Paul L. Caron

Monday, December 19, 2016

Grewal:  Should Congress Impeach President Obama For His Emoluments Clause Violations?

Following up on my previous post, Trump’s Emolument Tax Problem:  Andy Grewal (Iowa), Should Congress Impeach Obama for His Emoluments Clause Violations?, Yale J. on Reg.: Notice & Comment (Dec. 13, 2016):

My prior post explained how ordinary business transactions between foreign governments and Trump businesses do not create violations of the foreign Emoluments Clause. That post concluded that the term “emolument” refers only to payments made in connection with the holding of an office, and does not refer to any conceivable foreign government payment. The prior post relied on Supreme Court opinions, Office of Legal Counsel opinions, definitions in legal dictionaries, and so on.

However, some commentators, most notably Professor Richard Painter (Minnesota) and Norm Eisen (Brookings Institution), have argued for a much broader definition of emolument. The legal basis for their interpretation remains unclear  because they make no mention of Supreme Court opinions, OLC opinions, or other legal authorities, but their article in The Atlantic defines emoluments as reaching anything of value.” (Their longer Brookings Institution report, co-authored with Larry Tribe, takes a similarly broad approach without citing relevant authorities. See page 11.) This post explains how their interpretation, if accepted, would support the impeachment of President Obama. ...

Of course, this is all hypothetical, because it is exceptionally unlikely that Congress will conduct impeachment proceedings against soon-to-be President Trump (or against President Obama, for that matter). However, in the unlikely circumstance that impeachment proceedings begin against Trump, his critics will have given him a clever defense. Trump’s lawyers can use the approach of Painter and Eisen to show that Obama received prohibited emoluments, and that Trump should not be impeached — he simply followed Obama’s precedent.

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If Director Comey of the FBI declined to recommend prosecution of Secretary Clinton, despite evidence that she violated the U.S. Criminal Code multiple times, because only 1 individual in 100 years had been prosecuted for such offenses, why should Mr. Trump be investigated for violating the emolument clause when literally no U.S. government official has been subject to the same scrutiny since the founding to the republic (correct me if I'm wrong)?

Posted by: MM | Dec 22, 2016 11:48:47 AM

Because Trump has provided poor financial disclosure (he apparently has complied with the law), it is difficult to determine if he has or does receive payments which violate the emolument clause. More transparency would give the American people more confidence that he is (or is not) in compliance with the constitution.

Posted by: Sterling | Dec 20, 2016 6:09:35 AM

This is good news for the qui tam lawyers.

Posted by: John Rooney | Dec 20, 2016 5:49:15 AM

Impeachment and removal from office are both political acts, which is why no President has ever been knocked out in that fashion. It's more likely a President could be impeached if the opposition party controls the House. But even then, removal from office is unlikely even if the opposition party controls the Senate, due to the fact that "high crimes and misdemeanors" is not defined anywhere in the Constitution.

So, this is all commpletely academic, at least until after the next round of House elections.

Posted by: MM | Dec 19, 2016 2:51:04 PM