Quora: No Precedents for Dealing With Trump's Potential Conflicts of Interest

U.S. President Donald Trump hosts a strategy and policy forum with chief executives of major U.S. companies at the White House in Washington February 3. Kevin Lamarque/Reuters

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Answer from William Murphy, professor of American history:

Is it possible that Congress could simply pass a resolution allowing Trump to continue to own his businesses? Yes. It’s not clear, however, that Congress would want to go on record as giving him carte blanche to receive money from foreign governments through his businesses. I suspect they’d prefer just to make use of the legal gray area that is the emoluments clause, and do nothing.

Here’s the thing about the emoluments clause: it has never been litigated; the courts have never weighed in on it at all, so whether or not Trump’s foreign business dealings violate it is a matter of interpretation with no previous precedent to confirm it. There is also no enforcement mechanism at all. Congress could pass a law attempting to define violations of this clause and setting up penalties for violating it. They have not done so, as of yet (it’s only been 230 years since the thing was written… no rush) and so it’s basically a part of the Constitution that has been largely dormant or silent for most of this time.

It exists, but it was written at a time when the main fear was that U.S. ambassadors or other officials would take bribes from foreign governments to betray the interests of the United States. These bribes could be in the form of direct payments, or they could be in the form of gifts or grants of land or title in foreign countries. This was at a time when Europe was dominated by aristocratic leaders who had great sums of money and who regularly bought off the support of their opponents by granting land and title or other gifts. This was also at a time when the U.S. was a very, very new country and there was no sense of certainty that a firm loyalty to the United States, that a clear American identity and sense of purpose, would exist among those chosen to serve in positions of power.

So the emoluments clause was written, really, to prevent aristocratic meddling in the U.S. government. It is, at best, an imperfect fit in trying to deal with the tangled mess that is Trump’s business dealings. It has been interpreted to a very limited degree, by executive branch agencies like the Justice Department and the State Department, to provide guidelines in dealing with executive branch employees who might receive gifts from foreign governments. These guidelines, when they have existed, have interpreted the emoluments clause to ban any kind of payment at all from foreign citizens or governments. But it’s hard to find cases of this rule ever being applied, and it has never been challenged. It is, nevertheless, the closest thing we have to a modern legal understanding of the emoluments clause, which is why people have focused in on it in dealing with Trump.

There are no existing laws that really deal with the obvious conflicts that can come from Trump doing business with foreign governments—what if, for example, a development project that would make Trump’s company millions of dollars was held up by the government of a country the U.S. was negotiating a trade deal with, in the hopes of pressuring Trump to make certain key concessions?

So the emoluments clause, which has been understood by executive agencies to ban all payments (not just profits, all payments) of any kind from foreign governments or citizens, is the closest thing we have to a way to address this problem. But if it were litigated—as it seems it probably will be at some point in Trump’s presidency, as there are already lawsuits being filed—it remains to be seen how the Courts could interpret the clause.

The actual language of the clause itself does seem to suggest Congress can render an official exempt from its restrictions: 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.

But does this mean that, if someone were to receive an emolument (which literally means a payment, fee, profit or other financial benefit received as a result of holding an official position) or gift from a foreign government, would Congress have to approve each separate payment or fee, or could it grant blanket approval to all such dealings? Would Congress have to be given a detailed breakdown of all payments Trump receives and approve each of them, or can it just say, “Anything he does is fine”? Again, the established law here basically doesn’t exist, so we don’t really know.

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