from foreign states, however, the Constitution is explicit and direct. Article I, Section 9, Clause 8 states that “[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.”
In her book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizen’s United, Fordham Law professor Zephyr Teachout writes that the Foreign Emoluments Clause is actually slightly more lenient than the one that existed in the Article of Confederation, which included a ban on all foreign gifts whatsoever. The problem was that the norms of international relations and diplomacy included a practice of gift-giving, which made the total ban awkward, if not impractical. In drafting the Constitution, the Framers split the difference, making such gifts permissible, so long as they are approved by Congress. As Ambassador to Spain, John Jay was gifted a Spanish horse, which he initially refused but, after he disclosed the gift to Congress and received permission, kept. Similarly, Benjamin Franklin was famously gifted a snuff box encrusted with 408 diamonds by King Louis XVI. Teachout describes the concerns raised by the gift, especially to a Francophile like Franklin:
Franklin’s diamonds embodied a whole set of fears about patriotism in general, loyalty in a republic, and the particular, time-sensitive concerns about how extremely elaborate gifts might sway Franklin’s attitude towards his semi-permanent residence – Paris – and against his American home….It was a show of power. France loomed large and threatening in American life. The Franco-American relationship was halfway between troubled and passionate – the Americans deeply admired France and hoped for their continued alliance against the British, but at the same time feared that France aspired to slide into the colonial role from which they had violently ejected Britain.
Nevertheless, Franklin requested Congress’ permission to keep the snuff box, and it was granted.
The requirement that a gift be disclosed to and approved by Congress forces transparency and accountability by allowing citizens to police whether the gift is influencing the recipient’s actions. When it comes to the gifts and favors accepted by Supreme Court Justices Samuel Alito and Clarence Thomas, for example, most observers have focused on their failure to list these gifts in their financial disclosures, which would make clear their conflicts of interests in pending cases. (In fact, Alito and Thomas’ ethical violations were only compounded by the fact that they did not recuse themselves from cases clearly involving the interests of their benefactors.) Transparency with foreign gifts also neutralizes one of the potential dangers that existed with the Trump Tower deal – namely, the leverage it gave Russia over Trump, knowing he was lying to the public about the deal’s very existence.
Still, transparency alone doesn’t seem to be sufficient in this case. After all, unlike the Trump Tower deal, the Qatari plane gift is completely out in the open. And while congressional approval might satisfy the Constitution’s requirements, it wouldn’t – for me, at least – make the gift sit any better from an ethical perspective. The reason is that unlike John Jay’s horse or Benjamin Franklin’s snuff box, the plane isn’t simply a one-off gift that a foreign government happened to give to Trump, even with the hope of exerting undue influence. It’s that the plane is just one piece of a larger pattern of Trump himself actively leveraging the office and powers of the presidency to enrich himself through foreign largesse. In this regard, Trump’s acceptance of the plane has to be seen in the context of numerous other actions intended to open the door to foreign influence, like his pay-to-play crypto dinner, the Justice Department’s dismantling of the foreign influence task force to combat foreign influence in politics, and Trump’s executive order pausing the enforcement of the Foreign Corrupt Practices Act, which prohibits U.S. companies from bribing foreign officials.
In short, being open to foreign influence isn’t just a danger of the Trump presidency, it’s quite clearly the point. As a result, Congress approving Trump’s acceptance of the Qatari plane wouldn’t mitigate the influence of foreign interests in our government, it would just facilitate it.
The Foreign Emoluments Clause is designed for officials who enter the government to generally serve the public good – people with public virtue – but who are also human and might be tempted to pursue their own interests instead. For such people, like Jay and Franklin, it’s a guardrail to stay on the straight and narrow. But guardrails can’t rein in a person whose very purpose in serving in office has nothing to do with public virtue, and everything to do with self gain. It might seem like the Framers just didn’t design the Constitution for someone like Trump – but they more likely believed they didn’t have to.
