Monday, December 19, 2016
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.