Never has a modern president so flagrantly violated the Constitution. A constitutional law attorney explains this unprecedented situation in American history—and what we can do about it.Even as Donald Trump took the oath of office on Jan. 20 and the national conversation turned to foreboding interpretations of his inaugural address, a very different story was unfolding. Two public interest nonprofits launched a campaign to begin an impeachment investigation into the new president.
At issue are Trump’s businesses, both at home and abroad, which may result in payments from foreign governments or from the U.S. or state governments. That’s something many legal scholars believe is explicitly forbidden by a clause in the U.S. Constitution that reads:
No Title of Nobility shall be granted by the United States: And 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.
The two groups, Free Speech for People and RootsAction, have a website (impeachdonaldtrumpnow.org) with model legislation they want to see introduced in Congress, as well as a petition and a host of other ways to take action. I spoke with John Bonifaz, co-founder and president of Free Speech for People, to learn more about the campaign. Bonifaz is an attorney and political activist specializing in constitutional law and voting rights. He’s based in Amherst, Massachusetts.
James Trimarco: What’s the emoluments clause?
John Bonifaz: There are two emoluments clauses in the U.S. Constitution. The Foreign Emoluments Clause makes clear that the president or any other elected official shall not receive any gifts or payments from foreign governments. That’s there because we want our elected officials, including the president, to be beholden to the people of the United States and not to foreign governments.
It’s clear with Donald Trump’s business empire all over the world—144 businesses in 25 countries that he either owns or receives licensing income from—that he has foreign payments coming to his business on a regular basis. He also has debts to many of those foreign countries. He has a nearly $1 billion debt to the Sovereign Bank of China, the state-owned bank of China.
He has a nearly $1 billion debt to the Sovereign Bank of China.
The second emoluments clause is the Domestic Emoluments Clause, which applies solely to the president and makes clear that he or she shall not benefit from any gifts from the federal government or from state governments and that the salary alone is what the president shall receive. That’s because we do not want a president who’s serving his or her own personal financial interests in carrying out the duties of the presidency.
Trump is in violation of that one, too. For example, he has received $885 million in tax breaks since 1980 from the New York state government for his businesses there. If he continues to get those and other tax breaks—and he will—those are essentially gifts from the states to the president.
And then, when he makes decisions on behalf of the federal government that benefit his business, he’s created a conflict of interest.
If he decides, as has been reported, to overhaul the executive order that the Obama administration issued on overtime pay, that will directly benefit the bottom line profit of his businesses at the expense of workers. That is an example of a policy that is clouded by a conflict of interest.
The emoluments clauses are anti-corruption provisions in the Constitution and this new president is in direct violation of them. These violations are impeachable offenses.
Trimarco: Is there any historical precedent for a president being in violation of these clauses?
Bonifaz: There have been findings in the past of presidents who have taken gifts and been seen as in violation of the Foreign Emoluments Clause—but not in recent times. This is an unprecedented situation in modern American history, where we have someone so flagrantly violating both of these clauses in the Constitution.
The reason is that for decades, before they took the oath of office, presidents have divested from their businesses and put those assets in a blind trust. Jimmy Carter famously sold his peanut farm. And this president has been warned repeatedly that he, in fact, needed to do that before he took the Oval Office, or he would be in violation of the Foreign Emoluments Clause on day one. And yet, he decided not to.
He’s come up with a so-called plan to address it, which involves his two sons running the company. But he still owns the company. So this has not been remedied in any way whatsoever. What is happening here is we have a president who is treating the office of the presidency like a profit-making enterprise. The president is a public servant, and Mr. Trump does not seem to understand that basic concept.
At this point, he can either resign the office of the presidency and resume his role as a businessman, or he can face impeachment. But his refusal to fully divest from his business means he’s on the road to an impeachment investigation.
Trimarco: When it comes to the campaign that your group, Free Speech for People, is doing together with RootsAction, what steps have you taken so far?
Bonifaz: We launched this campaign with RootsAction on the day Trump took office. We’re already past the 200,000 point in petition signatures. I expect those numbers to grow exponentially as people learn about this campaign and learn about these direct violations of the Constitution.
We anticipate that a member of Congress will step forward and have the courage to introduce our proposed resolution, which formally starts the impeachment process with the call for an impeachment investigation.
That resolution will have to be approved by members of Congress. And we recognize that there are Republicans who will need to come on board with this resolution. But as time goes forward, and more and more evidence comes forward as to the defiance that this president exhibits toward the Constitution, I think there will be Republicans who are willing to step forward.
Trimarco: I saw a story on Breitbart that claimed that there were connections between this campaign and George Soros’ Open Society Foundation. How do you respond to that criticism?
Bonifaz: There’s no connection whatsoever. It is a fiction. Free Speech for People has received a total of $25,000 from the Open Society Fund, which we received in 2015 to support a symposium we were doing on money in politics at Loyola Law School. Free Speech for People is not a major recipient of funding from the Open Society Foundation; that is the only grant we have received from them. I am not aware of RootsAction being a major recipient of Open Society funding. I’m not talking to staff at the Open Society Foundation. I have no idea whether they support this or not.
Trimarco: If there are readers who want to get involved in this, what are some of the steps you would suggest?
Bonifaz: We have on our “Take Action” page on the website a number of ways for people to get involved. The first way is to sign the petition. Then share it with friends and networks to spread the word about this campaign, to post it on Facebook and Twitter, to send it around to your friends and neighbors. We also are urging people to call their members of Congress and urge that they introduce this resolution or—once it’s already been introduced—to support the impeachment investigation.
We have on our website in that section a draft model resolution that we urge people to get passed in their local communities. Go before your city council, or county commission, or state government, and get your community on record calling for this impeachment investigation to begin in the House of Representatives. We need the support financially of people from around the country to help lift up this campaign, to do this organizing, legal, and communications work.
Trimarco: Do you feel this would be more likely to pass through the Judiciary Committee if the House were to flip to the Democrats in 2018? Is that part of your strategy?
Bonifaz: Right now our strategy is to get this moving right away. Waiting two years is not acceptable. This is a president who is flagrantly in violation of the Constitution from day one. He needs to face these impeachment charges now, not two years down the road.
I have to say that, with respect to the skeptics who say there’s no way this could get through the House of Representatives—there were plenty of people who thought there was no way Donald Trump would be the nominee for the Republican Party. There were plenty of people in this country who thought there was no way he could win the election. So we are living in unprecedented times. For people who care about our democracy and our Constitution and want to defend our republic, at this point that means moving forward with impeachment proceedings against President Donald Trump.
This post first appeared in YES! Magazine.